SECOND DIVISION

[G.R. No. 77679. September 30, 1987.]

VICENTE VERGARA, Petitioner, v. THE COURT OF APPEALS and
AMADEO AZARCON,Respondents.
RESOLUTION
PADILLA, J.:
An action for damages based on quasi-delict (Art. 2176 of the Civil
Code) was filed by private respondent against petitioner. The action
arose from a vehicular accident that occurred on 5 August 1979 in
Gapan, Nueva Ecija, when Martin Belmonte, while driving a cargo
truck belonging to petitioner, rammed "head-on" the store-residence
of the private respondent, causing damages thereto which were
inventoried and assessed at P53,024.22.
In his answer to the complaint, the petitioner alleged principally: "that
his driver Martin Belmonte operated said cargo truck in a very
diligent (and) careful manner; that the steering wheel refused to
respond to his effort and as a result of a blown-out tire and despite
application of his brakes, the said cargo truck hit the storeresidence of plaintiff (private respondent) and that the said
accident was an act of God for which he cannot be held liable." 1
Petitioner also filed a third party complaint against Travellers Insurance and
Surety Corporation, alleging that said cargo truck involved in the vehicular
accident, belonging to the petitioner, was insured by the third party
defendant insurance company. Petitioner asked that the latter be ordered to
pay him whatever amount he may be ordered by the court to pay to the
private Respondent.chanrobles law library
The trial court rendered judgment in favor of private Respondent.
Upon appeal to the Court of Appeals, the latter court affirmed in
toto the decision of the trial court, which ordered petitioner to pay,
jointly and severally with Travellers Insurance and Surety Corporation, to the
private, respondent the following: (a) P53,024.22 as actual damages; (b)
P10,000.00 as moral damages; (c) P10,000.00 as exemplary
damages; and (d) the sum of P5,000.00 for attorneys fees and the
costs. On the third party complaint, the insurance company was sentenced
to pay to the petitioner the following: (a) P50,000.00 for third party liability

under its comprehensive accident insurance policy; and (b) P3,000.00 for
and as attorneys fees.chanrobles.com.ph : virtual law library
Hence, this petition for review on certiorari.
Petitioners contention that the respondent court erred in finding
him guilty of fault or negligence is not tenable. It was established by
competent evidence that the requisites of a quasi-delict are present
in the case at bar. These requisites are: (1) damages to the plaintiff;
(2) negligence, by act or omission, of which defendant, or some
person for whose-acts he must respond, was guilty; and (3) the
connection of cause and effect between such negligence and the
damages.chanrobles.com:cralaw:red
It is undisputed that private respondent suffered damages as a
result of an act or omission of petitioner. The issue of whether or not
this act or omission can be considered as a "negligent" act or omission was
passed upon by the trial court. The findings of said court, affirmed by the
respondent court, which we are not prepared to now disturb, show that the
fact of occurrence of the "vehicular accident" was sufficiently established by
the policy report and the testimony of Patrolman Masiclat. And the fact of
negligence may be deduced from the surrounding circumstances
thereof. According to the police report, "the cargo truck was travelling on
the right side of the road going to Manila and then it crossed to the center
line and went to the left side of the highway; it then bumped a tricycle; and
then another bicycle; and then said cargo truck rammed the storewarehouse
of the plaintiff." 2
According to the driver of the cargo truck, he applied the brakes but the
latter did not work due to mechanical defect. Contrary to the claim of
the petitioner, a mishap caused by defective brakes cannot be
considered as fortuitous in character. Certainly, the defects were
curable and the accident preventable.
Furthermore, the petitioner failed to adduce any evidence to
overcome the disputable presumption of negligence on his part in
the selection and supervision of his driver.
Based on the foregoing finding by the respondent Court that there was
negligence on the part of the petitioner, the petitioners contention that the
respondent court erred in awarding private respondent actual, moral and
exemplary damages as well as attorneys fees and costs, is untenable.
ACCORDINGLY, the petition is DENIED.
SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

FIRST DIVISION
[G.R. No. 118889. March 23, 1998]
FGU

INSURANCE
CORPORATION, petitioner,
vs.,
COURT OF APPEALS, FILCAR TRANSPORT, INC., and FORTUNE
INSURANCE CORPORATION,respondents.
DECISION

BELLOSILLO, J.:
For damages suffered by a third party, may an action based on quasidelict prosper against a rent-a-car company and, consequently, its insurer for
fault or negligence of the car lessee in driving the rented vehicle?
This was a two-car collision at dawn. At around 3 o'clock of 21 April
1987, two (2) vehicles, both Mitsubishi Colt Lancers, cruising
northward along Epifanio de los Santos Avenue, Mandaluyong City,
figured in a traffic accident. The car bearing Plate No. PDG 435 owned by
Lydia F. Soriano was being driven at the outer lane of the highway by
Benjamin Jacildone, while the other car, with Plate No. PCT 792, owned by
respondent FILCAR Transport, Inc. (FILCAR), and driven by Peter Dahl-Jensen
as lessee, was at the center lane, left of the other vehicle. Upon approaching
the corner of Pioneer Street, the car owned by FILCAR swerved to the right
hitting the left side of the car of Soriano. At that time Dahl-Jensen, a Danish
tourist, did not possess a Philippine driver's license.[1]
As a consequence, petitioner FGU Insurance Corporation, in view of its
insurance contract with Soriano, paid the latter P25,382.20. By way of
subrogation,[2] it sued Dahl-Jensen and respondent FILCAR as well as

respondent Fortune Insurance Corporation (FORTUNE) as insurer of FILCAR

for quasi-delict before the Regional Trial Court of Makati City.
Unfortunately, summons was not served on Dahl-Jensen since he was no
longer staying at his given address; in fact, upon motion of petitioner, he was
dropped from the complaint.
On 30 July 1991 the trial court dismissed the case for failure of petitioner
to substantiate its claim of subrogation.[3]
On 31 January 1995 respondent Court of Appeals affirmed the ruling of
the trial court although based on another ground, i.e., only the fault or
negligence of Dahl-Jensen was sufficiently proved but not that of respondent
FILCAR.[4] In other words, petitioner failed to establish its cause of action for
sum of money based on quasi-delict.
In this appeal, petitioner insists that respondents are liable on the
strength
of
the
ruling
in
MYC-Agro-Industrial
Corporation
v.
[5]
Vda. de Caldo that the registered owner of a vehicle is liable for damages
suffered by third persons although the vehicle is leased to another.
We find no reversible error committed by respondent court in upholding
the dismissal of petitioner's complaint. The pertinent provision is Art. 2176 of
the Civil Code which states:"Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict x x x x"
To sustain a claim based thereon, the following requisites must
concur: (a) damage suffered by the plaintiff; (b) fault or negligence of the
defendant; and, (c) connection of cause and effect between the fault or
negligence of the defendant and the damage incurred by the plaintiff.[6]
We agree with respondent court that petitioner failed to prove the
existence of the second requisite, i.e., fault or negligence of defendant
FILCAR, because only the fault or negligence of Dahl-Jensen was sufficiently
established, not that of FILCAR. It should be noted that the damage caused
on the vehicle of Soriano was brought about by the circumstance that DahlJensen swerved to the right while the vehicle that he was driving was at the
center lane. It is plain that the negligence was solely attributable to Dahl-

Jensen thus making the damage suffered by the other vehicle his personal
liability. Respondent FILCAR did not have any participation therein.
Article 2180
delict provides:

of

the

same

Code

which

deals

also

with quasi-

The obligation imposed by article 2176 is demandable not only for one's own
acts or omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their
company.
Guardians are liable for damages caused by the minors or incapacitated
persons who are under their authority and live in their company.
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
The State is responsible in like manner when it acts through a special agent;
but not when the damage has been caused by the official
to whom the task done properly pertains, in whichcase what is provided in
article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be liable
for damages caused by their pupils and students or apprentices, so long as
they remain in their custody.
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father
of a family to prevent damage.
The liability imposed by Art. 2180 arises by virtue of a presumption juris
tantum of
negligence
on
the
part
of
the
persons
made
responsible thereunder, derived from their failure to exercise due care and

vigilance over the acts of subordinates to prevent them from causing

damage.[7] Yet, as correctly observed by respondent court, Art. 2180 is hardly
applicable
because
none
of
the
circumstances mentioned therein obtains in the case under consideration. Re
spondent FILCAR being engaged in a rent-a-car business was only the owner
of the car leased to Dahl-Jensen. As such, there was no vinculum
juris between them as employer and employee. Respondent FILCAR cannot
in any way be responsible for the negligent act of Dahl-Jensen, the former
not being an employer of the latter.
We now correlate par. 5 of Art. 2180 with Art. 2184 of the same Code
which provides: "In motor vehicle mishap, the owner is solidarily liable with
his driver, if the former, who was in the vehicle, could have by the use of due
diligence, prevented the misfortune x x x x If the owner was not in the motor
vehicle, the provisions of article 2180 are applicable." Obviously, this
provision of Art. 2184 is neither applicable because of the absence of masterdriver relationship between respondent FILCAR and Dahl-Jensen. Clearly,
petitioner has no cause of action against respondent FILCAR on the basis
of quasi-delict; logically, its claim against respondent FORTUNE can neither
prosper.
Petitioner's insistence on MYC-Agro-Industrial Corporation is rooted in a
misapprehension of our ruling therein. In that case, the negligent and
reckless operation of the truck owned by petitioner corporation caused
injuries to several persons and damage to property. Intending to exculpate
itself from liability, the corporation raised the defense that at the time of the
collisionit had no more control over the vehicle as it was leased to another;
and, that the driver was not its employee but of the lessee. The trial court
was not persuaded as it found that the true nature of the alleged lease
contract was nothing more than a disguise effected by the corporation to
relieve itself of the burdens and responsibilities of an employer. We upheld
this finding and affirmed the declaration of joint and several liability of the
corporation with its driver.
WHEREFORE, the petition is DENIED. The decision of respondent Court
of Appeals dated 31 January 1995 sustaining the dismissal of petitioner's
complaint by the trial court is AFFIRMED. Costs against petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-24837

June 27, 1968

JULIAN C. SINGSON and RAMONA DEL CASTILLO, plaintiffs,

vs.
BANK OF THE PHILIPPINE ISLANDS and SANTIAGO FREIXAS, in his
capacity as President of the said Bank, defendants.
Gil B. Galang for plaintiffs.
Aviado and Aranda for defendants.
CONCEPCION, C.J.:
Appeal by plaintiffs, Julian Singson and his wife, Ramona del Castillo, from a
decision of the Court of First Instance of Manila dismissing their complaint
against defendants herein, the Bank of the Philippine Islands and Santiago
Freixas.
It appears that Singson, was one of the defendants in civil case No.
23906 of the Court of First Instance, Manila, in which judgment had been
rendered sentencing him and his co-defendants therein, namely,
Celso Lobregat and Villa-Abrille & Co., to pay the sum of P105,539.56 to
the plaintiff therein, Philippine Milling Co. Singson and Lobregat had
seasonably appealed from said judgment, but not Villa-Abrille & Co., as
against which said judgment, accordingly, became final and executory. In
due course, a writ of garnishment was subsequently served upon
the Bank of the Philippine Islands in which the Singsons had a
current account insofar as Villa-Abrille's credits against the Bank
were concerned. What happened thereafter is set forth in the decision
appealed from, from which we quote:
Upon receipt of the said Writ of Garnishment, a clerk of the bank in
charge of all matters of execution and garnishment, upon reading the

name of the plaintiff herein in the title of the Writ of Garnishment as a

party defendants, without further reading the body of the said
garnishment and informing himself that said garnishment was merely
intended for the deposits of defendant Villa-Abrille & Co., Valentin Teus,
Fernando F. de Villa-Abrille and Joaquin Bona, prepared a letter for the
signature of the President of the Bank informing the plaintiff Julian C.
Singson of the garnishment of his deposits by the plaintiff in that case.
Another letter was also prepared and signed by the said President of
the Bank for the Special Sheriff dated April 17, 1963.
Subsequently, two checks issued by the plaintiff Julian C. Singson, one
for the amount of P383 in favor of B. M. Glass Service dated April 16,
1963 and bearing No. C-424852, and check No. C-394996 for the
amount of P100 in favor of the Lega Corporation, and drawn against
the said Bank, were deposited by the said drawers with the said bank.
Believing that the plaintiff Singson, the drawer of the check, had no
more control over the balance of his deposits in the said bank, the
checks were dishonored and were refused payment by the said bank.
After the first check was returned by the bank to the B. M. Glass
Service, the latter wrote plaintiff Julian C. Singson a letter, dated April
19, 1963, advising him that his check for P383.00 bearing No. C424852 was not honored by the bank for the reason that his account
therein had already been garnished. The said B. M. Glass Service
further stated in the said letter that they were constrained to close his
credit account with them. In view thereof, plaintiff Julian C. Singson
wrote the defendant bank a letter on April 19, 1963, claiming that his
name was not included in the Writ of Execution and Notice of
Garnishment, which was served upon the bank. The defendant
President Santiago Freixas of the said bank took steps to verify this
information and after having confirmed the same, apologized to the
plaintiff Julian C. Singson and wrote him a letter dated April 22, 1963,
requesting him to disregard their letter of April 17, 1963, and that the
action of garnishment from his account had already been removed. A
similar letter was written by the said official of the bank on April 22,
1963 to the Special Sheriff informing him that his letter dated April 17,
1963 to the said Special Sheriff was considered cancelled and that they
had already removed the Notice of Garnishment from plaintiff
Singson's account. Thus, the defendants lost no time to rectify the
mistake that had been inadvertently committed, resulting in the

temporary freezing of the account of the plaintiff with the said bank for
a short time.
xxx

xxx

xxx

On May 8, 1963, the Singsong commenced the present action against the
Bank and its president, Santiago Freixas, for damages1 in consequence of
said illegal freezing of plaintiffs' account.1wph1.t
After appropriate proceedings, the Court of First Instance of Manila rendered
judgment dismissing the complaint upon the ground that plaintiffs cannot
recover from the defendants upon the basis of a quasi-delict, because the
relation between the parties is contractual in nature; because this case does
not fall under Article 2219 of our Civil Code, upon which plaintiffs rely; and
because plaintiffs have not established the amount of damages allegedly
sustained by them.
The lower court held that plaintiffs' claim for damages cannot be based upon
a tort or quasi-delict, their relation with the defendants being contractual in
nature. We have repeatedly held, however, that the existence of a contract
between the parties does not bar the commission of a tort by the one against
the order and the consequent recovery of damages therefor.2 Indeed, this
view has been, in effect, reiterated in a comparatively recent case. Thus,
in Air France vs. Carrascoso,3 involving an airplane passenger who, despite
his first-class ticket, had been illegally ousted from his first-class
accommodation and compelled to take a seat in the tourist compartment,
was held entitled to recover damages from the air-carrier, upon the ground of
tort on the latter's part, for, although the relation between a passenger and a
carrier is "contractual both in origin and nature ... the act that breaks the
contract may also be a tort".
In view, however, of the facts obtaining in the case at bar, and considering,
particularly, the circumstance, that the wrong done to the plaintiff was
remedied as soon as the President of the bank realized the mistake he and
his subordinate employee had committed, the Court finds that an award of
nominal damages the amount of which need not be proven4 in the sum
of P1,000, in addition to attorney's fees in the sum of P500, would suffice to
vindicate plaintiff's rights.5
WHEREFORE, the judgment appealed from is hereby reversed, and another
one shall be entered sentencing the defendant Bank of the Philippine Islands

to pay to the plaintiffs said sums of P1,000, as nominal damages, and P500,
as attorney's fees, apart from the costs. It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Angeles, JJ.,
concur.
Fernando, J., took no part.

