G.R. Nos.

66102-04 August 30, 1990

PHILIPPINE RABBIT BUS LINES, INC., petitioner,

vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT AND CASIANO PASCUA, ET AL., respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Intermediate Appellate Court (now Court of
Appeals) dated July 29, 1983 in AC-G.R. Nos. CV-65885, CV-65886 and CV-65887 which reversed the
decision of the Court of First Instance (now Regional Trial Court) of Pangasinan dated December 27, 1978;
and its resolution dated November 28, 1983 denying the motion for reconsideration.

It is an established principle that the factual findings of the Court of Appeals are final and may not be reviewed
by this Court on appeal. However, this principle is subject to certain exceptions. One of these is when the
findings of the appellate court are contrary to those of the trial court (see Sabinosa v. The Honorable Court of
Appeals, et al., G.R. No. L-47981, July 24, 1989) in which case, a re-examination of the facts and evidence
may be undertaken. This is Our task now.

The antecedent facts are as follows:

About 11:00 o'clock in the morning on December 24, 1966, Catalina Pascua, Caridad Pascua, Adelaida
Estomo, Erlinda Meriales, Mercedes Lorenzo, Alejandro Morales and Zenaida Parejas boarded the jeepney
owned by spouses Isidro Mangune and Guillerma Carreon and driven by Tranquilino Manalo at Dau,
Mabalacat, Pampanga bound for Carmen, Rosales, Pangasinan to spend Christmas at their respective homes.
Although they usually ride in buses, they had to ride in a jeepney that day because the buses were full. Their
contract with Manalo was for them to pay P24.00 for the trip. The private respondents' testimonial evidence on
this contractual relationship was not controverted by Mangune, Carreon and Manalo, nor by Filriters Guaranty
Assurance Corporation, Inc., the insurer of the jeepney, with contrary evidence. Purportedly riding on the front
seat with Manalo was Mercedes Lorenzo. On the left rear passenger seat were Caridad Pascua, Alejandro
Morales and Zenaida Parejas. On the right rear passenger seat were Catalina Pascua, Adelaida Estomo, and
Erlinda Meriales. After a brief stopover at Moncada, Tarlac for refreshment, the jeepney proceeded towards
Carmen, Rosales, Pangasinan.

Upon reaching barrio Sinayoan, San Manuel, Tarlac, the right rear wheel of the jeepney was detached, so it
was running in an unbalanced position. Manalo stepped on the brake, as a result of which, the jeepney which
was then running on the eastern lane (its right of way) made a U-turn, invading and eventually stopping on the
western lane of the road in such a manner that the jeepney's front faced the south (from where it came) and its
rear faced the north (towards where it was going). The jeepney practically occupied and blocked the greater
portion of the western lane, which is the right of way of vehicles coming from the north, among which was Bus
No. 753 of petitioner Philippine Rabbit Bus Lines, Inc. (Rabbit) driven by Tomas delos Reyes. Almost at the
time when the jeepney made a sudden U-turn and encroached on the western lane of the highway as claimed
by Rabbit and delos Reyes, or after stopping for a couple of minutes as claimed by Mangune, Carreon and
Manalo, the bus bumped from behind the right rear portion of the jeepney. As a result of the collision, three
Page 1 of 142
passengers of the jeepney (Catalina Pascua, Erlinda Meriales and Adelaida Estomo) died while the other
jeepney passengers sustained physical injuries. What could have been a festive Christmas turned out to be
tragic.

The causes of the death of the three jeepney passengers were as follows (p. 101, Record on Appeal):

The deceased Catalina Pascua suffered the following injuries, to wit: fracture of the left parietal and temporal
regions of the skull; fracture of the left mandible; fracture of the right humenous; compound fracture of the left
radious and ullma middle third and lower third; fracture of the upper third of the right tibia and fillnea; avulsion
of the head, left internal; and multiple abrasions. The cause of her death was shock, secondary to fracture and
multiple hemorrhage. The fractures were produced as a result of the hitting of the victim by a strong force. The
abrasions could be produced when a person falls from a moving vehicles (sic) and rubs parts of her body
against a cement road pavement. . . .

Erlinda Mariles (sic) sustained external lesions such as contusion on the left parietal region of the skull;
hematoma on the right upper lid; and abrasions (sic) on the left knee. Her internal lesions were: hematoma on
the left thorax; multiple lacerations of the left lower lobe of the lungs; contusions on the left lower lobe of the
lungs; and simple fractures of the 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th ribs, left. The forcible impact of the jeep
caused the above injuries which resulted in her death. . . .

The cause of death of Erlinda or Florida Estomo (also called as per autopsy of Dr. Panlasiqui was due to shock
due to internal hemorrhage, ruptured spleen and trauma. . . .

Caridad Pascua suffered physical injuries as follows (p. 101, Record on Appeal):

. . . lacerated wound on the forehead and occipital region, hematoma on the forehead, multiple abrasions on
the forearm, right upper arm, back and right leg. . . .

The police investigators of Tacpal and policemen of San Manuel, Tarlac, Tarlac, upon arrival at the scene of the
mishap, prepared a sketch (common exhibit "K" for private respondents "19" for Rabbit) showing the relative
positions of the two vehicles as well as the alleged point of impact (p. 100, Record on Appeal):

. . . The point of collision was a cement pave-portion of the Highway, about six (6) meters wide, with narrow
shoulders with grasses beyond which are canals on both sides. The road was straight and points 200 meters
north and south of the point of collision are visible and unobstructed. Purportedly, the point of impact or
collision (Exh. "K-4", Pascua on the sketch Exh. "K"-Pascua) was on the western lane of the highway about 3
feet (or one yard) from the center line as shown by the bedris (sic), dirt and soil (obviously from the
undercarriage of both vehicles) as well as paint, marron (sic) from the Rabbit bus and greenish from the
jeepney. The point of impact encircled and marked with the letter "X" in Exh. "K"-4 Pascua, had a diameter of
two meters, the center of which was about two meters from the western edge of cement pavement of the
roadway. Pictures taken by witness Bisquera in the course of the investigation showed the relative positions of
the point of impact and center line (Exh. "P"-Pascua) the back of the Rabbit bus (Exh. "P"-1-Pascua"), the
lifeless body of Catalina Pascua (Exh. "P-2 Pascua"), and the damaged front part of the Rabbit bus (Exh. "P-3
Pascua"). No skid marks of the Rabbit bus was found in the vicinity of the collision, before or after the point of

Page 2 of 142
impact. On the other hand, there was a skid mark about 45 meters long purportedly of the jeepney from the
eastern shoulder of the road south of, and extending up to the point of impact.

At the time and in the vicinity of the accident, there were no vehicles following the jeepney, neither were there
oncoming vehicles except the bus. The weather condition of that day was fair.

After conducting the investigation, the police filed with the Municipal Court of San Manuel, Tarlac, a criminal
complaint against the two drivers for Multiple Homicide. At the preliminary investigation, a probable cause was
found with respect to the case of Manalo, thus, his case was elevated to the Court of First Instance. However,
finding no sufficiency of evidence as regards the case of delos Reyes, the Court dismissed it. Manalo was
convicted and sentenced to suffer imprisonment. Not having appealed, he served his sentence.

Complaints for recovery of damages were then filed before the Court of First Instance of Pangasinan. In Civil
Case No. 1136, spouses Casiano Pascua and Juana Valdez sued as heirs of Catalina Pascua while Caridad
Pascua sued in her behalf. In Civil Case No. 1139, spouses Manuel Millares and Fidencia Arcica sued as heirs
of Erlinda Meriales. In Civil Case No. 1140, spouses Mariano Estomo and Dionisia Sarmiento also sued as
heirs of Adelaida Estomo.

In all three cases, spouses Mangune and Carreon, Manalo, Rabbit and delos Reyes were all impleaded as
defendants. Plaintiffs anchored their suits against spouses Mangune and Carreon and Manalo on their
contractual liability. As against Rabbit and delos Reyes, plaintiffs based their suits on their culpability for a
quasi-delict. Filriters Guaranty Assurance Corporation, Inc. was also impleaded as additional defendant in Civil
Case No. 1136 only.

For the death of Catalina Pascua, plaintiffs in Civil Case No. 1136 sought to collect the aggregate amount of
P70,060.00 in damages, itemized as follows: P500.00 for burial expenses; P12,000.00 for loss of wages for 24
years; P10,000.00 for exemplary damages; P10,000.00 for moral damages; and P3,000.00 for attorney's fees.
In the same case, plaintiff Caridad Pascua claimed P550.00 for medical expenses; P240.00 for loss of wages
for two months; P2,000.00 for disfigurement of her face; P3,000.00 for physical pain and suffering; P2,500.00
as exemplary damages and P2,000.00 for attorney's fees and expenses of litigation.

In Civil Case No. 1139, plaintiffs demanded P500.00 for burial expenses; P6,000.00 for the death of Erlinda,
P63,000.00 for loss of income; P10,000.00 for moral damages and P3,000.00 for attorney's fees or total of
P80,000.00.

In Civil Case No. 1140, plaintiffs claimed P500.00 for burial expenses; P6,000.00 for the death of Adelaide,
P56,160.00 for loss of her income or earning capacity; P10,000.00 for moral damages; and P3,000.00 for
attorney's fees.

Rabbit filed a cross-claim in the amount of P15,000.00 for attorney's fees and expenses of litigation. On the
other hand, spouses Mangune and Carreon filed a cross-claim in the amount of P6,168.00 for the repair of the
jeepney and P3,000.00 for its non-use during the period of repairs.

On December 27, 1978, the trial court rendered its decision finding Manalo negligent, the dispositive portion of
which reads (pp. 113-114, Record on Appeal):
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PREMISES CONSIDERED, this Court is of the opinion and so holds:

1) That defendants Isidro Mangune, Guillerma Carreon and Tranquilino Manalo thru their negligence,
breached contract of carriage with their passengers the plaintiffs' and/or their heirs, and this Court renders
judgment ordering said defendants, jointly and severally, to pay the plaintiffs

a) In Civil Case No. 1136, for the death of Catalina Pascua, to pay her heirs the amounts of P12,000.00
for indemnity for loss of her life; P41,760.00 for loss of earnings; P324.40 for actual expenses and P2,000.00
for moral damages;

b) In the same Civil Case No.1136 for the injuries of Caridad Pascua, to pay her the amounts of P240.00
for loss of wages, P328.20 for actual expenses and P500.00 for moral damages;

c) In Civil Case No.1139 for the death of Erlinda Meriales, to pay her heirs (the plaintiffs) the amount of
P12,000.00 for indemnity for loss of her life; P622.00 for actual expenses, P60,480.00 for loss of wages or
income and P2,000.00 for moral damages;

d) In Civil Case No. 1140, for the death of Erlinda (also called Florida or Adelaida Estomo), to pay her
heirs (the plaintiff the amount of P12,000.00 for indemnity for the loss of her life; P580.00 for actual expenses;
P53,160.00 for loss of wages or income and P2,000.00 for moral damages.

2) The defendant Filriters Guaranty Insurance Co., having contracted to ensure and answer for the
obligations of defendants Mangune and Carreon for damages due their passengers, this Court renders
judgment against the said defendants Filriters Guaranty Insurance Co., jointly and severally with said
defendants (Mangune and Carreon) to pay the plaintiffs the amount herein above adjudicated in their favor in
Civil Case No. 1136 only. All the amounts awarded said plaintiff, as set forth in paragraph one (1) hereinabove;

3) On the cross claim of Phil. Rabbit Bus Lines, Inc. ordering the defendant, Isidro Mangune, Guillerma
Carreon and Tranquilino Manalo, to pay jointly and severally, cross-claimant Phil. Rabbit Bus Lines, Inc., the
amounts of P216.27 as actual damages to its Bus No. 753 and P2,173.60 for loss of its earning.

All of the above amount, shall bear legal interest from the filing of the complaints.

Costs are adjudged against defendants Mangune, Carreon and Manalo and Filriters Guaranty.

SO ORDERED

On appeal, the Intermediate Appellate Court reversed the above-quoted decision by finding delos Reyes
negligent, the dispositive portion of which reads (pp. 55-57, Rollo):

WHEREFORE, PREMISES CONSIDERED, the lower court's decision is hereby REVERSED as to item No. 3
of the decision which reads:

Page 4 of 142
3) On the cross claim of Philippine Rabbit Bus Lines, Inc. ordering the defendants Isidro Mangune,
Guillerma Carreon and Tranquilino Manalo, to pay jointly and severally, the amounts of P216.27 as actual
damages to its Bus No. 753 and P2,173.60 for loss of its earnings.

and another judgment is hereby rendered in favor of plaintiffs-appellants Casiana Pascua, Juan Valdez and
Caridad Pascua, ordering the Philippine Rabbit Bus Lines, Inc. and its driver Tomas delos Reyes to pay the
former jointly and severally damages in amounts awarded as follows:

For the death of Catalina Pascua, the parents and/or heirs are awarded

Civil Case No. 1136

a) Indemnity for the loss of life P12,000.00

b) Loss of Salaries or earning capacity 14,000.00

c) Actual damages (burial expenses) 800.00

d) For moral damages 10,000.00

e) Exemplary damages 3,000.00

f) For attorney's fees 3,000.00

Total P38,200.00 (sic)

For the physical injuries suffered by Caridad Pascua:

Civil Case No. 1136

a) Actual damages (hospitalization expenses) P550.00

b) Moral damages (disfigurement of the

face and physical suffering 8,000.00

c) Exemplary damages 2,000.00

Total P10,550.00

For the death of Erlinda Arcega Meriales. the parents and/or heirs:
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Civil Case No. 1139

a) Indemnity for loss of life P12,000.00

b) Loss of Salary or Earning Capacity 20,000.00

c) Actual damages (burial expenses) 500.00

d) Moral damages 15,000.00

e) Exemplary damages 15,000.00

f) Attorney's fees 3,000.00

Total P65,500.00

For the death of Florida Sarmiento Estomo:

Civil Case No. 1140

a) Indemnity for loss of life P12,000.00

b) Loss of Salary or Earning capacity 20,000.00

c) Actual damages (burial expenses) 500.00

d) Moral damages 3,000.00

e) Exemplary damages 3,000.00

f) Attorney's fees 3,000.00

Total P41,500.00

With costs against the Philippine Rabbit Bus Lines, Inc.

SO ORDERED.

The motion for reconsideration was denied. Hence, the present petition.

Page 6 of 142
The issue is who is liable for the death and physical injuries suffered by the passengers of the jeepney?

The trial court, in declaring that Manalo was negligent, considered the following (p. 106, Record on Appeal):

(1) That the unrebutted testimony of his passenger plaintiff Caridad Pascua that a long ways (sic) before
reaching the point of collision, the Mangune jeepney was "running fast" that his passengers cautioned driver
Manalo to slow down but did not heed the warning: that the right rear wheel was detached causing the jeepney
to run to the eastern shoulder of the road then back to the concrete pavement; that driver Manalo applied the
brakes after which the jeepney made a U-turn (half-turn) in such a manner that it inverted its direction making it
face South instead of north; that the jeepney stopped on the western lane of the road on the right of way of the
oncoming Phil. Rabbit Bus where it was bumped by the latter;

(2) The likewise unrebutted testimony of Police Investigator Tacpal of the San Manuel (Tarlac) Police who,
upon responding to the reported collission, found the real evidence thereat indicate in his sketch (Exh. K,
Pascua ), the tracks of the jeepney of defendant Mangune and Carreon running on the Eastern shoulder
(outside the concrete paved road) until it returned to the concrete road at a sharp angle, crossing the Eastern
lane and the (imaginary) center line and encroaching fully into the western lane where the collision took place
as evidenced by the point of impact;

(3) The observation of witness Police Corporal Cacalda also of the San Manuel Police that the path of the
jeepney they found on the road and indicated in the sketch (Exh. K-Pascua) was shown by skid marks which he
described as "scratches on the road caused by the iron of the jeep, after its wheel was removed;"

(4) His conviction for the crime of Multiple Homicide and Multiple Serious Physical Injuries with Damage to
Property thru Reckless Imprudence by the Court of First Instance of Tarlac (Exh. 24-Rabbit) upon the criminal
Information by the Provincial Fiscal of Tarlac (Exh. 23-Rabbit), as a result of the collision, and his commitment
to prison and service of his sentence (Exh. 25-Rabbit) upon the finality of the decision and his failure to appeal
therefrom; and

(5) The application of the doctrine of res-ipsa loquitar (sic) attesting to the circumstance that the collision
occured (sic) on the right of way of the Phil. Rabbit Bus.

The respondent court had a contrary opinion. Applying primarily (1) the doctrine of last clear chance, (2) the
presumption that drivers who bump the rear of another vehicle guilty and the cause of the accident unless
contradicted by other evidence, and (3) the substantial factor test. concluded that delos Reyes was negligent.

The misappreciation of the facts and evidence and the misapplication of the laws by the respondent court
warrant a reversal of its questioned decision and resolution.

We reiterate that "[t]he principle about "the last clear" chance, would call for application in a suit between the
owners and drivers of the two colliding vehicles. It does not arise where a passenger demands responsibility
from the carrier to enforce its contractual obligations. For it would be inequitable to exempt the negligent driver
of the jeepney and its owners on the ground that the other driver was likewise guilty of negligence." This was
Our ruling in Anuran, et al. v. Buo et al., G.R. Nos. L-21353 and L-21354, May 20, 1966, 17 SCRA 224. 1
Thus, the respondent court erred in applying said doctrine.
Page 7 of 142
On the presumption that drivers who bump the rear of another vehicle guilty and the cause of the accident,
unless contradicted by other evidence, the respondent court said (p. 49, Rollo):

. . . the jeepney had already executed a complete turnabout and at the time of impact was already facing the
western side of the road. Thus the jeepney assumed a new frontal position vis a vis, the bus, and the bus
assumed a new role of defensive driving. The spirit behind the presumption of guilt on one who bumps the rear
end of another vehicle is for the driver following a vehicle to be at all times prepared of a pending accident
should the driver in front suddenly come to a full stop, or change its course either through change of mind of
the front driver, mechanical trouble, or to avoid an accident. The rear vehicle is given the responsibility of
avoiding a collision with the front vehicle for it is the rear vehicle who has full control of the situation as it is in a
position to observe the vehicle in front of it.

The above discussion would have been correct were it not for the undisputed fact that the U-turn made by the
jeepney was abrupt (Exhibit "K," Pascua). The jeepney, which was then traveling on the eastern shoulder,
making a straight, skid mark of approximately 35 meters, crossed the eastern lane at a sharp angle, making a
skid mark of approximately 15 meters from the eastern shoulder to the point of impact (Exhibit "K" Pascua).
Hence, delos Reyes could not have anticipated the sudden U-turn executed by Manalo. The respondent court
did not realize that the presumption was rebutted by this piece of evidence.

With regard to the substantial factor test, it was the opinion of the respondent court that (p. 52, Rollo):

. . . It is the rule under the substantial factor test that if the actor's conduct is a substantial factor in bringing
about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm
or the manner in which it occurred does not prevent him from being liable (Restatement, Torts, 2d). Here, We
find defendant bus running at a fast speed when the accident occurred and did not even make the slightest
effort to avoid the accident, . . . . The bus driver's conduct is thus a substantial factor in bringing about harm to
the passengers of the jeepney, not only because he was driving fast and did not even attempt to avoid the
mishap but also because it was the bus which was the physical force which brought about the injury and death
to the passengers of the jeepney.

The speed of the bus was calculated by respondent court as follows (pp. 54-55, Rollo):

According to the record of the case, the bus departed from Laoag, Ilocos Norte, at 4:00 o'clock A.M. and the
accident took place at approximately around 12:30 P.M., after travelling roughly for 8 hours and 30 minutes.
Deduct from this the actual stopover time of two Hours (computed from the testimony of the driver that he made
three 40-minute stop-overs), We will have an actual travelling time of 6 hours and 30 minutes.

Under the circumstances, We calculate that the Laoag-Tarlac route (365 kms.) driving at an average of 56 km.
per hour would take 6 hours and 30 minutes. Therefore, the average speed of the bus, give and take 10
minutes, from the point of impact on the highway with excellent visibility factor would be 80 to 90 kms. per hour,
as this is the place where buses would make up for lost time in traversing busy city streets.

Still, We are not convinced. It cannot be said that the bus was travelling at a fast speed when the accident
occurred because the speed of 80 to 90 kilometers per hour, assuming such calculation to be correct, is yet
Page 8 of 142
within the speed limit allowed in highways. We cannot even fault delos Reyes for not having avoided the
collision. As aforestated, the jeepney left a skid mark of about 45 meters, measured from the time its right rear
wheel was detached up to the point of collision. Delos Reyes must have noticed the perilous condition of the
jeepney from the time its right rear wheel was detached or some 90 meters away, considering that the road
was straight and points 200 meters north and south of the point of collision, visible and unobstructed. Delos
Reyes admitted that he was running more or less 50 kilometers per hour at the time of the accident. Using this
speed, delos Reyes covered the distance of 45 meters in 3.24 seconds. If We adopt the speed of 80 kilometers
per hour, delos Reyes would have covered that distance in only 2.025 seconds. Verily, he had little time to react
to the situation. To require delos Reyes to avoid the collision is to ask too much from him. Aside from the time
element involved, there were no options available to him. As the trial court remarked (pp. 107-108, Record on
Appeal):

. . . They (plaintiffs) tried to impress this Court that defendant de los Reyes, could have taken either of two
options: (1) to swerve to its right (western shoulder) or (2) to swerve to its left (eastern lane), and thus steer
clear of the Mangune jeepney. This Court does not so believe, considering the existing exigencies of space and
time.

As to the first option, Phil. Rabbit's evidence is convincing and unrebutted that the Western shoulder of the
road was narrow and had tall grasses which would indicate that it was not passable. Even plaintiffs own
evidence, the pictures (Exhs. P and P-2, Pascua) are mute confirmation of such fact. Indeed, it can be noticed
in the picture (Exh. P-2, Pascua) after the Rabbit bus came to a full stop, it was tilted to right front side, its front
wheels resting most probably on a canal on a much lower elevation that of the shoulder or paved road. It too
shows that all of the wheels of the Rabbit bus were clear of the roadway except the outer left rear wheel. These
observation appearing in said picture (Exh P-2, Pascua) clearly shows coupled with the finding the Rabbit bus
came to a full stop only five meters from the point of impact (see sketch, Exh. K-Pascua) clearly show that
driver de los Reyes veered his Rabbit bus to the right attempt to avoid hitting the Mangune's jeepney. That it
was not successful in fully clearing the Mangune jeepney as its (Rabbit's) left front hit said jeepney (see picture
Exh. 10-A-Rabbit) must have been due to limitations of space and time.

Plaintiffs alternatively claim that defendant delos Reyes of the Rabbit bus could also have swerved to its left
(eastern lane) to avoid bumping the Mangune jeepney which was then on the western lane. Such a claim is
premised on the hypothesis (sic) that the eastern lane was then empty. This claim would appear to be good
copy of it were based alone on the sketch made after the collision. Nonetheless, it loses force it one were to
consider the time element involved, for moments before that, the Mangune jeepney was crossing that very
eastern lane at a sharp angle. Under such a situation then, for driver delos Reyes to swerve to the eastern
lane, he would run the greater risk of running smack in the Mangune jeepney either head on or broadside.

After a minute scrutiny of the factual matters and duly proven evidence, We find that the proximate cause of the
accident was the negligence of Manalo and spouses Mangune and Carreon. They all failed to exercise the
precautions that are needed precisely pro hac vice.

In culpa contractual, the moment a passenger dies or is injured, the carrier is presumed to have been at fault or
to have acted negligently, and this disputable presumption may only be overcome by evidence that he had
observed extra-ordinary diligence as prescribed in Articles 1733, 1755 and 1756 of the New Civil Code 2 or
that the death or injury of the passenger was due to a fortuitous event 3 (Lasam v. Smith, Jr., 45 Phil. 657).
Page 9 of 142
The negligence of Manalo was proven during the trial by the unrebutted testimonies of Caridad Pascua, Police
Investigator Tacpal, Police Corporal Cacalda, his (Manalo's) conviction for the crime of Multiple Homicide and
Multiple Serious Injuries with Damage to Property thru Reckless Imprudence, and the application of the
doctrine of res ipsa loquitur supra. The negligence of spouses Mangune and Carreon was likewise proven
during the trial (p. 110, Record on Appeal):

To escape liability, defendants Mangune and Carreon offered to show thru their witness Natalio Navarro, an
alleged mechanic, that he periodically checks and maintains the jeepney of said defendants, the last on Dec.
23, the day before the collision, which included the tightening of the bolts. This notwithstanding the right rear
wheel of the vehicle was detached while in transit. As to the cause thereof no evidence was offered. Said
defendant did not even attempt to explain, much less establish, it to be one caused by a caso fortuito. . . .

In any event, "[i]n an action for damages against the carrier for his failure to safely carry his passenger to his
destination, an accident caused either by defects in the automobile or through the negligence of its driver, is not
a caso fortuito which would avoid the carriers liability for damages (Son v. Cebu Autobus Company, 94 Phil.
892 citing Lasam, et al. v. Smith, Jr., 45 Phil. 657; Necesito, etc. v. Paras, et al., 104 Phil. 75).