EN BANC
G.R. No. L-29356

December 29, 1928

THE CITY OF MANILA, Plaintiff-Appellee, vs. THE MANILA ELECTRIC

COMPANY,Defendant-Appellant.
Ross, Lawrence and Selph and Antonio T. Carrascoso, Jr., for appellant.
City Fiscal Guevara and Assistant City Fiscal Paredes for appellee.
MALCOLM, J.:
The Manila Electric Company appeals from a judgment of the Court of First
Instance of Manila which condemns it to pay to the City of Manila the sum of
P1,788.27, with legal interest from September 10, 1927, and with costs.
While the case in its fundamentals the cause suggested important questions
which possibly the parties have not entirely grasped. By way of preliminary
statement, it also remains to be said that the numerous deliberations of the
court on the case have disclosed conflicting views which it is difficult to
reconcile. The present decision, therefore, will aim to present as best it may,
the principles for which a majority of the court stand, leaving it to the
individual member to dissent or other wise explain his vote as to him seems
fit and proper.chanroblesvirtualawlibrary chanrobles virtual law library
On June 8, 1925, in the City of Manila, there occurred a collision between a
street car of the Manila Electric Company, of which Sixto Eustaquio was the
motorman, and a truck belonging to the City of Manila. As a result of the
collision, the truck was damaged in the sum of P1,788.27. Sixto Eustaquio
was prosecuted for the crime of damage to property and slight injuries
through reckless imprudence. He was convicted by final judgment and was
sentenced to pay a fine P900, to indemnify the offended party, the City of

Manila, in the sum of P1,788.27, with subsidary imprisonment in case of

insolvency, and to pay the costs. Not being able to collect the indemnity
from the accused, the City of Manila began an action to obtained payment
from the Manila Electric Company. An allegation of the complaint was "That
the defendant Manila Electric Company as master of the said agent and
servant, Sixto Eustaquio, by virtue of its relation with the latter and by
express provisions of law, is subsidiarily liable to the herein plaintiff for the
sum of P1,788.27, representing the damages caused by its agent and
servant, the said Sixto Eustaquio, in the discharge of his duties as motorman
of the defendant's electric car." The principal special defense set up in the
answer to the complaint was that the defendant had used all the diligence of
a good father of a family to prevent the damage suffered by plaintiff. At the
trial, the parties agreed on certain stipulations and admissions. The Assistant
City Fiscal also offered to present two witnesses, but the trial judge thought
this unnecessary and so took judicial cognizance of the decision and the
record in the criminal case which convicted the motorman, all against the
protest of counsel for the Manila Electric Company who noted his exceptions.
The adverse judgment is now contested on the ground that the trial court
committed two errors, the first in admitting in evidence the documents
marked Exhibits A, B, C, D, E and F, constituting the record in the case of the
People of the Philippine Islands vs. Sixto Eustaquio; and the second in not
absolving the appellant from the
complaint.chanroblesvirtualawlibrary chanrobles virtual law library
I. The first error plainly has merit. As a general rule, a record in a criminal
action cannot be admitted in evidence in a civil action except by way of
inducement or to show a collateral fact. The very obvious reason is that the
parties and the issues in a criminal action and a civil action are not the same.
It is rudimentary that due process must be followed in the trial of all causes.
No man or entity may be condemmed without a day in court. (Almeida
Chantangco and Lete vs. Abaroa [1910], 218 U. s., 476; 40 Phil., 1056; Ed. A.
Keller & Co. vs. Ellerman & Bucknall Steamship Co. [1918], 38 Phil.,
514.) chanrobles virtual law library
It needs to be repeated that the Manila Electric Company was not a party at
the trial of the criminal case. There is extant in the record no indication that
the Manila Electric Company had any control over the proceedings in the
criminal case. All that the record in the criminal case showed was that the
"abogado defensor" (Attorney for the defense) was Antonio Carrascoso. All
that the record in the civil case showed was "Comparecieron: . . . Por la

entidad demandada The Manila Electric Co., los abogados senores Antonio T.
Carrascoso, Jr., y Guillermo Cabrera" (Appearances: . . . For the defendant
Manila Electric Company attorneys Antonio T. Carrascoso, Jr., and Guillermo
Cabrera). By a coincidence, Attorney Carrascoso was both counsel for the
defendant in the civil action. But there is lacking any proof showing that the
Manila Electric Company supplied the lawyer for the accused in the criminal
action and so is concluded by the judgment there rendered. (By way of
parenthesis, it may be said further that the statements just made are offered
to meet the argument advanced during our discussion to the effect that the
court should treat the interests of the Manila Electric Company as involved in
both litigations and should thus consider the company as a real party without
right now to protest against the judgment.) chanrobles virtual law library
It is our ruling that prejudicial error was committed in the admission by the
trial court of Exhibits A to F, but that since the plaintiff made the proper offer
to present its witnesses, the case should be remanded for a new
trial.chanroblesvirtualawlibrary chanrobles virtual law library
II. It has been suggested that having passed on the first error that would be
sufficient. Theoretically, that is true. Practically, it is a fallacious argument. A
new trial left unguided would immediately raise questions which would need
to be passed upon eventually by this court. Also if the customary defense in
civil actions for damages is to be held sufficient, the new trial would be
fruitless and the appeal might just as well be dismissed now as later, in view
of the stipulations appearing in the
record.chanroblesvirtualawlibrary chanrobles virtual law library
We desire to pay our respect to the second error assigned and to the point of
whether or not a case of this character should be governed by the
provisions of the Penal Code or by the provisions of the Civil
Code.chanroblesvirtualawlibrary chanrobles virtual law library
The Penal Code authorizes the imposition of subsidiary liability in default of
the persons criminally liable. Article 20 of the Penal Code provides that this
subsidiary liability shall "apply to masters, teachers, persons, and
corporations engaged in any kind of industry for felonies and misdemeanors
committed by their servants, pupils, workmen, apprentices, or employees in
the discharge of their duties." It is under this provision that the City of Manila
is attempting to collect damages from the Manila Electric Company. If the
Philippines still lay beneath the dominion of Spain, the pronouncement of

primary and subsidiary liability would be takenn much as a matter of course.

(See decisions of the Supreme Court of Spain of October 10, 1884, January 3,
1887, June 15, 1989, March 6, 1897, December 14, 1894, February 19, 1902;
2 Viada Codigo Penal Comentado, 5th ed., pp. 487-497; 1 Hidalgo Codigo
Penal, pp. 331-334; 1 Groizard Codigo Penal, pp. 736-738; Opinion of the
Fiscal of the Supreme Court of Justice of Spain of January 17, 1865,
22Revista de Legislacion y Jurisprudencia, p.412; Codigo Penal of Spain of
1928, art. 78.) The Penal Code then takes cognizance of the Civil Code when
in article 133 it is provided: "Civil liability arising from felonies or
misdemeanors shall be extiguished in the same manner as other obligations,
in accordance with the rules of civil law." chanrobles virtual law library
In connection with the Penal Code, there must be taken into view certain
provisions of the Civil Code. Book IV, Title XVI, Chapter II, of the Civil Code
concerns obligations which arise from fault or negligence. It is provided in
article 1903 that the obligation imposed for the damage to another caused
by fault or negligence is enforcible against those persons for whom another
is responsible. But it is added that "The liability imposed by this article shall
cease in case the persons subject thereto prove that they exercised all the
diligence of a good father of a family to prevent the damage." Found prior to
these articles of the Civil Code in the Chapter of Title I, Book IV, pertaining to
general provisions of obligations, are articles 1092 and 1093. The first
provides: "Civil obligations arising from crimes or misdemeanors shall be
governed by the provisions of the Penal Code." The last mentioned provides:
"Those arising from wrongful or negligent acts or ommissions not punishable
by law shall be subject to the provisions of Chapter second of Title sixteen of
this book." - that is among others to the provisions of article 1903 abovementioned.chanroblesvirtualawlibrary chanrobles virtual law library
Manresa, speaking of article 1092 of the Civil Code, offers the following
comment:
The Penal Code treats of this matter, first, in Chapter II, Title 2, of Book I,
determining therein who are civilly liable for crimes or misdemeanors and in
what manner, and stating in Title 4 of the same Book the extent and
purposes of said obligations. Said Book I ends with article 135, which makes
express references to the civil legislation, which reference, as may be seen,
is also made in other provisions.chanroblesvirtualawlibrary chanrobles virtual
law library

In those mutual references of one legislation to another, there is no doubt as

to the application of one or the other, nor can they be criticized, since they
are well grounded.chanroblesvirtualawlibrary chanrobles virtual law library
The Civil Code refers to the Penal Code as the rule applicable in the first
place, since the latter determines and punishes the acts giving rise to said
obligations, or creates said obligations, thereby determining their existence
and is, therefore, for that reason of preferential application. But, then, as the
Penal Code is concerned with, and is interested only in determining how the
civil obligation it creates comes into existence and develops under the
influence of the illicit character, it lays down only those rules inspired by
those motives; and once the connection of that obligation with the criminal
liability is established in its provisions, with the consequences that may be
inferred from the fact that the former is based on the latter; and after an
effort has been made, within the sphere of that civil responsibility, toward
making the indemnification coextensive with the effects of the crime, and a
special necessity, which is characteristic of punishment and is the subject
matter of the Penal Code, has been shown in the provisions regulating said
liability, the Penal Code, could not, without going beyond its one sphere, give
all the rules relative to said obligations, nor did it have any necessity for
doing so, because once the peculiar nature of said obligations is saved by its
provisions, the essence thereof common to the other obligations must, as in
the latter, be defined by the civil law, which will thus become an important
source, although suppletory, of those derived from
crime.chanroblesvirtualawlibrary chanrobles virtual law library
The peculiar rules of the Penal Code, as may be seen, are inspired by those
motives which, as we have stated, might make them necessary for said Code
to establish, as distinguished from the criterion of the civil law with regard to
obligations in general. Thus, the fundamental declaration of article 18 gives
the connection of civil obligation with criminal liability and explains the origin
of the former: article 19 solves the doubt which that connection, among
certain liabilities, may create, and determining its limits in the nature and
consequences of the act, it mentions those which are of a civil nature, basing
the civil liability upon principle of justice, and rather upon casualty than upon
liability of a criminal character. The intention to make indemnification
proportionate to the nature and effects of the act, from which the obligation
arises, inspires the provisions contained in articles 121 to 124, both
inclusive; the necessity to distiguish, in order to give the consequences
which the crime may produce within the sphere of civil law, whether or not

the persons thereby bound are guilty, prevails in article 128 and partly in
article 122; article 125 gives the essential difference between the civil
obligation and the personal criminal liability, and dissipates a doubt which,
due to the latter's instranmissibility, might arise as to the former by reason
of its accessory character in connection with the other, and by the intimate
connection between both which the crime or misdemeanor creates and the
criminal law declares; the influence of the severity on the punishment is
noted in articles 20 and 21, even though the latter coincide with the criterion
followed in analogous cases by the Civil Code, and already deviating from
the latter's criterion by reason of that severity founded on the illicit origin of
the obligations which it declares, it provides for the latter a necessary
solidarity in article 127; and abandoning also the criterion of the civil law in
article 126, it establishes within that solidarity, not the presumption of equal
division which the latter provides in such a case, but a prudent division which
may, and generally must be, unequal, in order that the influence of the
different participation in the crime or misdemeanor which is the origin of the
former may also reach the Civil
obligation.chanroblesvirtualawlibrary chanrobles virtual law library
In all other respects, and even in some of those same features, either by the
express reference of the articles which provide for them, or by the latter's
influence, the civil obligation shall be subject to the Civil Code, which even in
some of those peculiar rules has supposed a modification in so far as it does
not establish the benefit of exemption to the extent needed for support, as
provided for in the Penal Code.chanroblesvirtualawlibrary chanrobles virtual
law library
While the Civil Code, in its article 1092, simply makes reference to the Penal
Code, yet, it is beyond doubt that by this reference it means those rules of a
general nature which regulate the civil liability arising from the particular
crimes or misdemeanors therein mentioned, and that, in connection
therewith, they shall have the preferential application which this article
recognizes in favor of the Penal Code. (8 Manresa Codigo Civil Espanol, 3d
ed., pp. 28-32.)
The case of Rakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), is
one of the widest known authorities on the subject of damages. But that was
strickly a civil action not predicated on or related to a criminal action. It was
said: "Inasmuch as no criminal proceeding had been instituted, growing out
of the accident in question, the provisions of the Penal Code cannot affect

this action. This construction renders it necessary to finally determine here

whether this subsidary civil liability in penal actions has survived the laws
that fully regulated it or has been abrogated by the American civil and
criminal procedure now in force in the Philippines." That such subsidiary civil
liability in penal actions has not been abrogated by later laws, seems fairly
well established. Section 107 of the Code of Criminal Procedure recognizes
the rights of persons injured by the offense to take part in the prosecution of
the offense and to recover damages. It is there provided that "the court upon
conviction of the accused may enter judgment against him for the damages
occasioned by his wrongful act." Authoritative decisions have also leaned in
the direction of taking it for granted that civil liability could be fixed in the
criminal action. While the law of criminal procedure is silent on the subject of
subsidiary liability, so far as we can see, there could exist no good reason for
not permitting the action to eb carried forward to the second stage and there
to fix subsidiary liability.chanroblesvirtualawlibrary chanrobles virtual law
library
With this preliminary point out of the way, there is no escaping the
conclusion that the provisions of the Penal Code govern. The Penal Code in
easily understandable language authorizes the determination of subsidiary
liability. The Civil Code negatives its application by providing that civil
obligations arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of the motorman was a
misdemeanor falling under article 604 of the Penal Code. The act of the
motorman was not a wrongful or negligent act or ommision not punishable
by law. Accordingly, the civil obligation connected up with Penal Code and
not with article 1903 of the Civil Code. In other words, the Penal Code affirms
its jurisdiction while the Civil Code negatives its jurisdiction. This is a case of
criminal negligence out of which civil liability arises and not a case of civil
negligence.chanroblesvirtualawlibrary chanrobles virtual law library
The decision of the United States Supreme Court in the case of Almeida
Chantangco and Lete vs. Abaroa, supra, should be read in connection both
with the discussion of the first assignment of error and the question now
before us. In that decision, Mr. Justice Lurton, delivering the opinion of the
court, said:
The case is, however, one which we conceive must be governed by the local
law of the Philippine Islands, and the single question to which we need

address ourselves is as to whether that law was right applied by the local
tribunals.chanroblesvirtualawlibrary chanrobles virtual law library
Article 1902 of the Civil Code in force in the Philippine Islands reads thus: "A
person who, by an act or omission, causes damage to another when there is
fault or negligence, shall be obliged to repair the damage so done." By
articles 1092 and 1093 of the same Code provision is made for the
enforcement of civil liability, varying in character according to the origin of
the liability. Thus, article 1092 provides that civil obligations arising from
crimes and misdemeanors shall be governed by the provisions of the Penal
Code. On the other hand, article 1093 provides that "those arising from acts
or omissions, in which fault or negligence, not punished by law, occurs, shall
be subject to the provisions of chapter second of title sixteen of this book."
The action here involved comes directly under article 1092, above set out,
and is not an action arising from "fault or negligence, not punished by law."
The complaint alleges that the act of burning was "malicious and unlawful,"
and not that it was the result of any "fault or negligence." This was the
construction placed upon the complaint by both the courts below, and is a
construction not challenged here. It follows that he must turn to the Penal
Code to discover when a civil action arises out of a crime or misdemeanor,
and the procedure of the enforcement of such civil liability. Article 17 of the
Penal Code reads as follows: "Every person criminally liable for a crime or
misdemeanor is also civilly liable." May this civil liability be enforced without
a prior legal determination of the fact of the defendant's guilt of crime? Does
civil liability exist at all if the defendant has been found not guilty of the acts
out of which the civil liability arises? The opinion of the Court below was that
a judgment of conviction was essential to an action for indemnification under
the applicable local law. To this conclusion we assent, upon the following
considerations: chanrobles virtual law library
First, by the positive legislation of the Philippine Codes, civil and criminal, a
distinction is drawn between a civil liability which results from the mere
negligence of the defendant and a liability for the civil consequences of a
crime by which another has sustained loss or
injury.chanroblesvirtualawlibrary chanrobles virtual law library
Second, the plain inference from article 17, above set out, is that civil liability
springs out of and is dependent upon facts which, if true, would constitute a
crime or misdemeanor.chanroblesvirtualawlibrary chanrobles virtual law
library

Third, the Philippine Code of Procedure plainly contemplates that the civil
liability of the defendant shall be ascertained and declared in the criminal
proceedings.chanroblesvirtualawlibrary chanrobles virtual law library
Thus, section 742 of the Code of Criminal Procedure, after requiring that, in
the criminal proceeding, all of the minor or incidental offenses included in
the principal crime shall be decided, adds: "All questions relating to the civil
liability which may have been the subject-matter of the charge shall be
decided in the sentence.
chanrobles virtual law library

The foregoing considerations eliminate any question of the effect of such a

judgment of acquittal undere the principles of the common law and require
an affirmance of the judgment of the court below as properly based upon the
applicable substantive law of the Philippine Islands, which has not been
superseded by legislation since the establishment of the present Philippine
Government.
The facts here are distinguishable from those in Chaves and Garcia vs.
Manila Electric Railroad and Light Company ([1915], 31 Phil., 47). In the cited
case, while the motorman was prosecuted and convicted, his sentence
included no imposition of civil liability. So the court correctly held, although
without discussion, that the employer was not liable in damages resulting
from the criminal negligence of his employee, when he has exercised the
care of a good father of a family in selecting said
employee.chanroblesvirtualawlibrary chanrobles virtual law library
In the later decision of this court in Francisco vs. Onrubia ([1924], 46 Phil.,
327), the court gave attention to a similar question. Speaking through Mr.
Justice Villamor, the court reached the following conclusions:
Article 1902 of the Civil Code has no application in the instant case, first,
because said article presupposes the existence of fault or negligence upon
which the action is based, and second, it refers to a fault or negligence not
punishable by law, because if the fault or negligence is punished by law, it
ceases to be thequasi crime of negligence having purely civil effects, and
becomes a crime or misdemeanor, according to the gravity of the penalty
imposed by the law, and in that case it comes within the purview of article

1092 of the Civil Code. Under the facts set forth in the complaint, if there
was any fault or negligence on the part of the defendant, it must necessarily
be a fault punishable by law (arts. 586, 590, and 604 of the Penal Code), for
through said fault he caused the death of the plaintiff's son. Homicide
through reckless imprudence is punished as a crime, and therefore the
provisions applicable would be those of the Penal Code and the Law of
Criminal Procedure above cited.
Our deduction, therefore, is that the case relates to the Penal Code and not
to the Civil Code. Indeed, as pointed out by the trial judge, any different
ruling would premit the master to escape scot-free by allging and proving
that the master had exercised all diligence in the selection and training of its
servants to prevent the damage. That would be good defense to a strictly
civil action, but might or might not be to a civil action or misdemeanor. (By
way of parenthesis, it may be said further that the statements here made are
offered to meet the argument advanced during our deliberations to the effect
that article 1092 of the Civil Code should be disregarded and codal articles
1093 and 1903 applied.) chanrobles virtual law library
In accordance with the foregoing, the judgment appealed from will be set
aside, and the record remanded to the lower court for a new trial. Without
special finding as to costs in this instance, it will be so
ordered.chanroblesvirtualawlibrary chanrobles virtual law library
Avancea, C. J., Street, Villamor, Romualdez and Villa-Real, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. Nos. 103442-45 May 21, 1993

NATIONAL POWER CORPORATION, ET AL., petitioners,

vs.
THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL., respondents.
The Solicitor General for plaintiff-appellee.
Ponciano G. Hernandez for private respondents.

DAVIDE, JR., J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules
of Court urging this Court to set aside the 19 August 1991 consolidated
Decision of the Court of Appeals in CA.-G.R. CV Nos. 27290-93 1 which
reversed the Decision of Branch 5 of the then Court of First Instance (now
Regional Trial Court) of Bulacan, and held petitioners National Power
Corporation (NPC) and Benjamin Chavez jointly and severally liable to the
private respondents for actual and moral damages, litigation expenses and
attorney's fees.
This present controversy traces its beginnings to four (4) separate
complaints 2 for damages filed against the NPC and Benjamin Chavez before
the trial court. The plaintiffs therein, now private respondents, sought to
recover actual and other damages for the loss of lives and the destruction to
property caused by the inundation of the town of Norzagaray, Bulacan on 2627 October 1978. The flooding was purportedly caused by the negligent
release by the defendants of water through the spillways of the Angat Dam
(Hydroelectric Plant). In said complaints, the plaintiffs alleged, inter alia, that:
1) defendant NPC operated and maintained a multi-purpose
hydroelectric plant in the Angat River at Hilltop, Norzagaray,
Bulacan; 2) defendant Benjamin Chavez was the plant supervisor at
the time of the incident in question; 3) despite the defendants'
knowledge, as early as 24 October 1978, of the impending entry of
typhoon "Kading," they failed to exercise due diligence in
monitoring the water level at the dam; 4) when the said water level
went beyond the maximum allowable limit at the height of the
typhoon, the defendants suddenly, negligently and recklessly
opened three (3) of the dam's spillways, thereby releasing a large
amount of water which inundated the banks of the Angat River; and
5) as a consequence, members of the household of the plaintiffs,

together with their animals, drowned, and their properties were

washed away in the evening of 26 October and the early hours of 27
October 1978. 3
In their Answers, the defendants, now petitioners, alleged that: 1) the NPC
exercised due care, diligence and prudence in the operation and
maintenance of the hydroelectric plant; 2) the NPC exercised the
diligence of a good father in the selection of its employees; 3)
written notices were sent to the different municipalities of Bulacan
warning the residents therein about the impending release of a
large volume of water with the onset of typhoon "Kading" and
advise them to take the necessary precautions; 4) the water
released during the typhoon was needed to prevent the collapse of
the dam and avoid greater damage to people and property; 5) in
spite of the precautions undertaken and the diligence exercised,
they could still not contain or control the flood that resulted and; 6)
the damages incurred by the private respondents were caused by a
fortuitous event or force majeure and are in the nature and
character of damnum absque injuria. By way of special affirmative
defense, the defendants averred that the NPC cannot be sued because it
performs a purely governmental function. 4
Upon motion of the defendants, a preliminary hearing on the special defense
was conducted. As a result thereof, the trial court dismissed the complaints
as against the NPC on the ground that the provision of its charter allowing it
to sue and be sued does not contemplate actions based on tort. The parties
do not, however, dispute the fact that this Court overruled the trial court and
ordered the reinstatement of the complaints as against the NPC. 5
Being closely interrelated, the cases were consolidated and trial thereafter
ensued.
The lower court rendered its decision on 30 April 1990 dismissing the
complaints "for lack of sufficient and credible
evidence." 6 Consequently, the private respondents seasonably appealed
therefrom to the respondent Court which then docketed the cases as CA-G.R.
CV Nos. 27290-93.
In its joint decision promulgated on 19 August 1991, the Court of Appeals
reversed the appealed decision and awarded damages in favor of the private
respondents. The dispositive portion of the decision reads:

CONFORMABLY TO THE FOREGOING, the joint decision appealed

from is hereby REVERSED and SET ASIDE, and a new one is
hereby rendered:
1. In Civil Case No. SM-950, ordering defendants-appellees to
pay, jointly and severally, plaintiffs-appellants, with legal interest
from the date when this decision shall become final and
executory, the following:
A. Actual damages, to wit:
1) Gaudencio C. Rayo, Two Hundred Thirty One
Thousand Two Hundred Sixty Pesos (P231,260.00);
2) Bienvenido P. Pascual, Two Hundred Four Thousand
Five Hundred Pesos (P204.500.00);
3) Tomas Manuel, One Hundred Fifty Five Thousand
Pesos (P155,000.00);
4) Pedro C. Bartolome, One Hundred Forty Seven
Thousand Pesos (P147,000.00);.
5) Bernardino Cruz, One Hundred Forty Three
Thousand Five Hundred Fifty Two Pesos and Fifty
Centavos (P143,552.50);
6) Jose Palad, Fifty Seven Thousand Five Hundred
Pesos (P57,500.00);
7) Mariano S. Cruz, Forty Thousand Pesos
(P40,000.00);
8) Lucio Fajardo, Twenty nine Thousand Eighty Pesos
(P29,080.00); and
B. Litigation expenses of Ten Thousand Pesos (P10,000.00);
2. In Civil case No. SM-951, ordering defendants-appellees to pay
jointly and severally, plaintiff-appellant, with legal interest from

the date when this decision shall have become final and
executory, the following :
A. Actual damages of Five Hundred Twenty Thousand
Pesos (P520,000.00);.
B. Moral damages of five hundred Thousand Pesos
(P500,000.00); and.
C. Litigation expenses of Ten Thousand Pesos
(P10,000.00);.
3. In Civil Case No. SM-953, ordering defendants-appellees to
pay, jointly and severally, with legal interest from the date when
this decision shall have become final and executory;
A. Plaintiff-appellant Angel C. Torres:
1) Actual damages of One Hundred Ninety Nine Thousand One
Hundred Twenty Pesos (P199,120.00);
2) Moral Damages of One Hundred Fifty Thousand Pesos
(P150,000.00);
B. Plaintiff-appellant Norberto Torres:
1) Actual damages of Fifty Thousand Pesos (P50,000.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
C. Plaintiff-appellant Rodelio Joaquin:
1) Actual damages of One Hundred Thousand Pesos
(P100,000.00);
2) Moral damages of One Hundred Thousand Pesos
(P100,000.00); and
D. Plaintifsf-appellants litigation expenses of Ten Thousand Pesos
(P10,000.00);

4. In Civil case No. SM-1247, ordering defendants-appellees to

pay, jointly and severally, with legal interest from the date when
this decision shall have become final and executory :
A. Plaintiffs-appellants Presentacion Lorenzo and Clodualdo
Lorenzo:
1) Actual damages of Two Hundred Fifty Six Thousand
Six Hundred Pesos (P256,600.00);
2) Moral damages of Fifty Thousand Pesos
(P50,000.00);
B. Plaintiff-appellant Consolacion Guzman :
1) Actual damages of One Hundred forty Thousand
Pesos (P140,000.00);
2) Moral damages of Fifty Thousand Pesos
(P50,000.00);
C. Plaintiff-appellant Virginia Guzman :
1) Actual damages of Two Hundred Five Hundred
Twenty Pesos (205,520.00); and
D. Plaintiffs-appellants litigation expenses of Ten Thousand Pesos
(10,000.00).
In addition, in all the four (4) instant cases, ordering defendantsappellees to pay, jointly and severally, plaintiffs-appellants
attorney fees in an amount equivalent to 15% of the total
amount awarded.
No pronouncement as to costs. 7
The foregoing judgment is based on the public respondent's conclusion that
the petitioners were guilty of:
. . . a patent gross and evident lack of foresight, imprudence and
negligence . . . in the management and operation of Angat Dam.
The unholiness of the hour, the extent of the opening of the

spillways, And the magnitude of the water released, are all but
products of defendants-appellees' headlessness, slovenliness,
and carelessness. The resulting flash flood and inundation of
even areas (sic) one (1) kilometer away from the Angat River
bank would have been avoided had defendants-appellees
prepared the Angat Dam by maintaining in the first place, a
water elevation which would allow room for the expected
torrential rains. 8
This conclusion, in turn, is anchored on its findings of fact, to wit:
As early as October 21, 1978, defendants-appellees knew of the
impending onslaught of and imminent danger posed by typhoon
"Kading". For as alleged by defendants-appellees themselves,
the coming of said super typhoon was bannered by Bulletin
Today, a newspaper of national circulation, on October 25, 1978,
as "Super Howler to hit R.P." The next day, October 26, 1978,
said typhoon once again merited a headline in said newspaper as
"Kading's Big Blow expected this afternoon" (Appellee's Brief, p.
6). Apart from the newspapers, defendants-appellees learned of
typhoon "Kading' through radio announcements (Civil Case No.
SM-950, TSN, Benjamin Chavez, December 4, 1984, pp. 7-9).
Defendants-appellees doubly knew that the Angat Dam
can safely hold a normal maximum headwater elevation of 217
meters (Appellee's brief, p. 12; Civil Case No. SM-951, Exhibit "I6"; Civil Case No. SM-953, Exhibit "J-6"; Civil Case No. SM-1247,
Exhibit "G-6").
Yet, despite such knowledge, defendants-appellees maintained a
reservoir water elevation even beyond its maximum and safe
level, thereby giving no sufficient allowance for the reservoir to
contain the rain water that will inevitably be brought by the
coming typhoon.
On October 24, 1978, before typhoon "Kading" entered the
Philippine area of responsibility, water elevation ranged from
217.61 to 217.53, with very little opening of the spillways,
ranging from 1/2 to 1 meter. On October 25, 1978, when typhoon
"Kading" entered the Philippine area of responsibility, and public
storm signal number one was hoisted over Bulacan at 10:45

a.m., later raised to number two at 4:45 p.m., and then to

number three at 10:45 p.m., water elevation ranged from 217.47
to 217.57, with very little opening of the spillways, ranging from
1/2 to 1 meter. On October 26, 1978, when public storm signal
number three remained hoisted over Bulacan, the water
elevation still remained at its maximum level of 217.00 to 218.00
with very little opening of the spillways ranging from 1/2 to 2
meters, until at or about midnight, the spillways were suddenly
opened at 5 meters, then increasing swiftly to 8, 10, 12, 12.5, 13,
13.5, 14, 14.5 in the early morning hours of October 27, 1978,
releasing water at the rate of 4,500 cubic meters per second,
more or less. On October 27, 1978, water elevation remained at
a range of 218.30 to 217.05 (Civil Case No. SM-950, Exhibits "D"
and series, "L", "M", "N", and "O" and Exhibits "3" and "4"; Civil
Case No. SM-951, Exhibits "H" and "H-1"; Civil Case No. SM-953,
Exhibits "I" and "I-1"; Civil Case No. SM 1247, Exhibits "F" and "F1").
xxx xxx xxx
From the mass of evidence extant in the record, We are
convinced, and so hold that the flash flood on October 27, 1978,
was caused not by rain waters (sic), but by stored waters (sic)
suddenly and simultaneously released from the Angat Dam by
defendants-appellees, particularly from midnight of October 26,
1978 up to the morning hours of October 27,
1978. 9
The appellate court rejected the petitioners' defense that they had sent
"early warning written notices" to the towns of Norzagaray, Angat, Bustos,
Plaridel, Baliwag and Calumpit dated 24 October 1978 which read:
TO ALL CONCERN (sic):
Please be informed that at present our reservoir (dam) is full and
that we have been releasing water intermittently for the past
several days.
With the coming of typhoon "Rita" (Kading) we expect to release
greater (sic) volume of water, if it pass (sic) over our place.

In view of this kindly advise people residing along Angat River to

keep alert and stay in safe places.
BENJA
MIN L.
CHAV
EZ
Power
Plant
Super
intend
ent 10
because:
Said notice was delivered to the "towns of Bulacan" on October
26, 1978 by defendants-appellees driver, Leonardo Nepomuceno
(Civil Case No. SM-950, TSN, Benjamin Chavez, December 4,
1984, pp. 7-11 and TSN, Leonardo Nepomuceno, March 7, 1985,
pp. 10-12).
Said notice is ineffectual, insufficient and inadequate for
purposes of the opening of the spillway gates at midnight of
October 26, 1978 and on October 27, 1978. It did not prepare or
warn the persons so served, for the volume of water to be
released, which turned out to be of such magnitude, that
residents near or along the Angat River, even those one (1)
kilometer away, should have been advised to evacuate. Said
notice, addressed "TO ALL CONCERN (sic)," was delivered to a
policeman (Civil Case No. SM-950, pp. 10-12 and Exhibit "2-A")
for the municipality of Norzagaray. Said notice was not thus
addressed and delivered to the proper and responsible officials
who could have disseminated the warning to the residents
directly affected. As for the municipality of Sta. Maria, where
plaintiffs-appellants in Civil Case No. SM-1246 reside, said notice
does not appear to have been served. 11
Relying on Juan F. Nakpil & Sons vs. Court of Appeals, 12 public respondent
rejected the petitioners' plea that the incident in question was caused
by force majeure and that they are, therefore, not liable to the private

respondents for any kind of damage such damage being in the nature
of damnum absque injuria.
The motion for reconsideration filed by the petitioners, as well as the motion
to modify judgment filed by the public respondents, 13 were denied by the
public respondent in its Resolution of 27 December 1991. 14
Petitioners thus filed the instant petition on 21 February 1992.
After the Comment to the petition was filed by the private respondents and
the Reply thereto was filed by the petitioners, We gave due course to the
petition on 17 June 1992 and directed the parties to submit their respective
Memoranda, 15 which they subsequently complied with.
The petitioners raised the following errors allegedly committed by the
respondent Court :
I. THE COURT OF APPEALS ERRED IN APPLYING THE
RULING OF NAKPIL & SONS V. COURT OF APPEALS AND
HOLDING THAT PETITIONERS WERE GUILTY OF
NEGLIGENCE.
II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE
WRITTEN NOTICES OF WARNING ISSUED BY PETITIONERS WERE
INSUFFICIENT.
III. THE COURT OF APPEALS ERRED IN HOLDING THAT THE
DAMAGE SUFFERED BY PRIVATE RESPONDENTS WAS
NOT DAMNUM ABSQUE INJURIA.
IV. THE COURT OF APPEALS ERRED IN NOT AWARDING THE
COUNTERCLAIM OF PETITIONERS FOR ATTORNEY'S FEES AND
EXPENSES OF LITIGATION. 16
These same errors were raised by herein petitioners in G.R. No. 96410,
entitled National Power Corporation, et al., vs. Court of Appeals, et
al., 17 which this Court decided on 3 July 1992. The said case involved the
very same incident subject of the instant petition. In no uncertain terms, We
declared therein that the proximate cause of the loss and damage
sustained by the plaintiffs therein who were similarly situated as
the private respondents herein was the negligence of the

petitioners, and that the 24 October 1978 "early warning notice"

supposedly sent to the affected municipalities, the same notice involved in
the case at bar, was insufficient. We thus cannot now rule otherwise not only
because such a decision binds this Court with respect to the cause of the
inundation of the town of Norzagaray, Bulacan on 26-27 October 1978 which
resulted in the loss of lives and the destruction to property in both cases, but
also because of the fact that on the basis of its meticulous analysis and
evaluation of the evidence adduced by the parties in the cases subject of CAG.R. CV Nos. 27290-93, public respondent found as conclusively established
that indeed, the petitioners were guilty of "patent gross and evident lack of
foresight, imprudence and negligence in the management and operation of
Angat Dam," and that "the extent of the opening of the spillways, and the
magnitude of the water released, are all but products of defendantsappellees' headlessness, slovenliness, and carelessness." 18 Its findings and
conclusions are biding upon Us, there being no showing of the existence of
any of the exceptions to the general rule that findings of fact of the Court of
Appeals are conclusive upon this Court. 19 Elsewise stated, the challenged
decision can stand on its own merits independently of Our decision in G.R.
No. 96410. In any event, We reiterate here in Our pronouncement in the
latter case that Juan F. Nakpil & Sons vs. Court of Appeals 20 is still good law
as far as the concurrent liability of an obligor in the case of force majeure is
concerned. In the Nakpil case, We held:
To exempt the obligor from liability under Article 1174 of the Civil
Code, for a breach of an obligation due to an "act of God," the
following must concur: (a) the cause of the breach of the
obligation must be independent of the will of the debtor; (b) the
event must be either unforseeable or unavoidable; (c) the event
must be such as to render it impossible for the debtor to fulfill his
obligation in a moral manner; and (d) the debtor must be free
from any participation in, or aggravation of the injury to the
creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; Estrada v.
Consolacion, 71 SCRA 423; Austria v. Court of Appeals, 39 SCRA
527; Republic of the Phil. v. Luzon Stevedoring Corp., 21 SCRA
279; Lasam v. Smith, 45 Phil. 657).
Thus, if upon the happening of a fortuitous event or an act of
God, there concurs a corresponding fraud, negligence, delay or
violation or contravention in any manner of the tenor of the

obligation as provided for in Article 1170 of the Civil Code, which

results in loss or damage, the obligor cannot escape liability.
The principle embodied in the act of God doctrine strictly
requires that the act must be one occasioned exclusively by the
violence of nature and all human agencies are to be excluded
from creating or entering into the cause of the mischief. When
the effect, the cause of which is to be considered, is found to be
in part the result of the participation of man, whether it be from
active intervention or neglect, or failure to act, the whole
occurrence is thereby humanized, as it were, and removed from
the rules applicable to the acts of God. (1 Corpus Juris, pp. 11741175).
Thus it has been held that when the negligence of a person
concurs with an act of God in producing a loss, such person is not
exempt from liability by showing that the immediate cause of the
damage was the act of God. To be exempt from liability for loss
because of an act of God, he must be free from any previous
negligence or misconduct by which that loss or damage may
have been occasioned. (Fish & Elective Co. v. Phil. Motors, 55
Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons v.
Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil.
657). 21
Accordingly, petitioners cannot be heard to invoke the act of God or force
majeure to escape liability for the loss or damage sustained by private
respondents since they, the petitioners, were guilty of negligence. The event
then was not occasioned exclusively by an act of God or force majeure; a
human factor negligence or imprudence had intervened. The effect
then of the force majeure in question may be deemed to have, even if only
partly, resulted from the participation of man. Thus, the whole occurrence
was thereby humanized, as it were, and removed from the laws applicable to
acts of God.
WHEREFORE, for want of merit, the instant petition is hereby DISMISSED and
the Consolidated Decision of the Court of Appeals in CA-G.R. CV Nos. 2729093 is AFFIRMED, with costs against the petitioners.
SO ORDERED.