The trial court was therefore right in finding that Manalo and spouses Mangune and Carreon were negligent.
However, its ruling that spouses Mangune and Carreon are jointly and severally liable with Manalo is erroneous
The driver cannot be held jointly and severally liable with the carrier in case of breach of the contract of
carriage. The rationale behind this is readily discernible. Firstly, the contract of carriage is between the carrier
and the passenger, and in the event of contractual liability, the carrier is exclusively responsible therefore to the
passenger, even if such breach be due to the negligence of his driver (see Viluan v. The Court of Appeals, et
al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742). In other words, the carrier can neither shift his
liability on the contract to his driver nor share it with him, for his driver's negligence is his. 4 Secondly, if We
make the driver jointly and severally liable with the carrier, that would make the carrier's liability personal
instead of merely vicarious and consequently, entitled to recover only the share which corresponds to the
driver, 5 contradictory to the explicit provision of Article 2181 of the New Civil Code. 6

We affirm the amount of damages adjudged by the trial court, except with respect to the indemnity for loss of
life. Under Article 1764 in relation to Article 2206 of the New Civil Code, the amount of damages for the death
of a passenger is at least three thousand pesos (P3,000.00). The prevailing jurisprudence has increased the
amount of P3,000.00 to P30,000.00 (see Heirs of Amparo delos Santos, et al. v. Honorable Court of Appeals,
et al., G.R. No. 51165, June 21, 1990 citing De Lima v. Laguna Tayabas Co., G.R. Nos. L-35697-99, April 15,
1988, 160 SCRA 70).

ACCORDINGLY, the petition is hereby GRANTED. The decision of the Intermediate Appellate Court dated July
29, 1983 and its resolution dated November 28, 1983 are SET ASIDE. The decision of the Court of First
Instance dated December 27, 1978 is REINSTATED MODIFICATION that only Isidro Mangune, Guillerma
Carreon and Filriters Guaranty Assurance Corporation, Inc. are liable to the victims or their heirs and that the
amount of indemnity for loss of life is increased to thirty thousand pesos (P30,000.00).

SO ORDERED.

Page 10 of 142
 G.R. No. L-68102 July 16, 1992
GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.
G.R. No. L-68103 July 16, 1992

CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE, ANTONIO KOH
and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

DAVIDE, JR., J.:

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R. CV Nos.
69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated 29 November 1983
reversing the Decision of the trial court which dismissed petitioners' complaints in Civil Case No. 4477 and Civil
Case No. 4478 of the then Court of First Instance (now Regional Trial Court) of Pampanga entitled "Carmen
Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and
Rosalinda Manalo," and "George McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo,"
respectively, and granted the private respondents' counterclaim for moral damages, attorney's fees and
litigation expenses.

The said civil cases for damages based on quasi-delict were filed as a result of a vehicular accident which led
to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical injuries to George Koh
McKee, Christopher Koh McKee and petitioner Araceli Koh McKee.

Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee and the
deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner Carmen Dayrit Koh and
her co-petitioners in G.R. No. 68103, who are the wife and children, respectively, of the late Jose Koh, were the
plaintiffs in Civil Case No. 4477. Upon the other hand, private respondents are the owners of the cargo truck
which figured in the mishap; a certain Ruben Galang was the driver of the truck at the time of the accident.

The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along MacArthur
Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took place between an
International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76 owned by private respondents, and
driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850 Pampanga '76 driven by Jose Koh.
The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to
George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.

Page 11 of 142
Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher and Kim
Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year old Kim. At the time of
the collision, Kim was seated on the lap of Loida Bondoc who was at the front passenger's seat of the car while
Araceli and her two (2) sons were seated at the car's back seat.

Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of rice
weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando Pampanga, and was
bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles City from San Fernando.
When the northbound car was about (10) meters away from the southern approach of the bridge, two (2) boys
suddenly darted from the right side of the road and into the lane of the car. The boys were moving back and
forth, unsure of whether to cross all the way to the other side or turn back. Jose Koh blew the horn of the car,
swerved to the left and entered the lane of the truck; he then switched on the headlights of the car, applied the
brakes and thereafter attempted to return to his lane. Before he could do so, his car collided with the truck. The
collision occurred in the lane of the truck, which was the opposite lane, on the said bridge.

The incident was immediately reported to the police station in Angeles City; consequently, a team of police
officers was forthwith dispatched to conduct an on the spot investigation. In the sketch 1 prepared by the
investigating officers, the bridge is described to be sixty (60) "footsteps" long and fourteen (14) "footsteps" wide
seven (7) "footsteps" from the center line to the inner edge of the side walk on both sides. 2 Pulong Pulo
Bridge, which spans a dry brook, is made of concrete with soft shoulders and concrete railings on both sides
about three (3) feet high.

The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two (2)
"footsteps" from the edge of the right sidewalk, while its left front portion was touching the center line of the
bridge, with the smashed front side of the car resting on its front bumper. The truck was about sixteen (16)
"footsteps" away from the northern end of the bridge while the car was about thirty-six (36) "footsteps" from the
opposite end. Skid marks produced by the right front tire of the truck measured nine (9) "footsteps", while skid
marks produced by the left front tire measured five (5) "footsteps." The two (2) rear tires of the truck, however,
produced no skid marks.

In his statement to the investigating police officers immediately after the accident, Galang admitted that he was
traveling at thirty (30) miles (48 kilometers) per hour.

As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on 31 January
1977 before the then Court of First Instance of Pampanga and were raffled to Branch III and Branch V of the
said court, respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the award of P12,000.00 as
indemnity for the death of Jose Koh, P150,000.00 as moral damages, P60,000.00 as exemplary damages,
P10,000.00 for litigation expenses, P6,000.00 for burial expenses, P3,650.00 for the burial lot and P9,500.00
for the tomb, plus attorney's fees. 3 In the second case, petitioners in G.R. No. 68102 prayed for the following:
(a) in connection with the death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00 for funeral
services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral damages, P10,000.00
as exemplary damages and P2,000.00 as miscellaneous damages; (b) in the case of Araceli Koh McKee, in
connection with the serious physical injuries suffered, the sum of P100,000.00 as moral damages, P20,000.00
as exemplary damages, P12,000.00 for loss of earnings, P5,000.00 for the hospitalization expenses up to the
date of the filing of the complaint; and (c) with respect to George McKee, Jr., in connection with the serious
Page 12 of 142
physical injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages and
the following medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable to the St. Francis
Medical Center, P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous expenses amounting to
P5,000.00. They also sought an award of attorney's fees amounting to 25% of the total award plus traveling
and hotel expenses, with costs. 4

On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence Resulting to
(sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial court. It was
docketed as Criminal Case No. 3751 and was raffled to Branch V of the court, the same Branch where Civil
Case No. 4478 was assigned. 5

In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it was the Ford
Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang and, as
counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated
damages, P100,000.00 as moral damages and P30,000.00 as business losses. 6 In Civil Case No. 4478,
private respondents first filed a motion to dismiss on grounds of pendency of another action (Civil Case No.
4477) and failure to implead an indispensable party, Ruben Galang, the truck driver; they also filed a motion to
consolidate the case with Civil Case No. 4477 pending before Branch III of the same court, which was opposed
by the plaintiffs. 7 Both motions were denied by Branch V, then presided over by Judge Ignacio Capulong.
Thereupon, private respondents filed their Answer with Counter-claim 8 wherein they alleged that Jose Koh
was the person "at fault having approached the lane of the truck driven by Ruben Galang, . . . which was on
the right lane going towards Manila and at a moderate speed observing all traffic rules and regulations
applicable under the circumstances then prevailing;" in their counterclaim, they prayed for an award of
damages as may be determined by the court after due hearing, and the sums of P10,000.00 as attorney's fees
and P5,000.00 as expenses of litigation.

Petitioners filed their Answers to the Counterclaims in both cases.

To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion to adopt the
testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which private respondents
opposed and which the court denied. 9 Petitioners subsequently moved to reconsider the order denying the
motion for consolidation, 10 which Judge Capulong granted in the Order of 5 September 1978; he then
directed that Civil Case No. 4478 be consolidated with Civil Case No. 4477 in Branch III of the court then
presided over by Judge Mario Castaeda, Jr.

Left then with Branch V of the trial court was Criminal Case No. 3751.

In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuag, Col. Robert
Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and offered several
documentary exhibits. Upon the other hand, private respondents presented as witnesses Ruben Galang,
Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12

In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc. Fernando
Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc. Benigno de
Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco, and offered
Page 13 of 142
several documentary exhibits. 13 Upon the other hand, the defense presented the accused Ruben Galang,
Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered documentary exhibits. 14

On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the aforesaid
criminal case. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben Galang guilty
beyond reasonable doubt of the crime charged in the information and after applying the provisions of Article
365 of the Revised Penal Code and indeterminate sentence law, this Court, imposes upon said accused Ruben
Galang the penalty of six (6) months of arresto mayor as minimum to two (2) years, four (4) months and one (1)
day of prision correccional as maximum; the accused is further sentenced to pay and indemnify the heirs of
Loida Bondoc the amount of P12,000.00 as indemnity for her death; to reimburse the heirs of Loida Bondoc
the amount of P2,000.00 representing the funeral expenses; to pay the heirs of Loida Bondoc the amount of
P20,000.00 representing her loss of income; to indemnify and pay the heirs of the deceased Jose Koh the
value of the car in the amount of P53,910.95, and to pay the costs. 15

The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for petitioners
filed with Branch III of the court where the two (2) civil cases were pending a manifestation to that effect
and attached thereto a copy of the decision. 16

Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil cases on 12 November 1980 and
awarded the private respondents moral damages, exemplary damages and attorney's fees. 17 The dispositive
portion of the said decision reads as follows:

WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and against the
plaintiffs, these cases are hereby ordered DISMISSED with costs against the plaintiffs. The defendants had
proven their counter-claim, thru evidences (sic) presented and unrebutted. Hence, they are hereby awarded
moral and exemplary damages in the amount of P100,000.00 plus attorney's fee of P15,000.00 and litigation
expenses for (sic) P2,000.00. The actual damages claimed for (sic) by the defendants is (sic) hereby
dismissing for lack of proof to that effect (sic). 18

A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was received
on 2 December 1980. 19

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal was
docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs in Civil Cases
Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to the appellate court. The
appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No. 69040-R, respectively, and were
assigned to the Fourth Civil Cases Division.

On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-CR affirming
the conviction of Galang. 21 The dispositive portion of the decision reads:

DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang kabuuan. Ang
naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol.
Page 14 of 142
A motion for reconsideration of the decision was denied by the respondent Court in its Kapasiyahan
promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this Court; said petition was
subsequently denied. A motion for its reconsideration was denied with finality in the Resolution of 20 April
1983. 24

On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court, promulgated its
consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive portion of which reads:

WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is rendered,
ordering defendants-appellees to pay plaintiffs-appellants as follows:

For the death of Jose Koh:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)

For the death of Kim Koh McKee:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)

For the physical injuries suffered by George Koh McKee:

P 25,000.00 as moral damages

P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)

For the physical injuries suffered by Araceli Koh McKee:

P 25,000.00 as moral damages

P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muoz Clinic (Exh. MM)
Page 15 of 142
For the physical injuries suffered by Christopher Koh McKee:

P 10,000.00 as moral damages

P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another P10,000.00; as
counsel (sic) fees in Civil Case No. 4478.

No pronouncement as to costs.

SO ORDERED. 26

The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's
inattentiveness or reckless imprudence which caused the accident. The appellate court further said that the law
presumes negligence on the part of the defendants (private respondents), as employers of Galang, in the
selection and supervision of the latter; it was further asserted that these defendants did not allege in their
Answers the defense of having exercised the diligence of a good father of a family in selecting and supervising
the said employee. 27 This conclusion of reckless imprudence is based on the following findings of fact:

In the face of these diametrically opposed judicial positions, the determinative issue in this appeal is posited in
the fourth assigned error as follows:

IV

THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS TRUCK
BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.

Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the
highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who
were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck,
he switched on the headlights to warn the truck driver, to slow down to give us the right of way to come back to
our right lane.

Q Did the truck slow down?

A No, sir, it did not, just (sic) continued on its way.

Q What happened after that?

Page 16 of 142
A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming,
my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. (tsn, pp. 5-6, July 22,
1977); or (Exhibit "O" in these Civil Cases).

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its
speed before the actual impact of collision (sic) as you narrated in this Exhibit "1," how did you know (sic)?

A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on
side (sic) of the highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these Civil Cases) (pp. 30-31,
Appellants' Brief).

Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and circumstances:

1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck stopped only when it
had already collided with the car:

xxx xxx xxx

Tanhueco repeated the same testimony during the hearing in the criminal case:

xxx xxx xxx

Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the first to arrive at
the scene of the accident. As a matter of fact, he brought one of the injured passengers to the hospital.

We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a passenger of the
truck, and Roman Dayrit, who supposedly lived across the street.

Regarding Soliman, experience has shown that in the ordinary course of events people usually take the side of
the person with whom they are associated at the time of the accident, because, as a general rule, they do not
wish to be identified with the person who was at fault. Thus an imaginary bond is unconsciously created among
the several persons within the same group (People vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).

With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness. He did not go to
the succor of the injured persons. He said he wanted to call the police authorities about the mishap, but his
phone had no dial tone. Be this (sic) as it may, the trial court in the criminal case acted correctly in refusing to
believe Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his truck at a safe
distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This contention of appellants was
completely passed sub-silencio or was not refuted by appellees in their brief. Exhibit 2 is one of the exhibits not
included in the record. According to the Table of Contents submitted by the court below, said Exhibit 2 was not

Page 17 of 142
submitted by defendants-appellees. In this light, it is not far-fetched to surmise that Galang's claim that he
stopped was an eleventh-hour desperate attempt to exculpate himself from imprisonment and damages.

3. Galang divulged that he stopped after seeing the car about 10 meters away:

ATTY. SOTTO:

Q Do I understand from your testimony that inspite of the fact that you admitted that the road is straight
and you may be able to (sic) see 500-1000 meters away from you any vehicle, you first saw that car only about
ten (10) meters away from you for the first time?

xxx xxx xxx

A I noticed it, sir, that it was about ten (10) meters away.

ATTY. SOTTO:

Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed it before that
ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants' Brief)

Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of the impact.
At ten (10) meters away, with the truck running at 30 miles per hour, as revealed in Galang's affidavit (Exh. 2; p.
25, Appellants' brief), it is well-nigh impossible to avoid a collision on a bridge.

5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh to return to his
proper lane. The police investigator, Pfc. Fernando L. Nuag, stated that he found skid marks under the truck
but there were not (sic) skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of skid
marks show (sic) that the truck was speeding. Since the skid marks were found under the truck and none were
found at the rear of the truck, the reasonable conclusion is that the skid marks under the truck were caused by
the truck's front wheels when the trucks (sic) suddenly stopped seconds before the mishap in an endeavor to
avoid the same. But, as aforesaid, Galang saw the car at barely 10 meters away, a very short distance to avoid
a collision, and in his futile endeavor to avoid the collision he abruptly stepped on his brakes but the smashup
happened just the same.

For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the part of the
defendants in the selection of their driver or in the supervision over him. Appellees did not allege such defense
of having exercised the duties of a good father of a family in the selection and supervision of their employees in
their answers. They did not even adduce evidence that they did in fact have methods of selection and
programs of supervision. The inattentiveness or negligence of Galang was the proximate cause of the mishap.
If Galang's attention was on the highway, he would have sighted the car earlier or at a very safe distance than
(sic) 10 meters. He proceeded to cross the bridge, and tried to stop when a collision was already inevitable,
because at the time that he entered the bridge his attention was not riveted to the road in front of him.

On the question of damages, the claims of appellants were amply proven, but the items must be reduced. 28

Page 18 of 142
A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private
respondents on the basis of which the respondent Court, in its Resolution of 3 April 1984, 29 reconsidered and
set aside its 29 November 1983 decision and affirmed in toto the trial court's judgment of 12 November 1980. A
motion to reconsider this Resolution was denied by the respondent Court on 4 July 1984. 30

Hence, this petition.

Petitioners allege that respondent Court:

. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY REVERSED ITS DECISION
BY MERELY BASING IT FROM (sic) A MERE "PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE
RESPONDENTS' DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE
PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO DISREGARDED THE EVIDENCE
ADDUCED AND FOUND IN THE RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS
(ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS,
CONJECTURES AND WITHOUT SURE FOUNDATION IN THE EVIDENCE.

II

. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A DOCTRINE
LAID DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS, "IT CANNOT
CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF
THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.

III

. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A MISLEADING

PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFS-APPELLANTS
(APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT
THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS'
DRIVER.

IV

. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE OF DISCRETION

AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE CASES.

. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING THE
FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO THE
EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED
FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE RESPONDENTS' DRIVER.
Page 19 of 142
VI

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY

ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT
SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW AND THE
CONSISTENT DECISIONS OF THIS HONORABLE COURT.

VII

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY

ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES TO PETITIONERS
WHICH IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE
RELATIVE TO THE AWARD OF DAMAGES. 31

In the Resolution of 12 September 1984, We required private respondents to Comment on the petition. 32 After
the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this Court then gave due course to
the instant petitions and required petitioners to file their Brief, 35 which they accordingly complied with.

There is merit in the petition. Before We take on the main task of dissecting the arguments and counter-
arguments, some observations on the procedural vicissitudes of these cases are in order.

Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-delict under
Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal Case No. 3751. Civil
Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint trial in Branch III of the trial court.
The records do not indicate any attempt on the part of the parties, and it may therefore be reasonably
concluded that none was made, to consolidate Criminal Case No. 3751 with the civil cases, or vice-versa. The
parties may have then believed, and understandably so, since by then no specific provision of law or ruling of
this Court expressly allowed such a consolidation, that an independent civil action, authorized under Article 33
in relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot be consolidated with the
criminal case. Indeed, such consolidation could have been farthest from their minds as Article 33 itself
expressly provides that the "civil action shall proceed independently of the criminal prosecution, and shall
require only a preponderance of evidence." Be that as it may, there was then no legal impediment against such
consolidation. Section 1, Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard
against oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial court, or
in short, attain justice with the least expense to the parties litigants, 36 would have easily sustained a
consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of two (2) judges appreciating,
according to their respective orientation, perception and perhaps even prejudice, the same facts differently, and
thereafter rendering conflicting decisions. Such was what happened in this case. It should not, hopefully,
happen anymore. In the recent case of Cojuangco vs. Court or Appeals, 37 this Court held that the present
provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an independent civil action for the
recovery of civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal action
subject, however, to the condition that no final judgment has been rendered in that criminal case.

Page 20 of 142
Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of reckless
imprudence, although already final by virtue of the denial by no less than this Court of his last attempt to set
aside the respondent Court's affirmance of the verdict of conviction, has no relevance or importance to this
case.

As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in a quasi-delict is
entirely separate and distinct from the civil liability arising from negligence under the Penal Code. And, as more
concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case of independent civil actions
under the new Civil Code, the result of the criminal case, whether acquittal or conviction, would be entirely
irrelevant to the civil action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this Court stated:

. . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33, permitted in the
same manner to be filed separately from the criminal case, may proceed similarly regardless of the result of the
criminal case.

Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately and to proceed
independently even during the pendency of the latter case, the intention is patent to make the court's
disposition of the criminal case of no effect whatsoever on the separate civil case. This must be so because the
offenses specified in Article 33 are of such a nature, unlike other offenses not mentioned, that they may be
made the subject of a separate civil action because of the distinct separability of their respective juridical cause
or basis of action . . . .

What remains to be the most important consideration as to why the decision in the criminal case should not be
considered in this appeal is the fact that private respondents were not parties therein. It would have been
entirely different if the petitioners' cause of action was for damages arising from a delict, in which case private
respondents' liability could only be subsidiary pursuant to Article 103 of the Revised Penal Code. In the
absence of any collusion, the judgment of conviction in the criminal case against Galang would have been
conclusive in the civil cases for the subsidiary liability of the private respondents. 41

And now to the merits of the petition.

It is readily apparent from the pleadings that the principal issue raised in this petition is whether or not
respondent Court's findings in its challenged resolution are supported by evidence or are based on mere
speculations, conjectures and presumptions.

The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal by certiorari under
Rule 45 of the Revised Rules of Court, only questions of law may be raised. The resolution of factual issues is
the function of the lower courts whose findings on these matters are received with respect and are, as a rule,
binding on this Court. 42

The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the Court of
Appeals may be set aside when such findings are not supported by the evidence or when the trial court failed
to consider the material facts which would have led to a conclusion different from what was stated in its
judgment. 43 The same is true where the appellate court's conclusions are grounded entirely on conjectures,

Page 21 of 142
speculations and surmises 44 or where the conclusions of the lower courts are based on a misapprehension of
facts. 45

It is at once obvious to this Court that the instant case qualifies as one of the aforementioned exceptions as the
findings and conclusions of the trial court and the respondent Court in its challenged resolution are not
supported by the evidence, are based on an misapprehension of facts and the inferences made therefrom are
manifestly mistaken. The respondent Court's decision of 29 November 1983 makes the correct findings of fact.

In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the lane of
the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the car, Jose
Koh, was negligent. On the basis of this presumed negligence, the appellate court immediately concluded that
it was Jose Koh's negligence that was the immediate and proximate cause of the collision. This is an
unwarranted deduction as the evidence for the petitioners convincingly shows that the car swerved into the
truck's lane because as it approached the southern end of the bridge, two (2) boys darted across the road from
the right sidewalk into the lane of the car. As testified to by petitioner Araceli Koh McKee:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the
highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who
were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck,
he switched on the headlights to warn the truck driver, to slow down to give us the right of way to come back to
our right lane.

Q Did the truck slow down?

A No sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming,
my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. 46

Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into the lane of
the truck was necessary in order to avoid what was, in his mind at that time, a greater peril death or injury to
the two (2) boys. Such act can hardly be classified as negligent.

Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate Court, 47 thus:

. . . 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 (Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley defines it,
"(T)he failure to observe for the protection of the interests of another person, that degree of care, precaution,
and vigilance which the circumstances justly demand, whereby such other person suffers injury." (Cooley on
Torts, Fourth Edition, vol. 3, 265)
Page 22 of 142
In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound rule, (W)e held:

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did
the defendant in doing the alleged negligent act use that (reasonable care and caution which an ordinarily
prudent person would have used in the same situation?) If not, then he is guilty of negligence. The law here in
effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of
the Roman
law. . . .

In Corliss vs. Manila Railroad Company, 48 We held:

. . . 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. (citing Ahern v.
Oregon Telephone Co., 35 Pac. 549 (1894).

On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it is manifest
that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man would have tried
to avoid running over the two boys by swerving the car away from where they were even if this would mean
entering the opposite lane. Avoiding such immediate peril would be the natural course to take particularly
where the vehicle in the opposite lane would be several meters away and could very well slow down, move to
the side of the road and give way to the oncoming car. Moreover, under what is known as the emergency 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." 49

Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh adopted the
best means possible in the given situation to avoid hitting them. Applying the above test, therefore, it is clear
that he was not guilty of negligence.

In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence was the
proximate cause of the collision. Proximate cause has been defined as:

. . . that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have occurred. And more comprehensively, the
proximate legal cause is that acting first and producing the injury, either immediately or by setting other events
in motion, all constituting a natural and continuous chain of events, each having a close causal connection with
its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and
probable result of the cause which first acted, under such circumstances that the person responsible for the
first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result therefrom. 50

Page 23 of 142
Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was the initial
act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths because of
the occurrence of a sufficient intervening event, the negligent act of the truck driver, which was the actual
cause of the tragedy. The entry of the car into the lane of the truck would not have resulted in the collision had
the latter heeded the emergency signals given by the former to slow down and give the car an opportunity to go
back into its proper lane. Instead of slowing down and swerving to the far right of the road, which was the
proper precautionary measure under the given circumstances, the truck driver continued at full speed towards
the car. The truck driver's negligence becomes more apparent in view of the fact that the road is 7.50 meters
wide while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that both car
and truck could pass side by side with a clearance of 3.661 meters to spare. 51 Furthermore, the bridge has a
level sidewalk which could have partially accommodated the truck. Any reasonable man finding himself in the
given situation would have tried to avoid the car instead of meeting it head-on.

The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30 miles
(48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge 52 is only 30
kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at
the time of the mishap, he was violating any traffic regulation. We cannot give credence to private respondents'
claim that there was an error in the translation by the investigating officer of the truck driver's response in
Pampango as to whether the speed cited was in kilometers per hour or miles per hour. The law presumes that
official duty has been regularly performed; 53 unless there is proof to the contrary, this presumption holds. In
the instant case, private respondents' claim is based on mere conjecture.

The truck driver's negligence was likewise duly established through the earlier quoted testimony of petitioner
Araceli Koh McKee which was duly corroborated by the testimony of Eugenio Tanhueco, an impartial
eyewitness to the mishap.

Araceli Koh McKee testified further, thus:

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its
speed before the actual impact of collision as you narrated in this Exhibit "1," how did you know?

A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on
side (sic) of the highway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in these Civil Cases) (pp. 30-31,
Appellants' Brief) 54

while Eugenio Tanhueco testified thus:

Q When you saw the truck, how was it moving?

A It was moving 50 to 60 kilometers per hour, sir.

Q Immediately after you saw this truck, do you know what happened?

Page 24 of 142
A I saw the truck and a car collided (sic), sir, and I went to the place to help the victims. (tsn. 28, April 19,
1979)

xxx xxx xxx

Q From the time you saw the truck to the time of the impact, will you tell us if the said truck ever stopped?

A I saw it stopped (sic) when it has (sic) already collided with the car and it was already motionless. (tsn.
31, April 19, 1979; Emphasis Supplied). (p. 27, Appellants' Brief). 55

Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper measures and
degree of care necessary to avoid the collision which was the proximate cause of the resulting accident.

Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear
chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will not
defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and
prudence, have avoided the consequences of the negligence of the injured party. In such cases, the person
who had the last clear chance to avoid the mishap is considered in law solely responsible for the
consequences thereof. 56

In Bustamante vs. Court of Appeals, 57 We held:

The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that the
negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears
that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences
to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear chance means
that even though a person's own acts may have placed him in a position of peril, and an injury results, the
injured person is entitled to recovery (sic). As the doctrine is usually stated, a person who has the last clear
chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a
third person imputed to the opponent is considered in law solely responsible for the consequences of the
accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).

The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or even to
a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiff's peril, or
according to some authorities, should have been aware of it in the reasonable exercise of due care, had in fact
an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799).