FIRST DIVISION
[G.R. No. 7567. November 12, 1912. ]
THE UNITED STATES, Plaintiff-Appellee, v. SEGUNDO
BARIAS, Defendant-Appellant.
Bruce, Lawrence, Ross & Block for Appellant.
Solicitor-General Harvey for Appellee.
SYLLABUS
1. NEGLIGENCE DEFINED. Negligence is "the failure to observe, for the
protection of the interests of another person, that degree of care, precaution
and vigilance which the circumstances justly demand, whereby such other
person suffers injury."cralaw virtua1aw library
2. ID.; ID. Silvelas observation that "if a moments attention and reflexion
would have shown a person that the act which he was about to perform was
liable to have the harmful consequences which it had, such person acted
with temerity and may be guilty of imprudencia temeraria," cited with
approval.
3. ID.; ID. "The diligence with which the law requires the individual at all
times to govern his conduct varies with the nature of the situation in which
he is placed and with the importance of the act which he is to perform." (U.
S. v. Reyes, 1 Phil. Rep., 375, 377.)
4. ID.; STREET RAILWAYS; DUTIES AND RESPONSIBILITIES OF MOTORMEN.
Held, that a motorman operating a street car on a public street in a densely
populated section of the city of Manila is bound to know and to recognize
that any negligence on his part in observing the track over which he is
running his car may result in fatal accidents. He has no right, when he starts
from a standstill, to assume that the track before his car is clear. It is his duty
to satisfy himself of that fact by keeping a sharp lookout and doing
everything in his power to avoid the danger which is necessarily incident to
the operation of heavy street cars on thoroughfares in populous sections of
the city.

5. ID.; ID.; ID. In the absence of some regulation of his employers, a

motorman who has brought his car to a standstill is not bound to keep his
eyes directly to the front while the car is stopped, but before setting it again
in motion, it is his duty to satisfy himself that the track is clear, and for that
purpose to look and to see the track just in front of his car.
6. ID.; ID.; ID. The reasons of public policy which impose upon street car
companies and their employees the duty of exercising the utmost degree of
diligence in securing the safety of passengers, apply with equal force to the
duty of avoiding infliction of injuries upon pedestrians and others upon the
public streets and thoroughfares over which such companies are authorized
to run their cars.
7. ID.; ID.; ID. It is the manifest duty of a motorman operating an electric
street car on a public thoroughfare in as thickly settled district, to satisfy
himself that the track is clear immediately in front of his car before setting it
in motion from a standstill and for that purpose to incline his body slightly
forward, if that be necessary, in order to bring the track immediately in front
of his car within his line of vision.
DECISION
CARSON, J. :

This is an appeal from a sentence imposed by the Honorable A. S. Crossfield,

judge of the Court of First Instance of Manila, for homicide resulting from
reckless negligence. The information charges:jgc:chanrobles.com.ph
"That on or about November 2, 1911, in the city of Manila, Philippine Islands,
the said Segundo Barias was a motorman on street car No. 9, run 7,
of the Pasay-Cervantes lines of the Manila Electric Railroad and
Light Company, a corporation duly organized and doing business in the city
of Manila, Philippine Islands; as such motorman he was controlling and
operating said street car along Rizal Avenue, formerly Calle Cervantes,
of this city, and as such motorman of said street car he was under
obligation to run the same with due care and diligence to avoid any
accident that might occur to vehicles and pedestrians who were
traveling on said Rizal Avenue; said accused, at said time and place,
did willfully, with reckless imprudenced and inexcusable negligence
and in violation of the regulations promulgated to that effect, control and
operate said street car, without heeding the pedestrians crossing
Rizal Avenue from one side to the other, thus knocking down and
causing by his carelessness and imprudent negligence that said street car
No. 9, operated and controlled by said accused, as hereinbefore stated,

should knock down and pass over the body and head of one Fermina
Jose, a girl 2 years old, who at said time and place was crossing the
said Rizal Avenue, the body of said girl being dragged along the
street-car track on said Rizal Avenue for a long distance, thus
crushing and destroying her head and causing her sudden death as
a result of the injury received; that if the acts executed by the accused
had been done with malice, he would be guilty of the serious crime of
homicide."cralaw virtua1aw library
The defendant was a motorman for the Manila Electric Railroad and Light
Company. At about 6 oclock on the morning of November 2, 1911, he was
driving his car along Rizal Avenue and stopped it near the intersection of that
street with Calle Requesen to take on some passengers. When the car
stopped, the defendant looked backward, presumably to note whether all the
passengers were aboard, and then started his car. At that moment Ferminia
Jose, a child about 3 years old, walked or ran in front of the car. She was
knocked down and dragged some little distance underneath the car, and was
left dead upon the track. The motorman proceeded with his car to the end of
the track, some distance from the place of the accident, and apparently
knew nothing of it until his return, when he was informed of what had
happened.
There is no substantial dispute as to the facts. It is true that one witness
testified that the defendant started the car without turning his head,
and while he was still looking backwards and that this testimony was
directly contradicted by that of another witness. But we do not deem it
necessary to make an express finding as to the precise direction in which the
defendants head was turned at the moment when he started his car. It is
sufficient for the purpose of our decision to hold, as we do, that the evidence
clearly discloses that he started his car from a standstill without looking over
the track immediately in front of the car to satisfy himself that it was clear.
He did not see the child until after he had run his car over it, and
after he had returned to the place where it was found dead, and we think we
are justified in saying that wherever he was looking at the moment when he
started his car, he was not looking at the track immediately in front of the
car, and that he had not satisfied himself that this portion of the track was
clear immediately before putting the car in motion.
The trial court found the defendant guilty of imprudencia temeraria
(reckless negligence) as charged in the information, and sentenced him to
one year and one month of imprisonment in Bilibid Prison, and to pay the
costs of the action.
The sole question raised by this appeal is whether the evidence shows
such carelessness or want of ordinary care on the part of the
defendant as to amount to reckless negligence (imprudencia

temeraria).
Judge Cooley in his work on Torts (3d ed., 1324) defines negligence to be:
"The failure to observe, for the protection of the interests of
another person, that degree of care, precaution and vigilance which
the circumstances justly demand, whereby such other person
suffers injury."cralaw virtua1aw library
In the case of U. S. v. Nava, (1 Phi. Rep., 580), we held that: "Reckless
negligence consists of the failure to take such precautions or
advance measures in the performance of an act as the most
common prudence would suggest whereby injury is caused to
persons or to property."cralaw virtua1aw library
Silvela says in his "Derecho Penal," in speaking of reckless imprudence
(imprudencia temeraria):jgc:chanrobles.com.ph
"The word negligencia used in the code, and the term imprudencia with
which this punishable act is defined, express this idea in such a clear manner
that it is not necessary to enlarge upon it. He who has done everything on
his part to prevent his actions from causing damage to another, although he
has not succeeded in doing so, notwithstanding his efforts, is the victim of an
accident, and cannot be considered responsible for the same." (Vol. 2, p. 127
[153].)
"Temerario is, in our opinion, one who omits, with regard to his actions, which
are liable to cause injury to another, that care and diligence, that attention,
which can be required of the least careful, attentive, or diligent. If a
moments attention and reflection would have shown a person that the act
which he was about to perform was liable to have the harmful consequence
which it had, such person acted with temerity and may be guilty of
imprudencia temeraria." It may be that in practice this idea has been given
a greater scope and acts of imprudence which did not show carelessness as
carried to such a high degree, might have been punished as imprudencia
temeraria; but in our opinion, the proper meaning of the word does not
authorize another interpretation." (Id., p 133 [161].)
Groizard, commenting upon "imprudencia temeraria," on page 389, volume
8, of his work on the Penal Code, says:jgc:chanrobles.com.ph
"Prudence is that cardinal virtue which teaches us to discern and distinguish
the good from the bad, in order to adopt or to flee from it. It also means good
judgment, temperance, and moderation in ones action.Temerario without
reflection and without examining the same. Consequently, he who from lack
of good judgment, temperance, or moderation in his action, exposes himself
without reflection and examination to the danger of committing a crime,

must be held responsible under the provision of law aforementioned."cralaw

virtua1aw library
Negligence is want of the care required by the circumstances. It is a relative
or comparative, not an absolute, term and its application depends upon the
situation of the parties and the degree of care and vigilance which the
circumstances reasonably require. Where the danger is great, a high degree
of care is necessary, and the failure to observe it is a want of ordinary care
under the circumstances. (Ahern v. Oregon Telephone Co., 24 Oreg., 276,
294; 35 Pac., 549.)
Ordinary care, if the danger is great, may rise to the grade of a very exact
and unchangeable attention. (Parry Mfg. Co. v. Eaton, 41 Ind. App., 81, 1908;
83 N. E., 510.)
In the case of U. S. v. Reyes (1 Phil. Rep., 375-377), we held that: "The
diligence with which the law requires the individual at all times to govern his
conduct varies with the nature of the situation in which he is placed and with
the importance of the act which he is to perform."cralaw virtua1aw library
The question to be determined then, is whether, under all the
circumstances, and having in mind the situation of the defendant
when he put his car in motion and ran it over the child, he was
guilty of a failure to take such precautions or advance measures as
common prudence would suggest.
The evidence shows that the thoroughfare on which the incident occurred
was a public street in a densely populated section of the city. The hour was
six in the morning, or about the time when the residents of such streets
begin to move about. Under such conditions a motorman of an electric street
car was clearly charged with a high degree of diligence in the performance of
his duties. He was bound to know and to recognize that any negligence on
his part in observing the track over which he was running his car might result
in fatal accidents. He had no right to assume that the track before his car
was clear. It was his duty to satisfy himself of that fact by keeping a sharp
lookout, and to do everything in his power to avoid the danger which is
necessarily incident to the operation of heavy street cars on public
thoroughfares in populous sections of the city.
Did he exercise the degree of diligence required of him? We think this
question must be answered in the negative. We do not go so far as to say
that having brought his car to a standstill it was his bounden duty to keep his
eyes directed to the front. Indeed, in the absence of some regulation of his
employers, we can well understand that, at times, it might be highly proper
and prudent for him to gland back before again setting his car in motion, to
satisfy himself that he understood correctly a signal to go forward or that all

the passengers had safely alighted or gotten on board. But we do insist that
before setting his car again in motion, it was his duty to satisfy
himself that the track was clear, and, for that purpose, to look and
to see the track just in front of his car. This the defendant did not
do, and the result of his negligence was the death of the child.
In the case of Smith v. St. Paul City Ry. Co., (32 Min., p. 1), the supreme court
of Minnesota, in discussing the diligence required of street railway
companies in the conduct of their business observed that: "The defendant
was a carrier of passengers for hire, owning and controlling the tracks and
cars operated thereon. It is therefore subject to the rules applicable to
passenger carriers. (Thompsons Carriers, 442; Barrett v. Third Ave. R. Co., 1
Sweeny, 568; 8 Abb. Pr. (N. S.) , 205.) As respects hazards and dangers
incident to the business or employment, the law enjoins upon such carrier
the highest degree of care consistent with its undertaking, and it is
responsible for the slightest negligence. (Wilson v. Northern Pacific R. Co., 26
minn., 278; Warren v. Fitchburg R. Co., 8 Allen, 233; 43 Am. Dec. 354, 356,
notes and cases.) . . . The severe rule which enjoins upon the carrier such
extraordinary care and diligence, is intended, for reasons of public policy, to
secure the safe carriage of passengers, in so far as human skill and foresight
can affect such result." The case just cited was a civil case, and the doctrine
therein announced d especial reference to the care which should be
exercised in securing the safety of passengers. But we hold that the reasons
of public policy which imposed upon street car companies and their
employees the duty of exercising the utmost degree of diligence in securing
the safety of passengers, apply with equal force to the duty of avoiding the
infliction of injuries upon pedestrians and others on the public streets and
thoroughfares over which these companies are authorized to run their cars.
And while, in a criminal case, the courts will require proof of the guilt of the
company or its employees beyond a reasonable doubt, nevertheless the care
or diligence required of the company and its employees is the same in both
cases, and the only question to be determined is whether the proof shows
beyond a reasonable doubt that the failure to exercise such care or diligence
was the cause of the accident, and that the defendant was guilty thereof.
Counsel for the defendant insist that the accident might have happened
despite the exercise of the utmost care by the defendant, and they have
introduced photographs into the record for the purpose of proving that while
the motorman was standing in his proper place on the front platform of the
car, a child might have walked up immediately in front of the car, a child
might have walked up immediately in front of the car without coming within
the line of his vision. Examining the photographs, we think that this
contention may have some foundation in fact; but only to this extent, that
standing erect, at the position he would ordinarily assume while the car is in
motion, the eye of the average motorman might just miss seeing the top of
the head of a child, about three years old, standing or walking close up to the

front of the car. But it is also very evident that by inclining the head and
shoulders forward very slightly, and glancing in front of the car, a person in
the position of a motorman could not fail to see a child on the track
immediately in front of his car; and we hold that it is the manifest duty of a
motorman, who is about to start his car on a public thoroughfare in a thicklysettled district, to satisfy himself that the track is clear immediately in front
of his car, a person in the position of a motorman could not fail to see a child
on the track immediately in front of his car; and we hold that it is the
manifest duty of a motorman, who is about to start his car on a public
thoroughfare in a thickly-settled district, to satisfy himself that the track is
clear immediately in front of his car, and to incline his body slightly forward,
if that be necessary, in order to bring the whole track within his line of vision.
Of course, this may not be, and usually is not necessary when the car is in
motion, but we think that it is required by the dictates of the most ordinary
prudence in starting from a standstill.
We are not unmindful of our remarks in the case of U. S. v. Bacho (10 Phil.
Rep., 577), to which our attention is directed by counsel for Appellant. In that
case we said that:jgc:chanrobles.com.ph
". . . In the general experience of mankind, accidents apparently unavoidable
and often inexplicable are unfortunately too frequent to permit us to
conclude that some one must be criminally liable for negligence in every
case where an accident occurs. it is the duty of the prosecution in each case
to prove by competent evidence not only the existence of criminal
negligence, but that the accused was guilty thereof."cralaw virtua1aw library
Nor do we overlook the ruling in the case of U. S. v. Barnes (12 Phil. Rep.,
93), to which our attention is also invited, wherein we held that the
defendant was not guilty of reckless negligence, where it appeared that he
killed another by the discharge of his gun under such circumstances that he
might have been held guilty of criminally reckless negligence had he had
knowledge at that moment that another person was in such position as to be
in danger if the gun should be discharged. In this latter case the defendant
had no reason to anticipate that the person who was injured was in the line
of fire, or that there was any probability that he or anyone else would place
himself in the line of fire. In the case at bar, however, it was, as we have
seen, the manifest duty of the motorman to take reasonable precautions in
starting his car to see that in doing so he was not endangering the life of any
pedestrian, old or young; and to this end it was further his duty to guard
against the reasonable possibility that some one might be on the evidence
showing, is it does, that the child was killed at the moment when the car was
set in motion, we are justified in holding that, had the motorman seen the
child, he could have avoided the accident; the accident was not,
therefore, "unavoidable or inexplicable," and it appearing that the
motorman, by the exercise of ordinary diligence, might have seen

the child before he set the car in motion, his failure to satisfy
himself that the track was clear before doing so was reckless
negligence, of which he was properly convicted in the court below.
We think, however, that the penalty should be reduced to that of six months
and one day of prision correccional. Modified by substituting for so much
thereof as imposes the penalty of one year and one month of imprisonment,
the penalty of six months and one day of prision correccional, the judgment
of the lower court convicting and sentencing the appellant is affirmed, with
the costs of both instances against him. So ordered.
Arellano, C.J., Torres and Mapa, JJ., concur.
Johnson, J., concurs in the result.
Trent, J., dissents.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-44264 September 19, 1988
HEDY GAN y YU, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, respondents.
Pacis, Baluyot, Reyes & De Leon for petitioner.
The Solicitor General for respondents.