In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:

The doctrine of last clear chance was defined by this Court in the case of Ong v. Metropolitan Water District,
104 Phil. 397 (1958), in this wise:

The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude a
recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and
prudence, might have avoided injurious consequences to claimant notwithstanding his negligence.
Page 25 of 142
The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but the
defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable for all
the consequences of the accident notwithstanding the prior negligence of the plaintiff [Picart v. Smith, 37 Phil.
809 (1918); Glan People's Lumber and Hardware, et al. vs. Intermediate Appellate Court, Cecilia Alferez Vda.
de Calibo, et al., G.R. No. 70493, May, 18, 1989]. The subsequent negligence of the defendant in failing to
exercise ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident
which intervenes between the accident and the more remote negligence of the plaintiff, thus making the
defendant liable to the plaintiff [Picart v. Smith, supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a plaintiff
who was guilty of prior or antecedent negligence, although it may also be raised as a defense to defeat claim
(sic) for damages.

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's negligence
in failing to exert ordinary care to avoid the collision which was, in law, the proximate cause of the collision. As
employers of the truck driver, the private respondents are, under Article 2180 of the Civil Code, directly and
primarily liable for the resulting damages. The presumption that they are negligent flows from the negligence of
their employee. That presumption, however, is only juris tantum, not juris et de jure. 59 Their only possible
defense is that they exercised all the diligence of a good father of a family to prevent the damage. Article 2180
reads as follows:

The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for
those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the
scope of their assigned tasks, even though the former are not engaged in any business or industry.

xxx xxx xxx

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 diligence of a good father referred to means the diligence in the selection and supervision of employees.
60 The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not interpose this defense.
Neither did they attempt to prove it.

The respondent Court was then correct in its Decision of 29 November 1983 in reversing the decision of the
trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution of 3 April 1984 finds no
sufficient legal and factual moorings.

In the light of recent decisions of this Court, 61 the indemnity for death must, however, be increased from
P12,000.00 to P50,000.00.
Page 26 of 142
WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of 3 April
1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED,
subject to the modification that the indemnity for death is increased from P12,000.00 to P50,000.00 each for
the death of Jose Koh and Kim Koh McKee.

Costs against private respondents.

SO ORDERED.

PANTRANCO NORTH EXPRESS, INC., Petitioner, v. MARICAR BASCOS BAESA, thru her personal guardian
FRANCISCA O. BASCOS, FE O. ICO, in her behalf and in behalf of her minor children, namely ERWIN,
OLIVE, EDMUNDO and SHARON ICO, Respondents.

DECISION

CORTES, J.:

In this Petition, Pantranco North Express Inc. (PANTRANCO), asks the Court to review the decision of the
Court of Appeals in CA-G.R. No. 05494-95 which affirmed the decisions of the Court of First Instance of
Rosales, Pangasinan in Civil Case No. 561-R and Civil Case No. 589-R wherein PANTRANCO was ordered to
pay damages and attorneys fees to herein private respondents.

The pertinent fact are as follows:

At about 7:00 oclock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa and their
children Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe O. Ico with their son Erwin
Ico and seven other persons, were aboard a passenger jeepney on their way to a picnic at Malalam River,
Ilagan, Isabela, to celebrate the fifth wedding anniversary of Ceasar and Marilyn Baesa.

The group, numbering fifteen (15) persons, rode in the passenger jeepney driven by David Ico, who was also
the registered owner thereof. From Ilagan, Isabela, they proceeded to Barrio Capayacan to deliver some viands
to one Mrs. Bascos and thenceforth to San Felipe, taking the highway going to Malalam River. Upon reaching
the highway, the jeepney turned right and proceeded to Malalam River at a speed of about 20 kph. While they
were proceeding towards Malalam River, a speeding PANTRANCO bus from Aparri, on its regular route to
Manila, encroached on the jeepneys lane while negotiating a curve, and collided with it.

As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn Baesa and their children, Harold Jim
and Marcelino Baesa, died while the rest of the passengers suffered injuries. The jeepney was extensively
damaged. After the accident the driver of the PANTRANCO Bus, Ambrosio Ramirez, boarded a car and

Page 27 of 142
proceeded to Santiago, Isabela. From that time on up to the present, Ramirez has never been seen and has
apparently remained in hiding.

All the victims and/or their surviving heirs except herein private respondents settled the case amicably under
the "No Fault" insurance coverage of PANTRANCO.

Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her minor children,
filed separate actions for damages arising from quasi-delict against PANTRANCO, respectively docketed as
Civil Case No. 561-R and 589-R of the Court of First Instance of Pangasinan.

In its answer, PANTRANCO, aside from pointing to the late David Icos alleged negligence as the proximate
cause of the accident, invoked the defense of due diligence in the selection and supervision of its driver,
Ambrosio Ramirez.

On July 3, 1984, the CFI of Pangasinan rendered a decision against PANTRANCO awarding the total amount
of Two Million Three Hundred Four Thousand Six Hundred Forty-Seven (P2,304,647.00) as damages, plus
10% thereof as attorneys fees and costs to Maricar Baesa in Civil Case No. 561-R, and the total amount of Six
Hundred Fifty Two Thousand Six Hundred Seventy-Two Pesos (P652,672.00) as damages, plus 10% thereof
as attorneys fees and costs to Fe Ico and her children in Civil Case No. 589-R. On appeal, the cases were
consolidated and the Court of Appeals modified the decision of the trial court by ordering PANTRANCO to pay
the total amount of One Million One Hundred Eighty-Nine Thousand Nine Hundred Twenty Seven Pesos
(P1,189,927.00) as damages, plus Twenty Thousand Pesos (P20,000.00) as attorneys fees to Maricar Baesa,
and the total amount of Three Hundred Forty-Four Thousand Pesos (P344,000.00) plus Ten Thousand Pesos
(P10,000.00) as attorneys fees to Fe Ico and her children, and to pay the costs in both cases. The dispositive
portion of the assailed decision reads as follows:

WHEREFORE, the decision appealed from is hereby modified by ordering the defendant PANTRANCO North
Express, Inc. to pay:

I. The plaintiff in Civil Case No. 561-R, Maricar Bascos Baesa, the following damages:

A) As compensatory damages for the death of Ceasar Baesa P30,000.00;

B) As compensatory damages for the death of Marilyn Baesa P30,000.00;

C) As compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa P30,000.00;

D) For the loss of earnings of Ceasar Baesa P630,000.00;

E) For the loss of earnings of Marilyn Bascos Baesa P375,000.00;

F) For the burial expenses of the deceased Ceasar and Marilyn Baesa P41,200.00;

G) For hospitalization expenses of Maricar Baesa P3,727.00;

Page 28 of 142
H) As moral damages P50,000.00;

I) As attorneys fees P20,000.00;

II. The plaintiffs in Civil Case No. 589-R, the following damages:

A) As compensatory damages for the death of David Ico P30,000.00;

B) For loss of earning capacity of David Ico P252,000.00;

C) As moral damages for the death of David Ico and the injury of Fe Ico P30,000.00

D) As payment for the jeepney P20,000.00;

E) For the hospitalization of Fe Ico P12,000.000;

F) And for attorneys fees P10,000.00;

and to pay the costs in both cases.

The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in Civil Case No. 561-R, and the medical
expenses in the sum of P3,273.55, should be deducted from the award in her favor.

All the foregoing amounts herein awarded except the costs shall earn interest at the legal rate from date of this
decision until fully paid. [CA Decision, pp. 14-15; Rollo, pp. 57-58.]

PANTRANCO filed a motion for reconsideration of the Court of Appeals decision, but on June 26, 1987, it
denied the same for lack of merit. PANTRANCO then filed the instant petition for review.

I
Petitioner faults the Court of Appeals for not applying the doctrine of the "last clear chance" against the jeepney
driver. Petitioner claims that under the circumstances of the case, it was the driver of the passenger jeepney
who had the last clear chance to avoid the collision and was therefore negligent in failing to utilize with
reasonable care and competence his then existing opportunity to avoid the harm.

The doctrine of the last clear chance was defined by this Court in the case of Ong v. Metropolitan Water
District, 104 Phil. 397 (1958), in this wise:

The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude a
recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and
prudence, might have avoided injurious consequences to claimant notwithstanding his negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but the
defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable for all
the consequences of the accident notwithstanding the prior negligence of the plaintiff [Picart v. Smith, 37 Phil.
Page 29 of 142
809 (1918); Glan Peoples Lumber and Hardware, Et. Al. v. Intermediate Appellate Court, Cecilia Alferez Vda.
de Calibo, Et Al., G.R. No. 70493, May 18, 1989]. The subsequent negligence of the defendant in failing to
exercise ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident
which intervenes between the accident and the more remote negligence of the plaintiff, thus making the
defendant liable to the plaintiff [Picart v. Smith, supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a plaintiff
who was guilty of prior or antecedent negligence, although it may also be raised as a defense to defeat claim
for damages.

To avoid liability for the negligence of its driver, petitioner claims that the original negligence of its driver was
not the proximate cause of the accident and that the sole proximate cause was the supervening negligence of
the jeepney driver David Ico in failing to avoid the accident. It is petitioners position that even assuming
arguendo, that the bus encroached into the lane of the jeepney, the driver of the latter could have swerved the
jeepney towards the spacious dirt shoulder on his right without danger to himself or his passengers.

The above contention of petitioner is manifestly devoid of merit.

Contrary to the petitioners contention, the doctrine of "last clear chance" finds no application in this case. For
the doctrine to be applicable, it is necessary to show that the person who allegedly had the last opportunity to
avert the accident was aware of the existence of the peril or should, with exercise of due care, have been
aware of it. One cannot be expected to avoid an accident or injury if he does not know or could not have known
the existence of the peril. In this case, there is nothing to show that the jeepney driver David Ico knew of the
impending danger. When he saw at a distance that the approaching bus was encroaching on his lane, he did
not immediately swerve the jeepney to the dirt shoulder on his right since he must have assumed that the bus
driver will return the bus to its own lane upon seeing the jeepney approaching from the opposite direction. As
held by this Court in the case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810, August 31, 1970, 34 SCRA 618,
a motorist who is properly proceeding on his own side of the highway is generally entitled to assume that an
approaching vehicle coming towards him on the wrong side, will return to his proper lane of traffic. There was
nothing to indicate to David Ico that the bus could not return to its own lane or was prevented from returning to
the proper lane by anything beyond the control of its driver. Leo Marantan, an alternate driver of the Pantranco
bus who was seated beside the driver Ramirez at the time of the accident, testified that Ramirez had no choice
but to swerve the steering wheel to the left and encroach on the jeepneys lane because there was a steep
precipice on the right [CA Decision, p. 2; Rollo, p. 45]. However, this is belied by the evidence on record which
clearly shows that there was enough space to swerve the bus back to its own lane without any danger [CA
Decision, p. 7; Rollo, p. 50].

Moreover, both the trial court and the Court of Appeals found that at the time of the accident the Pantranco bus
was speeding towards Manila [CA Decision, p. 2; Rollo, p. 45]. By the time David Ico must have realized that
the bus was not returning to its own lane, it was already too late to swerve the jeepney to his right to prevent an
accident. The speed at which the approaching bus was running prevented David Ico from swerving the jeepney
to the right shoulder of the road in time to avoid the collision. Thus, even assuming that the jeepney driver
perceived the danger a few seconds before the actual collision, he had no opportunity to avoid it. This Court
has held that the last clear chance doctrine "can never apply where the party charged is required to act

Page 30 of 142
instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or
should have been discovered" [Ong v. Metropolitan Water District, supra].chanrobles.com : virtual law library

Petitioner likewise insists that David Ico was negligent in failing to observe Section 43 (c), Article III Chapter IV
of Republic Act No. 4136 * which provides that the driver of a vehicle entering a through highway or a stop
intersection shall yield the right of way to all vehicles approaching in either direction on such through highway.

Petitioners misplaced reliance on the aforesaid law is readily apparent in this case. The cited law itself
provides that it applies only to vehicles entering a through highway or a stop intersection. At the time of the
accident, the jeepney had already crossed the intersection and was on its way to Malalam River. Petitioner
itself cited Fe Icos testimony that the accident occurred after the jeepney had travelled a distance of about two
(2) meters from the point of intersection [Petition p. 10; Rollo, p. 27]. In fact, even the witness for the petitioner,
Leo Marantan, testified that both vehicles were coming from opposite directions [CA Decision, p. 7; Rollo, p.
50], clearly indicating that the jeepney had already crossed the intersection.

Considering the foregoing, the Court finds that the negligence of petitioners driver in encroaching into the lane
of the incoming jeepney and in failing to return the bus to its own lane immediately upon seeing the jeepney
coming from the opposite direction was the sole and proximate cause of the accident without which the
collision would not have occurred. There was no supervening or intervening negligence on the part of the
jeepney driver which would have made the prior negligence of petitioners driver a mere remote cause of the
accident.

II
On the issue of its liability as an employer, petitioner claims that it had observed the diligence of a good father
of a family to prevent damage, conformably to the last paragraph of Article 2180 of the Civil Code. Petitioner
adduced evidence to show that in hiring its drivers, the latter are required to have professional drivers license
and police clearance. The drivers must also pass written examinations, interviews and practical driving tests,
and are required to undergo a six-month training period. Rodrigo San Pedro, petitioners Training Coordinator,
testified on petitioners policy of conducting regular and continuing training programs and safety seminars for
its drivers, conductors, inspectors and supervisors at a frequency rate of at least two (2) seminars a month.

On this point, the Court quotes with approval the following findings of the trial court which was adopted by the
Court of Appeals in its challenged decision

When an injury is caused by the negligence of an employee, there instantly arises a presumption that the
employer has been negligent either in the selection of his employees or in the supervision over their acts.
Although this presumption is only a disputable presumption which could be overcome by proof of diligence of a
good father of a family, this Court believes that the evidence submitted by the defendant to show that it
exercised the diligence of a good father of a family in the case of Ramirez, as a company driver is far from
sufficient. No support evidence has been adduced. The professional drivers license of Ramirez has not been
produced. There is no proof that he is between 25 to 38 years old. There is also no proof as to his educational
attainment, his age, his weight and the fact that he is married or not. Neither are the result of the written test,
psychological and physical test, among other tests, have been submitted in evidence [sic]. His NBI or police
clearances and clearances from previous employment were not marked in evidence. No evidence was
presented that Ramirez actually and really attended the seminars. Vital evidence should have been the
Page 31 of 142
certificate of attendance or certificate of participation or evidence of such participation like a logbook signed by
the trainees when they attended the seminars. If such records are not available, the testimony of the
classmates that Ramirez was their classmate in said seminar (should have been presented) [CA Decision, pp.
8-9; Rollo, pp. 51-52].

Petitioner contends that the fact that Ambrosio Ramirez was employed and remained as its driver only means
that he underwent the same rigid selection process and was subjected to the same strict supervision imposed
by petitioner on all applicants and employees. It is argued by the petitioner that unless proven otherwise, it is
presumed that petitioner observed its usual recruitment procedure and company polices on safety and
efficiency [Petition, p. 20; Rollo, p. 37].

The Court finds the above contention unmeritorious.

The finding of negligence on the part of its driver Ambrosio Ramirez gave rise to the presumption of negligence
on the part of petitioner and the burden of proving that it exercised due diligence not only in the selection of its
employees but also in adequately supervising their work rests with the petitioner [Lilius v. Manila Railroad
Company, 59 Phil. 758 (1934); Umali v. Bacani, G.R. No. L-40570, June 30, 1976, 69 SCRA 623]. Contrary to
petitioners claim, there is no presumption that the usual recruitment procedures and safety standards were
observed. The mere issuance of rules and regulations and the formulation of various company policies on
safety, without showing that they are being complied with, are not sufficient to exempt petitioner from liability
arising from the negligence of its employee. It is incumbent upon petitioner to show that in recruiting and
employing the erring driver, the recruitment procedures and company policies on efficiency and safety were
followed. Petitioner failed to do this. Hence, the Court finds no cogent reason to disturb the finding of both the
trial court and the Court of Appeals that the evidence presented by the petitioner, which consists mainly of the
uncorroborated testimony of its Training Coordinator, is insufficient to overcome the presumption of negligence
against petitioner.

III
On the question of damages, petitioner claims that the Court of Appeals erred in fixing the damages for the
loss of earning capacity of the deceased victims. Petitioner assails respondent courts findings because no
documentary evidence in support thereof, such as income tax returns, pay-rolls, pay slips or invoices obtained
in the usual course of business, were presented [Petition, p. 22; Rollo, p. 39]. Petitioner argues that the "bare
and self-serving testimonies of the wife of the deceased David Ico and the mother of the deceased Marilyn
Baesa . . . have no probative value to sustain in law the Court of Appeals conclusion on the respective
earnings of the deceased victims." [Petition, pp. 21-22; Rollo, pp. 38-39.] It is petitioners contention that the
evidence presented by the private respondent does not meet the requirements of clear and satisfactory
evidence to prove actual and compensatory damages.

The Court finds that the Court of Appeals committed no reversible error in fixing the amount of damages for the
loss of earning capacity of the deceased victims. While it is true that private respondents should have
presented documentary evidence to support their claim for damages for loss of earning capacity of the
deceased victims, the absence thereof does not necessarily bar the recovery of the damages in question. The
testimony of Fe Ico and Francisca Bascos as to the earning capacity of David Ico, and the spouses Baesa,
respectively, are sufficient to establish a basis from which the court can make a fair and reasonable estimate of
the damages for the loss of earning capacity of the three deceased victims. Moreover, in fixing the damages for
Page 32 of 142
loss of earning capacity of a deceased victim, the court can consider the nature of his occupation, his
educational attainment and the state of his health at the time of death.

In the instant case, David Ico was thirty eight (38) years old at the time of his death in 1981 and was driving his
own passenger jeepney. The spouses Ceasar and Marilyn Baesa were both thirty (30) years old at the time of
their death. Ceasar Baesa was a commerce degree holder and the proprietor of the Cauayan Press, printer of
the Cauayan Valley Newspaper and the Valley Times at Cauayan, Isabela. Marilyn Baesa graduated as a
nurse in 1976 and at the time of her death, was the company nurse, personnel manager, treasurer and cashier
of the Ilagan Press at Ilagan, Isabela. Respondent court duly considered these factors, together with the
uncontradicted testimonies of Fe Ico and Francisca Bascos, in fixing the amount of damages for the loss of
earning capacity of David Ico and the spouses Baesa.
However, it should be pointed out that the Court of Appeals committed error in fixing the compensatory
damages for the death of Harold Jim Baesa and Marcelino Baesa. Respondent court awarded to plaintiff
(private respondent) Maricar Baesa Thirty Thousand Pesos (P30,000.00) as "compensatory damages for the
death of Harold Jim Baesa and Marcelino Baesa." [CA Decision, p. 14; Rollo, 57]. In other words, the Court of
Appeals awarded only Fifteen Thousand Pesos (P15,000.00) as indemnity for the death of Harold Jim Baesa
and another Fifteen Thousand Pesos (P15,000.00) for the death of Marcelino Baesa. This is clearly erroneous.
In the case of People v. de la Fuente, G.R. Nos. 63251-52, December 29, 1983, 126 SCRA 518, the indemnity
for the death of a person was fixed by this Court at Thirty Thousand Pesos (P30,000.00). Plaintiff Maricar
Baesa should therefore be awarded Sixty Thousand Pesos (P60,000.00) as indemnity for the death of her
brothers, Harold Jim Baesa and Marcelino Baesa or Thirty Thousand Pesos (P30,000.00) for the death of each
brother.

The other items of damages awarded by respondent court which were not challenged by the petitioner are
hereby affirmed.

WHEREFORE, premises considered, the petition is DENIED, and the decision of respondent Court of Appeals
is hereby AFFIRMED with the modification that the amount of compensatory damages for the death of Harold
Jim Baesa and Marcelino Baesa are increased to Thirty Thousand Pesos (P30,000.00) each.chanrobles law
library

SO ORDERED.

G.R. No. 97626 March 14, 1997

PHILIPPINE BANK OF COMMERCE, now absorbed by PHILIPPINE COMMERCIAL INTERNATIONAL BANK,

ROGELIO LACSON, DIGNA DE LEON, MARIA ANGELITA PASCUAL, et al., petitioners,
vs.
THE COURT OF APPEALS, ROMMEL'S MARKETING CORP., represented by ROMEO LIPANA, its President
& General Manager, respondents.

HERMOSISIMA, JR., J.:

Page 33 of 142
Challenged in this petition for review is the Decision dated February 28, 1991 1 rendered by public respondent
Court of Appeals which affirmed the Decision dated November 15, 1985 of the Regional Trial Court, National
Capital Judicial Region, Branch CLX (160), Pasig City, in Civil Case No. 27288 entitled "Rommel's Marketing
Corporation, etc. v. Philippine Bank of Commerce, now absorbed by Philippine Commercial and Industrial
Bank."

The case stemmed from a complaint filed by the private respondent Rommel's Marketing Corporation (RMC for
brevity), represented by its President and General Manager Romeo Lipana, to recover from the former
Philippine Bank of Commerce (PBC for brevity), now absorbed by the Philippine Commercial International
Bank, the sum of P304,979.74 representing various deposits it had made in its current account with said bank
but which were not credited to its account, and were instead deposited to the account of one Bienvenido Cotas,
allegedly due to the gross and inexcusable negligence of the petitioner bank.

RMC maintained two (2) separate current accounts, Current Account Nos. 53-01980-3 and 53-01748-7, with
the Pasig Branch of PBC in connection with its business of selling appliances.

In the ordinary and usual course of banking operations, current account deposits are accepted by the bank on
the basis of deposit slips prepared and signed by the depositor, or the latter's agent or representative, who
indicates therein the current account number to which the deposit is to be credited, the name of the depositor
or current account holder, the date of the deposit, and the amount of the deposit either in cash or checks. The
deposit slip has an upper portion or stub, which is detached and given to the depositor or his agent; the lower
portion is retained by the bank. In some instances, however, the deposit slips are prepared in duplicate by the
depositor. The original of the deposit slip is retained by the bank, while the duplicate copy is returned or given
to the depositor.

From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to have entrusted RMC funds in the form
of cash totalling P304,979.74 to his secretary, Irene Yabut, for the purpose of depositing said funds in the
current accounts of RMC with PBC. It turned out, however, that these deposits, on all occasions, were not
credited to RMC's account but were instead deposited to Account No. 53-01734-7 of Yabut's husband,
Bienvenido Cotas who likewise maintains an account with the same bank. During this period, petitioner bank
had, however, been regularly furnishing private respondent with monthly statements showing its current
accounts balances. Unfortunately, it had never been the practice of Romeo Lipana to check these monthly
statements of account reposing complete trust and confidence on petitioner bank.

Irene Yabut's modus operandi is far from complicated. She would accomplish two (2) copies of the deposit slip,
an original and a duplicate. The original showed the name of her husband as depositor and his current account
number. On the duplicate copy was written the account number of her husband but the name of the account
holder was left blank. PBC's teller, Azucena Mabayad, would, however, validate and stamp both the original
and the duplicate of these deposit slips retaining only the original copy despite the lack of information on the
duplicate slip. The second copy was kept by Irene Yabut allegedly for record purposes. After validation, Yabut
would then fill up the name of RMC in the space left blank in the duplicate copy and change the account
number written thereon, which is that of her husband's, and make it appear to be RMC's account number, i.e.,
C.A. No. 53-01980-3. With the daily remittance records also prepared by Ms. Yabut and submitted to private
respondent RMC together with the validated duplicate slips with the latter's name and account number, she
Page 34 of 142
made her company believe that all the while the amounts she deposited were being credited to its account
when, in truth and in fact, they were being deposited by her and credited by the petitioner bank in the account
of Cotas. This went on in a span of more than one (1) year without private respondent's knowledge.

Upon discovery of the loss of its funds, RMC demanded from petitioner bank the return of its money, but as its
demand went unheeded, it filed a collection suit before the Regional Trial Court of Pasig, Branch 160. The trial
court found petitioner bank negligent and ruled as follows:

WHEREFORE, judgment is hereby rendered sentencing defendant Philippine Bank of Commerce, now
absorbed by defendant Philippine Commercial & Industrial Bank, and defendant Azucena Mabayad to pay the
plaintiff, jointly and severally, and without prejudice to any criminal action which may be instituted if found
warranted:

1. The sum of P304,979.72, representing plaintiffs lost deposit, plus interest thereon at the legal rate from
the filing of the complaint;

2. A sum equivalent to 14% thereof, as exemplary damages;

3. A sum equivalent to 25% of the total amount due, as and for attorney's fees; and

4. Costs.

Defendants' counterclaim is hereby dismissed for lack of merit. 2

On appeal, the appellate court affirmed the foregoing decision with modifications, viz:

WHEREFORE, the decision appealed from herein is MODIFIED in the sense that the awards of exemplary
damages and attorney's fees specified therein are eliminated and instead, appellants are ordered to pay
plaintiff, in addition to the principal sum of P304,979.74 representing plaintiff's lost deposit plus legal interest
thereon from the filing of the complaint, P25,000.00 attorney's fees and costs in the lower court as well as in
this Court. 3

Hence, this petition anchored on the following grounds:

1) The proximate cause of the loss is the negligence of respondent Rommel Marketing Corporation and
Romeo Lipana in entrusting cash to a dishonest employee.

2) The failure of respondent Rommel Marketing Corporation to cross-check the bank's statements of
account with its own records during the entire period of more than one (1) year is the proximate cause of the
commission of subsequent frauds and misappropriation committed by Ms. Irene Yabut.

3) The duplicate copies of the deposit slips presented by respondent Rommel Marketing Corporation are
falsified and are not proof that the amounts appearing thereon were deposited to respondent Rommel
Marketing Corporation's account with the bank,

Page 35 of 142
4) The duplicate copies of the deposit slips were used by Ms. Irene Yabut to cover up her fraudulent acts
against respondent Rommel Marketing Corporation, and not as records of deposits she made with the bank. 4

The petition has no merit.

Simply put, the main issue posited before us is: What is the proximate cause of the loss, to the tune of
P304,979.74, suffered by the private respondent RMC petitioner bank's negligence or that of private
respondent's?

Petitioners submit that the proximate cause of the loss is the negligence of respondent RMC and Romeo
Lipana in entrusting cash to a dishonest employee in the person of Ms. Irene Yabut. 5 According to them, it
was impossible for the bank to know that the money deposited by Ms. Irene Yabut belong to RMC; neither was
the bank forewarned by RMC that Yabut will be depositing cash to its account. Thus, it was impossible for the
bank to know the fraudulent design of Yabut considering that her husband, Bienvenido Cotas, also maintained
an account with the bank. For the bank to inquire into the ownership of the cash deposited by Ms. Irene Yabut
would be irregular. Otherwise stated, it was RMC's negligence in entrusting cash to a dishonest employee
which provided Ms. Irene Yabut the opportunity to defraud RMC. 6

Private respondent, on the other hand, maintains that the proximate cause of the loss was the negligent act of
the bank, thru its teller Ms. Azucena Mabayad, in validating the deposit slips, both original and duplicate,
presented by Ms. Yabut to Ms. Mabayad, notwithstanding the fact that one of the deposit slips was not
completely accomplished.

We sustain the private respondent.

Our law on quasi-delicts states:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

There are three elements of a quasi-delict: (a) damages suffered by the plaintiff; (b) fault or negligence of the
defendant, or some other person for whose acts he must respond; and (c) the connection of cause and effect
between the fault or negligence of the defendant and the damages incurred by the plaintiff. 7

In the case at bench, there is no dispute as to the damage suffered by the private respondent (plaintiff in the
trial court) RMC in the amount of P304,979.74. It is in ascribing fault or negligence which caused the damage
where the parties point to each other as the culprit.

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 do. The seventy-eight (78)-year-old, yet still relevant, case of Picart v. Smith, 8 provides
the test by which to determine the existence of negligence in a particular case which may be stated as follows:
Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in
Page 36 of 142
effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of
the Roman law. The existence of negligence in a given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and prudence and determines liability by that.

Applying the above test, it appears that the bank's teller, Ms. Azucena Mabayad, was negligent in validating,
officially stamping and signing all the deposit slips prepared and presented by Ms. Yabut, despite the glaring
fact that the duplicate copy was not completely accomplished contrary to the self-imposed procedure of the
bank with respect to the proper validation of deposit slips, original or duplicate, as testified to by Ms. Mabayad
herself, thus:

Q: Now, as teller of PCIB, Pasig Branch, will you please tell us Mrs. Mabayad your important duties and
functions?

A: I accept current and savings deposits from depositors and encashments.

Q: Now in the handling of current account deposits of bank clients, could you tell us the procedure you
follow?

A: The client or depositor or the authorized representative prepares a deposit slip by filling up the deposit
slip with the name, the account number, the date, the cash breakdown, if it is deposited for cash, and the check
number, the amount and then he signs the deposit slip.

Q: Now, how many deposit slips do you normally require in accomplishing current account deposit, Mrs.
Mabayad?

A: The bank requires only one copy of the deposit although some of our clients prepare the deposit slip in
duplicate.

Q: Now in accomplishing current account deposits from your clients, what do you issue to the depositor to
evidence the deposit made?

A: We issue or we give to the clients the depositor's stub as a receipt of the deposit.

Q: And who prepares the deposit slip?

A: The depositor or the authorized representative sir?

Q: Where does the depositor's stub comes (sic) from Mrs. Mabayad, is it with the deposit slip?

A: The depositor's stub is connected with the deposit slip or the bank's copy. In a deposit slip, the upper
portion is the depositor's stub and the lower portion is the bank's copy, and you can detach the bank's copy
from the depositor's stub by tearing it sir.

Page 37 of 142
Q: Now what do you do upon presentment of the deposit slip by the depositor or the depositor's authorized
representative?

A: We see to it that the deposit slip 9 is properly accomplished and then we count the money and then we
tally it with the deposit slip sir.

Q: Now is the depositor's stub which you issued to your clients validated?

A: Yes, sir. 10 [Emphasis ours]

Clearly, Ms. Mabayad failed to observe this very important procedure. The fact that the duplicate slip was not
compulsorily required by the bank in accepting deposits should not relieve the petitioner bank of responsibility.
The odd circumstance alone that such duplicate copy lacked one vital information that of the name of the
account holder should have already put Ms. Mabayad on guard. Rather than readily validating the
incomplete duplicate copy, she should have proceeded more cautiously by being more probing as to the true
reason why the name of the account holder in the duplicate slip was left blank while that in the original was
filled up. She should not have been so naive in accepting hook, line and sinker the too shallow excuse of Ms.
Irene Yabut to the effect that since the duplicate copy was only for her personal record, she would simply fill up
the blank space later on. 11 A "reasonable man of ordinary prudence" 12 would not have given credence to
such explanation and would have insisted that the space left blank be filled up as a condition for validation.
Unfortunately, this was not how bank teller Mabayad proceeded thus resulting in huge losses to the private
respondent.

Negligence here lies not only on the part of Ms. Mabayad but also on the part of the bank itself in its
lackadaisical selection and supervision of Ms. Mabayad. This was exemplified in the testimony of Mr. Romeo
Bonifacio, then Manager of the Pasig Branch of the petitioner bank and now its Vice-President, to the effect
that, while he ordered the investigation of the incident, he never came to know that blank deposit slips were
validated in total disregard of the bank's validation procedures, viz:

Q: Did he ever tell you that one of your cashiers affixed the stamp mark of the bank on the deposit slips
and they validated the same with the machine, the fact that those deposit slips were unfilled up, is there any
report similar to that?

A: No, it was not the cashier but the teller.

Q: The teller validated the blank deposit slip?

A: No it was not reported.

Q: You did not know that any one in the bank tellers or cashiers validated the blank deposit slip?

A: I am not aware of that.

Q: It is only now that you are aware of that?

Page 38 of 142
A: Yes, sir. 13

Prescinding from the above, public respondent Court of Appeals aptly observed:

xxx xxx xxx

It was in fact only when he testified in this case in February, 1983, or after the lapse of more than seven (7)
years counted from the period when the funds in question were deposited in plaintiff's accounts (May, 1975 to
July, 1976) that bank manager Bonifacio admittedly became aware of the practice of his teller Mabayad of
validating blank deposit slips. Undoubtedly, this is gross, wanton, and inexcusable negligence in the appellant
bank's supervision of its employees. 14

It was this negligence of Ms. Azucena Mabayad, coupled by the negligence of the petitioner bank in the
selection and supervision of its bank teller, which was the proximate cause of the loss suffered by the private
respondent, and not the latter's act of entrusting cash to a dishonest employee, as insisted by the petitioners.

Proximate cause is determined on the facts of each case upon mixed considerations of logic, common sense,
policy and precedent. 15 Vda. de Bataclan v. Medina, 16 reiterated in the case of Bank of the Phil. Islands v.
Court of Appeals, 17 defines proximate cause as "that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the result would not have
occurred. . . ." In this case, absent the act of Ms. Mabayad in negligently validating the incomplete duplicate
copy of the deposit slip, Ms. Irene Yabut would not have the facility with which to perpetrate her fraudulent
scheme with impunity. Apropos, once again, is the pronouncement made by the respondent appellate court, to
wit:

. . . . Even if Yabut had the fraudulent intention to misappropriate the funds entrusted to her by plaintiff, she
would not have been able to deposit those funds in her husband's current account, and then make plaintiff
believe that it was in the latter's accounts wherein she had deposited them, had it not been for bank teller
Mabayad's aforesaid gross and reckless negligence. The latter's negligence was thus the proximate, immediate
and efficient cause that brought about the loss claimed by plaintiff in this case, and the failure of plaintiff to
discover the same soon enough by failing to scrutinize the monthly statements of account being sent to it by
appellant bank could not have prevented the fraud and misappropriation which Irene Yabut had already
completed when she deposited plaintiff's money to the account of her husband instead of to the latter's
accounts. 18

Furthermore, under the doctrine of "last clear chance" (also referred to, at times as "supervening negligence"
or as "discovered peril"), petitioner bank was indeed the culpable party. This doctrine, in essence, states that
where both parties are negligent, but the negligent act of one is appreciably later in time than that of the other,
or when it is impossible to determine whose fault or negligence should be attributed to the incident, the one
who had the last clear opportunity to avoid the impending harm and failed to do so is chargeable with the
consequences thereof. 19 Stated differently, the rule would also mean that an antecedent negligence of a
person does not preclude the recovery of damages for the supervening negligence of, or bar a defense against
liability sought by another, if the latter, who had the last fair chance, could have avoided the impending harm by
the exercise of due diligence. 20 Here, assuming that private respondent RMC was negligent in entrusting cash
to a dishonest employee, thus providing the latter with the opportunity to defraud the company, as advanced by
Page 39 of 142
the petitioner, yet it cannot be denied that the petitioner bank, thru its teller, had the last clear opportunity to
avert the injury incurred by its client, simply by faithfully observing their self-imposed validation procedure.

At this juncture, it is worth to discuss the degree of diligence ought to be exercised by banks in dealing with
their clients.

The New Civil Code provides:

Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required
by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the
place. When negligence shows bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.

If the law or contract does not state the diligence which is to be observed in the performance, that which is
expected of a good father of a family shall be required. (1104a)

In the case of banks, however, the degree of diligence required is more than that of a good father of a family.
Considering the fiduciary nature of their relationship with their depositors, banks are duty bound to treat the
accounts of their clients with the highest degree of care. 21

As elucidated in Simex International (Manila), Inc. v. Court of Appeals, 22 in every case, the depositor expects
the bank to treat his account with the utmost fidelity, whether such account consists only of a few hundred
pesos or of millions. The bank must record every single transaction accurately, down to the last centavo, and
as promptly as possible. This has to be done if the account is to reflect at any given time the amount of money
the depositor can dispose as he sees fit, confident that the bank will deliver it as and to whomever he directs. A
blunder on the part of the bank, such as the failure to duly credit him his deposits as soon as they are made,
can cause the depositor not a little embarrassment if not financial loss and perhaps even civil and criminal
litigation.

The point is that as a business affected with public interest and because of the nature of its functions, the bank
is under obligation to treat the accounts of its depositors with meticulous care, always having in mind the
fiduciary nature of their relationship. In the case before us, it is apparent that the petitioner bank was remiss in
that duty and violated that relationship.

Petitioners nevertheless aver that the failure of respondent RMC to cross-check the bank's statements of
account with its own records during the entire period of more than one (1) year is the proximate cause of the
commission of subsequent frauds and misappropriation committed by Ms. Irene Yabut.

We do not agree.

While it is true that had private respondent checked the monthly statements of account sent by the petitioner
bank to RMC, the latter would have discovered the loss early on, such cannot be used by the petitioners to
escape liability. This omission on the part of the private respondent does not change the fact that were it not for
the wanton and reckless negligence of the petitioners' employee in validating the incomplete duplicate deposit
slips presented by Ms. Irene Yabut, the loss would not have occurred. Considering, however, that the fraud was
committed in a span of more than one (1) year covering various deposits, common human experience dictates
Page 40 of 142
that the same would not have been possible without any form of collusion between Ms. Yabut and bank teller
Mabayad. Ms. Mabayad was negligent in the performance of her duties as bank teller nonetheless. Thus, the
petitioners are entitled to claim reimbursement from her for whatever they shall be ordered to pay in this case.

The foregoing notwithstanding, it cannot be denied that, indeed, private respondent was likewise negligent in
not checking its monthly statements of account. Had it done so, the company would have been alerted to the
series of frauds being committed against RMC by its secretary. The damage would definitely not have
ballooned to such an amount if only RMC, particularly Romeo Lipana, had exercised even a little vigilance in
their financial affairs. This omission by RMC amounts to contributory negligence which shall mitigate the
damages that may be awarded to the private respondent 23 under Article 2179 of the New Civil Code, to wit:

. . . When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury
being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded.

In view of this, we believe that the demands of substantial justice are satisfied by allocating the damage on a
60-40 ratio. Thus, 40% of the damage awarded by the respondent appellate court, except the award of
P25,000.00 attorney's fees, shall be borne by private respondent RMC; only the balance of 60% needs to be
paid by the petitioners. The award of attorney's fees shall be borne exclusively by the petitioners.

WHEREFORE, the decision of the respondent Court of Appeals is modified by reducing the amount of actual
damages private respondent is entitled to by 40%. Petitioners may recover from Ms. Azucena Mabayad the
amount they would pay the private respondent. Private respondent shall have recourse against Ms. Irene
Yabut. In all other respects, the appellate court's decision is AFFIRMED.

Proportionate costs.

SO ORDERED.

G.R. No. L-21438 September 28, 1966

AIR FRANCE, petitioner,

vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.

SANCHEZ, J.:

The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00
by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare
between first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with

Page 41 of 142
interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys'
fees; and the costs of suit.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from
P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against
petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March
30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to
plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled
in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class"
seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man",
who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the
plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over his
dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers
got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the
white man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to
the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in
the plane.3

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of
Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues
properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate
court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record
without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in
the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the
facts and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain
complete findings of fact on all issues properly raised before it". 7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely
insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court
of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party
and the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence
the facts" which a party "considered as proved". 11 This is but a part of the mental process from which the
Court draws the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if not
confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to warrant
its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to the
Page 42 of 142
evidence for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed,
"the mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to
believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the
Constitution". It is in this setting that in Manigque, it was held that the mere fact that the findings "were based
entirely on the evidence for the prosecution without taking into consideration or even mentioning the appellant's
side in the controversy as shown by his own testimony", would not vitiate the judgment. 13 If the court did not
recite in the decision the testimony of each witness for, or each item of evidence presented by, the defeated
party, it does not mean that the court has overlooked such testimony or such item of evidence. 14 At any rate,
the legal presumptions are that official duty has been regularly performed, and that all the matters within an
issue in a case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of
the ultimate facts as found by the court ... and essential to support the decision and judgment rendered
thereon". 16 They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A
question of law, upon the other hand, has been declared as "one which does not call for an examination of the
probative value of the evidence presented by the parties." 18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of
Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter
the facts or to review the questions of fact. 20

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support
its judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket.
But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the
parties; that said respondent knew that he did not have confirmed reservations for first class on any specific
flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no
guarantee that he would have a first class ride, but that such would depend upon the availability of first class
seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of
Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had
confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly
that from Saigon to Beirut". 21

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that
the passenger to whom the same had been issued, would be accommodated in the first-class compartment,
for as in the case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary
first-class reservation. We are not impressed by such a reasoning. We cannot understand how a reputable firm
like defendant airplane company could have the indiscretion to give out tickets it never meant to honor at all. It
Page 43 of 142
received the corresponding amount in payment of first-class tickets and yet it allowed the passenger to be at
the mercy of its employees. It is more in keeping with the ordinary course of business that the company should
know whether or riot the tickets it issues are to be honored or not.22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness,
Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

xxx xxx xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although
plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in
Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over
written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said
witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any reservation
whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for
a "first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such
confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by
defendant would be subject to confirmation in Hongkong. 23

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount
refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of
Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment of
the lower court. 24 Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in
the Court of First Instance was free from prejudicial error and "all questions raised by the assignments of error
and all questions that might have been raised are to be regarded as finally adjudicated against the appellant".
So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy
construction because nothing in the decision of the Court of Appeals on this point would suggest that its
findings of fact are in any way at war with those of the trial court. Nor was said affirmance by the Court of
Appeals upon a ground or grounds different from those which were made the basis of the conclusions of the
trial court. 26

Page 44 of 142
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the
fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of
the hands of an airline. What security then can a passenger have? It will always be an easy matter for an
airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal
agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a
rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only
to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is
desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the
covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first
class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of
distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do
we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to
provoke an issue". 29 And this because, as petitioner states, Carrascoso went to see the Manager at his office
in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then,
was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better
right to the seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages there
must be an averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a
finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:

3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which said contract,
plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendant's plane
during the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's
return trip to Manila, ... .

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant
furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence
were made by the plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only Tourist Class
accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been compelled by
defendant's employees to leave the First Class accommodation berths at Bangkok after he was already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by
defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip from
Madrid to Manila.32

xxx xxx xxx

Page 45 of 142
2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff
suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious
anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of
P30,000.00. 33

xxx xxx xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class
passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when
petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already,
seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments
and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social
humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the
complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth
therein. 34 The contract was averred to establish the relation between the parties. But the stress of the action
is put on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on
guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was
ousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the
fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore,
unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award for
moral damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to
conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the
defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent but
against his will, has been sufficiently established by plaintiff in his testimony before the court, corroborated by
the corresponding entry made by the purser of the plane in his notebook which notation reads as follows:

"First-class passenger was forced to go to the tourist class against his will, and that the captain refused to
intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane
who was asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is
noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could
have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or yet to
secure his disposition; but defendant did neither. 37

The Court of appeals further stated

Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the
employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been
taken, surely the plaintiff should not have been picked out as the one to suffer the consequences and to be
Page 46 of 142
subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of
explaining to the white man the improvidence committed by defendant's employees, the manager adopted the
more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are
strengthened in our belief that this probably was what happened there, by the testimony of defendant's witness
Rafael Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the tickets of
plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another witness for
defendant, who was the chief of the Reservation Office of defendant, testified as follows:

"Q How does the person in the ticket-issuing office know what reservation the passenger has arranged with
you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:

Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the seat
occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any better", nay, any
right on the part of the "white man" to the "First class" seat that the plaintiff was occupying and for which he
paid and was issued a corresponding "first class" ticket.

If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant could have
easily proven it by having taken the testimony of the said Manager by deposition, but defendant did not do so;
the presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules of
Court]; and, under the circumstances, the Court is constrained to find, as it does find, that the Manager of the
defendant airline in Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did
not give up his "first class" seat because the said Manager wanted to accommodate, using the words of the
witness Ernesto G. Cuento, the "white man".38

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term
"bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only
prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he
forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class
compartment - just to give way to another passenger whose right thereto has not been established. Certainly,
this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is understood in law.
For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design or with some motive of
self-interest or will or for ulterior purpose." 39

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the Court
of First Instance, thus:

The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith, with the
aggravating circumstances that defendant's Manager in Bangkok went to the extent of threatening the plaintiff
in the presence of many passengers to have him thrown out of the airplane to give the "first class" seat that he
was occupying to, again using the words of the witness Ernesto G. Cuento, a "white man" whom he
(defendant's Manager) wished to accommodate, and the defendant has not proven that this "white man" had
Page 47 of 142
any "better right" to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him.40

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled
in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21
of the Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of
Article 2219 (10), Civil Code, moral damages are recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any other contractual relation.
43 And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the
travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage,
therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees,
naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's
employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against
personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or
discourteous conduct on the part of employees towards a passenger gives the latter an action for damages
against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a
tort, giving a right of action for its agent in the presence of third persons to falsely notify her that the check was
worthless and demand payment under threat of ejection, though the language used was not insulting and she
was not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in
origin and nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case,
"Where a passenger on a railroad train, when the conductor came to collect his fare tendered him the cash fare
to a point where the train was scheduled not to stop, and told him that as soon as the train reached such point
he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger
which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and the
Supreme Court of South Carolina there held the carrier liable for the mental suffering of said
passenger.1awphl.nt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we
have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier
a case of quasi-delict. Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus

Q You mentioned about an attendant. Who is that attendant and purser?

Page 48 of 142
A When we left already that was already in the trip I could not help it. So one of the flight attendants
approached me and requested from me my ticket and I said, What for? and she said, "We will note that you
transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer." And I
also said, "You are not going to note anything there because I am protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood
up and I went to the pantry that was next to me and the purser was there. He told me, "I have recorded the
incident in my notebook." He read it and translated it to me because it was recorded in French "First class
passenger was forced to go to the tourist class against his will, and that the captain refused to intervene."

Mr. VALTE

I move to strike out the last part of the testimony of the witness because the best evidence would be the notes.
Your Honor.

COURT

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook
reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused
to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not
think so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come
within the proscription of the best evidence rule. Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then,
in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement
and mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the
notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has
been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have
been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no
such entry was made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

Page 49 of 142
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary
damages in contracts and quasi- contracts. The only condition is that defendant should have "acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent
Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages.54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment
for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that
attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised as
it was here should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus:
P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees.
The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with
the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and
circumstances point to the reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against petitioner. So ordered.

G.R. No. L-12986 March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA ONG,
petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-appellees.

MAKALINTAL., J.:

This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed that of the
Court of First Instance of Manila dismissing petitioners' second amended complaint against respondents.

The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the afternoon
of March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal
Avenue, Manila. It started while gasoline was being hosed from a tank truck into the underground storage, right
at the opening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned
several neighboring houses, including the personal properties and effects inside them. Their owners, among
them petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of
the station and the second as its agent in charge of operation. Negligence on the part of both of them was
attributed as the cause of the fire.

The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents
had exercised due care in the premises and with respect to the supervision of their employees.

Page 50 of 142
The first question before Us refers to the admissibility of certain reports on the fire prepared by the Manila
Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines. Portions of
the first two reports are as follows:

1. Police Department report:

Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was transferring gasoline
from a tank truck, plate No. T-5292 into the underground tank of the Caltex Gasoline Station located at the
corner of Rizal Avenue and Antipolo Street, this City, an unknown Filipino lighted a cigarette and threw the
burning match stick near the main valve of the said underground tank. Due to the gasoline fumes, fire suddenly
blazed. Quick action of Leandro Flores in pulling off the gasoline hose connecting the truck with the
underground tank prevented a terrific explosion. However, the flames scattered due to the hose from which the
gasoline was spouting. It burned the truck and the following accessorias and residences.

2. The Fire Department report:

In connection with their allegation that the premises was (sic) subleased for the installation of a coca-cola and
cigarette stand, the complainants furnished this Office a copy of a photograph taken during the fire and which is
submitted herewith. it appears in this picture that there are in the premises a coca-cola cooler and a rack which
according to information gathered in the neighborhood contained cigarettes and matches, installed between the
gasoline pumps and the underground tanks.

The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of
the gasoline station and what the chief of the fire department had told him on the same subject.

The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible.
This ruling is now assigned as error. It is contended: first, that said reports were admitted by the trial court
without objection on the part of respondents; secondly, that with respect to the police report (Exhibit V-Africa)
which appears signed by a Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as
witness but respondents waived their right to cross-examine him although they had the opportunity to do so;
and thirdly, that in any event the said reports are admissible as an exception to the hearsay rule under section
35 of Rule 123, now Rule 130.

The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953 (pp.
167-170) shows that the reports in question, when offered as evidence, were objected to by counsel for each of
respondents on the ground that they were hearsay and that they were "irrelevant, immaterial and impertinent."
Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the admission
of the others, including the disputed ones, carried no such explanation.

On the second point, although Detective Capacillo did take the witness stand, he was not examined and he did
not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he said was that he
was one of those who investigated "the location of the fire and, if possible, gather witnesses as to the
occurrence, and that he brought the report with him. There was nothing, therefore, on which he need be cross-
examined; and the contents of the report, as to which he did not testify, did not thereby become competent

Page 51 of 142
evidence. And even if he had testified, his testimony would still have been objectionable as far as information
gathered by him from third persons was concerned.

Petitioners maintain, however, that the reports in themselves, that is, without further testimonial evidence on
their contents, fall within the scope of section 35, Rule 123, which provides that "entries in official records made
in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts therein stated."

There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a
public officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer
in the performance of his duties, or by such other person in the performance of a duty specially enjoined by
law; and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which
must have been acquired by him personally or through official information (Moran, Comments on the Rules of
Court, Vol. 3 [1957] p. 398).

Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in
the reports as to the cause and circumstances of the fire were not within the personal knowledge of the officers
who conducted the investigation. Was knowledge of such facts, however, acquired by them through official
information? As to some facts the sources thereof are not even identified. Others are attributed to Leopoldo
Medina, referred to as an employee at the gas station were the fire occurred; to Leandro Flores, driver of the
tank truck from which gasoline was being transferred at the time to the underground tank of the station; and to
respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of
the fire. To qualify their statements as "official information" acquired by the officers who prepared the reports,
the persons who made the statements not only must have personal knowledge of the facts stated but must
have the duty to give such statements for record.1

The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not
acquired by the reporting officers through official information, not having been given by the informants pursuant
to any duty to do so.

The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa
loquitur should apply so as to presume negligence on the part of appellees. Both the trial court and the
appellate court refused to apply the doctrine in the instant case on the grounds that "as to (its) applicability ... in
the Philippines, there seems to he nothing definite," and that while the rules do not prohibit its adoption in
appropriate cases, "in the case at bar, however, we find no practical use for such doctrine." The question
deserves more than such summary dismissal. The doctrine has actually been applied in this jurisdiction, in the
case of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20, 1949),
wherein the decision of the Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the
Supreme Court.

The facts of that case are stated in the decision as follows:

In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass between
the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and without any wind
blowing, an electric transmission wire, installed and maintained by the defendant Philippine Power and
Page 52 of 142
Development Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the head of the
plaintiff as he was about to board the truck. As a result, plaintiff received the full shock of 4,400 volts carried by
the wire and was knocked unconscious to the ground. The electric charge coursed through his body and
caused extensive and serious multiple burns from skull to legs, leaving the bone exposed in some parts and
causing intense pain and wounds that were not completely healed when the case was tried on June 18, 1947,
over one year after the mishap.

The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of
negligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur. The court
said:

The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense. While it
is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa aquiliana, the
burden of proof is on the plaintiff to establish that the proximate cause of his injury was the negligence of the
defendant, it is also a recognized principal that "where the thing which caused injury, without fault of the injured
person, is under the exclusive control of the defendant and the injury is such as in the ordinary course of things
does not occur if he having such control use proper care, it affords reasonable evidence, in the absence of the
explanation, that the injury arose from defendant's want of care."