FERNAN, C.J.:

Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless
Imprudence in Criminal Case No. 10201 of the then Court of First Instance of
Manila, Branch XXII presided by Judge Federico C. Alikpala. She was
sentenced to an indeterminate penalty of four (4) months and one (1) day
of arresto mayor as minimum and two (2) years, four (4) months and one (1)
day of prision correccional as maximum and was made to indemnify the
heirs of the victim the sum of P12,000.00 without any subsidiary
imprisonment in case of insolvency and to pay the costs. On appeal, the trial
court's decision was modified and petitioner was convicted only of Homicide
thru Simple Imprudence. Still unsatisfied with the decision of the Court of
Appeals, 1 petitioner has come to this Court for a complete reversal of the
judgment below.
The facts of the case as found by the appellate court are as follows:
In the morning of July 4, 1972 at about 8:00 o'clock, the accused
Hedy Gan was driving a Toyota car along North Bay
Boulevard, Tondo, Manila. While in front of house no. 694
of North Bay Boulevard, there were two vehicles, a truck
and a jeepney parked on one side of the road, one
following the other about two to three meters from each other.
As the car driven by the accused approached the place
where the two vehicles were parked, there was a vehicle
coming from the opposite direction, followed by another
which tried to overtake and bypass the one in front of it
and thereby encroached the lane of the car driven by the
accused. To avoid a head-on collision with the oncoming
vehicle, the defendant swerved to the right and as a
consequence, the front bumper of the Toyota Crown
Sedan hit an old man who was about to cross the
boulevard from south to north, pinning him against the rear of
the parked jeepney. The force of the impact caused the parked
jeepney to move forward hitting the rear of the parts truck ahead
of it. The pedestrian was injured, the Toyota Sedan was damaged
on its front, the jeep suffered damages on its rear and front
paints, and the truck sustained scratches at the wooden portion
of its rear. The body of the old man who was later Identified as
Isidoro Casino was immediately brought to the Jose Reyes
Memorial Hospital but was (pronounced) dead on arrival. 2

An information for Homicide thru Reckless Imprudence was filed against

petitioner in view of the above incident. She entered a plea of not guilty upon
arraignment and the case was set for trial.
Meanwhile, petitioner sought and was granted a re-investigation by the City
Fiscal, as a result of which the trial fiscal moved for the dismissal of the case
against petitioner during the resumption of hearing on September 7, 1972.
The grounds cited therefor were lack of interest on the part of the
complaining witness to prosecute the case as evidenced by an affidavit of
desistance submitted to the trial court and lack of eyewitness to sustain the
charge.
The motion to dismiss filed by the fiscal was never resolved. The Court
instead ordered the prosecution to present its evidence. After the
prosecution rested its case, the petitioner filed a motion to dismiss the case
on the ground of insufficiency of evidence.
On December 22, 1972, the trial court rendered judgment finding petitioner
guilty beyond reasonable doubt of the of- offense charged.
Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May
3, 1976, the Court of Appeals rendered a decision, the dispositive portion of
which reads as follows:
Wherefore, as modified, the accused Hedy Gan is guilty beyond
reasonable doubt of the crime of homicide thru simple
imprudence and, pursuant to paragraph 2, Article 365 of the
Revised Penal Code, she is hereby sentenced to the
indeterminate penalty of three (3) months and eleven (11) days
of arresto mayor and to indemnify the heirs of Isidoro Casino in
the sum of Twelve Thousand Pesos (Pl2,000.00) without,
however, any subsidiary imprisonment in case of insolvency, and
to pay the costs. 3
Petitioner now appeals to this Court on the following assignments of errors:
I
The Court of Appeals erred in holding that when the petitioner
saw a car travelling directly towards her, she should have
stepped on the brakes immediately or in swerving her vehicle to

the right should have also stepped on the brakes or lessened her
speed, to avoid the death of a pedestrian.
II
The Court of Appeals erred in convicting the petitioner of the
crime of Homicide thru Simple Imprudence.
III
The Court of Appeals erred in adjudging the petitioner liable to
indemnify the deceased in the sum of P12,000.00. 4
We reverse.
The test for determining whether or not a person is negligent in doing an act
whereby injury or damage results to the person or property of another is this:
Would a prudent man in the position of the person to whom negligence is
attributed foresee harm to the person injured as a reasonable consequence
of the course about to be pursued? If so, the law imposes the duty oil the
doer to take precaution against its mischievous results and the failure to do
so constitutes negligence. 5
A corollary rule is what is known in the law as the emergency rule. "Under
that rule, one who suddenly finds himself in a place of danger, and is
required to act without time to consider the best means that may be adopted
to avoid the impending danger, is not guilty of negligence, if he fails to adopt
what subsequently and upon reflection may appear to have been a better
method, unless the emergency in which he finds himself is brought about by
his own negligence." 6
Applying the above test to the case at bar, we find the petitioner not guilty of
the crime of Simple Imprudence resulting in Homicide.
The appellate court in finding the petitioner guilty said:
The accused should have stepped on the brakes when she saw
the car going in the opposite direction followed by another which
overtook the first by passing towards its left. She should not only
have swerved the car she was driving to the right but should
have also tried to stop or lessen her speed so that she would not

bump into the pedestrian who was crossing at the time but also
the jeepney which was then parked along the street. 7
The course of action suggested by the appellate court would seem
reasonable were it not for the fact that such suggestion did not take into
account the amount of time afforded petitioner to react to the situation she
was in. For it is undeniable that the suggested course of action presupposes
sufficient time for appellant to analyze the situation confronting her and to
ponder on which of the different courses of action would result in the least
possible harm to herself and to others.
Due to the lack of eyewitnesses, no evidence was presented by the
prosecution with respect to the relative distances of petitioner to the parked
jeepney and the oncoming overtaking vehicle that would tend to prove that
petitioner did have sufficient time to reflect on the consequences of her
instant decision to swerve her car to the light without stepping on her
brakes. In fact, the evidence presented by the prosecution on this point is the
petitioner's statement to the police 8 stating::
And masasabi ko lang ho umiwas ho ako sa isang sasakyan
na biglang nagovertake sa sasakyan na aking kasalubong kung
kaya ay aking kinabig sa kanan ang akin kotse subalit siya
naman biglangpagtawid ng tao o victim at hindi ko na ho
naiwasan at ako ay wala ng magawa . Iyan ho ang buong
pangyayari nang nasabing aksidente. 9 (Emphasis supplied)
The prosecution having presented this exhibit as its own evidence, we
cannot but deem its veracity to have been admitted by it. Thus, under the
circumstances narrated by petitioner, we find that the appellate court is
asking too much from a mere mortal like the petitioner who in the blink of an
eye had to exercise her best judgment to extricate herself from a difficult
and dangerous situation caused by the driver of the overtaking vehicle.
Petitioner certainly could not be expected to act with all the coolness of a
person under normal conditions. 10 The danger confronting petitioner was
real and imminent, threatening her very existence. She had no opportunity
for rational thinking but only enough time to heed the very powerfull instinct
of self-preservation.
Also, the respondent court itself pronounced that the petitioner was driving
her car within the legal limits. We therefore rule that the "emergency rule"
enunciated above applies with full force to the case at bar and consequently

absolve petitioner from any criminal negligence in connection with the

incident under consideration.
We further set aside the award of damages to the heirs of the victim, who by
executing a release of the claim due them, had effectively and clearly waived
their right thereto.
WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y
YU of the crime of Homicide thru Simple Imprudence. She is no longer liable
for the P12,000.00 civil indemnity awarded by the appellate court to the
heirs of the victim.
SO ORDERED.

FIRST DIVISION
[G.R. No. 129792. December 21, 1999]
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE
and ELISA PANELO, petitioners, vs. HONORABLE COURT OF
APPEALS,
CONRADO
C.
AGUILAR
and
CRISELDA
R.
AGUILAR, respondents.
DECISION
DAVIDE, JR., C.J.:
In this petition for review on certiorari under Rule 45 of the Rules of
Court, petitioners seek the reversal of the 17 June 1996 decision [1] of the
Court of Appeals in C.A. G.R. No. CV 37937 and the resolution [2]denying
their motion for reconsideration. The assailed decision set aside the 15
January 1992 judgment of the Regional Trial Court (RTC), Makati City,
Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages
and attorneys fees to private respondents Conrado and Criselda
(CRISELDA) Aguilar.

Petitioner Jarco Marketing Corporation is the owner of Syvels

Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and
Elisa Panelo are the stores branch manager, operations manager, and
supervisor, respectively. Private respondents are spouses and the parents
of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the
2nd floor of Syvels Department Store, Makati City. CRISELDA was signing
her credit card slip at the payment and verification counter when she felt
a sudden gust of wind and heard a loud thud. She looked behind her. She
then beheld her daughter ZHIENETH on the floor, her young body pinned
by the bulk of the stores gift-wrapping counter/structure. ZHIENETH was
crying and screaming for help. Although shocked, CRISELDA was quick to
ask the assistance of the people around in lifting the counter and
retrieving ZHIENETH from the floor.[3]
ZHIENETH was quickly rushed to the Makati Medical Center where she
was operated on. The next day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic slate. The injuries
she sustained took their toil on her young body. She died fourteen (14)
days after the accident or on 22 May 1983, on the hospital bed. She was
six years old.[4]
The cause of her death was attributed to the injuries she
sustained. The provisional medical certificate[5] issued by ZHIENETHs
attending doctor described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe

CRITICAL
After the burial of their daughter, private respondents demanded
upon petitioners the reimbursement of the hospitalization, medical bills
and wake and funeral expenses [6] which they had incurred.Petitioners
refused to pay. Consequently, private respondents filed a complaint for
damages, docketed as Civil Case No. 7119 wherein they sought the
payment of P157,522.86 for actual damages,P300,000 for moral
damages, P20,000 for attorneys fees and an unspecified amount for loss
of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for
the injuries and consequent death of ZHIENETH. They claimed that
CRISELDA was negligent in exercising care and diligence over her
daughter by allowing her to freely roam around in a store filled with
glassware and appliances. ZHIENETH too, was guilty of contributory
negligence since she climbed the counter, triggering its eventual collapse
on her. Petitioners also emphasized that the counter was made of sturdy
wood with a strong support; it never fell nor collapsed for the past fifteen
years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it
observed the diligence of a good father of a family in the selection,
supervision and control of its employees. The other petitioners likewise
raised due care and diligence in the performance of their duties and
countered that the complaint was malicious for which they suffered
besmirched reputation and mental anguish.They sought the dismissal of
the complaint and an award of moral and exemplary damages and
attorneys fees in their favor.
In its decision[7] the trial court dismissed the complaint and
counterclaim after finding that the preponderance of the evidence
favored petitioners. It ruled that the proximate cause of the fall of the
counter on ZHIENETH was her act of clinging to it. It believed petitioners
witnesses who testified that ZHIENETH clung to the counter, afterwhich
the structure and the girl fell with the structure falling on top of her,
pinning her stomach. In contrast, none of private respondents witnesses
testified on how the counter fell. The trial court also held that CRISELDAs
negligence contributed to ZHIENETHs accident.

In absolving petitioners from any liability, the trial court reasoned that
the counter was situated at the end or corner of the 2nd floor as a
precautionary measure hence, it could not be considered as an attractive
nuisance.[8] The counter was higher than ZHIENETH. It has been in
existence for fifteen years. Its structure was safe and wellbalanced. ZHIENETH, therefore, had no business climbing on and clinging
to it.
Private respondents appealed the decision, attributing as errors of the
trial court its findings that: (1) the proximate cause of the fall of the
counter was ZHIENETHs misbehavior; (2) CRISELDA was negligent in her
care of ZHIENETH; (3) petitioners were not negligent in the maintenance
of the counter; and (4) petitioners were not liable for the death of
ZHIENETH.
Further, private respondents asserted that ZHIENETH should be
entitled to the conclusive presumption that a child below nine (9) years is
incapable of contributory negligence. And even if ZHIENETH, at six (6)
years old, was already capable of contributory negligence, still it was
physically impossible for her to have propped herself on the counter. She
had a small frame (four feet high and seventy pounds) and the counter
was much higher and heavier than she was. Also, the testimony of one of
the stores former employees, Gerardo Gonzales, who accompanied
ZHIENETH when she was brought to the emergency room of the Makati
Medical Center belied petitioners theory that ZHIENETH climbed the
counter. Gonzales claimed that when ZHIENETH was asked by the doctor
what she did, ZHIENETH replied, [N]othing, I did not come near the
counter and the counter just fell on me. [9] Accordingly, Gonzales
testimony on ZHIENETHs spontaneous declaration should not only be
considered as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was
reasonable for her to have let go of ZHIENETH at the precise moment that
she was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate
cause of ZHIENETHs death, was petitioners negligence in failing to
institute measures to have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised
purely factual issues which could no longer be disturbed. They explained

that ZHIENETHs death while unfortunate and tragic, was an accident for
which neither CRISELDA nor even ZHIENETH could entirely be held
faultless and blameless. Further, petitioners adverted to the trial courts
rejection of Gonzales testimony as unworthy of credence.
As to private respondents claim that the counter should have been
nailed to the ground, petitioners justified that it was not necessary. The
counter had been in existence for several years without any prior
accident and was deliberately placed at a corner to avoid such
accidents. Truth to tell, they acted without fault or negligence for they
had exercised due diligence on the matter. In fact, the criminal case[10] for
homicide through simple negligence filed by private respondents against
the individual petitioners was dismissed; a verdict of acquittal was
rendered in their favor.
The Court of Appeals, however, decided in favor of private
respondents and reversed the appealed judgment. It found that
petitioners were negligent in maintaining a structurally dangerous
counter.The counter was shaped like an inverted L [11] with a top wider
than the base. It was top heavy and the weight of the upper portion was
neither evenly distributed nor supported by its narrow base. Thus, the
counter was defective, unstable and dangerous; a downward pressure on
the overhanging portion or a push from the front could cause the counter
to fall. Two former employees of petitioners had already previously
brought to the attention of the management the danger the counter
could cause. But the latter ignored their concern. The Court of Appeals
faulted the petitioners for this omission, and concluded that the incident
that befell ZHIENETH could have been avoided had petitioners repaired
the defective counter. It was inconsequential that the counter had been in
use for some time without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven
(7) years old at the time of the incident, was absolutely incapable of
negligence or other tort. It reasoned that since a child under nine (9)
years could not be held liable even for an intentional wrong, then the sixyear old ZHIENETH could not be made to account for a mere mischief or
reckless act. It also absolved CRISELDA of any negligence, finding nothing
wrong or out of the ordinary in momentarily allowing ZHIENETH to walk
while she signed the document at the nearby counter.

The Court of Appeals also rejected the testimonies of the witnesses of

petitioners. It found them biased and prejudiced. It instead gave credit to
the testimony of disinterested witness Gonzales. The Court of Appeals
then awarded P99,420.86 as actual damages, the amount representing
the hospitalization expenses incurred by private respondents as
evidenced by the hospital's statement of account. [12]It denied an award
for funeral expenses for lack of proof to substantiate the same. Instead, a
compensatory damage of P50,000 was awarded for the death of
ZHIENETH.
We quote the dispositive portion of the assailed decision,[13] thus:
WHEREFORE, premises considered, the judgment of the lower court is
SET ASIDE and another one is entered against [petitioners], ordering
them to pay jointly and severally unto [private respondents] the
following:
1. P50,000.00 by way of compensatory damages for the death of
Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses
incurred; with legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorneys fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the
same was denied in the Court of Appeals resolution[14] of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals decision and
the reinstatement of the judgment of the trial court. Petitioners primarily
argue that the Court of Appeals erred in disregarding the factual findings
and conclusions of the trial court. They stress that since the action was
based on tort, any finding of negligence on the part of the private
respondents would necessarily negate their claim for damages, where
said negligence was the proximate cause of the injury sustained. The
injury in the instant case was the death of ZHIENETH. The proximate
cause was ZHIENETHs act of clinging to the counter. This act in turn

caused the counter to fall on her. This and CRISELDAs contributory

negligence, through her failure to provide the proper care and attention
to her child while inside the store, nullified private respondents claim for
damages. It is also for these reasons that parents are made accountable
for the damage or injury inflicted on others by their minor children. Under
these circumstances, petitioners could not be held responsible for the
accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already
separated from Syvels at the time he testified; hence, his testimony
might have been tarnished by ill-feelings against them.
For their part, private respondents principally reiterated their
arguments that neither ZHIENETH nor CRISELDA was negligent at any
time while inside the store; the findings and conclusions of the Court of
Appeals are substantiated by the evidence on record; the testimony of
Gonzales, who heard ZHIENETH comment on the incident while she was
in the hospitals emergency room should receive credence; and finally,
ZHIENETHs part of the res gestae declaration that she did nothing to
cause the heavy structure to fall on her should be considered as the
correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH
was accidental or attributable to negligence; and (2) in case of a finding
of negligence, whether the same was attributable to private respondents
for maintaining a defective counter or to CRISELDA and ZHIENETH for
failing to exercise due and reasonable care while inside the store
premises.
An accident pertains to an unforeseen event in which no fault or
negligence attaches to the defendant.[15] It is a fortuitous circumstance,
event or happening; an event happening without any human agency, or if
happening wholly or partly through human agency, an event which under
the circumstances is unusual or unexpected by the person to whom it
happens.[16]
On the other hand, negligence is the omission to do something which
a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of

something which a prudent and reasonable man would not do.

[17]
Negligence is the failure to observe, for the protection of the interest
of another person, that degree of care, precaution and vigilance which
the circumstances justly demand, whereby such other person suffers
injury.[18]
Accident and negligence are intrinsically contradictory; one cannot
exist with the other. Accident occurs when the person concerned is
exercising ordinary care, which is not caused by fault of any person and
which could not have been prevented by any means suggested by
common prudence.[19]
The test in determining the existence of negligence is enunciated in
the landmark case of Picart v. Smith,[20] thus: Did the defendant in doing
the alleged negligent act use that reasonable care and caution which an
ordinarily prudent person would have used in the same situation? If not,
then he is guilty of negligence.[21]
We rule that the tragedy which befell ZHIENETH was no accident and
that ZHIENETHs death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of
the incident and accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice anything
while the child was being treated?
A At the emergency room we were all surrounding the child. And when
the doctor asked the child what did you do, the child said nothing, I
did not come near the counter and the counter just fell on me.
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT

Granted. Intercalate wala

bumagsak.[22]

po,

hindi

po

ako

lumapit

doon. Basta

This testimony of Gonzales pertaining to ZHIENETHs statement

formed (and should be admitted as) part of the res gestae under Section
42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto
with respect to the circumstances thereof, may be given in evidence as
part of the res gestae. So, also, statements accompanying an equivocal
act material to the issue, and giving it a legal significance, may be
received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering
and statements made to a physician are generally considered
declarations and admissions.[23] All that is required for their admissibility
as part of the res gestae is that they be made or uttered under the
influence of a startling event before the declarant had the time to think
and concoct a falsehood as witnessed by the person who testified in
court. Under the circumstances thus described, it is unthinkable for
ZHIENETH, a child of such tender age and in extreme pain, to have lied to
a doctor whom she trusted with her life. We therefore accord credence to
Gonzales testimony on the matter, i.e., ZHIENETH performed no act that
facilitated her tragic death. Sadly, petitioners did, through their
negligence or omission to secure or make stable the counters base.
Gonzales earlier testimony on petitioners insistence to keep and
maintain the structurally unstable gift-wrapping counter proved their
negligence, thus:
Q When you assumed the position as gift wrapper at the second floor, will
you please describe the gift wrapping counter, were you able to examine?
A Because every morning before I start working I used to clean that
counter and since it is not nailed and it was only standing on the floor, it
was shaky.
xxx

Q Will you please describe the counter at 5:00 oclock [sic] in the
afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside the
verification counter. And since the top of it was heavy and
considering that it was not nailed, it can collapse at anytime, since
the top is heavy.
xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and since
Mr. Maat is fond of putting display decorations on tables, he even
told me that I would put some decorations. But since I told him that
it not [sic] nailed and it is shaky he told me better inform also the
company about it. And since the company did not do anything
about the counter, so I also did not do anything about the counter.
[24]
[Emphasis supplied]
Ramon Guevarra, another
testimony of Gonzales, thus:

former

employee,

corroborated

the

Q Will you please described [sic] to the honorable Court the counter
where you were assigned in January 1983?
xxx
A That counter assigned to me was when my supervisor ordered me to
carry that counter to another place. I told him that the counter
needs nailing and it has to be nailed because it might cause injury
or accident to another since it was shaky.
Q When that gift wrapping counter was transferred at the second floor
on February 12, 1983, will you please describe that to the
honorable Court?
AI

told
her
that
the
counter
wrapper [sic] is
really
in
good [sic] condition; it was shaky. I told her that we had to nail it.