And the burden of evidence is shifted to him to establish that he has observed due care and diligence. (San
Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name of res ipsa
loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at bar, where it is
unquestioned that the plaintiff had every right to be on the highway, and the electric wire was under the sole
control of defendant company. In the ordinary course of events, electric wires do not part suddenly in fair
weather and injure people, unless they are subjected to unusual strain and stress or there are defects in their
installation, maintenance and supervision; just as barrels do not ordinarily roll out of the warehouse windows to
injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the
leading case that established that rule). Consequently, in the absence of contributory negligence (which is
admittedly not present), the fact that the wire snapped suffices to raise a reasonable presumption of negligence
in its installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if there are any facts
inconsistent with negligence, it is for the defendant to prove."

It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme
Court, but we do not consider this a reason for not applying the particular doctrine of res ipsa loquitur in the
case at bar. Gasoline is a highly combustible material, in the storage and sale of which extreme care must be
taken. On the other hand, fire is not considered a fortuitous event, as it arises almost invariably from some act
of man. A case strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So.
447:

Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to the Shell
Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of the lease, while
gasoline was being transferred from the tank wagon, also operated by the Shell Petroleum Corporation, to the
underground tank of the station, a fire started with resulting damages to the building owned by Jones. Alleging
that the damages to his building amounted to $516.95, Jones sued the Shell Petroleum Corporation for the
recovery of that amount. The judge of the district court, after hearing the testimony, concluded that plaintiff was
Page 53 of 142
entitled to a recovery and rendered judgment in his favor for $427.82. The Court of Appeals for the First Circuit
reversed this judgment, on the ground the testimony failed to show with reasonable certainty any negligence on
the part of the Shell Petroleum Corporation or any of its agents or employees. Plaintiff applied to this Court for
a Writ of Review which was granted, and the case is now before us for decision.1wph1.t

In resolving the issue of negligence, the Supreme Court of Louisiana held:

Plaintiff's petition contains two distinct charges of negligence one relating to the cause of the fire and the
other relating to the spreading of the gasoline about the filling station.

Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were placed on
the stand by the defendant.

Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the record
that the filling station and the tank truck were under the control of the defendant and operated by its agents or
employees. We further find from the uncontradicted testimony of plaintiff's witnesses that fire started in the
underground tank attached to the filling station while it was being filled from the tank truck and while both the
tank and the truck were in charge of and being operated by the agents or employees of the defendant,
extended to the hose and tank truck, and was communicated from the burning hose, tank truck, and escaping
gasoline to the building owned by the plaintiff.

Predicated on these circumstances and the further circumstance of defendant's failure to explain the cause of
the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur.
There are many cases in which the doctrine may be successfully invoked and this, we think, is one of them.

Where the thing which caused the injury complained of is shown to be under the management of defendant or
his servants and the accident is such as in the ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in absence of explanation by
defendant, that the accident arose from want of care. (45 C.J. #768, p. 1193).

This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of last
resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the following, viz.:
Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So.
731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v.
Page, 115 La. 560, 39 So. 599.

The principle enunciated in the aforequoted case applies with equal force here. The gasoline station, with all its
appliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread
to and burned the neighboring houses. The persons who knew or could have known how the fire started were
appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.

In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa) the
following appears:

Page 54 of 142
Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a lot
approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is within a very
busy business district near the Obrero Market, a railroad crossing and very thickly populated neighborhood
where a great number of people mill around t

until

gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration.

Furthermore, aside from precautions already taken by its operator the concrete walls south and west adjoining
the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from leaping over it in case
of fire.

Records show that there have been two cases of fire which caused not only material damages but desperation
and also panic in the neighborhood.

Although the soft drinks stand had been eliminated, this gasoline service station is also used by its operator as
a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another risk to the possible
outbreak of fire at this already small but crowded gasoline station.

The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of
his own personal observation of the facts reported, may properly be considered as an exception to the hearsay
rule. These facts, descriptive of the location and objective circumstances surrounding the operation of the
gasoline station in question, strengthen the presumption of negligence under the doctrine of res ipsa loquitur,
since on their face they called for more stringent measures of caution than those which would satisfy the
standard of due diligence under ordinary circumstances. There is no more eloquent demonstration of this than
the statement of Leandro Flores before the police investigator. Flores was the driver of the gasoline tank wagon
who, alone and without assistance, was transferring the contents thereof into the underground storage when
the fire broke out. He said: "Before loading the underground tank there were no people, but while the loading
was going on, there were people who went to drink coca-cola (at the coca-cola stand) which is about a meter
from the hole leading to the underground tank." He added that when the tank was almost filled he went to the
tank truck to close the valve, and while he had his back turned to the "manhole" he, heard someone shout
"fire."

Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent
omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the
flames from leaping over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that height it
consisted merely of galvanized iron sheets, which would predictably crumple and melt when subjected to
intense heat. Defendants' negligence, therefore, was not only with respect to the cause of the fire but also with
respect to the spread thereof to the neighboring houses.

Page 55 of 142
There is an admission on the part of Boquiren in his amended answer to the second amended complaint that
"the fire was caused through the acts of a stranger who, without authority, or permission of answering
defendant, passed through the gasoline station and negligently threw a lighted match in the premises." No
evidence on this point was adduced, but assuming the allegation to be true certainly any unfavorable
inference from the admission may be taken against Boquiren it does not extenuate his negligence. A
decision of the Supreme Court of Texas, upon facts analogous to those of the present case, states the rule
which we find acceptable here. "It is the rule that those who distribute a dangerous article or agent, owe a
degree of protection to the public proportionate to and commensurate with a danger involved ... we think it is
the generally accepted rule as applied to torts that 'if the effects of the actor's negligent conduct actively and
continuously operate to bring about harm to another, the fact that the active and substantially simultaneous
operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor in
bringing about the harm, does not protect the actor from liability.' (Restatement of the Law of Torts, vol. 2, p.
1184, #439). Stated in another way, "The intention of an unforeseen and unexpected cause, is not sufficient to
relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately cooperates
with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd
442.)

The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue
depends on whether Boquiren was an independent contractor, as held by the Court of Appeals, or an agent of
Caltex. This question, in the light of the facts not controverted, is one of law and hence may be passed upon by
this Court. These facts are: (1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of
the fire Caltex owned the gasoline station and all the equipment therein; (3) Caltex exercised control over
Boquiren in the management of the state; (4) the delivery truck used in delivering gasoline to the station had
the name of CALTEX painted on it; and (5) the license to store gasoline at the station was in the name of
Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa;
Exhibit Y-Africa).

In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his drivers
to remove gasoline from the truck into the tank and alleged that the "alleged driver, if one there was, was not in
his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It
is true that Boquiren later on amended his answer, and that among the changes was one to the effect that he
was not acting as agent of Caltex. But then again, in his motion to dismiss appellants' second amended
complaint the ground alleged was that it stated no cause of action since under the allegations thereof he was
merely acting as agent of Caltex, such that he could not have incurred personal liability. A motion to dismiss on
this ground is deemed to be an admission of the facts alleged in the complaint.

Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the business
conducted at the service station in question was owned and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the nature of their relationship at the time of the fire. There must
have been one in existence at that time. Instead, what was presented was a license agreement manifestly
tailored for purposes of this case, since it was entered into shortly before the expiration of the one-year period it
was intended to operate. This so-called license agreement (Exhibit 5-Caltex) was executed on November 29,
1948, but made effective as of January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948.
This retroactivity provision is quite significant, and gives rise to the conclusion that it was designed precisely to
free Caltex from any responsibility with respect to the fire, as shown by the clause that Caltex "shall not be
Page 56 of 142
liable for any injury to person or property while in the property herein licensed, it being understood and agreed
that LICENSEE (Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)."

But even if the license agreement were to govern, Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the use of the
premises and all the equipment therein. He could sell only Caltex Products. Maintenance of the station and its
equipment was subject to the approval, in other words control, of Caltex. Boquiren could not assign or transfer
his rights as licensee without the consent of Caltex. The license agreement was supposed to be from January
1, 1948 to December 31, 1948, and thereafter until terminated by Caltex upon two days prior written notice.
Caltex could at any time cancel and terminate the agreement in case Boquiren ceased to sell Caltex products,
or did not conduct the business with due diligence, in the judgment of Caltex. Termination of the contract was
therefore a right granted only to Caltex but not to Boquiren. These provisions of the contract show the extent of
the control of Caltex over Boquiren. The control was such that the latter was virtually an employee of the
former.

Taking into consideration the fact that the operator owed his position to the company and the latter could
remove him or terminate his services at will; that the service station belonged to the company and bore its
tradename and the operator sold only the products of the company; that the equipment used by the operator
belonged to the company and were just loaned to the operator and the company took charge of their repair and
maintenance; that an employee of the company supervised the operator and conducted periodic inspection of
the company's gasoline and service station; that the price of the products sold by the operator was fixed by the
company and not by the operator; and that the receipts signed by the operator indicated that he was a mere
agent, the finding of the Court of Appeals that the operator was an agent of the company and not an
independent contractor should not be disturbed.

To determine the nature of a contract courts do not have or are not bound to rely upon the name or title given it
by the contracting parties, should thereby a controversy as to what they really had intended to enter into, but
the way the contracting parties do or perform their respective obligations stipulated or agreed upon may be
shown and inquired into, and should such performance conflict with the name or title given the contract by the
parties, the former must prevail over the latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance
Company of Newark, New Jersey, 100 Phil. 757).

The written contract was apparently drawn for the purpose of creating the apparent relationship of employer
and independent contractor, and of avoiding liability for the negligence of the employees about the station; but
the company was not satisfied to allow such relationship to exist. The evidence shows that it immediately
assumed control, and proceeded to direct the method by which the work contracted for should be performed.
By reserving the right to terminate the contract at will, it retained the means of compelling submission to its
orders. Having elected to assume control and to direct the means and methods by which the work has to be
performed, it must be held liable for the negligence of those performing service under its direction. We think the
evidence was sufficient to sustain the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).

Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices were
presented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales contract to
prove the same.

Page 57 of 142
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of P2,000.00
collected by them on the insurance of the house. The deduction is now challenged as erroneous on the ground
that Article 2207 of the New Civil Code, which provides for the subrogation of the insurer to the rights of the
insured, was not yet in effect when the loss took place. However, regardless of the silence of the law on this
point at that time, the amount that should be recovered be measured by the damages actually suffered,
otherwise the principle prohibiting unjust enrichment would be violated. With respect to the claim of the heirs of
Ong P7,500.00 was adjudged by the lower court on the basis of the assessed value of the property destroyed,
namely, P1,500.00, disregarding the testimony of one of the Ong children that said property was worth
P4,000.00. We agree that the court erred, since it is of common knowledge that the assessment for taxation
purposes is not an accurate gauge of fair market value, and in this case should not prevail over positive
evidence of such value. The heirs of Ong are therefore entitled to P10,000.00.

Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily to
appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively, with interest
from the filing of the complaint, and costs.

G.R. No. L-21749 September 29, 1967

REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUZON STEVEDORING CORPORATION, defendant-appellant.

REYES, J.B.L., J.:

The present case comes by direct appeal from a decision of the Court of First Instance of Manila (Case No.
44572) adjudging the defendant-appellant, Luzon Stevedoring Corporation, liable in damages to the plaintiff-
appellee Republic of the Philippines.

In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon Stevedoring Corporation was
being towed down the Pasig river by tugboats "Bangus" and "Barbero"1 also belonging to the same
corporation, when the barge rammed against one of the wooden piles of the Nagtahan bailey bridge, smashing
the posts and causing the bridge to list. The river, at the time, was swollen and the current swift, on account of
the heavy downpour of Manila and the surrounding provinces on August 15 and 16, 1960.

Sued by the Republic of the Philippines for actual and consequential damage caused by its employees,
amounting to P200,000 (Civil Case No. 44562, CFI of Manila), defendant Luzon Stevedoring Corporation
disclaimed liability therefor, on the grounds that it had exercised due diligence in the selection and supervision
of its employees; that the damages to the bridge were caused by force majeure; that plaintiff has no capacity to
sue; and that the Nagtahan bailey bridge is an obstruction to navigation.

Page 58 of 142
After due trial, the court rendered judgment on June 11, 1963, holding the defendant liable for the damage
caused by its employees and ordering it to pay to plaintiff the actual cost of the repair of the Nagtahan bailey
bridge which amounted to P192,561.72, with legal interest thereon from the date of the filing of the complaint.

Defendant appealed directly to this Court assigning the following errors allegedly committed by the court a quo,
to wit:

I The lower court erred in not holding that the herein defendant-appellant had exercised the diligence
required of it in the selection and supervision of its personnel to prevent damage or injury to others.1awphl.nt

II The lower court erred in not holding that the ramming of the Nagtahan bailey bridge by barge L-1892 was
caused by force majeure.

III The lower court erred in not holding that the Nagtahan bailey bridge is an obstruction, if not a menace, to
navigation in the Pasig river.

IV The lower court erred in not blaming the damage sustained by the Nagtahan bailey bridge to the
improper placement of the dolphins.

V The lower court erred in granting plaintiff's motion to adduce further evidence in chief after it has rested its
case.

VI The lower court erred in finding the plaintiff entitled to the amount of P192,561.72 for damages which is
clearly exorbitant and without any factual basis.

However, it must be recalled that the established rule in this jurisdiction is that when a party appeals directly to
the Supreme Court, and submits his case there for decision, he is deemed to have waived the right to dispute
any finding of fact made by the trial Court. The only questions that may be raised are those of law (Savellano
vs. Diaz, L-17441, July 31, 1963; Aballe vs. Santiago, L-16307, April 30, 1963; G.S.I.S. vs. Cloribel, L-22236,
June 22, 1965). A converso, a party who resorts to the Court of Appeals, and submits his case for decision
there, is barred from contending later that his claim was beyond the jurisdiction of the aforesaid Court. The
reason is that a contrary rule would encourage the undesirable practice of appellants' submitting their cases for
decision to either court in expectation of favorable judgment, but with intent of attacking its jurisdiction should
the decision be unfavorable (Tyson Tan, et al. vs. Filipinas Compaia de Seguros) et al., L-10096, Res. on
Motion to Reconsider, March 23, 1966). Consequently, we are limited in this appeal to the issues of law raised
in the appellant's brief.

Taking the aforesaid rules into account, it can be seen that the only reviewable issues in this appeal are
reduced to two:

1) Whether or not the collision of appellant's barge with the supports or piers of the Nagtahan bridge was in law
caused by fortuitous event or force majeure, and

2) Whether or not it was error for the Court to have permitted the plaintiff-appellee to introduce additional
evidence of damages after said party had rested its case.
Page 59 of 142
As to the first question, considering that the Nagtahan bridge was an immovable and stationary object and
uncontrovertedly provided with adequate openings for the passage of water craft, including barges like of
appellant's, it is undeniable that the unusual event that the barge, exclusively controlled by appellant, rammed
the bridge supports raises a presumption of negligence on the part of appellant or its employees manning the
barge or the tugs that towed it. For in the ordinary course of events, such a thing does not happen if proper
care is used. In Anglo American Jurisprudence, the inference arises by what is known as the "res ipsa loquitur"
rule (Scott vs. London Docks Co., 2 H & C 596; San Juan Light & Transit Co. vs. Requena, 224 U.S. 89, 56 L.
Ed., 680; Whitwell vs. Wolf, 127 Minn. 529, 149 N.W. 299; Bryne vs. Great Atlantic & Pacific Tea Co., 269
Mass. 130; 168 N.E. 540; Gribsby vs. Smith, 146 S.W. 2d 719).

The appellant strongly stresses the precautions taken by it on the day in question: that it assigned two of its
most powerful tugboats to tow down river its barge L-1892; that it assigned to the task the more competent and
experienced among its patrons, had the towlines, engines and equipment double-checked and inspected; that
it instructed its patrons to take extra precautions; and concludes that it had done all it was called to do, and that
the accident, therefore, should be held due to force majeure or fortuitous event.

These very precautions, however, completely destroy the appellant's defense. For caso fortuito or force
majeure (which in law are identical in so far as they exempt an obligor from liability)2 by definition, are
extraordinary events not foreseeable or avoidable, "events that could not be foreseen, or which, though
foreseen, were inevitable" (Art. 1174, Civ. Code of the Philippines). It is, therefore, not enough that the event
should not have been foreseen or anticipated, as is commonly believed, but it must be one impossible to
foresee or to avoid. The mere difficulty to foresee the happening is not impossibility to foresee the same: "un
hecho no constituye caso fortuito por la sola circunstancia de que su existencia haga mas dificil o mas onerosa
la accion diligente del presento ofensor" (Peirano Facio, Responsibilidad Extra-contractual, p. 465; Mazeaud
Trait de la Responsibilite Civil, Vol. 2, sec. 1569). The very measures adopted by appellant prove that the
possibility of danger was not only foreseeable, but actually foreseen, and was not caso fortuito.

Otherwise stated, the appellant, Luzon Stevedoring Corporation, knowing and appreciating the perils posed by
the swollen stream and its swift current, voluntarily entered into a situation involving obvious danger; it
therefore assured the risk, and can not shed responsibility merely because the precautions it adopted turned
out to be insufficient. Hence, the lower Court committed no error in holding it negligent in not suspending
operations and in holding it liable for the damages caused.

It avails the appellant naught to argue that the dolphins, like the bridge, were improperly located. Even if true,
these circumstances would merely emphasize the need of even higher degree of care on appellant's part in the
situation involved in the present case. The appellant, whose barges and tugs travel up and down the river
everyday, could not safely ignore the danger posed by these allegedly improper constructions that had been
erected, and in place, for years.

On the second point: appellant charges the lower court with having abused its discretion in the admission of
plaintiff's additional evidence after the latter had rested its case. There is an insinuation that the delay was
deliberate to enable the manipulation of evidence to prejudice defendant-appellant.

Page 60 of 142
We find no merit in the contention. Whether or not further evidence will be allowed after a party offering the
evidence has rested his case, lies within the sound discretion of the trial Judge, and this discretion will not be
reviewed except in clear case of abuse.3

In the present case, no abuse of that discretion is shown. What was allowed to be introduced, after plaintiff had
rested its evidence in chief, were vouchers and papers to support an item of P1,558.00 allegedly spent for the
reinforcement of the panel of the bailey bridge, and which item already appeared in Exhibit GG. Appellant, in
fact, has no reason to charge the trial court of being unfair, because it was also able to secure, upon written
motion, a similar order dated November 24, 1962, allowing reception of additional evidence for the said
defendant-appellant.4

WHEREFORE, finding no error in the decision of the lower Court appealed from, the same is hereby affirmed.
Costs against the defendant-appellant.

G.R. No. L-68635 May 14, 1987

IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. WENCESLAO

LAURETA, AND OF CONTEMPT PROCEEDINGS AGAINST EVA MARAVILLA-ILUSTRE in G.R. No. 68635,
entitled "EVA MARAVILLA-ILUSTRE, vs. HON. INTERMEDIATE APPELLATE COURT, ET AL."

RESOLUTION

PER CURIAM:

Before us are 1) Atty. Wenceslao Laureta's Motion for Reconsideration of the Per Curiam Resolution of this
Court promulgated on March 12, 1987, finding him guilty of grave professional misconduct and suspending him
indefinitely from the practice of law; and 2) Eva Maravilla-Ilustre's Motion for Reconsideration of the same
Resolution holding her in contempt and ordering her to pay a fine of P1,000.00.

Essentially, Atty. Laureta maintains that the Order of suspension without hearing violated his right to life and
due process of law and by reason thereof the Order is null and void; that the acts of misconduct imputed to him
are without basis; that the charge against him that it was he who had circulated to the press copies of the
Complaint filed before the Tanodbayan is unfounded such that, even in this Court's Resolution, his having
distributed copies to the press is not stated positively; that the banner headline which appeared In the Daily
Express is regrettable but that he was not responsible for such "misleading headline;" that he "did nothing of
the sort" being fully conscious of his responsibilities as a law practitioner and officer of the Court; that as a
former newspaperman, he would not have been satisfied with merely circulating copies of the Complaint to the
press in envelopes where his name appears; "he himself would have written stories about the case in a manner
that sells newspapers; even a series of juicy articles perhaps, something that would have further subjected the
Page 61 of 142
respondent justices to far worse publicity;" that, on the contrary, the press conference scheduled by Ilustre was
cancelled through his efforts in order to prevent any further adverse publicity resulting from the filing of the
complaint before the Tanodbayan; that, as a matter of fact, it was this Court's Resolution that was serialized in
the Bulletin Today, which newspaper also made him the subject of a scathing editorial but that he "understands
the cooperation because after all, the Court rendered a favorable judgment in the Bulletin union case last year;"
that he considered it "below his dignity to plead for the chance to present his side" with the Editor, Mr. Ben
Rodriguez, "a long-time personal friend" since he "can afford to be the sacrificial lamb if only to help the
Honorable Court uphold its integrity;" that he was called by a reporter of DZRH and was asked to comment on
the case filed before the Tanodbayan but that his remarks were confined to the filing of the case by Ilustre
herself, and that the judgment of the trial Court had attained its finality long ago; that he is not Ilustre's counsel
before the Tanodbayan and did not prepare the complaint filed before it, his professional services having been
terminated upon the final dismissal of Ilustre's case before this Court; that similarities in the language and
phraseology used in the Ilustre letters, in pleadings before this Court and before the Tanodbayan do not prove
his authorship since other lawyers "even of a mediocre caliber" could very easily have reproduced them; that
the discussions on the merits in the Per Curiam Resolution are "more properly addressed to the Tanodbayan,
Justice Raul M. Gonzales being competent to deal with the case before him;" that he takes exception to the
accusation that he has manifested lack of respect for and exposed to public ridicule the two highest Courts of
the land, all he did having been to call attention to errors or injustice committed in the promulgation of
judgments or orders; that he has "not authorized or assisted and/or abetted and could not have prevented the
contemptuous statements, conduct, acts and malicious charges of Eva Maravilla Ilustre who was no longer his
client when these alleged acts were done; that "he is grateful to this Court for the reminder on the first duty of a
lawyer which is to the Court and not to his client, a duty that he has always impressed upon his law students;"
and finally, that "for the record, he is sorry for the adverse publicity generated by the filing of the complaint
against the Justices before the Tanodbayan."

In her own Motion for Reconsideration, Eva Maravilla-Ilustre also raises as her main ground the alleged
deprivation of her constitutional right to due process. She maintains that as contempt proceedings are
commonly treated as criminal in nature, the mode of procedure and rules of evidence in criminal prosecution
should be assimilated, as far as practicable, in this proceeding, and that she should be given every opportunity
to present her side. Additionally, she states that, with some sympathetic lawyers, they made an "investigation"
and learned that the Resolution of the First Division was arrived at without any deliberation by its members;
that Court personnel were "tight-lipped about the matter, which is shrouded mystery" thereby prompting her to
pursue a course which she thought was legal and peaceful; that there is nothing wrong in making public the
manner of voting by the Justices, and it was for that reason that she addressed Identical letters to Associate
Justices Andres Narvasa, Ameurfina M. Herrera, Isagani Cruz and Florentino Feliciano; that "if the lawyers of
my opponents were not a Solicitor General, and member of the Supreme Court and a Division Chairman,
respectively, the resolution of May 14, 1986 would not have aroused my suspicion;" that instead of taking the
law into her own hands or joining any violent movement, she took the legitimate step of making a peaceful
investigation into how her case was decided, and brought her grievance to the Tanodbayan "in exasperation"
against those whom she felt had committed injustice against her "in an underhanded manner."

We deny reconsideration in both instances.

The argument premised on lack of hearing and due process, is not impressed with merit. What due process
abhors is absolute lack of opportunity to be heard (Tajonera vs. Lamaroza, et al., 110 SCRA 438 [1981]). The
Page 62 of 142
word "hearing" does not necessarily connote a "trial-type" proceeding. In the show-cause Resolution of this
Court, dated January 29, 1987, Atty. Laureta was given sufficient opportunity to inform this Court of the
reasons why he should not be subjected to dispose action. His Answer, wherein he prayed that the action
against him be dismissed, contained twenty-two (22) pages, double spaced. Eva Maravilla-Ilustre was also
given a like opportunity to explain her statements, conduct, acts and charges against the Court and/or the
official actions of the Justices concerned. Her Compliance Answer, wherein she prayed that the contempt
proceeding against her be dismissed, contained nineteen (19) pages, double spaced. Both were afforded
ample latitude to explain matters fully. Atty. Laureta denied having authored the letters written by Ilustre, his
being her counsel before the Tanodbayan, his having circularized to the press copies of the complaint filed
before said body, and his having committed acts unworthy of his profession. But the Court believed otherwise
and found that those letters and the charges levelled against the Justices concerned, of themselves and by
themselves, betray not only their malicious and contemptuous character, but also the lack of respect for the two
highest Courts of the land, a complete obliviousness to the fundamental principle of separation of powers, and
a wanton disregard of the cardinal doctrine of independence of the Judiciary. Res ipsa loquitur. Nothing more
needed to have been said or proven. The necessity to conduct any further evidentially hearing was obviated
(See People vs. Hon. Valenzuela, G.R. Nos. 63950-60, April 19, 1985, 135 SCRA 712). Atty. Laureta and
Ilustre were given ample opportunity to be heard, and were, in fact, heard.

(1)

In his Motion for Reconsideration, Atty. Laureta reiterates his allegations in his Answer to the show-cause
Resolution that his professional services were terminated by Ilustre after the dismissal of the main petition by
this Court; that he had nothing to do with the contemptuous letters to the individual Justices; and that he is not
Ilustre's counsel before the Tanodbayan.

Significantly enough, however, copy of the Tanodbayan Resolution dismissing Ilustre's Complaint was
furnished Atty. Laureta as "counsel for the complainant" at his address of record. Of note, too, is the fact that it
was he who was following up the Complaint before the Tanodbayan and, after its dismissal, the Motion for
Reconsideration of the Order of dismissal.

Of import, as well, is the report of Lorenzo C. Bardel, a process server of this Court, that after having failed to
serve copy of the Per Curiam Resolution of March 12, 1987 of this Court on Ilustre personally at her address of
record, "101 F. Manalo St., Cubao, Quezon City," having been informed that she is 6 not a resident of the
place," he proceeded to the residence of Atty. Laureta where the latter's wife "voluntarily received the two
copies of decision for her husband and for Ms. Maravina-Ilustre" (p. 670, Rollo, Vol. 11).

That Ilustre subsequently received copy of this Court's Resolution delivered to Mrs. Laureta is shown by the
fact that she filed, as of March 27, 1987, a "Petition for Extension of Time to file Motion for Reconsideration"
and subsequently the Motion for Reconsideration. In that Petition Ilustre acknowledged receipt of the
Resolution on March 12, 1987, the very same date Mrs. Laureta received copy thereof. If, indeed, the lawyer-
client relationship between her husband and Ilustre had been allegedly completely severed, all Mrs. Laureta
had to do was to return to the Sheriff the copy intended for Ilustre. As it was, however, service on Atty. Laureta
proved to be service on Ilustre as well. The close tie- up between the corespondents is heightened by the fact
that three process servers of this Court failed to serve copy of this Court's Per Curiam Resolution on Ilustre
personally.
Page 63 of 142
Noteworthy, as well, is that by Atty. Laureta's own admission, he was the one called by a "reporter" of DZRH to
comment on the Ilustre charges before the Tanodbayan. If, in fact, he had nothing to do with the complaint, he
would not have been pinpointed at all. And if his disclaimer were the truth, the logical step for him to have taken
was to refer the caller to the lawyer/s allegedly assisting Ilustre, at the very least, out of elementary courtesy
and propriety. But he did nothing of the sort. " He gave his comment with alacrity.

The impudence and lack of respect of Atty. Laureta for this Court again surfaces when he asserts in his Motion
for Reconsideration that he "understands the cooperation" of the Bulletin Today as manifested in the serialized
publication of the Per Curiam Resolution of this Court and his being subjected to a scathing editorial by the
same newspaper "because after all, the Court rendered a favorable judgment in the Bulletin union case last
year." The malice lurking in that statement is most unbecoming of an officer of the Court and is an added
reason for denying reconsideration.

Further, Atty. Laureta stubbornly contends that discussions on the merits in the Court's Per Curiam Resolution
are more properly addressed to the Tanodbayan, forgetting, however, his own discourse on the merits in his
Answer to this Court's Resolution dated January 29, 1987. He thus incorrigibly insists on subordinating the
Judiciary to the executive notwithstanding the categorical pronouncement in the Per Curiam Resolution of
March 12, 1987, that Article 204 of the Revised Penal Code has no application to the members of a collegiate
Court; that a charge of violation of the Anti-Graft and Corrupt Practices Act on the ground that a collective
decision is "unjust" cannot prosper; plus the clear and extended dissertation in the same Per Curiam
Resolution on the fundamental principle of separation of powers and of checks and balances, pursuant to
which it is this Court "entrusted exclusively with the judicial power to adjudicate with finality all justifiable
disputes, public and private. No other department or agency may pass upon its judgments or declare them
'unjust' upon controlling and irresistible reasons of public policy and of sound practice."

Atty. Laureta's protestations that he has done his best to protect and uphold the dignity of this Court are belied
by environmental facts and circumstances. His apologetic stance for the "adverse publicity" generated by the
filing of the charges against the Justices concerned before the Tanodbayan rings with insincerity. The complaint
was calculated precisely to serve that very purpose. The threat to bring the case to "another forum of justice"
was implemented to the fun. Besides, he misses the heart of the matter. Exposure to the glare of publicity is an
occupational hazard. If he has been visited with disciplinary sanctions it is because by his conduct, acts and
statements, he has, overall, deliberately sought to destroy the "authenticity, integrity, and conclusiveness of
collegiate acts," to "undermine the role of the Supreme Court as the final arbiter of all justifiable disputes," and
to subvert public confidence in the integrity of the Courts and the Justices concerned, and in the orderly
administration of justice.

In fine, we discern nothing in Atty. Laureta's Motion for Reconsideration that would call for a modification, much
less a reversal, of our finding that he is guilty of grave professional misconduct that renders him unfit to
continue to be entrusted with the duties and responsibilities pertaining to an attorney and officer of the Court.

(2)

Neither do we find merit in Ilustre's Motion for Reconsideration. She has turned deaf ears to any reason or
clarification. She and her counsel have refused to accept the untenability of their case and the inevitability of
Page 64 of 142
losing in Court. They have allowed suspicion alone to blind their actions and in so doing degraded the
administration of justice. "Investigation" was utterly uncalled for. All conclusions and judgments of the Court, be
they en banc or by Division, are arrived at only after deliberation. The fact that no dissent was indicated in the
Minutes of the proceedings held on May 14, 1986 showed that the members of the Division voted unanimously.
Court personnel are not in a position to know the voting in any case because all deliberations are held behind
closed doors without any one of them being present. No malicious inferences should have been drawn from
their inability to furnish the information Ilustre and Atty. Laureta desired The personality of the Solicitor General
never came into the picture. It was Justice Abad Santos, and not Justice Yap, who was Chairman of the First
Division when the Resolution of May 14, 1986 denying the Petition was rendered. Thereafter Justice Yap
inhibited himself from any participation. The fact that the Court en banc upheld the challenged Resolutions of
the First Division emphasizes the irrespective of Ilustre's case irrespective of the personalities involved.

Additionally, Ilustre has been trifling with this Court. She has given our process servers the run-around. Three
of them failed to serve on her personally her copy of this Court's Per Curiam Resolution of March 12, 1987 at
her address of record. Mrs. Laureta informed process server Lorenzo C. Bardel that Ilustre was residing at 17-
D, Quezon St., Tondo, Manila. Romeo C. Regala, another process server, went to that address to serve copy
of the Resolution but he reported:

4. That inspite of diligent efforts to locate the address of ms.Eva Maravilla-Ilustre, said address could not
be located;

5. That I even asked the occupants (Cerdan Family) of No. 17 Quezon Street, Tondo, Manila, and they
informed that there is no such Ms. Eva Maravilla-Ilustre in the neighborhood and/or in the vicinity; ... (p. 672,
Rollo, Vol. 11).

The third process server, Nelson C. Cabesuela, was also unable to serve copy of this Court's Resolution on
Ilustre. He reported:

2. On March 17, 1987, at about 9:30 A.M., I arrived at the house in the address furnished at; the notice of
judgment (101 Felix Manalo St., Cubao, Quezon City), and was received by an elderly woman who admitted to
be the owner of the house but vehemently refused to be Identified, and told me that she does not know the
addressee Maravilla, and told me further that she always meets different persons looking for Miss Maravilla
because the latter always gives the address of her house;

3. That, I was reminded of an incident that I also experienced in the same place trying to serve a
resolution to Miss Maravilla which was returned unserved because she is not known in the place; ... (p. 674,
Rollo, Vol. II).

And yet, in her Petition for Extension of Time and in her Motion for Reconsideration she persists in giving that
address at 101 Felix Manalo St., Cubao, Quezon City, where our process servers were told that she was not a
resident of and that she was unknown thereat. If for her contumacious elusiveness and lack of candor alone,
Ilustre deserves no further standing before this Court.

ACCORDINGLY, the respective Motions for reconsideration of Atty. Wenceslao G. Laureta for the setting aside
of the order suspending him from the practice of law, and of Eva Maravilla Ilustre for the lifting of the penalty for
Page 65 of 142
contempt are DENIED, and this denial is FINAL. Eva Maravilla Ilustre shall pay the fine of P1,000.00 imposed
on her within ten (10) days from notice, or, suffer imprisonment for ten (10) days upon failure to pay said fine
within the stipulated period.

SO ORDERED.

[G.R. No. 118141. September 5, 1997]

LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L. PASCASIO, RAUL R. ARNAU, ABELARDO L.

APORTADERA JR., Honorable CONDRADO M. VASQUEZ, all of the Office of the Ombudsman; JESUS F.
GUERRERO, PORFIRIO MACARAEG, and GREGORIO A. ARIZALA, all of the Office of the City Prosecutor,
Manila, respondents.
DECISION
ROMERO, J.:

May this Court review the findings of the Office of the Ombudsman? The general rule has been enunciated in
Ocampo v. Ombudsman [1] which states:

In the exercise of its investigative power, this Court has consistently held that courts will not interfere with the
discretion of the fiscal or the Ombudsman to determine the specificity and adequacy of the averments of the
offense charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form and substance
or if he otherwise finds no ground to continue with the inquiry; or he may proceed with the investigation of the
complaint if, in his view, it is in due and proper form.

Does the instant case warrant a departure from the foregoing general rule? When a patient dies soon after
surgery under circumstances which indicate that the attending surgeon and anaesthesiologist may have been
guilty of negligence but upon their being charged, a series of nine prosecutors toss the responsibility of
conducting a preliminary investigation to each other with contradictory recommendations, ping-pong style,
perhaps the distraught widow is not to be blamed if she finally decides to accuse the City Prosecutors at the
end of the line for partiality under the Anti-Graft and Corrupt Practices Act. Nor may she be entirely faulted for
finally filing a petition before this Court against the Ombudsman for grave abuse of discretion in dismissing her
complaint against said City Prosecutors on the ground of lack of evidence. Much as we sympathize with the
bereaved widow, however, this Court is of the opinion that the general rule still finds application in instant case.
In other words, the respondent Ombudsman did not commit grave abuse of discretion in deciding against filing
the necessary information against public respondents of the Office of the City Prosecutor.

The following facts are borne out by the records.

Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at the UST
hospital for the removal of a stone blocking his ureter. He was attended by Dr. Domingo Antonio, Jr. who was
the surgeon, while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery, however,
Florencio died of complications of unknown cause, according to officials of the UST Hospital.[2]

Page 66 of 142
Not satisfied with the findings of the hospital, petitioner requested the National Bureau of Investigation (NBI) to
conduct an autopsy on her husbands body. Consequently, the NBI ruled that Florencios death was due to lack
of care by the attending physician in administering anaesthesia. Pursuant to its findings, the NBI recommended
that Dr. Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide through Reckless
Imprudence before the Office of the City Prosecutor.

During the preliminary investigation, what transpired was a confounding series of events which we shall try to
disentangle. The case was initially assigned to Prosecutor Antonio M. Israel, who had to inhibit himself
because he was related to the counsel of one of the doctors. As a result, the case was re-raffled to Prosecutor
Norberto G. Leono who was, however, disqualified on motion of the petitioner since he disregarded prevailing
laws and jurisprudence regarding preliminary investigation. The case was then referred to Prosecutor Ramon
O. Carisma, who issued a resolution recommending that only Dr. Reyes be held criminally liable and that the
complaint against Dr. Antonio be dismissed.

The case took another perplexing turn when Assistant City Prosecutor Josefina Santos Sioson, in the interest
of justice and peace of mind of the parties, recommended that the case be re-raffled on the ground that
Prosecutor Carisma was partial to the petitioner. Thus, the case was transferred to Prosecutor Leoncia R.
Dimagiba, where a volte face occurred again with the endorsement that the complaint against Dr. Reyes be
dismissed and instead, a corresponding information be filed against Dr. Antonio. Petitioner filed a motion for
reconsideration, questioning the findings of Prosecutor Dimagiba.

Pending the resolution of petitioners motion for reconsideration regarding Prosecutor Dimagibas resolution, the
investigative pingpong continued when the case was again assigned to another prosecutor, Eudoxia T.
Gualberto, who recommended that Dr. Reyes be included in the criminal information of Homicide through
Reckless Imprudence. While the recommendation of Prosecutor Gualberto was pending, the case was
transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr. Reyes from any
wrongdoing, a resolution which was approved by both City Prosecutor Porfirio G. Macaraeg and City
Prosecutor Jesus F. Guerrero.

Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of Republic Act No. 3019 [3]
against Prosecutors Guerrero, Macaraeg, and Arizala for manifest partiality in favor of Dr. Reyes before the
Office of the Ombudsman. However, on July 11, 1994, the Ombudsman issued the assailed resolution
dismissing the complaint for lack of evidence.

In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to review the
recommendations of the government prosecutors and to approve and disapprove the same. Petitioner faults
the Ombudsman for, allegedly in grave abuse of discretion, refusing to find that there exists probable cause to
hold public respondent City Prosecutors liable for violation of Section 3(e) of R.A. No. 3019.

Preliminarily, the powers and functions of the Ombudsman have generally been categorized into the following:
investigatory powers, prosecutory power, public assistance function, authority to inquire and obtain information,
and function to adopt, institute and implement preventive measures. [4]

Page 67 of 142
As protector of the people, the Office of the Ombudsman has the power, function and duty to act promptly on
complaints filed in any form or manner against public officials and to investigate any act or omission of any
public official when such act or omission appears to be illegal, unjust, improper or inefficient. [5]

While the Ombudsman has the full discretion to determine whether or not a criminal case should be filed, this
Court is not precluded from reviewing the Ombudsmans action when there is an abuse of discretion, in which
case Rule 65 of the Rules of Court may exceptionally be invoked pursuant to Section I, Article VIII of the 1987
Constitution. [6]

In this regard, grave abuse of discretion has been defined as where a power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of
positive duty or virtual refusal to perform a duty enjoined by, or in contemplation of law. [7]

From a procedural standpoint, it is certainly odd why the successive transfers from one prosecutor to another
were not sufficiently explained in the Resolution of the Ombudsman. Being the proper investigating authority
with respect to misfeasance, non-feasance and malfeasance of public officials, the Ombudsman should have
been more vigilant and assiduous in determining the reasons behind the buckpassing to ensure that no
irregularity took place.

Whether such transfers were due to any outside pressure or ulterior motive is a matter of evidence. One would
have expected the Ombudsman, however, to inquire into what could hardly qualify as standard operating
procedure, given the surrounding circumstances of the case.

While it is true that a preliminary investigation is essentially inquisitorial, and is often the only means to discover
who may be charged with a crime, its function is merely to determine the existence of probable cause. [8]
Probable cause has been defined as the existence of such fact and circumstances as would excite the belief, in
a reasonable mind, acting on the facts within the knowledge of the prosecution, that the person charged was
guilty of the crime for which he was prosecuted.[9]

Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state
of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or
entertain an honest or strong suspicion, that a thing is so. The term does not mean actual and positive cause
nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of
probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is
enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely,
there is a trial for the reception of evidence of the prosecution in support of the charge.[10]

In the instant case, no less than the NBI pronounced after conducting an autopsy that there was indeed
negligence on the part of the attending physicians in administering the anaesthesia. [11] The fact of want of
competence or diligence is evidentiary in nature, the veracity of which can best be passed upon after a full-
blown trial for it is virtually impossible to ascertain the merits of a medical negligence case without extensive
investigation, research, evaluation and consultations with medical experts. Clearly, the City Prosecutors are not
in a competent position to pass judgment on such a technical matter, especially when there are conflicting
evidence and findings. The bases of a partys accusation and defenses are better ventilated at the trial proper
than at the preliminary investigation.
Page 68 of 142
A word on medical malpractice or negligence cases.

In its simplest terms, the type of lawsuit which has been called medical malpractice or, more appropriately,
medical negligence, is that type of claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm.

In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a
physician, either failed to do something which a reasonably prudent health care provider would have done, or
that he or she did something that a reasonably prudent provider would not have done; and that that failure or
action caused injury to the patient.[12]

Hence, there are four elements involved in medical negligence cases: duty, breach, injury and proximate
causation.

Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient relationship
was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that, having the needed
training and skill possessed by physicians and surgeons practicing in the same field, they will employ such
training, care and skill in the treatment of their patients.[13] They have a duty to use at least the same level of
care that any other reasonably competent doctor would use to treat a condition under the same circumstances.
The breach of these professional duties of skill and care, or their improper performance, by a physician
surgeon whereby the patient is injured in body or in health, constitutes actionable malpractice.[14]
Consequently, in the event that any injury results to the patient from want of due care or skill during the
operation, the surgeons may be held answerable in damages for negligence.[15]

Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the necessity of
expert testimony and the availability of the charge of res ipsa loquitur to the plaintiff, have been applied in
actions against anaesthesiologists to hold the defendant liable for the death or injury of a patient under
excessive or improper anaesthesia.[16] Essentially, it requires two-pronged evidence: evidence as to the
recognized standards of the medical community in the particular kind of case, and a showing that the physician
in question negligently departed from this standard in his treatment.[17]

Another element in medical negligence cases is causation which is divided into two inquiries: whether the
doctors actions in fact caused the harm to the patient and whether these were the proximate cause of the
patients injury.[18] Indeed here, a causal connection is discernible from the occurrence of the victims death
after the negligent act of the anaesthesiologist in administering the anesthesia, a fact which, if confirmed,
should warrant the filing of the appropriate criminal case. To be sure, the allegation of negligence is not entirely
baseless. Moreover, the NBI deduced that the attending surgeons did not conduct the necessary interview of
the patient prior to the operation. It appears that the cause of the death of the victim could have been averted
had the proper drug been applied to cope with the symptoms of malignant hyperthermia. Also, we cannot
ignore the fact that an antidote was readily available to counteract whatever deleterious effect the anaesthesia
might produce. [19] Why these precautionary measures were disregarded must be sufficiently explained.

The City Prosecutors were charged with violating Section 3(e) of the Anti-Graft and Corrupt Practices Act
which requires the following facts:
Page 69 of 142
1. The accused is a public officer discharging administrative or official functions or private persons charged in
conspiracy with them;

2. The public officer committed the prohibited act during the performance of his official duty or in relation to his
public position;

3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and

4. His action caused undue injury to the Government or any private party, or gave any party any unwarranted
benefit, advantage or preference to such parties. [20]

Why did the complainant, petitioner in instant case, elect to charge respondents under the above law?

While a party who feels himself aggrieved is at liberty to choose the appropriate weapon from the armory, it is
with no little surprise that this Court views the choice made by the complainant widow.

To our mind, the better and more logical remedy under the circumstances would have been to appeal the
resolution of the City Prosecutors dismissing the criminal complaint to the Secretary of Justice under the
Department of Justices Order No. 223, [21] otherwise known as the 1993 Revised Rules on Appeals From
Resolutions In Preliminary Investigations/Reinvestigations, as amended by Department Order No. 359, Section
1 of which provides:

Section 1. What May Be Appealed. - Only resolutions of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the
Secretary of Justice except as otherwise provided in Section 4 hereof.

What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223 states: The
Secretary of Justice may reverse, affirm or modify the appealed resolution. On the other hand, He may motu
proprio or on motion of the appellee, dismiss outright the appeal on specified grounds. [22]

In exercising his discretion under the circumstances, the Ombudsman acted within his power and authority in
dismissing the complaint against the Prosecutors and this Court will not interfere with the same.

WHEREFORE, in view of the foregoing, the instant petition is DISMISSED, without prejudice to the filing of an
appeal by the petitioner with the Secretary of Justice assailing the dismissal of her criminal complaint by the
respondent City Prosecutors. No costs.

SO ORDERED.

G.R. No. 124354 December 29, 1999

Page 70 of 142
 ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through
gross negligence or incompetence or plain human error, may spell the difference between life and death. In this
sense, the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2

Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which overturned
the decision 4 of the Regional Trial Court, dated 30 January 1992, finding private respondents liable for
damages arising from negligence in the performance of their professional duties towards petitioner Erlinda
Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust woman (TSN,
October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly caused by the
presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other
woman. Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she has
three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN,
October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought professional advice. She was
advised to undergo an operation for the removal of a stone in her gall bladder (TSN, January 13, 1988, p. 5).
She underwent a series of examinations which included blood and urine tests (Exhs. "A" and "C") which
indicated she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her husband
Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990, p. 3), one of
the defendants in this case, on June 10, 1985. They agreed that their date at the operating table at the DLSMC
(another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a
"cholecystectomy" operation after examining the documents (findings from the Capitol Medical Center, FEU
Hospital and DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good anesthesiologist. Dr. Hosaka
charged a fee of P16,000.00, which was to include the anesthesiologist's fee and which was to be paid after
Page 71 of 142
the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN,
November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC, located
along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation by the
hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the Capitol
Medical Center, was also there for moral support. She reiterated her previous request for Herminda to be with
her even during the operation. After praying, she was given injections. Her hands were held by Herminda as
they went down from her room to the operating room (TSN, January 13, 1988, pp. 9-11). Her husband,
Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda saw about two or
three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer anesthesia. Although not a
member of the hospital staff, Herminda introduced herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral support to the patient, to them. Herminda was allowed to stay inside
the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in (TSN,
January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect of a delay in
the arrival of Dr. Hosaka. Herminda then went back to the patient who asked, "Mindy, wala pa ba ang Doctor"?
The former replied, "Huwag kang mag-alaala, darating na iyon" (Ibid.).

Thereafter, Herminda went out of the operating room and informed the patient's husband, Rogelio, that the
doctor was not yet around (id., p. 13). When she returned to the operating room, the patient told her, "Mindy,
inip na inip na ako, ikuha mo ako ng ibang Doctor." So, she went out again and told Rogelio about what the
patient said (id., p. 15). Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the doctor" even as
he did his best to find somebody who will allow him to pull out his wife from the operating room (TSN, October
19, 1989, pp. 19-20). He also thought of the feeling of his wife, who was inside the operating room waiting for
the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was also
tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to
know that Dr. Hosaka arrived as a nurse remarked, "Nandiyan na si Dr. Hosaka, dumating na raw." Upon
hearing those words, he went down to the lobby and waited for the operation to be completed (id., pp. 16, 29-
30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard somebody say
that "Dr. Hosaka is already here." She then saw people inside the operating room "moving, doing this and that,
[and] preparing the patient for the operation" (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda
Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, "ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the remarks
of Dra. Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka approached her. She
then heard Dr. Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p. 19).
After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying to intubate the patient.
Page 72 of 142
The patient's nailbed became bluish and the patient was placed in a trendelenburg position a position where
the head of the patient is placed in a position lower than her feet which is an indication that there is a decrease
of blood supply to the patient's brain (Id., pp. 19-20). Immediately thereafter, she went out of the operating
room, and she told Rogelio E. Ramos "that something wrong was . . . happening" (Ibid.). Dr. Calderon was then
able to intubate the patient (TSN, July 25, 1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed towards the
door of the operating room. He also saw several doctors rushing towards the operating room. When informed
by Herminda Cruz that something wrong was happening, he told her (Herminda) to be back with the patient
inside the operating room (TSN, October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position (TSN,
January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the Intensive
Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the former that
something went wrong during the intubation. Reacting to what was told to him, Rogelio reminded the doctor
that the condition of his wife would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist
(TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. The
doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985, the
patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25 which is the
subject of a promissory note and affidavit of undertaking executed by Rogelio E. Ramos in favor of DLSMC.
Since that fateful afternoon of June 17, 1985, she has been in a comatose condition. She cannot do anything.
She cannot move any part of her body. She cannot see or hear. She is living on mechanical means. She
suffered brain damage as a result of the absence of oxygen in her brain for four to five minutes (TSN,
November 9, 1989, pp. 21-22). After being discharged from the hospital, she has been staying in their
residence, still needing constant medical attention, with her husband Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be
suffering from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21, 1989,
p. 6). 5

Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of Quezon
City against herein private respondents alleging negligence in the management and care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff presented
the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was due
to lack of oxygen in her brain caused by the faulty management of her airway by private respondents during the
anesthesia phase. On the other hand, private respondents primarily relied on the expert testimony of Dr.

Page 73 of 142
Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage was Erlinda's allergic reaction
to the anesthetic agent, Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of
petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited
provisions of law and jurisprudence to the case at bar, this Court finds and so holds that defendants are liable
to plaintiffs for damages. The defendants were guilty of, at the very least, negligence in the performance of
their duty to plaintiff-patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not only
intubating the patient, but also in not repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10),
without due regard to the fact that the patient was inside the operating room for almost three (3) hours. For
after she committed a mistake in intubating [the] patient, the patient's nailbed became bluish and the patient,
thereafter, was placed in trendelenburg position, because of the decrease of blood supply to the patient's brain.
The evidence further shows that the hapless patient suffered brain damage because of the absence of oxygen
in her (patient's) brain for approximately four to five minutes which, in turn, caused the patient to become
comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta Gutierrez whom he
had chosen to administer anesthesia on the patient as part of his obligation to provide the patient a good
anesthesiologist', and for arriving for the scheduled operation almost three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the doctors in
their "practice of medicine" in the operating room. Moreover, the hospital is liable for failing through its
responsible officials, to cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have acted with due care and
prudence in rendering medical services to plaintiff-patient. For if the patient was properly intubated as claimed
by them, the patient would not have become comatose. And, the fact that another anesthesiologist was called
to try to intubate the patient after her (the patient's) nailbed turned bluish, belie their claim. Furthermore, the
defendants should have rescheduled the operation to a later date. This, they should have done, if defendants
acted with due care and prudence as the patient's case was an elective, not an emergency case.

xxx xxx xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against the
defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former the following sums of
money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned from
November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to its being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

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3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000,00 by way of
exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of the decision of the
appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the complaint
below against the appellants is hereby ordered DISMISSED. The counterclaim of appellant De Los Santos
Medical Center is GRANTED but only insofar as appellees are hereby ordered to pay the unpaid hospital bills
amounting to P93,542.25, plus legal interest for justice must be tempered with mercy.

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by
the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the appellate
court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the
reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for extension of
time in its Resolution dated 25 July 1995. 9 Meanwhile, petitioners engaged the services of another counsel,
Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for
reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to
the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion
for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the
fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be extended;
precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter
Motion that plaintiffs/appellees received a copy of the decision as early as June 9, 1995. Computation wise, the
period to file a Motion for Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was
received by the Court of Appeals already on July 4, necessarily, the 15-day period already passed. For that
alone, the latter should be denied.

Even assuming admissibility of the Motion for the Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.