Q When you said she, to whom are you referring to [sic]?

A I am referring to Ms. Panelo, sir.

Q And what was the answer of Ms. Panelo when you told her that the
counter was shaky?
A She told me Why do you have to teach me. You are only my
subordinate and you are to teach me? And she even got angry at
me when I told her that.
xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms.
Panelo or any employee of the management do to that (sic)
xxx
Witness:
None, sir. They never nailed the counter. They only nailed the counter
after the accident happened.[25] [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were
personally informed of the danger posed by the unstable counter. Yet,
neither initiated any concrete action to remedy the situation nor ensure
the safety of the stores employees and patrons as a reasonable and
ordinary prudent man would have done. Thus, as confronted by the
situation petitioners miserably failed to discharge the due diligence
required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners
failed to establish that the formers testimonies were biased and tainted
with partiality. Therefore, the allegation that Gonzales and Guevarras
testimonies were blemished by ill feelings against petitioners since they
(Gonzales and Guevarra) were already separated from the company at
the time their testimonies were offered in court was but mere speculation
and deserved scant consideration.
It is settled that when the issue concerns the credibility of witnesses,
the appellate courts will not as a general rule disturb the findings of the
trial court, which is in a better position to determine the same. The trial
court has the distinct advantage of actually hearing the testimony of and

observing the deportment of the witnesses.[26] However, the rule admits

of exceptions such as when its evaluation was reached arbitrarily or it
overlooked or failed to appreciate some facts or circumstances of weight
and substance which could affect the result of the case. [27] In the instant
case, petitioners failed to bring their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive
presumption that favors children below nine (9) years old in that they are
incapable of contributory negligence. In his book,[28]former Judge Cezar S.
Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively
presumed to have acted without discernment, and is, on that account,
exempt from criminal liability. The same presumption and a like
exemption from criminal liability obtains in a case of a person over nine
and under fifteen years of age, unless it is shown that he has acted with
discernment. Since negligence may be a felony and a quasi-delict and
required discernment as a condition of liability, either criminal or civil, a
child under nine years of age is, by analogy, conclusively presumed to be
incapable of negligence; and that the presumption of lack of discernment
or incapacity for negligence in the case of a child over nine but under
fifteen years of age is a rebuttable one, under our law. The rule,
therefore, is that a child under nine years of age must be conclusively
presumed incapable of contributory negligence as a matter of
law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume
that she climbed over the counter, no injury should have occurred if we
accept petitioners theory that the counter was stable and sturdy. For if
that was the truth, a frail six-year old could not have caused the counter
to collapse. The physical analysis of the counter by both the trial court
and Court of Appeals and a scrutiny of the evidence [29]on record reveal
otherwise, i.e., it was not durable after all. Shaped like an inverted L, the
counter was heavy, huge, and its top laden with formica. It protruded
towards the customer waiting area and its base was not secured.[30]
CRISELDA too, should be absolved from any contributory
negligence. Initially, ZHIENETH held on to CRISELDAs waist, later to the
latters hand.[31] CRISELDA momentarily released the childs hand from her
clutch when she signed her credit card slip. At this precise moment, it

was reasonable and usual for CRISELDA to let go of her child. Further, at
the time ZHIENETH was pinned down by the counter, she was just a foot
away from her mother; and the gift-wrapping counter was just four
meters away from CRISELDA.[32] The time and distance were both
significant. ZHIENETH was near her mother and did not loiter as
petitioners would want to impress upon us. She even admitted to the
doctor who treated her at the hospital that she did not do anything; the
counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is
DENIED and the challenged decision of the Court of Appeals of 17 June
1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

FIRST DIVISION

[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.
DECISION
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 patients 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 forcholecystectomy.[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
anesthesiologists fee and which was to be paid after the operation (TSN,
October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13;
and TSN, November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of
the rooms of the DLSMC, located along E. Rodriguez Avenue, Quezon City
(TSN, October 19, 1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was
prepared for the operation by the hospital staff. Her sister-in-law, Herminda
Cruz, who was the Dean of the College of Nursing at the Capitol Medical
Center, was also there for moral support. She reiterated her previous request
for Herminda to be with her even during the operation. After praying, she
was given injections. Her hands were held by Herminda as they went down
from her room to the operating room (TSN, January 13, 1988, pp. 9-11). Her
husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about two or three nurses and Dr. Perfecta
Gutierrez, the other defendant, who was to administer anesthesia. Although
not a member of the hospital staff, Herminda introduced herself as Dean of
the College of Nursing at the Capitol Medical Center who was to provide
moral support to the patient, to them. Herminda was allowed to stay inside
the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr.
Hosaka who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez
thereafter informed Herminda Cruz about the prospect of a delay in the
arrival of Dr. Hosaka. Herminda then went back to the patient who asked,
Mindy, wala pa ba ang Doctor? The former replied, Huwag kang mag-alaala,
darating na iyon (ibid.).
Thereafter, Herminda went out of the operating room and informed the
patients 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 patients 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 patients brain (Id., pp. 19-20). Immediately
thereafter, she went out of the operating room, and she told Rogelio E.
Ramos that something wrong was x x x 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 Erlindas injury. Plaintiff presented the testimonies of Dean Herminda Cruz
and Dr. Mariano Gavino to prove that the damage 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 Erlindas allergic reaction to the anesthetic agent, Thiopental
Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court
rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth
earlier, and applying the aforecited provisions of law and jurisprudence to
the case at bar, this Court finds and so holds that defendants are liable to
plaintiffs for damages. The defendants were guilty of, at the very least,
negligence in the performance of their duty to plaintiff-patient Erlinda
Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to
exercise reasonable care in not only intubating the patient, but also in not
repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10),
without due regard to the fact that the patient was inside the operating room
for almost three (3) hours. For after she committed a mistake in intubating
[the] patient, the patient's nailbed became bluish and the patient, thereafter,
was placed in trendelenburg position, because of the decrease of blood
supply to the patient's brain. The evidence further shows that the hapless

patient suffered brain damage because of the absence of oxygen in her

(patient's) brain for approximately four to five minutes which, in turn, caused
the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts
of Dr. Perfecta Gutierrez whom he had chosen to administer anesthesia on
the patient as part of his obligation to provide the patient a `good
anesthesiologist', and for arriving for the scheduled operation almost three
(3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the
acts of negligence of the doctors in their `practice of medicine' in the
operating room. Moreover, the hospital is liable for failing through its
responsible officials, to cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that
they have acted with due care and prudence in rendering medical services to
plaintiff-patient. For if the patient was properly intubated as claimed by
them, the patient would not have become comatose. And, the fact that
another anesthesiologist was called to try to intubate the patient after her
(the patient's) nailbed turned bluish, belie their claim. Furthermore, the
defendants should have rescheduled the operation to a later date. This, they
should have done, if defendants acted with due care and prudence as the
patient's case was an elective, not an emergency case.
xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of
the plaintiffs and against the defendants. Accordingly, the latter are ordered
to pay, jointly and severally, the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda
Ramos reckoned from November 15, 1985 or in the total sum of P632,000.00
as of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum
of P200,000.00 by way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED.[7]

Private respondents seasonably interposed an appeal to the Court of

Appeals. The appellate court rendered a Decision, dated 29 May 1995,
reversing the findings of the trial court. The decretal portion of the decision
of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby
REVERSED, and the complaint below against the appellants is hereby
ordered DISMISSED. The counterclaim of appellant De Los Santos Medical
Center is GRANTED but only insofar as appellees are hereby ordered to pay
the unpaid hospital bills amounting to P93,542.25, plus legal interest for
justice must be tempered with mercy.
SO ORDERED.[8]
The decision of the Court of Appeals was received on 9 June 1995 by
petitioner Rogelio Ramos who was mistakenly addressed as Atty. Rogelio
Ramos. No copy of the decision, however, was sent nor received by the
Coronel Law Office, then counsel on record of petitioners. Rogelio referred
the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20
June 1995, or four (4) days before the expiration of the reglementary period
for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed
with the appellate court a motion for extension of time to file a motion for
reconsideration.The motion for reconsideration was submitted on 4 July
1995. However, the appellate court denied the motion for extension of time
in its Resolution dated 25 July 1995.[9] Meanwhile petitioners engaged the
services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano
filed on 7 August 1995 a motion to admit the motion for reconsideration
contending that the period to file the appropriate pleading on the assailed
decision had not yet commenced to run as the Division Clerk of Court of the
Court of Appeals had not yet served a copy thereof to the counsel on
record. Despite this explanation, the appellate court still denied the motion
to admit the motion for reconsideration of petitioners in its Resolution, dated
29 March 1996, primarily on the ground that the fifteen-day (15) period for
filing a motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for
Reconsideration cannot be extended; precisely, the Motion for Extension
(Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter
Motion that plaintiffs/appellees received a copy of the decision as early as
June 9, 1995. Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for Reconsideration, in turn,
was received by the Court of Appeals already on July 4, necessarily, the 15day period already passed. For that alone, the latter should be denied.

Even assuming admissibility of the Motion for 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 appellate court was furnished to
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 partys 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 believe 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 plaintiffs prima facie case, and present a question
of fact for defendant to meet with an explanation. [13] Where the thing which
caused the injury complained of is shown to be under the management of
the defendant or his servants and the accident is such as in ordinary course
of things does not happen if those who have its management or control use
proper care, it affords reasonable evidence, in the absence of explanation by
the defendant, that the accident arose from or was caused by the defendants
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 isapplied 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 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 someones negligence;
2. It is caused by an instrumentality within the exclusive control of the
defendant or defendants; and
3. The possibility of contributing conduct which would make the
plaintiff responsible is eliminated.[21]
In the above requisites, the fundamental element is the control of the
instrumentality which caused the damage. [22] Such element of control must
be shown to be within the dominion of the defendant. In order to have the
benefit of the rule, a plaintiff, in addition to proving injury or damage, must
show a situation where it is applicable, and must establish that the essential
elements of the doctrine were present in a particular incident.[23]
Medical malpractice[24]cases do not escape the application of this
doctrine. Thus, res ipsa loquitur has been applied when the circumstances
attendant upon the harm are themselves of such a character as to justify an
inference of negligence as the cause of that harm. [25] The application of res
ipsa loquitur in medical negligence cases presents a question of law since it
is a judicial function to determine whether a certain set of circumstances
does, as a matter of law, permit a given inference.[26]
Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a negligent act or that
he has deviated from the standard medical procedure, when the doctrine
of res ipsa loquitur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of
negligence.[27] The reason is that the general rule on the necessity of expert

testimony applies only to such matters clearly within the domain of medical
science, and not to matters that are within the common knowledge of
mankind which may be testified to by anyone familiar with the facts.
[28]
Ordinarily, only physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been treated or operated
upon with a reasonable degree of skill and care. However, testimony as to
the statements and acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one may be given by
non-expert witnesses.[29] Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a physician negligent upon proper
proof of injury to the patient, without the aid of expert testimony, where the
court from its fund of common knowledge can determine the proper standard
of care.[30] Where common knowledge and experience teach that a resulting
injury would not have occurred to the patient if due care had been exercised,
an inference of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred.
[31]
When the doctrine is appropriate, all that the patient must do is prove a
nexus between the particular act or omission complained of and the injury
sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard
of care. Resort to res ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can obtain redress
for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the
following situations: leaving of a foreign object in the body of the patient
after an operation,[32] injuries sustained on a healthy part of the body which
was not under, or in the area, of treatment, [33] removal of the wrong part of
the body when another part was intended,[34] knocking out a tooth while a
patients jaw was under anesthetic for the removal of his tonsils, [35] and loss
of an eye while the patient plaintiff was under the influence of anesthetic,
during or following an operation for appendicitis,[36] among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has
been measurably enlarged, it does not automatically apply to all cases of
medical negligence as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed negligence. Res ipsa
loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule
to be cautiously applied, depending upon the circumstances of each case. It
is generally restricted to situations in malpractice cases where a layman is
able to say, as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would ordinarily have
followed if due care had been exercised. [37] A distinction must be made
between the failure to secure results, and the occurrence of something more
unusual and not ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that particular practice. It

must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves the merits
of a diagnosis or of a scientific treatment. [38] The physician or surgeon is not
required at his peril to explain why any particular diagnosis was not correct,
or why any particular scientific treatment did not produce the desired result.
[39]
Thus, res ipsa loquitur is not available in a malpractice suit if the only
showing is that the desired result of an operation or treatment was not
accomplished.[40] The real question, therefore, is whether or not in the
process of the operation any extraordinary incident or unusual event outside
of the routine performance occurred which is beyond the regular scope of
customary professional activity in such operations, which, if unexplained
would themselves reasonably speak to the average man as the negligent
cause or causes of the untoward consequence.[41] If there was such
extraneous interventions, the doctrine of res ipsa loquitur may be utilized
and the defendant is called upon to explain the matter, by evidence of
exculpation, if he could.[42]
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As
will hereinafter be explained, the damage sustained by Erlinda in her brain
prior to a scheduled gall bladder operation presents a case for the
application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell,[43] where
the Kansas Supreme Court in applying the res ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered
his person over to the care, custody and control of his physician who had
complete and exclusive control over him, but the operation was never
performed. At the time of submission he was neurologically sound and
physically fit in mind and body, but he suffered irreparable damage and
injury rendering him decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of a mastoid operation or
in the absence of negligence in the administration of an anesthetic, and in
the use and employment of an endoctracheal tube. Ordinarily a person being
put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence. Upon these
facts and under these circumstances a layman would be able to say, as a
matter of common knowledge and observation, that the consequences of
professional treatment were not as such as would ordinarily have followed if
due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence
because he was under the influence of anesthetics and unconscious, and the
circumstances are such that the true explanation of event is more accessible
to the defendants than to the plaintiff for they had the exclusive control of
the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held
that a cause of action is stated under the doctrine of res ipsa loquitur.[44]
Indeed, the principles enunciated in the aforequoted case apply with
equal force here. In the present case, Erlinda submitted herself
for cholecystectomy and expected a routine general surgery to be performed
on her gall bladder. On that fateful day she delivered her person over to the
care, custody and control of private respondents who exercised complete
and exclusive control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of
anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went
out
of
the
operating
room
already
decerebrate
and
totally
incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury
which does not normally occur in the process of a gall bladder operation. In
fact, this kind of situation does not happen 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 Erlindas comatose condition. Corollary thereto, we shall
also determine if the Court of Appeals erred in relying on the testimonies of
the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals
relied on the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In
giving weight to the testimony of Dra. Gutierrez, the Court of Appeals
rationalized that she was candid enough to admit that she experienced some
difficulty in the endotracheal intubation [45]of the patient and thus, cannot be
said to be covering her negligence with falsehood. The appellate court
likewise opined that private respondents were able to show that the brain
damage sustained by Erlinda was not caused by the alleged faulty intubation
but was due to the allergic reaction of the patient to the drug Thiopental
Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert
witness, Dr. Jamora. On the other hand, the appellate court rejected the
testimony of Dean Herminda Cruz offered in favor of petitioners that the
cause of the brain injury was traceable to the wrongful insertion of the tube
since the latter, being a nurse, was allegedly not knowledgeable in the
process of intubation. In so holding, the appellate court returned a verdict in
favor of respondents physicians and hospital and absolved them of any
liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold that
private respondents were unable to disprove the presumption of negligence
on their part in the care of Erlinda and their negligence was the proximate
cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the
logical scientific evidence of the pathogenesis of the injury but also in
providing the Court the legal nexus upon which liability is based. As will be
shown hereinafter, private respondents own testimonies which are reflected
in the transcript of stenographic notes are replete of signposts indicative of
their negligence in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda
during the anesthesia phase. As borne by the records, respondent Dra.
Gutierrez failed to properly intubate the patient. This fact was attested to by
Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing
and petitioner's sister-in-law, who was in the operating room right beside the
patient when the tragic event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

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

Q: Do you know what happened to that intubation process administered by
Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the stretcher holding
the left hand of the patient and all of a sudden I heard some remarks
coming from Dra. Perfecta Gutierrez herself. She was saying Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
xxx
ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
After hearing the phrase lumalaki ang tiyan, what did you notice on the
person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand
where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr.
Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the
patients nailbed became bluish and I saw the patient was placed in
trendelenburg position.