SO ORDERED. 10
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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:

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA.

CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the
petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given due course since the motion for
reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed by the
appellate court for having been filed beyond the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration
is attributable to the fact that the decision of the Court of Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate court was instead sent to
and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other communications received by petitioner Rogelio Ramos, the appellate court
apparently mistook him for the counsel on record. Thus, no copy of the decision of the counsel on record.
Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration,
referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at
his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is no notice
at all. In the present case, since a copy of the decision of the appellate court was not sent to the counsel on
record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a
second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and
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denied the motion for reconsideration of petitioner, we believed that the receipt of the former should be
considered in determining the timeliness of the filing of the present petition. Based on this, the petition before
us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa
loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The
phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a
plaintiff's prima facie case, and present a question of fact for defendant to meet with an explanation. 13 Where
the thing which caused the injury complained of is shown to be under the management of the defendant or his
servants and the accident is such as in ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from or was caused by the defendant's want of care. 14

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge
and experience, the very nature of certain types of occurrences may justify an inference of negligence on the
part of the person who controls the instrumentality causing the injury in the absence of some explanation by
the defendant who is charged with negligence. 15 It is grounded in the superior logic of ordinary human
experience and on the basis of such experience or common knowledge, negligence may be deduced from the
mere occurrence of the accident itself. 16 Hence, res ipsa loquitur is applied in conjunction with the doctrine of
common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not
create or constitute an independent or separate ground of liability. 17 Instead, it is considered as merely
evidentiary or in the nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere procedural of
convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof
of negligence. 19 In other words, mere invocation and application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to
present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine,
creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going
forward with the proof. 20 Still, before resort to the doctrine may be allowed, the following requisites must be
satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of someone's negligence;

2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. 21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the damage.
22 Such element of control must be shown to be within the dominion of the defendant. In order to have the
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benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is
applicable, and must establish that the essential elements of the doctrine were present in a particular incident.
23

Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been
applied when the circumstances attendant upon the harm are themselves of such a character as to justify an
inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in medical negligence
cases presents a question of law since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res
ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. 27 The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of medical science, and not to matters that are
within the common knowledge of mankind which may be testified to by anyone familiar with the facts. 28
Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient
has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the
statements and acts of physicians and surgeons, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses. 29 Hence, in cases where the res ipsa loquitur
is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund of common knowledge can determine the
proper standard of care. 30 Where common knowledge and experience teach that a resulting injury would not
have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving
rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required
to show not only what occurred but how and why it occurred. 31 When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act or omission complained of and the injury sustained
while under the custody and management of the defendant without need to produce expert medical testimony
to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under
usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the body which
was not under, or in the area, of treatment, 33 removal of the wrong part of the body when another part was
intended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils, 35
and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an
operation for appendicitis, 36 among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each
case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional care were not as such as would
ordinarily have followed if due care had been
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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.
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However, during the administration of anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating room already
decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which
does not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not in the
absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube.
Normally, a person being put under anesthesia is not rendered decerebrate as a consequence of administering
such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the administration
of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents, who
are the physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence
because she was under the influence of anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a
practical administration of justice dictates the application of res ipsa loquitur. Upon these facts and under these
circumstances the Court would be able to say, as a matter of common knowledge and observation, if
negligence attended the management and care of the patient. Moreover, the liability of the physicians and the
hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation nor
on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed
on Erlinda. Thus, upon all these initial determination a case is made out for the application of the doctrine of
res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine
is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any and all
anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be within the res ipsa
loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed
therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation and, if in
the affirmative, whether the alleged negligence was the proximate cause of Erlinda's comatose condition.
Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of the
witnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation 45 of the patient and thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private respondents were able to show that the brain
damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic
reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by
their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean
Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the wrongful
insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the process of
intubation. In so holding, the appellate court returned a verdict in favor of respondents physicians and hospital
and absolved them of any liability towards Erlinda and her family.
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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 have said, I was with the patient, I was beside the stretcher holding the left hand of the patient and
all of a sudden heard some remarks coming from Dra. Perfecta Gutierrez herself. She was saying "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.

xxx xxx xxx

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

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Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the person of the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's nailbed became bluish and
I saw the patient was placed in trendelenburg position.

xxx xxx xxx

Q: Do you know the reason why the patient was placed in that trendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease of blood supply to the brain. 46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part of
nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and cannot,
intubate. Even on the assumption that she is fully capable of determining whether or not a patient is properly
intubated, witness Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991,
p. 13). More importantly, there is no evidence that she ever auscultated the patient or that she conducted any
type of examination to check if the endotracheal tube was in its proper place, and to determine the condition of
the heart, lungs, and other organs. Thus, witness Cruz's categorical statements that appellant Dra. Gutierrez
failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly
suffer from lack of sufficient factual bases. 47
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In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in
the process of intubation, witness Cruz is not competent to testify on whether or not the intubation was a
success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances, and manifest conditions which are
observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where the testimony
of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof of
negligence in non-technical matters or those of which an ordinary person may be expected to have knowledge,
or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary. 49 We take
judicial notice of the fact that anesthesia procedures have become so common, that even an ordinary person
can tell if it was administered properly. As such, it would not be too difficult to tell if the tube was properly
inserted. This kind of observation, we believe, does not require a medical degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable
of determining whether or not the intubation was a success. She had extensive clinical experience starting as a
staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the 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 Erlinda's trachea, to wit:

ATTY. LIGSAY:

Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not
immediately see the trachea?

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

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Q: When you said "mahirap yata ito," what were you referring to?

A: "Mahirap yata itong i-intubate," that was the patient.

Q: So, you found some difficulty in inserting the tube?

A: Yes, because of (sic) my first attempt, I did not see right away. 51

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly
deviated from the normal anatomy of a person) 52 making it harder to locate and, since Erlinda is obese and
has a short neck and protruding teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins
when the anesthesiologist reviews the patient's medical records and visits with the patient, traditionally, the day
before elective surgery. 53 It includes taking the patient's medical history, review of current drug therapy,
physical examination and interpretation of laboratory data. 54 The physical examination performed by the
anesthesiologist is directed primarily toward the central nervous system, cardiovascular system, lungs and
upper airway. 55 A thorough analysis of the patient's airway normally involves investigating the following:
cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth,
ability to visualize uvula and the thyromental distance. 56 Thus, physical characteristics of the patient's upper
airway that could make tracheal intubation difficult should be studied. 57 Where the need arises, as when initial
assessment indicates possible problems (such as the alleged short neck and protruding teeth of Erlinda) a
thorough examination of the patient's airway would go a long way towards decreasing patient morbidity and
mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of
Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties
she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her
patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in
dealing with human lives lie at the core of the physician's centuries-old Hippocratic Oath. Her failure to follow
this medical procedure is, therefore, a clear indicia of her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial
court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried
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to muddle the difference between an elective surgery and an emergency surgery just so her failure to perform
the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so you can
introduce yourself to establish good doctor-patient relationship and gain the trust and confidence of the patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative procedure of the anesthesiologist and in
my case, with elective cases and normal cardio-pulmonary clearance like that, I usually don't do it except on
emergency and on cases that have an abnormalities (sic). 58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on the other hand, are operative procedures that can wait
for days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the luxury of time to
be at the patient's beside to do a proper interview and clinical evaluation. There is ample time to explain the
method of anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at least one day before the intended surgery, when the
patient is relaxed and cooperative.

Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlinda's case prior to the operation and prepare her for anesthesia. However,
she never saw the patient at the bedside. She herself admitted that she had seen petitioner only in the
operating room, and only on the actual date of the cholecystectomy. She negligently failed to take advantage of
this important opportunity. As such, her attempt to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient
which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly the proximate
cause of Erlinda's comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma was
due to bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium, introduced into her
system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and
Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced private respondents' theory
that the oxygen deprivation which led to anoxic encephalopathy, 60 was due to an unpredictable drug reaction
to the short-acting barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is
not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly
enlightening the court about anesthesia practice and procedure and their complications. Dr. Jamora is likewise
not an allergologist and could not therefore properly advance expert opinion on allergic-mediated processes.
Moreover, he is not a pharmacologist and, as such, could not have been capable, as an expert would, of
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explaining to the court the pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium
(Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is further supported by his own admission that he formulated his
opinions on the drug not from the practical experience gained by a specialist or expert in the administration and
use of Sodium Pentothal on patients, but only from reading certain references, to wit:

ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a method of
management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what you have read from books and
not by your own personal application of the medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my appendectomy.

Q: And because they have used it on you and on account of your own personal experience you feel that
you can testify on pentothal here with medical authority?

A: No. That is why I used references to support my claims. 61

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs
to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases are within the
expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated
bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and pharmacology.
On the basis of the foregoing transcript, in which the pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamora's
testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidence 62 regarding expert witnesses states:

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Sec. 49. Opinion of expert witness. The opinion of a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to possess, may be received in evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter
about which he or she is to testify, either by the study of recognized authorities on the subject or by practical
experience. 63 Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since
he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from
submitting testimony from a specialist in the wrong field, private respondents' intentionally avoided providing
testimony by competent and independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by triggering
an allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing
some of the more common accompanying signs of an allergic reaction appears on record. No laboratory
data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept private respondents' hypothesis without supporting medical
proof, and against the weight of available evidence, then every anesthetic accident would be an act of God.
Evidently, the Thiopental-allergy theory vigorously asserted by private respondents was a mere afterthought.
Such an explanation was advanced in order to advanced in order to absolve them of any and all responsibility
for the patient's condition.

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubation
which was the proximate cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without which the result would not have occurred. 64 An injury
or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the
case, that the act or omission played a substantial part in bringing about or actually causing the injury or
damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the
act or omission. 65 It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate
cause which triggered the chain of events leading to Erlinda's brain damage and, ultimately, her comatosed
condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was
likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-
intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal
distention on the body of Erlinda. The development of abdominal distention, together with respiratory
embarrassment indicates that the endotracheal tube entered the esophagus instead of the respiratory tree. In
other words, instead of the intended endotracheal intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly cause some
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delay in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. That abdominal
distention had been observed during the first intubation suggests that the length of time utilized in inserting the
endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly significant. Due to
the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony
of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were
already blue. 67 However, private respondents contend that a second intubation was executed on Erlinda and
this one was successfully done. We do not think so. No evidence exists on record, beyond private respondents'
bare claims, which supports the contention that the second intubation was successful. Assuming that the
endotracheal tube finally found its way into the proper orifice of the trachea, the same gave no guarantee of
oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after
the second intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents
insist, that the second intubation was accomplished. Even granting that the tube was successfully inserted
during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda already
suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes. 68

The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible
for one-third (1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless, ninety-eight
percent (98%) or the vast majority of difficult intubations may be anticipated by performing a thorough
evaluation of the patient's airway prior to the operation. 70 As stated beforehand, respondent Dra. Gutierrez
failed to observe the proper pre-operative protocol which could have prevented this unfortunate incident. Had
appropriate diligence and reasonable care been used in the pre-operative evaluation, respondent physician
could have been much more prepared to meet the contingency brought about by the perceived anatomic
variations in the patient's neck and oral area, defects which would have been easily overcome by a prior
knowledge of those variations together with a change in technique. 71 In other words, an experienced
anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have had little difficulty
going around the short neck and protruding teeth. 72 Having failed to observe common medical standards in
pre-operative management and intubation, respondent Dra. Gutierrez' negligence resulted in cerebral anoxia
and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the
so-called "captain of the ship," 73 it is the surgeon's responsibility to see to it that those under him perform their
task in the proper manner. Respondent Dr. Hosaka's negligence can be found in his failure to exercise the
proper authority (as the "captain" of the operative team) in not determining if his anesthesiologist observed
proper anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified
if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent
Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's
cholecystectomy, and was in fact over three hours late for the latter's operation. Because of this, he had little or
no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss
in his professional duties towards his patient. Thus, he shares equal responsibility for the events which resulted
in Erlinda's condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and visiting "consultants," 74 who are allegedly not hospital
employees, presents problems in apportioning responsibility for negligence in medical malpractice cases.
However, the difficulty is only more apparent than real.
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In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct
of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are
required to submit proof of completion of residency, their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by members of the hospital administration or by a review
committee set up by the hospital who either accept or reject the application. 75 This is particularly true with
respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand
rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to
these, the physician's performance as a specialist is generally evaluated by a peer review committee on the
basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable
to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant"
staff. While "consultants" are not, technically employees, a point which respondent hospital asserts in denying
all responsibility for the patient's condition, the control exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the
payment of wages. In assessing whether such a relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and
visiting physicians. This being the case, the question now arises as to whether or not respondent hospital is
solidarily liable with respondent doctors for petitioner's condition. 76

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article
2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of
others based on the former's responsibility under a relationship of patria potestas. 77 Such responsibility
ceases when the persons or entity concerned prove that they have observed the diligence of a good father of
the family to prevent damage. 78 In other words, while the burden of proving negligence rests on the plaintiffs,
once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who
should prove that they observed the diligence of a good father of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the
hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it
exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent hospital
thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this,
respondent hospital is consequently solidarily responsible with its physicians for Erlinda's condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of
the witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents
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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
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because of the unique nature of such cases, no incompatibility arises when both actual and temperate
damages are provided for. The reason is that these damages cover two distinct phases.

As it would not be equitable and certainly not in the best interests of the administration of justice for the
victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the
compensatory damages previously awarded temperate damages are appropriate. The amount given as
temperate damages, though to a certain extent speculative, should take into account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who
has remained in that condition for over a decade. Having premised our award for compensatory damages on
the amount provided by petitioners at the onset of litigation, it would be now much more in step with the
interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal care
for their loved one in a facility which generally specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without the aid of professionals, for anything less would be
grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would
therefore be reasonable. 81

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered by
the plaintiff would have led to expenses which were difficult to estimate because while they would have been a
direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were likely to arise
only in the future. We awarded P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the
full ambulatory functions of her left extremity, even with the use of state of the art prosthetic technology. Well
beyond the period of hospitalization (which was paid for by Li), she will be required to undergo adjustments in
her prosthetic devise due to the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During the lifetime, the prosthetic devise will have to be replaced and readjusted to
changes in the size of her lower limb effected by the biological changes of middle-age, menopause and aging.
Assuming she reaches menopause, for example, the prosthetic will have to be adjusted to respond to the
changes in bone resulting from a precipitate decrease in calcium levels observed in the bones of all post-
menopausal women. In other words, the damage done to her would not only be permanent and lasting, it
would also be permanently changing and adjusting to the physiologic changes which her body would normally
undergo through the years. The replacements, changes, and adjustments will require corresponding adjustive
physical and occupational therapy. All of these adjustments, it has been documented, are painful.

xxx xxx xxx

A prosthetic devise, however technologically advanced, will only allow a reasonable amount of functional
restoration of the motor functions of the lower limb. The sensory functions are forever lost. The resultant
anxiety, sleeplessness, psychological injury, mental and physical pain are inestimable. 83
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The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more
serious than the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state
for over fourteen years now. The burden of care has so far been heroically shouldered by her husband and
children, who, in the intervening years have been deprived of the love of a wife and a mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioner's
condition remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface
of the resulting moral damage because it would be highly speculative to estimate the amount of emotional and
moral pain, psychological damage and injury suffered by the victim or those actually affected by the victim's
condition. 84 The husband and the children, all petitioners in this case, will have to live with the day to day
uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have fashioned their daily
lives around the nursing care of petitioner, altering their long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged with the moral responsibility of the care of the victim.
The family's moral injury and suffering in this case is clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers
of life and, they rarely set out to intentionally cause injury or death to their patients. However, intent is
immaterial in negligence cases because where negligence exists and is proven, the same automatically gives
the injured a right to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose of
preventing complications. A physician's experience with his patients would sometimes tempt him to deviate
from established community practices, and he may end a distinguished career using unorthodox methods
without incident. However, when failure to follow established procedure results in the evil precisely sought to be
averted by observance of the procedure and a nexus is made between the deviation and the injury or damage,
the physician would necessarily be called to account for it. In the case at bar, the failure to observe pre-
operative assessment protocol which would have influenced the intubation in a salutary way was fatal to private
respondents' case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to
award in favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00
up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral

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damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damages and
attorney's fees; and, 5) the costs of the suit.

SO ORDERED.

G.R. No. 165279 June 7, 2011

DR. RUBI LI, Petitioner,
vs.
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of deceased Angelica Soliman, Respondents.

DECISION

VILLARAMA, JR., J.:

Challenged in this petition for review on certiorari is the Decision1 dated June 15, 2004 as well as the
Resolution2 dated September 1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified
the Decision3 dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No.
8904.

The factual antecedents:

On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a biopsy of the mass
located in her lower extremity at the St. Lukes Medical Center (SLMC). Results showed that Angelica was
suffering from osteosarcoma, osteoblastic type,4 a high-grade (highly malignant) cancer of the bone which
usually afflicts teenage children. Following this diagnosis and as primary intervention, Angelicas right leg was
amputated by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment to eliminate any
remaining cancer cells, and hence minimize the chances of recurrence and prevent the disease from spreading
to other parts of the patients body (metastasis), chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo
referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.

On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just eleven
(11) days after the (intravenous) administration of the first cycle of the chemotherapy regimen. Because SLMC
refused to release a death certificate without full payment of their hospital bill, respondents brought the cadaver
of Angelica to the Philippine National Police (PNP) Crime Laboratory at Camp Crame for post-mortem
examination. The Medico-Legal Report issued by said institution indicated the cause of death as "Hypovolemic
shock secondary to multiple organ hemorrhages and Disseminated Intravascular Coagulation."5

On the other hand, the Certificate of Death6 issued by SLMC stated the cause of death as follows:

Immediate cause : a. Osteosarcoma, Status Post AKA

Antecedent cause : b. (above knee amputation)

Underlying cause : c. Status Post Chemotherapy

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On February 21, 1994, respondents filed a damage suit7 against petitioner, Dr. Leo Marbella, Mr. Jose
Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them with negligence and disregard of
Angelicas safety, health and welfare by their careless administration of the chemotherapy drugs, their failure to
observe the essential precautions in detecting early the symptoms of fatal blood platelet decrease and stopping
early on the chemotherapy, which bleeding led to hypovolemic shock that caused Angelicas untimely demise.
Further, it was specifically averred that petitioner assured the respondents that Angelica would recover in view
of 95% chance of healing with chemotherapy ("Magiging normal na ang anak nyo basta ma-chemo. 95% ang
healing") and when asked regarding the side effects, petitioner mentioned only slight vomiting, hair loss and
weakness ("Magsusuka ng kaunti. Malulugas ang buhok. Manghihina"). Respondents thus claimed that they
would not have given their consent to chemotherapy had petitioner not falsely assured them of its side effects.

In her answer,8 petitioner denied having been negligent in administering the chemotherapy drugs to Angelica
and asserted that she had fully explained to respondents how the chemotherapy will affect not only the cancer
cells but also the patients normal body parts, including the lowering of white and red blood cells and platelets.
She claimed that what happened to Angelica can be attributed to malignant tumor cells possibly left behind
after surgery. Few as they may be, these have the capacity to compete for nutrients such that the body
becomes so weak structurally (cachexia) and functionally in the form of lower resistance of the body to combat
infection. Such infection becomes uncontrollable and triggers a chain of events (sepsis or septicemia) that may
lead to bleeding in the form of Disseminated Intravascular Coagulation (DIC), as what the autopsy report
showed in the case of Angelica.

Since the medical records of Angelica were not produced in court, the trial and appellate courts had to rely on
testimonial evidence, principally the declarations of petitioner and respondents themselves. The following
chronology of events was gathered:

On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery and discussed with
them Angelicas condition. Petitioner told respondents that Angelica should be given two to three weeks to
recover from the operation before starting chemotherapy. Respondents were apprehensive due to financial
constraints as Reynaldo earns only from P70,000.00 to P150,000.00 a year from his jewelry and watch
repairing business.9 Petitioner, however, assured them not to worry about her professional fee and told them to
just save up for the medicines to be used.

Petitioner claimed that she explained to respondents that even when a tumor is removed, there are still small
lesions undetectable to the naked eye, and that adjuvant chemotherapy is needed to clean out the small
lesions in order to lessen the chance of the cancer to recur. She did not give the respondents any assurance
that chemotherapy will cure Angelicas cancer. During these consultations with respondents, she explained the
following side effects of chemotherapy treatment to respondents: (1) falling hair; (2) nausea and vomiting; (3)
loss of appetite; (4) low count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible
sterility due to the effects on Angelicas ovary; (6) damage to the heart and kidneys; and (7) darkening of the
skin especially when exposed to sunlight. She actually talked with respondents four times, once at the hospital
after the surgery, twice at her clinic and the fourth time when Angelicas mother called her through long
distance.10 This was disputed by respondents who countered that petitioner gave them assurance that there is
95% chance of healing for Angelica if she undergoes chemotherapy and that the only side effects were

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nausea, vomiting and hair loss.11 Those were the only side-effects of chemotherapy treatment mentioned by
petitioner.12

On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be readmitted after two
or three weeks for the chemotherapy.

On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with them the results
of the laboratory tests requested by petitioner: Angelicas chest x-ray, ultrasound of the liver, creatinine and
complete liver function tests.13 Petitioner proceeded with the chemotherapy by first administering hydration
fluids to Angelica.14

The following day, August 19, petitioner began administering three chemotherapy drugs Cisplatin,15
Doxorubicin16 and Cosmegen17 intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo
Marbella18 and Dr. Grace Arriete.19 In his testimony, Dr. Marbella denied having any participation in
administering the said chemotherapy drugs.20

On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on Angelicas
face.21 They asked petitioner about it, but she merely quipped, "Wala yan. Epekto ng gamot."22 Petitioner
recalled noticing the skin rashes on the nose and cheek area of Angelica. At that moment, she entertained the
possibility that Angelica also had systemic lupus and consulted Dr. Victoria Abesamis on the matter.23

On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus provided with
oxygen inhalation apparatus. This time, the reddish discoloration on Angelicas face had extended to her neck,
but petitioner dismissed it again as merely the effect of medicines.24 Petitioner testified that she did not see
any discoloration on Angelicas face, nor did she notice any difficulty in the childs breathing. She claimed that
Angelica merely complained of nausea and was given ice chips.251avvphi1

On August 22, 1993, at around ten oclock in the morning, upon seeing that their child could not anymore bear
the pain, respondents pleaded with petitioner to stop the chemotherapy. Petitioner supposedly replied: "Dapat
15 Cosmegen pa iyan. Okay, lets observe. If pwede na, bigyan uli ng chemo." At this point, respondents asked
petitioners permission to bring their child home. Later in the evening, Angelica passed black stool and reddish
urine.26 Petitioner countered that there was no record of blackening of stools but only an episode of loose
bowel movement (LBM). Petitioner also testified that what Angelica complained of was carpo-pedal spasm, not
convulsion or epileptic attack, as respondents call it (petitioner described it in the vernacular as "naninigas ang
kamay at paa"). She then requested for a serum calcium determination and stopped the chemotherapy. When
Angelica was given calcium gluconate, the spasm and numbness subsided.27

The following day, August 23, petitioner yielded to respondents request to take Angelica home. But prior to
discharging Angelica, petitioner requested for a repeat serum calcium determination and explained to
respondents that the chemotherapy will be temporarily stopped while she observes Angelicas muscle twitching
and serum calcium level. Take-home medicines were also prescribed for Angelica, with instructions to
respondents that the serum calcium test will have to be repeated after seven days. Petitioner told respondents
that she will see Angelica again after two weeks, but respondents can see her anytime if any immediate
problem arises.28

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However, Angelica remained in confinement because while still in the premises of SLMC, her "convulsions"
returned and she also had LBM. Angelica was given oxygen and administration of calcium continued.29

The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also noticed
that she had a fever and had difficulty breathing.30 Petitioner insisted it was carpo-pedal spasm, not
convulsions. She verified that at around 4:50 that afternoon, Angelica developed difficulty in breathing and had
fever. She then requested for an electrocardiogram analysis, and infused calcium gluconate on the patient at a
"stat dose." She further ordered that Angelica be given Bactrim,31 a synthetic antibacterial combination
drug,32 to combat any infection on the childs body.33

By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her anus and urine.
When Lina asked petitioner what was happening to her daughter, petitioner replied, "Bagsak ang platelets ng
anak mo." Four units of platelet concentrates were then transfused to Angelica. Petitioner prescribed
Solucortef. Considering that Angelicas fever was high and her white blood cell count was low, petitioner
prescribed Leucomax. About four to eight bags of blood, consisting of packed red blood cells, fresh whole
blood, or platelet concentrate, were transfused to Angelica. For two days (August 27 to 28), Angelica continued
bleeding, but petitioner claimed it was lesser in amount and in frequency. Petitioner also denied that there were
gadgets attached to Angelica at that time.34

On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots that should not
be removed. Respondents claimed that Angelica passed about half a liter of blood through her anus at around
seven oclock that evening, which petitioner likewise denied.

On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric tubes were
inserted into her weakened body. An aspiration of the nasogastric tube inserted to Angelica also revealed a
bloody content. Angelica was given more platelet concentrate and fresh whole blood, which petitioner claimed
improved her condition. Petitioner told Angelica not to remove the endotracheal tube because this may induce
further bleeding.35 She was also transferred to the intensive care unit to avoid infection.