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
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 of Nursing, was fully capable of
determining whether or not the intubation was a success. She had extensive
clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse
and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the
Laguna College of Nursing in San Pablo City; and then Dean of the Capitol
Medical Center School of Nursing.[50]Reviewing witness Cruz' statements, we
find that the same were delivered in a straightforward manner, with the kind
of detail, clarity, consistency and spontaneity which would have been difficult
to fabricate. With her clinical background as a nurse, the Court is satisfied
that she was able to demonstrate through her testimony what truly
transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra.
Gutierrez who admitted that she experienced difficulty in inserting the tube
into Erlindas trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first
attempt (sic), you did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the ...
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said mahirap yata ito, what were you referring to?
A: Mahirap yata itong i-intubate, that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away.[51]
Curiously in the case at bar, respondent Dra. Gutierrez made the
haphazard defense that she encountered hardship in the insertion of the
tube in the trachea of Erlinda because it was positioned more anteriorly
(slightly deviated from the normal anatomy of a person) [52] making it harder
to locate and, since Erlinda is obese and has a short neck and protruding
teeth, it made intubation even more difficult.
The argument does not convince us. If this was indeed observed, private
respondents adduced no evidence demonstrating that they proceeded to
make a thorough assessment of Erlindas 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 patients medical records and visits
with the patient, traditionally, the day before elective surgery. [53] It includes
taking the patients 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
patients 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 patients 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 physicians 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
cardio-pulmonary clearance like that, I usually don't do it except on
emergency and on cases that have an abnormalities (sic).[58]
However, the exact opposite is true. In an emergency procedure, there is
hardly enough time available for the fastidious demands of pre-operative
procedure so that an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on the other hand, are
operative procedures that can wait for days, weeks or even months. Hence,
in these cases, the anesthesiologist possesses the luxury of time to make a
proper assessment, including the time to be at the patient's bedside 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.
Erlindas case was elective and this was known to respondent Dra.
Gutierrez. Thus, she had all the time to make a thorough evaluation of
Erlindas 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 preoperative 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 Erlindas comatose condition.
Private respondents repeatedly hammered the view that the cerebral
anoxia which led to Erlindas 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. Jamoras 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
appendectomy.

me. I

went

into

bronchospasm

during

my

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. Jamoras 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 absolve them of any and all
responsibility for the patients 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
Erlindas 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 Erlindas 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 patients 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 patients 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
surgeons responsibility to see to it that those under him perform their task in
the proper manner. Respondent Dr. Hosakas 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
Erlindas cholecystectomy, and was in fact over three hours late for the
latters 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 Erlindas condition.
We now discuss the responsibility of the hospital in this particular
incident. The unique practice (among private hospitals) of filling up specialist
staff with attending and visiting consultants,[74] who are allegedly not hospital
employees, presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is only more apparent
than real.
In the first place, hospitals exercise significant control in the hiring and
firing of consultants and in the conduct of their work within the hospital
premises. Doctors who apply for consultant slots, visiting or attending, are
required to submit proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and references. These

requirements are carefully scrutinized by members of the hospital

administration or by a review committee set up by the hospital who either
accept or reject the application.[75]This is particularly true with respondent
hospital.
After a physician is accepted, either as a visiting or attending consultant,
he is normally required to attend clinico-pathological conferences, conduct
bedside rounds for clerks, interns and residents, moderate grand rounds and
patient audits and perform other tasks and responsibilities, for the privilege
of being able to maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the physicians
performance as a specialist is generally evaluated by a peer review
committee on the basis of mortality and morbidity statistics, and feedback
from patients, nurses, interns and residents. A consultant remiss in his
duties, or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise real control over
their attending and visiting consultant staff. While consultants are not,
technically employees, a point which respondent hospital asserts in denying
all responsibility for the patients 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 petitioners 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 formers 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 Erlindas condition.
Based on the foregoing, we hold that the Court of Appeals erred in
accepting and relying on the testimonies of the witnesses for the private
respondents. Indeed, as shown by the above discussions, private
respondents were unable to rebut the presumption of negligence. Upon
these disquisitions we hold that private respondents are solidarily liable for
damages under Article 2176[79] of the Civil Code.
We now come to the amount of damages due petitioners. The trial court
awarded a total of P632,000.00 pesos (should be P616,000.00) in
compensatory damages to the plaintiff, subject to its being updated covering
the period from 15 November 1985 up to 15 April 1992, based on monthly
expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial
court at the time of its decision would be grossly inadequate to cover the
actual costs of home-based care for a comatose individual.The calculated
amount was not even arrived at by looking at the actual cost of proper
hospice care for the patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were forced to bring home
the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be
transferred to a hospice specializing in the care of the chronically ill for the
purpose of providing a proper milieu adequate to meet minimum standards
of care. In the instant case for instance, Erlinda has to be constantly turned
from side to side to prevent bedsores and hypostatic pneumonia. Feeding is
done by nasogastric tube. Food preparation should be normally made by a
dietitian to provide her with the correct daily caloric requirements and
vitamin supplements. Furthermore, she has to be seen on a regular basis by
a physical therapist to avoid muscle atrophy, and by a pulmonary therapist
to prevent the accumulation of secretions which can lead to respiratory
complications.
Given these considerations, the amount of actual damages recoverable in
suits arising from negligence should at least reflect the correct minimum cost
of proper care, not the cost of the care the family is usually compelled to
undertake at home to avoid bankruptcy. However, the provisions of the Civil
Code on actual or compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the
plaintiff are those suffered by him as he has duly proved. The Civil Code
provides:

Art. 2199. - Except as provided by law or by stipulation, one is entitled to an

adequate compensation only for such pecuniary loss suffered by him as he
has duly proved. Such compensation is referred to as actual or compensatory
damages.
Our rules on actual or compensatory damages generally assume that at
the time of litigation, the injury suffered as a consequence of an act of
negligence has been completed and that the cost can be
liquidated. However, these provisions neglect to take into account those
situations, as in this case, where the resulting injury might be continuing and
possible future complications directly arising from the injury, while certain to
occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they
are to adequately and correctly respond to the injury caused, should be one
which compensates for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be suffered but
which could not, from the nature of the case, be made with certainty. [80] In
other words, temperate damages can and should be awarded on top of
actual or compensatory damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases.
As it would not be equitable - and certainly not in the best interests of the
administration of justice - for the victim in such cases to constantly come
before the courts and invoke their aid in seeking adjustments to the
compensatory damages previously awarded - temperate damages are
appropriate. The amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based
nursing care for a comatose patient who has remained in that condition for
over a decade. Having premised our award for compensatory damages on
the amount provided by petitioners at the onset of litigation, it would be now
much more in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal care for their
loved one in a facility which generally specializes in such care. They should
not be compelled by dire circumstances to provide substandard care at home
without the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of P1,500,000.00 in
temperate damages would therefore be reasonable.[81]
In Valenzuela vs. Court of Appeals,[82] this Court was confronted with a
situation where the injury suffered by the plaintiff would have led to
expenses which were difficult to estimate because while they would have
been a direct result of the injury (amputation), and were certain to be

incurred by the plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a
traumatic amputation of her left lower extremity at the distal left thigh
just above the knee. Because of this, Valenzuela will forever be
deprived of the full ambulatory functions of her left extremity, even
with the use of state of the art prosthetic technology. Well beyond the
period of hospitalization (which was paid for by Li), she will be required
to undergo adjustments in her prosthetic devise due to the shrinkage
of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months
of physical and occupational rehabilitation and therapy. During her
lifetime, the prosthetic devise will have to be replaced and readjusted
to changes in the size of her lower limb effected by the biological
changes of middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be adjusted to
respond to the changes in bone resulting from a precipitate decrease
in calcium levels observed in the bones of all post-menopausal
women. In other words, the damage done to her would not only be
permanent and lasting, it would also be permanently changing and
adjusting to the physiologic changes which her body
would normally undergo through the years. The replacements,
changes, and adjustments will require corresponding adjustive
physical and occupational therapy. All of these adjustments, it has
been documented, are painful.
x x x.
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 petitioners condition

remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victims 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 victims condition. [84] The husband and the children,
all petitioners in this case, will have to live with the day to day uncertainty of
the patients 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 familys 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 attorneys fees valued
atP100,000.00 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 physicians 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 attorneys fees; and, 5) the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo and Ynares-Santiago, JJ., concur.

EN BANC
[G.R. No. 131588. March 27, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GLENN DE LOS
SANTOS, accused-appellant.
DECISION
DAVIDE, JR., C.J.:
One may perhaps easily recall the gruesome and tragic event in Cagayan
de Oro City, reported over print and broadcast media, which claimed the
lives of several members of the Philippine National Police (PNP) who were
undergoing an endurance run as part of the Special Counter Insurgency
Operation Unit Training. Not much effort was spared for the search of the one
responsible therefor, as herein accused-appellant Glenn de los Santos
(hereafter GLENN) immediately surrendered to local authorities. GLENN was
then charged with the crimes of Multiple Murder, Multiple Frustrated Murder,
and Multiple Attempted Murder in an information filed with the Regional Trial
Court of Cagayan de Oro City. The information reads as follows:
That on or about October 05, 1995, in the early morning, at Maitum Highway,
within Barangay Puerto, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent to kill, taking advantage of his driven motor vehicle, an
Isuzu Elf, and with treachery, did then and there willfully, unlawfully and
feloniously kill and inflict mortal wounds from behind in a sudden and

unexpected manner with the use of said vehicle members of the Philippine
National Police (PNP), undergoing a Special Training Course (Scout Class 0795), wearing black T-shirts and black short pants, performing an Endurance
Run of 35 kilometers coming from their camp in Manolo Fortich, Bukidnon,
heading to Regional Training Headquarters in Camp Alagar, Cagayan de Oro
City, running in a column of 3, with a distance of two feet, more or less, from
one trainee to another, thus forming a [sic] three lines, with a length of more
or less 50 meters from the 1st man to the last man, unable to defend
themselves, because the accused ran or moved his driven vehicle on the
direction of the backs of the PNP joggers in spite of the continuous warning
signals made by six of the joggers, namely: PO1 Allan Tabacon Espana,
Waldon Sinda Sacro, Lemuel Ybanez Pangca, Artemio Jamil Villaflor, Nardo
Omasas Collantes and Joselito Buyser Escartin, who were at the rear echelon
of said run, acting as guards, by continuously waving their hands at the
accused for him to take the left lane of the highway, going to the City proper,
from a distance of 100 meters away from the joggers rear portion, but which
accused failed and refused to heed; instead, he proceeded to operate his
driven vehicle (an Isuzu Elf) on high speed directly towards the joggers, thus
forcing the rear guard[s] to throw themselves to [a] nearby canal, to avoid
injuries, then hitting, bumping, or ramming the first four (4) victims, causing
the bodies to be thrown towards the windshields of said Isuzu Elf, breaking
said windshield, and upon being aware that bodies of the victims flew on the
windshield of his driven vehicle, instead of applying his brake, continued to
travel on a high speed, this time putting off its headlights, thus hitting the
succeeding joggers on said 1st line, as a result thereof the following were
killed on the spot:
1. Vincent Labis Rosal 7. Antonio Flores Lasco
2. Allan Amoguis Abis 8. Igmedio Salinas Lituanas
3. Jose Arden M. Atisa 9. Roberto Cabussao Loren
4. Nathaniel Mugot Baculio 10. Raul Plaza Martinez
5. Romil Gosila Legrano 11. Jerry Pedrosa Pajo
6. Arnulfo Limbago Jacutin 12. Rolando Paremcio Pancito
While another trainee/victim, Antonio Palomino Mino, died few days after the
incident, while the following eleven (11) other trainee/victims were seriously

wounded, the accused thus performing all the acts of execution which would
produce the crime of Murder as a consequence but nevertheless did not
produce it by reason of some cause other than said accuseds spontaneous
desistance, that is, by the timely and able medical assistance rendered on
the following victims which prevented their death, to wit:
1. Rey Go Boquis 7. Melchor Hinlo
2. Rene Tuako Calabria 8. Noel Ganzan Oclarit
3. Nonata Ibarra Erno 9. Charito Penza Gepala
4. Rey Tamayo Estofil 10. Victor Malicse Olavo
5. Joel Rey Migue Galendez 11. Bimbo Glabe Polboroza
6. Arman Neri Hernaiz
While the following Police Officers I (POI) sustained minor injuries, to wit:
1. Romanito Andrada 6. Romualdo Cotor Dacera
2. Richard Canoy Caday 7. Ramil Rivas Gaisano
3. Rey Cayusa 8. Dibangkita Magandang
4. Avelino Chua 9. Martin Olivero Pelarion
5. Henry Gadis Coubeta 10. Flordicante Martin Piligro
after which said accused thereafter escaped from the scene of the incident,
leaving behind the victims afore-enumerated helpless.
Contrary to Article 248, in relation to Article 6 of the Revised Penal Code.
The evidence for the prosecution disclose that the Special Counter
Insurgency Operation Unit Training held at Camp Damilag, Manolo Fortich,
Bukidnon, started on 1 September 1995 and was to end on 15 October
1995. The last phase of the training was the endurance run from said Camp
to Camp Alagar, Cagayan de Oro City. The run on 5 October 1995 started at
2:20 a.m. The PNP trainees were divided into three columns: the first and
second of which had 22 trainees each, and the third had 21. The trainees

were wearing black T-shirts, black short pants, and green and black combat
shoes. At the start of the run, a Hummer vehicle tailed the jogging
trainees. When they reached Alae, the driver of the Hummer vehicle was
instructed to dispatch advanced security at strategic locations in Carmen
Hill. Since the jogging trainees were occupying the right lane of the highway,
two rear security guards were assigned to each rear column. Their duty was
to jog backwards facing the oncoming vehicles and give hand signals for
other vehicles to take the left lane.[1]
Prosecution witnesses Lemuel Y. Pangca and Weldon Sacro testified that
they were assigned as rear guards of the first column. They recalled that
from Alae to Maitum Highway, Puerto, Cagayan de Oro City, about 20
vehicles passed them, all of which slowed down and took the left portion of
the road when signaled to do so.[2]
While they were negotiating Maitum Highway, they saw an Isuzu Elf truck
coming at high speed towards them. The vehicle lights were in the high
beam. At a distance of 100 meters, the rear security guards started waving
their hands for the vehicle to take the other side of the road, but the vehicle
just kept its speed, apparently ignoring their signals and coming closer and
closer to them. Realizing that the vehicle would hit them, the rear guards
told their co-trainees to retract. The guards forthwith jumped in different
directions. Lemuel and Weldon saw their co-trainees being hit by the said
vehicle, falling like dominoes one after the other. Some were thrown, and
others were overrun by the vehicle. The driver did not reduce his speed even
after hitting the first and second columns. The guards then stopped
oncoming vehicles to prevent their comrades from being hit again. [3]
The trial court judge, together with the City Prosecutor, GLENN and his
counsel, conducted an ocular inspection of the place where the incident
happened. They then proceeded to inspect the Isuzu Elf at the police
station. The City Prosecutor manifested, thus:
The vehicle which we are now inspecting at the police station is the same
vehicle which [was] involved in the October 5, 1995 incident, an Isuzu Elf
vehicle colored light blue with strips painting along the side colored orange
and yellow as well as in front. We further manifest that the windshield was
totally damaged and 2/3 portion of the front just below the windshield was
heavily dented as a consequence of the impact. The lower portion was
likewise damaged more particularly in the radiator guard. The bumper of said

vehicle was likewise heavily damaged in fact there is a cut of the plastic used
as a bumper; that the right side of the headlight was likewise totally
damaged. The front signal light, right side was likewise damaged. The side
mirror was likewise totally damaged. The height of the truck from the ground
to the lower portion of the windshield is 5 ft. and the height of the truck on
the front level is 5 ft.[4]
PO3 Jose Cabugwas testified that he was assigned at the Investigation
Division at Precinct 6, Cagayan de Oro City, and that at 4 a.m. of 5 October
1995, several members of the PNP came to their station and reported that
they had been bumped by a certain vehicle. Immediately after receiving the
report, he and two other policemen proceeded to the traffic scene to conduct
an ocular inspection. Only bloodstains and broken particles of the hit-and-run
vehicle remained on the highway. They did not see any brake marks on the
highway, which led him to conclude that the brakes of the vehicle had not
been applied. The policemen measured the bloodstains and found them to
be 70 ft. long.[5]
GLENNs version of the events that transpired that evening is as follows:
At about 10:30 p.m. of 4 October 1995, he was asked by his friend Enting
Galindez and the latters fellow band members to provide them with
transportation, if possible an Isuzu Forward, that would bring their band
instruments, band utilities and band members from Macasandig and
Corrales, Cagayan de Oro City, to Balingoan. From there, they were supposed
to be taken to Mambajao, Camiguin, to participate in the San Miguelsponsored Sabado Nights of the Lanzones Festival from 5-7 October 1995. It
was the thirteenth time that Enting had asked such a favor from him. [6] Since
the arrangement was to fetch Galindez and his group at 4:00 a.m. of 5
October 1995, GLENN immediately went to Cugman, Cagayan de Oro City, to
get his Isuzu Elf truck. After which, he proceeded back to his house at Bugo,
Cagayan de Oro City, and told his wife that he would go to Bukidnon to get
his aunts Isuzu Forward truck because the twenty band members and nine
utilities and band instruments could not be accommodated in the Isuzu Elf
truck. Three of his friends asked to go along, namely, Roldan Paltonag, Andot
Pea, and a certain Akut.[7]
After leaving GLENNs house, the group decided to stop at Celebrity Plaza
Restaurant. GLENN saw his kumpare Danilo Cosin and the latters wife, and
joined them at the table. GLENN finished three bottles of pale pilsen

beer. When the Cosin spouses left, GLENN joined his travelling companions at
their table. The group left at 12:00 midnight for Bukidnon. The environment
was dark and foggy, with occasional rains. It took them sometime looking for
the Isuzu Forward truck. Finally, they saw the truck in Agusan Canyon. Much
to their disappointment, the said truck had mechanical problems. Hence,
GLENN decided to go back to Cagayan de Oro City to tell Enting that they
would use the Isuzu Elf truck instead.[8]
GLENN drove slowly because the road was slippery. The vicinity was dark:
there was no moon or star; neither were there lampposts. From the Alae
junction, he and his companions used the national highway, traversing the
right lane going to Cagayan de Oro City. At the vicinity of Mambatangan
junction, as the Elf was negotiating a left curve going slightly downward,
GLENN saw a very bright and glaring light coming from the opposite direction
of the national highway. GLENN blinked his headlights as a signal for the
other driver to switch his headlights from bright to dim. GLENN switched his
own lights from bright to dim and reduced his speed from 80 to 60
kilometers per hour. It was only when the vehicles were at a distance of 10 to
15 meters from each other that the other cars headlights were switched from
bright to dim. As a result, GLENN found it extremely hard to adjust from high
brightness to sudden darkness.[9]
It was while the truck was still cruising at a speed of 60 km./hr., and
immediately after passing the oncoming vehicle, that GLENN suddenly heard
and felt bumping thuds. At the sound of the first bumping thuds, GLENN put
his right foot on the brake pedal. But the impact was so sudden that he was
astonished and afraid. He was trembling and could not see what were being
bumped. At the succeeding bumping thuds, he was not able to pump the
brake, nor did he notice that his foot was pushing the pedal. He returned to
his senses only when one of his companions woke up and said to him: Gard,
it seems we bumped on something. Just relax, we might all die. Due to its
momentum, the Elf continued on its track and was able to stop only when it
was already very near the next curve.[10]
GLENN could not distinguish in the darkness what he had hit, especially
since the right headlights of the truck had been busted upon the first
bumping thuds. In his confusion and fear, he immediately proceeded
home. GLENN did not report the incident to the Puerto Police Station because
he was not aware of what exactly he had hit. It was only when he reached his
house that he noticed that the grill of the truck was broken; the side mirror

and round mirror, missing; and the windshield, splintered. Two hours later, he
heard on Bombo Radyo that an accident had occurred, and he realized that it
was the PNP group that he had hit. GLENN surrendered that same day to
Governor Emano.[11]
The defense also presented Crescente Galindez, as well as Shirley
Almazan of the PAG-ASA Office, Cagayan de Oro City. The former testified
that when he went to GLENNs house at about 10:00 p.m. of 4 October 1995,
there was heavy rain; and at 12:00 midnight, the rain was moderate. He
corroborated GLENNs testimony that he (Crescente) went to GLENNs house
that evening in order to hire a truck that would bring the band instruments,
band utilities and band members from Cagayan de Oro to Camiguin for the
Lanzones Festival.[12] Almazan, on the other hand, testified that based on an
observed weather report within the vicinity of Cagayan de Oro City, there
was rain from 8:00 p.m. of October 1995 to 2:00 a.m. the next day; and the
sky was overcast from 11:00 p.m. of 4 October 1995 to 5:00 a.m. of 5
October 1995. What she meant by overcast is that there was no break in the
sky; and, definitely, the moon and stars could not be seen.[13]
The prosecution presented rebuttal witness Danilo Olarita whose house
was just 100 meters away from the place where the incident occurred. He
testified that he was awakened on that fateful night by a series of loud
thuds. Thereafter, a man came to his house and asked for a glass of water,
claiming to have been hit by a vehicle. Danilo further stated that the weather
at the time was fair, and that the soil was dry and not muddy.[14]
In its decision of 26 August 1997, the trial court convicted GLENN of the
complex crime of multiple murder, multiple frustrated murder and multiple
attempted murder, with the use of motor vehicle as the qualifying
circumstance. It sentenced him to suffer the penalty of death and ordered
him to indemnify each group of the heirs of the deceased in the amount of
P75,000; each of the victims of frustrated murder in the amount of P30,000;
and each of the victims of attempted murder in the amount of P10,000.
Hence, this automatic review, wherein GLENN contends that the trial
court erred (a) in finding that he caused the Isuzu Elf truck to hit the trainees
even after seeing the rear guards waving and the PNP trainees jogging; (b) in
finding that he caused the truck to run even faster after noticing the first
thuds; and (c) in finding that he could still have avoided the accident from a

distance of 150 meters, despite the bright and glaring light from the
oncoming vehicle.
In convicting GLENN, the trial court found that the accused out of
mischief and dare-devilness [sic], in the exhilaration of the night breeze and
having dr[u]nk at least three bottles of beer earlier, merely wanted to scare
the rear guard[s] and see them scamper away as they saw him and his
vehicle coming at them to ram them down.[15]
Likewise, the OSG posits that the evil motive of the appellant in injuring
the jogging trainees was probably brought by the fact that he had dr[u]nk a
total of three (3) bottles of beer earlier before the incident.[16]
Not
to
be
outdone,
the
defense
also
advances
another
speculation, i.e., the possibility that [GLENN] could have fallen asleep out of
sheer fatigue in that unholy hour of 3:30 in the early morning, and thus was
not able to stop his Isuzu Elf truck when the bumping thuds were occurring in
rapid succession; and after he was able to wake up upon hearing the shout of
his companions, it was already too late, as the bumping thuds had already
occurred.[17]
Considering that death penalty is involved, the trial court should have
been more scrupulous in weighing the evidence. If we are to subscribe to the
trial courts finding that GLENN must have merely wanted to scare the rear
guards, then intent to kill was wanting. In the absence of a criminal intent, he
cannot be held liable for an intentional felony. All reasonable doubt intended
to demonstrate negligence, and not criminal intent, should be indulged.[18]
From the convergence of circumstances, we are inclined to believe that
the tragic event was more a product of reckless imprudence than of a
malicious intent on GLENNs part.
First, as testified to by prosecution rebuttal witness Danilo Olarita, the
place of the incident was very dark, as there was no moon. And according to
PAG-ASAs observed weather report within the vicinity of Cagayan de Oro City
covering a radius of 50 kilometers, at the time the event took place, the sky
was overcast, i.e., there was absolutely no break in the thick clouds covering
the celestial dome globe; hence, there was no way for the moon and stars to
be seen. Neither were there lampposts that illuminated the highway.

Second, the jogging trainees and the rear guards were all wearing black
T-shirts, black short pants, and black and green combat shoes, which made
them hard to make out on that dark and cloudy night.The rear guards had
neither reflectorized vests or gloves nor flashlights in giving hand signals.
Third, GLENN was driving on the proper side of the road, the right
lane. On the other hand, the jogging trainees were occupying the wrong
lane, the same lane as GLENNs vehicle was traversing. Worse, they were
facing the same direction as GLENNs truck such that their backs were turned
towards the oncoming vehicles from behind.
Fourth, no convincing evidence was presented to rebut GLENNs
testimony that he had been momentarily blinded by the very bright and
glaring lights of the oncoming vehicle at the opposite direction as his truck
rounded the curve. He must have been still reeling from the blinding effect of
the lights coming from the other vehicle when he plowed into the group of
police trainees.
Indeed, as pointed out by appellant, instinct tells one to stop or swerve to
a safe place the moment he sees a cow, dog, or cat on the road, in order to
avoid bumping or killing the same; and more so if the one on the road is a
person. It would therefore be inconceivable for GLENN, then a young college
graduate with a pregnant wife and three very young children who were
dependent on him for support, to have deliberately hit the group with his
truck.
The conclusion of the trial court and the OSG that GLENN intentionally
rammed and hit the jogging trainees was premised on the assumption that
despite the first bumping thuds, he continued to accelerate his vehicle
instead of applying his brakes, as shown by the absence of brake marks or
skid marks along the traffic scene.
For its part, the defense attributed the continuous movement of GLENNs
vehicle to the confluence of the following factors:
1. The Isuzu Elf truck, a huge vehicle, was moving fast that even if the
brakes were applied the truck would have still proceeded further on
account of its momentum, albeit at a reduced speed, and would
have stopped only after a certain distance.

2. The national highway, from Alae to Puerto, Cagayan de Oro City,

was made of fine and smooth asphalt, free from obstructions on the
road such as potholes or excavations. Moreover, the highway was
going a little bit downward, more particularly from the first curve to
the place of incident. Hence, it was easier and faster to traverse a
distance of 20 to 25 meters which was the approximate aggregate
distance from the first elements up to the 22nd or 23rd elements of
the columns.
3. The weight of each of the trainees (the average of which could be
50 kilograms only) could hardly make an impact on the 3,900
kilograms truck, which was moving at a speed ranging from 60 to
70 kilometers per hour.
4. Considering that the width of the truck from the right to the left
tires was wide and the under chassis was elevated, the truck could
just pass over two persons lying flat on the ground without its
rubber tires running over the bodies. Thus, GLENN would not notice
any destabilization of the rubber tires.
5. Since the police trainees were jogging in the same direction as the
truck was proceeding, the forward movements constituted a force
parallel to the momentum of the forward-moving truck such that
there was even much lesser force resisting the said ongoing
momentum.
It is a well-entrenched rule that if the inculpatory facts are capable of two
or more explanations -- one consistent with the innocence or lesser degree of
liability of the accused, and the other consistent with his guilt or graver
responsibility -- the Court should adopt the explanation which is more
favorable to the accused.[19]
We are convinced that the incident, tragic though it was in light of the
number of persons killed and seriously injured, was an accident and not an
intentional felony. It is significant to note that there is no shred of evidence
that GLENN had an axe to grind against the police trainees that would drive
him into deliberately hitting them with intent to kill.
Although proof of motive is not indispensable to a conviction especially
where the assailant is positively identified, such proof is, nonetheless,
important in determining which of two conflicting theories of the incident is

more likely to be true.[20] Thus, in People v. Godinez,[21] this Court said that
the existence of a motive on the part of the accused becomes decisive in
determining the probability or credibility of his version that the shooting was
purely accidental.
Neither is there any showing of a political angle of a leftist-sponsored
massacre of police elements disguised in a vehicular accident. [22] Even if
there be such evidence, i.e., that the motive of the killing was in furtherance
of a rebellion movement, GLENN cannot be convicted because if such were
the case, the proper charge would be rebellion, and not murder.[23]
GLENNs offense is in failing to apply the brakes, or to swerve his vehicle
to the left or to a safe place the moment he heard and felt the first bumping
thuds. Had he done so, many trainees would have been spared.
We have once said:
A man must use common sense, and exercise due reflection in all his acts; it
is his duty to be cautious, careful, and prudent, if not from instinct, then
through fear of incurring punishment. He is responsible for such results as
anyone might foresee and for acts which no one would have performed
except through culpable abandon. Otherwise his own person, rights and
property, and those of his fellow-beings, would ever be exposed to all
manner of danger and injury.[24]
The test for determining whether a person is negligent in doing an act
whereby injury or damage results to the person or property of another is this:
Could a prudent man, in the position of the person to whom negligence is
attributed, foresee harm to the person injured as a reasonable consequence
of the course actually pursued? If so, the law imposes a duty on the actor to
refrain from that course or to take precautions to guard against its
mischievous
results,
and
the
failure
to
do
so
constitutes
negligence. Reasonable foresight of harm, followed by the ignoring of the
admonition born of this prevision, is always necessary before negligence can
be held to exist.[25]
GLENN showed an inexcusable lack of precaution. Article 365 of the
Revised Penal Code states that reckless imprudence consists in voluntarily,
but without malice, doing or failing to do an act from which material damage
results by reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration (1) his

employment or occupation; (2) his degree of intelligence; (4) his physical

condition; and (3) other circumstances regarding persons, time and place.
GLENN, being then a young college graduate and an experienced driver,
should have known to apply the brakes or swerve to a safe place
immediately upon hearing the first bumping thuds to avoid further hitting the
other trainees. By his own testimony, it was established that the road was
slippery and slightly going downward; and, worse, the place of the incident
was foggy and dark. He should have observed due care in accordance with
the conduct of a reasonably prudent man, such as by slackening his speed,
applying his brakes, or turning to the left side even if it would mean entering
the opposite lane (there being no evidence that a vehicle was coming from
the opposite direction). It is highly probable that he was driving at high
speed at the time. And even if he was driving within the speed limits, this did
not mean that he was exercising due care under the existing circumstances
and conditions at the time.
Considering that the incident was not a product of a malicious intent but
rather the result of a single act of reckless driving, GLENN should be held
guilty of the complex crime of reckless imprudence resulting in multiple
homicide with serious physical injuries and less serious physical injuries.
Article 48 of the Revised Penal Code provides that when the single act
constitutes two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most serious
crime shall be imposed, the same to be applied in its maximum period. Since
Article 48 speaks of felonies, it is applicable to crimes through negligence in
view of the definition of felonies in Article 3 as acts or omissions punishable
by law committed either by means of deceit (dolo) or fault (culpa).
[26]
In Reodica v. Court of Appeals,[27] we ruled that if a reckless, imprudent, or
negligent act results in two or more grave or less grave felonies, a complex
crime is committed. Thus, in Lapuz v. Court of Appeals,[28] the accused was
convicted, in conformity with Article 48 of the Revised Penal Code, of the
complex crime of homicide with serious physical injuries and damage to
property through reckless imprudence, and was sentenced to a single
penalty of imprisonment, instead of the two penalties imposed by the trial
court. Also, in Soriao v. Court of Appeals,[29] the accused was convicted of the
complex crime of multiple homicide with damage to property through
reckless imprudence for causing a motor boat to capsize, thereby drowning
to death its twenty-eight passengers.

The slight physical injuries caused by GLENN to the ten other victims
through reckless imprudence, would, had they been intentional, have
constituted light felonies. Being light felonies, which are not covered by
Article 48, they should be treated and punished as separate
offenses. Separate informations should have, therefore, been filed.
It must be noted that only one information (for multiple murder, multiple
frustrated murder and multiple attempted murder) was filed with the trial
court. However, nothing appears in the record that GLENN objected to the
multiplicity of the information in a motion to quash before his
arraignment. Hence, he is deemed to have waived such defect. [30] Under
Section 3, Rule 120 of the Rules of Court, when two or more offenses are
charged in a single complaint or information and the accused fails to object
to it before trial, the court may convict the accused of as many offenses as
are charged and proved, and impose on him the penalty for each of them.
Now, we come to the penalty. Under Article 365 of the Revised Penal
Code, any person who, by reckless imprudence, shall commit any act which,
had it been intentional, would constitute a grave felony shall suffer the
penalty of arresto mayor in its maximum period to prision correccional in its
medium period; and if it would have constituted a light felony, the penalty
of arresto menor in its maximum period shall be imposed. The last paragraph
thereof provides that the penalty next higher in degree shall be imposed
upon the offender who fails to lend on the spot to the injured parties such
help as may be in his hand to give. This failure to render assistance to the
victim, therefore, constitutes a qualifying circumstance because the
presence thereof raises the penalty by one degree. [31] Moreover, the fifth
paragraph thereof provides that in the imposition of the penalty, the court
shall exercise its sound discretion without regard to the rules prescribed in
Article 64. Elsewise stated, in felonies through imprudence or negligence,
modifying circumstances need not be considered in the imposition of the
penalty.[32]
In the case at bar, it has been alleged in the information and proved
during the trial that GLENN escaped from the scene of the incident, leaving
behind the victims. It being crystal clear that GLENN failed to render aid to
the victims, the penalty provided for under Article 365 shall be raised by one
degree. Hence, for reckless imprudence resulting in multiple homicide with
serious physical injuries and less serious physical injuries, the penalty would
be prision correccional in its maximum period to prision mayor in its medium

period. Applying Article 48, the maximum of said penalty, which is prision
mayor in its medium period, should be imposed. For the separate offenses of
reckless imprudence resulting in slight physical injuries, GLENN may be
sentenced to suffer, for each count, the penalty of arresto mayor in its
minimum period.
Although it was established through the testimonies of prosecution
witness Lemuel Pangca[33] and of GLENN that the latter surrendered to
Governor Emano of Misamis Oriental, such mitigating circumstance need not
be considered pursuant to the aforestated fifth paragraph of Article 365.
Under the Indeterminate Sentence Law, GLENN may be sentenced to
suffer an indeterminate penalty whose minimum is within the range of the
penalty next lower in degree to that prescribed for the offense, and whose
maximum is that which could properly be imposed taking into account the
modifying circumstances. Hence, for the complex crime of reckless
imprudence resulting in multiple homicide with serious physical injuries and
less serious physical injuries, qualified by his failure to render assistance to
the victims, he may be sentenced to suffer an indeterminate penalty ranging
from arresto mayorin its maximum period to prision correccional in its
medium period, as minimum, to prision mayor in its medium period, as
maximum. As to the crimes of reckless imprudence resulting in slight
physical injuries, since the maximum term for each count is only two months
the Indeterminate Sentence Law will not apply.
As far as the award of damages is concerned, we find a necessity to
modify the same. Conformably with current jurisprudence, [34] we reduce the
trial courts award of death indemnity from P75,000 to P50,000 for each
group of heirs of the trainees killed. Likewise, for lack of factual basis, we
delete the awards of P30,000 to each of those who suffered serious physical
injuries and of P10,000 to each of those who suffered minor physical injuries.
WHEREFORE, the decision of the Regional Trial Court, Branch 38,
Cagayan de Oro City, is hereby SET ASIDE, and another one is rendered
holding herein accused-appellant GLENN DE LOS SANTOS guilty beyond
reasonable doubt of (1) the complex crime of reckless imprudence resulting
in multiple homicide with serious physical injuries and less serious physical
injuries, and sentencing him to suffer an indeterminate penalty of four (4)
years of prision correccional, as minimum, to ten (10) years of prision mayor,
as maximum; and (2) ten (10) counts of reckless imprudence resulting in

slight physical injuries and sentencing him, for each count, to the penalty of
two (2) months of arresto mayor. Furthermore, the awards of death
indemnity for each group of heirs of the trainees killed are reduced to
P50,000; and the awards in favor of the other victims are deleted. Costs
against accused-appellant.
SO ORDERED.
Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and SandovalGutierrez, JJ., concur.
Puno, J., abroad on official business.