The next day, respondents claimed that Angelica became hysterical, vomited blood and her body turned black.
Part of Angelicas skin was also noted to be shredding by just rubbing cotton on it. Angelica was so restless
she removed those gadgets attached to her, saying "Ayaw ko na"; there were tears in her eyes and she kept
turning her head. Observing her daughter to be at the point of death, Lina asked for a doctor but the latter
could not answer her anymore.36 At this time, the attending physician was Dr. Marbella who was shaking his
head saying that Angelicas platelets were down and respondents should pray for their daughter. Reynaldo
claimed that he was introduced to a pediatrician who took over his daughters case, Dr. Abesamis who also told
him to pray for his daughter. Angelica continued to have difficulty in her breathing and blood was being
suctioned from her stomach. A nurse was posted inside Angelicas room to assist her breathing and at one
point they had to revive Angelica by pumping her chest. Thereafter, Reynaldo claimed that Angelica already
experienced difficulty in urinating and her bowel consisted of blood-like fluid. Angelica requested for an electric
fan as she was in pain. Hospital staff attempted to take blood samples from Angelica but were unsuccessful
because they could not even locate her vein. Angelica asked for a fruit but when it was given to her, she only
smelled it. At this time, Reynaldo claimed he could not find either petitioner or Dr. Marbella. That night,
Angelica became hysterical and started removing those gadgets attached to her. At three oclock in the

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morning of September 1, a priest came and they prayed before Angelica expired. Petitioner finally came back
and supposedly told respondents that there was "malfunction" or bogged-down machine.37

By petitioners own account, Angelica was merely irritable that day (August 31). Petitioner noted though that
Angelicas skin was indeed sloughing off.38 She stressed that at 9:30 in the evening, Angelica pulled out her
endotracheal tube.39 On September 1, exactly two weeks after being admitted at SLMC for chemotherapy,
Angelica died.40 The cause of death, according to petitioner, was septicemia, or overwhelming infection, which
caused Angelicas other organs to fail.41 Petitioner attributed this to the patients poor defense mechanism
brought about by the cancer itself.42

While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that petitioner acted
arrogantly and called him names. He was asked to sign a promissory note as he did not have cash to pay the
hospital bill.43

Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the PNP-Crime
Laboratory who conducted the autopsy on Angelicas cadaver, and Dr. Melinda Vergara Balmaceda who is a
Medical Specialist employed at the Department of Health (DOH) Operations and Management Services.

Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1) there were fluids
recovered from the abdominal cavity, which is not normal, and was due to hemorrhagic shock secondary to
bleeding; (2) there was hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas
adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower portion, due to
accumulation of fluids; (4) yellowish discoloration of the liver; (5) kidneys showed appearance of facial shock
on account of hemorrhages; and (6) reddishness on external surface of the spleen. All these were the end
result of "hypovolemic shock secondary to multiple organ hemorrhages and disseminated intravascular
coagulation." Dr. Vergara opined that this can be attributed to the chemical agents in the drugs given to the
victim, which caused platelet reduction resulting to bleeding sufficient to cause the victims death. The time
lapse for the production of DIC in the case of Angelica (from the time of diagnosis of sarcoma) was too short,
considering the survival rate of about 3 years. The witness conceded that the victim will also die of
osteosarcoma even with amputation or chemotherapy, but in this case Angelicas death was not caused by
osteosarcoma. Dr. Vergara admitted that she is not a pathologist but her statements were based on the opinion
of an oncologist whom she had interviewed. This oncologist supposedly said that if the victim already had DIC
prior to the chemotherapy, the hospital staff could have detected it.44

On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain to the patient or his
relatives every known side effect of the procedure or therapeutic agents to be administered, before securing
the consent of the patient or his relatives to such procedure or therapy. The physician thus bases his
assurance to the patient on his personal assessment of the patients condition and his knowledge of the
general effects of the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed that the
patient or relatives must be informed of all known side effects based on studies and observations, even if such
will aggravate the patients condition.45

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity, testified for the
defendants. He explained that in case of malignant tumors, there is no guarantee that the ablation or removal
of the amputated part will completely cure the cancer. Thus, surgery is not enough. The mortality rate of
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osteosarcoma at the time of modern chemotherapy and early diagnosis still remains at 80% to 90%. Usually,
deaths occur from metastasis, or spread of the cancer to other vital organs like the liver, causing systemic
complications. The modes of therapy available are the removal of the primary source of the cancerous growth
and then the residual cancer cells or metastasis should be treated with chemotherapy. Dr. Tamayo further
explained that patients with osteosarcoma have poor defense mechanism due to the cancer cells in the blood
stream. In the case of Angelica, he had previously explained to her parents that after the surgical procedure,
chemotherapy is imperative so that metastasis of these cancer cells will hopefully be addressed. He referred
the patient to petitioner because he felt that petitioner is a competent oncologist. Considering that this type of
cancer is very aggressive and will metastasize early, it will cause the demise of the patient should there be no
early intervention (in this case, the patient developed sepsis which caused her death). Cancer cells in the blood
cannot be seen by the naked eye nor detected through bone scan. On cross-examination, Dr. Tamayo stated
that of the more than 50 child patients who had osteogenic sarcoma he had handled, he thought that probably
all of them died within six months from amputation because he did not see them anymore after follow-up; it is
either they died or had seen another doctor.46

In dismissing the complaint, the trial court held that petitioner was not liable for damages as she observed the
best known procedures and employed her highest skill and knowledge in the administration of chemotherapy
drugs on Angelica but despite all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that
he considered petitioner one of the most proficient in the treatment of cancer and that the patient in this case
was afflicted with a very aggressive type of cancer necessitating chemotherapy as adjuvant treatment. Using
the standard of negligence laid down in Picart v. Smith,47 the trial court declared that petitioner has taken the
necessary precaution against the adverse effect of chemotherapy on the patient, adding that a wrong decision
is not by itself negligence. Respondents were ordered to pay their unpaid hospital bill in the amount of
P139,064.43.48

Respondents appealed to the CA which, while concurring with the trial courts finding that there was no
negligence committed by the petitioner in the administration of chemotherapy treatment to Angelica, found that
petitioner as her attending physician failed to fully explain to the respondents all the known side effects of
chemotherapy. The appellate court stressed that since the respondents have been told of only three side
effects of chemotherapy, they readily consented thereto. Had petitioner made known to respondents those
other side effects which gravely affected their child -- such as carpo-pedal spasm, sepsis, decrease in the
blood platelet count, bleeding, infections and eventual death -- respondents could have decided differently or
adopted a different course of action which could have delayed or prevented the early death of their child.

The CA thus declared:

Plaintiffs-appellants child was suffering from a malignant disease. The attending physician recommended that
she undergo chemotherapy treatment after surgery in order to increase her chances of survival. Appellants
consented to the chemotherapy treatment because they believed in Dr. Rubi Lis representation that the
deceased would have a strong chance of survival after chemotherapy and also because of the representation
of appellee Dr. Rubi Li that there were only three possible side-effects of the treatment. However, all sorts of
painful side-effects resulted from the treatment including the premature death of Angelica. The appellants were
clearly and totally unaware of these other side-effects which manifested only during the chemotherapy
treatment. This was shown by the fact that every time a problem would take place regarding Angelicas
condition (like an unexpected side-effect manifesting itself), they would immediately seek explanation from Dr.
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Rubi Li. Surely, those unexpected side-effects culminating in the loss of a love[d] one caused the appellants so
much trouble, pain and suffering.

On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would entitle plaintiffs-
appellants to their claim for damages.

xxxx

WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is hereby modified
to the extent that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-appellants the following
amounts:

1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;

2. Moral damages of P200,000.00;

3. Exemplary damages of P50,000.00;

4. Attorneys fee of P30,000.00.

SO ORDERED.49 (Emphasis supplied.)

Petitioner filed a motion for partial reconsideration which the appellate court denied.

Hence, this petition.

Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents all the possible
side effects of the chemotherapy on their child, and in holding her liable for actual, moral and exemplary
damages and attorneys fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy
procedures and in the administration of chemotherapy treatment to Angelica.

On her supposed non-disclosure of all possible side effects of chemotherapy, including death, petitioner argues
that it was foolhardy to imagine her to be all-knowing/omnipotent. While the theoretical side effects of
chemotherapy were explained by her to the respondents, as these should be known to a competent doctor,
petitioner cannot possibly predict how a particular patients genetic make-up, state of mind, general health and
body constitution would respond to the treatment. These are obviously dependent on too many known,
unknown and immeasurable variables, thus requiring that Angelica be, as she was, constantly and closely
monitored during the treatment. Petitioner asserts that she did everything within her professional competence
to attend to the medical needs of Angelica.

Citing numerous trainings, distinctions and achievements in her field and her current position as co-director for
clinical affairs of the Medical Oncology, Department of Medicine of SLMC, petitioner contends that in the
absence of any clear showing or proof, she cannot be charged with negligence in not informing the
respondents all the side effects of chemotherapy or in the pre-treatment procedures done on Angelica.

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As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of sepsis which is a
complication of the cancer itself. Sepsis itself leads to bleeding and death. She explains that the response rate
to chemotherapy of patients with osteosarcoma is high, so much so that survival rate is favorable to the patient.
Petitioner then points to some probable consequences if Angelica had not undergone chemotherapy. Thus,
without chemotherapy, other medicines and supportive treatment, the patient might have died the next day
because of massive infection, or the cancer cells might have spread to the brain and brought the patient into a
coma, or into the lungs that the patient could have been hooked to a respirator, or into her kidneys that she
would have to undergo dialysis. Indeed, respondents could have spent as much because of these
complications. The patient would have been deprived of the chance to survive the ailment, of any hope for life
and her "quality of life" surely compromised. Since she had not been shown to be at fault, petitioner maintains
that the CA erred in holding her liable for the damages suffered by the respondents.50

The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose serious side
effects to the parents of the child patient who died while undergoing chemotherapy, despite the absence of
finding that petitioner was negligent in administering the said treatment.

The petition is meritorious.

The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is
that type of claim which a victim has available to him or her to redress a wrong committed by a medical
professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove
that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent
health care provider would have done, or that he or she did something that a reasonably prudent provider
would not have done; and that that failure or action caused injury to the patient.51

This Court has recognized that medical negligence cases are best proved by opinions of expert witnesses
belonging in the same general neighborhood and in the same general line of practice as defendant physician
or surgeon. The deference of courts to the expert opinion of qualified physicians stems from the formers
realization that the latter possess unusual technical skills which laymen in most instances are incapable of
intelligently evaluating, hence the indispensability of expert testimonies.52

In this case, both the trial and appellate courts concurred in finding that the alleged negligence of petitioner in
the administration of chemotherapy drugs to respondents child was not proven considering that Drs. Vergara
and Balmaceda, not being oncologists or cancer specialists, were not qualified to give expert opinion as to
whether petitioners lack of skill, knowledge and professional competence in failing to observe the standard of
care in her line of practice was the proximate cause of the patients death. Furthermore, respondents case was
not at all helped by the non-production of medical records by the hospital (only the biopsy result and medical
bills were submitted to the court). Nevertheless, the CA found petitioner liable for her failure to inform the
respondents on all possible side effects of chemotherapy before securing their consent to the said treatment.

The doctrine of informed consent within the context of physician-patient relationships goes far back into English
common law. As early as 1767, doctors were charged with the tort of "battery" (i.e., an unauthorized physical
contact with a patient) if they had not gained the consent of their patients prior to performing a surgery or
procedure. In the United States, the seminal case was Schoendorff v. Society of New York Hospital53 which
involved unwanted treatment performed by a doctor. Justice Benjamin Cardozos oft-quoted opinion upheld the
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basic right of a patient to give consent to any medical procedure or treatment: "Every human being of adult
years and sound mind has a right to determine what shall be done with his own body; and a surgeon who
performs an operation without his patients consent, commits an assault, for which he is liable in damages."54
From a purely ethical norm, informed consent evolved into a general principle of law that a physician has a duty
to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care
would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of
treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing
the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by
reasonably balancing the probable risks against the probable benefits.55

Subsequently, in Canterbury v. Spence56 the court observed that the duty to disclose should not be limited to
medical usage as to arrogate the decision on revelation to the physician alone. Thus, respect for the patients
right of self-determination on particular therapy demands a standard set by law for physicians rather than one
which physicians may or may not impose upon themselves.57 The scope of disclosure is premised on the fact
that patients ordinarily are persons unlearned in the medical sciences. Proficiency in diagnosis and therapy is
not the full measure of a physicians responsibility. It is also his duty to warn of the dangers lurking in the
proposed treatment and to impart information which the patient has every right to expect. Indeed, the patients
reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those
associated with armslength transactions.58 The physician is not expected to give the patient a short medical
education, the disclosure rule only requires of him a reasonable explanation, which means generally informing
the patient in nontechnical terms as to what is at stake; the therapy alternatives open to him, the goals
expectably to be achieved, and the risks that may ensue from particular treatment or no treatment.59 As to the
issue of demonstrating what risks are considered material necessitating disclosure, it was held that experts are
unnecessary to a showing of the materiality of a risk to a patients decision on treatment, or to the reasonably,
expectable effect of risk disclosure on the decision. Such unrevealed risk that should have been made known
must further materialize, for otherwise the omission, however unpardonable, is without legal consequence.
And, as in malpractice actions generally, there must be a causal relationship between the physicians failure to
divulge and damage to the patient.60

Reiterating the foregoing considerations, Cobbs v. Grant61 deemed it as integral part of physicians overall
obligation to patient, the duty of reasonable disclosure of available choices with respect to proposed therapy
and of dangers inherently and potentially involved in each. However, the physician is not obliged to discuss
relatively minor risks inherent in common procedures when it is common knowledge that such risks inherent in
procedure of very low incidence. Cited as exceptions to the rule that the patient should not be denied the
opportunity to weigh the risks of surgery or treatment are emergency cases where it is evident he cannot
evaluate data, and where the patient is a child or incompetent.62 The court thus concluded that the patients
right of self-decision can only be effectively exercised if the patient possesses adequate information to enable
him in making an intelligent choice. The scope of the physicians communications to the patient, then must be
measured by the patients need, and that need is whatever information is material to the decision. The test
therefore for determining whether a potential peril must be divulged is its materiality to the patients decision.63

Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician
for failure to inform patient, there must be causal relationship between physicians failure to inform and the
injury to patient and such connection arises only if it is established that, had revelation been made, consent to
treatment would not have been given.
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There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of
informed consent: "(1) the physician had a duty to disclose material risks; (2) he failed to disclose or
inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the
proposed treatment." The gravamen in an informed consent case requires the plaintiff to "point to significant
undisclosed information relating to the treatment which would have altered her decision to undergo it.64

Examining the evidence on record, we hold that there was adequate disclosure of material risks inherent in the
chemotherapy procedure performed with the consent of Angelicas parents. Respondents could not have been
unaware in the course of initial treatment and amputation of Angelicas lower extremity, that her immune
system was already weak on account of the malignant tumor in her knee. When petitioner informed the
respondents beforehand of the side effects of chemotherapy which includes lowered counts of white and red
blood cells, decrease in blood platelets, possible kidney or heart damage and skin darkening, there is
reasonable expectation on the part of the doctor that the respondents understood very well that the severity of
these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature
of the disease itself, each patients reaction to the chemical agents even with pre-treatment laboratory tests
cannot be precisely determined by the physician. That death can possibly result from complications of the
treatment or the underlying cancer itself, immediately or sometime after the administration of chemotherapy
drugs, is a risk that cannot be ruled out, as with most other major medical procedures, but such conclusion can
be reasonably drawn from the general side effects of chemotherapy already disclosed.

As a physician, petitioner can reasonably expect the respondents to have considered the variables in the
recommended treatment for their daughter afflicted with a life-threatening illness. On the other hand, it is
difficult to give credence to respondents claim that petitioner told them of 95% chance of recovery for their
daughter, as it was unlikely for doctors like petitioner who were dealing with grave conditions such as cancer to
have falsely assured patients of chemotherapys success rate. Besides, informed consent laws in other
countries generally require only a reasonable explanation of potential harms, so specific disclosures such as
statistical data, may not be legally necessary.65

The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be
reduced to one simplistic formula applicable in all instances. Further, in a medical malpractice action based on
lack of informed consent, "the plaintiff must prove both the duty and the breach of that duty through expert
testimony.66 Such expert testimony must show the customary standard of care of physicians in the same
practice as that of the defendant doctor.67

In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOHs
Operational and Management Services charged with receiving complaints against hospitals, does not qualify
as expert testimony to establish the standard of care in obtaining consent for chemotherapy treatment. In the
absence of expert testimony in this regard, the Court feels hesitant in defining the scope of mandatory
disclosure in cases of malpractice based on lack of informed consent, much less set a standard of disclosure
that, even in foreign jurisdictions, has been noted to be an evolving one.

As society has grappled with the juxtaposition between personal autonomy and the medical profession's
intrinsic impetus to cure, the law defining "adequate" disclosure has undergone a dynamic evolution. A
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standard once guided solely by the ruminations of physicians is now dependent on what a reasonable person
in the patients position regards as significant. This change in perspective is especially important as medical
breakthroughs move practitioners to the cutting edge of technology, ever encountering new and heretofore
unimagined treatments for currently incurable diseases or ailments. An adaptable standard is needed to
account for this constant progression. Reasonableness analyses permeate our legal system for the very
reason that they are determined by social norms, expanding and contracting with the ebb and flow of societal
evolution.

As we progress toward the twenty-first century, we now realize that the legal standard of disclosure is not
subject to construction as a categorical imperative. Whatever formulae or processes we adopt are only useful
as a foundational starting point; the particular quality or quantity of disclosure will remain inextricably bound by
the facts of each case. Nevertheless, juries that ultimately determine whether a physician properly informed a
patient are inevitably guided by what they perceive as the common expectation of the medical consumer"a
reasonable person in the patients position when deciding to accept or reject a recommended medical
procedure."68 (Emphasis supplied.)

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15, 2004 and the
Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE.

The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No.
8904 is REINSTATED and UPHELD.
No costs. SO ORDERED.
G.R. No. 116100 February 9, 1996

SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and MARIA CRISTINA SANTOS,
petitioners,
vs.
COURT OF APPEALS, HEIRS OF PACIFICO C. MABASA and REGIONAL TRIAL COURT OF PASIG,
METRO MANILA, BRANCH 181, respondents.

DECISION

REGALADO, J.:

This petition for review on certiorari assails the decision of respondent Court of Appeals in CA-G.R. CV No.
29115, promulgated on November 10, 1993, which affirmed with modification the decision of the trial court, as
well as its resolution dated July 8, 1994 denying petitioner's motion for reconsideration.1

On August 26, 1982, Civil Case No. 47466 for the grant of an easement of right of way was filed by Pacifico
Mabasa against Cristino Custodio, Brigida R. Custodio, Rosalina R. Morato, Lito Santos and Maria Cristina C.
Santos before the Regional Trial Court of Pasig and assigned to Branch 22 thereof.2

The generative facts of the case, as synthesized by the trial court and adopted by the Court of Appeals, are as
follows:

Page 103 of 142

Perusing the record, this Court finds that the original plaintiff Pacifico Mabasa died during the pendency of this
case and was substituted by Ofelia Mabasa, his surviving spouse [and children].

The plaintiff owns a parcel of land with a two-door apartment erected thereon situated at Interior P. Burgos St.,
Palingon, Tipas, Tagig, Metro Manila. The plaintiff was able to acquire said property through a contract of sale
with spouses Mamerto Rayos and Teodora Quintero as vendors last September 1981. Said property may be
described to be surrounded by other immovables pertaining to defendants herein. Taking P. Burgos Street as
the point of reference, on the left side, going to plaintiff's property, the row of houses will be as follows: That of
defendants Cristino and Brigido Custodio, then that of Lito and Maria Cristina Santos and then that of Ofelia
Mabasa. On the right side (is) that of defendant Rosalina Morato and then a Septic Tank (Exhibit "D"). As an
access to P. Burgos Street from plaintiff's property, there are two possible passageways. The first passageway
is approximately one meter wide and is about 20 meters distan(t) from Mabasa's residence to P. Burgos Street.
Such path is passing in between the previously mentioned row of houses. The second passageway is about 3
meters in width and length from plaintiff Mabasa's residence to P. Burgos Street; it is about 26 meters. In
passing thru said passageway, a less than a meter wide path through the septic tank and with 5-6 meters in
length, has to be traversed.

When said property was purchased by Mabasa, there were tenants occupying the remises and who were
acknowledged by plaintiff Mabasa as tenants. However, sometime in February, 1982, one of said tenants
vacated the apartment and when plaintiff Mabasa went to see the premises, he saw that there had been built
an adobe fence in the first passageway making it narrower in width. Said adobe fence was first constructed by
defendants Santoses along their property which is also along the first passageway. Defendant Morato
constructed her adobe fence and even extended said fence in such a way that the entire passageway was
enclosed. (Exhibit "1-Santoses and Custodios, Exh. "D" for plaintiff, Exhs. "1-C", "1-D" and "1-E") And it was
then that the remaining tenants of said apartment vacated the area. Defendant Ma. Cristina Santos testified
that she constructed said fence because there was an incident when her daughter was dragged by a bicycle
pedalled by a son of one of the tenants in said apartment along the first passageway. She also mentioned
some other inconveniences of having (at) the front of her house a pathway such as when some of the tenants
were drunk and would bang their doors and windows. Some of their footwear were even lost. . . .3 (Emphasis
in original text; corrections in parentheses supplied)

On February 27, 1990, a decision was rendered by the trial court, with this dispositive part:

Accordingly, judgment is hereby rendered as follows:

1) Ordering defendants Custodios and Santoses to give plaintiff permanent access ingress and egress, to
the public street;

2) Ordering the plaintiff to pay defendants Custodios and Santoses the sum of Eight Thousand Pesos
(P8,000) as indemnity for the permanent use of the passageway.

The parties to shoulder their respective litigation expenses.4

Not satisfied therewith, therein plaintiff represented by his heirs, herein private respondents, went to the Court
of Appeals raising the sole issue of whether or not the lower court erred in not awarding damages in their favor.
Page 104 of 142
On November 10, 1993, as earlier stated, the Court of Appeals rendered its decision affirming the judgment of
the trial court with modification, the decretal portion of which disposes as follows:

WHEREFORE, the appealed decision of the lower court is hereby AFFIRMED WITH MODIFICATION only
insofar as the herein grant of damages to plaintiffs-appellants. The Court hereby orders defendants-appellees
to pay plaintiffs-appellants the sum of Sixty Five Thousand (P65,000) Pesos as Actual Damages, Thirty
Thousand (P30,000) Pesos as Moral Damages, and Ten Thousand (P10,000) Pesos as Exemplary Damages.
The rest of the appealed decision is affirmed to all respects.5

On July 8, 1994, the Court of Appeals denied petitioner's motion for reconsideration.6 Petitioners then took the
present recourse to us, raising two issues, namely, whether or not the grant of right of way to herein private
respondents is proper, and whether or not the award of damages is in order.

With respect to the first issue, herein petitioners are already barred from raising the same. Petitioners did not
appeal from the decision of the court a quo granting private respondents the right of way, hence they are
presumed to be satisfied with the adjudication therein. With the finality of the judgment of the trial court as to
petitioners, the issue of propriety of the grant of right of way has already been laid to rest.

For failure to appeal the decision of the trial court to the Court of Appeals, petitioners cannot obtain any
affirmative relief other than those granted in the decision of the trial court. That decision of the court below has
become final as against them and can no longer be reviewed, much less reversed, by this Court. The rule in
this jurisdiction is that whenever an appeal is taken in a civil case, an appellee who has not himself appealed
may not obtain from the appellate court any affirmative relief other than what was granted in the decision of the
lower court. The appellee can only advance any argument that he may deem necessary to defeat the
appellant's claim or to uphold the decision that is being disputed, and he can assign errors in his brief if such is
required to strengthen the views expressed by the court a quo. These assigned errors, in turn, may be
considered by the appellate court solely to maintain the appealed decision on other grounds, but not for the
purpose of reversing or modifying the judgment in the appellee's favor and giving him other affirmative reliefs.7

However, with respect to the second issue, we agree with petitioners that the Court of Appeals erred in
awarding damages in favor of private respondents. The award of damages has no substantial legal basis. A
reading of the decision of the Court of Appeals will show that the award of damages was based solely on the
fact that the original plaintiff, Pacifico Mabasa, incurred losses in the form of unrealized rentals when the
tenants vacated the leased premises by reason of the closure of the passageway.

However, the mere fact that the plaintiff suffered losses does not give rise to a right to recover damages. To
warrant the recovery of damages, there must be both a right of action for a legal wrong inflicted by the
defendant, and damage resulting to the plaintiff therefrom. Wrong without damage, or damage without wrong,
does not constitute a cause of action, since damages are merely part of the remedy allowed for the injury
caused by a breach or wrong.8

There is a material distinction between damages and injury. Injury is the illegal invasion of a legal right;
damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or
compensation awarded for the damage suffered. Thus, there can be damage without injury in those instances

Page 105 of 142

in which the loss or harm was not the result of a violation of a legal duty. These situations are often called
damnum absque injuria.9

In order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that
such injuries resulted from a breach of duty which the defendant owed to the plaintiff a concurrence of injury to
the plaintiff and legal responsibility by the person causing it.10 The underlying basis for the award of tort
damages is the premise that an individual was injured in contemplation of law. Thus, there must first be the
breach of some duty and the imposition of liability for that breach before damages may be awarded; it is not
sufficient to state that there should be tort liability merely because the plaintiff suffered some pain and
suffering.11

Many accidents occur and many injuries are inflicted by acts or omissions which cause damage or loss to
another but which violate no legal duty to such other person, and consequently create no cause of action in his
favor. In such cases, the consequences must be borne by the injured person alone. The law affords no remedy
for damages resulting from an act which does not amount to a legal injury or wrong.12

In other words, in order that the law will give redress for an act causing damage, that act must be not only
hurtful, but wrongful. There must be damnum et injuria.13 If, as may happen in many cases, a person sustains
actual damage, that is, harm or loss to his person or property, without sustaining any legal injury, that is, an act
or omission which the law does not deem an injury, the damage is regarded as damnum absque injuria.14

In the case at bar, although there was damage, there was no legal injury. Contrary to the claim of private
respondents, petitioners could not be said to have violated the principle of abuse of right. In order that the
principle of abuse of right provided in Article 21 of the Civil Code can be applied, it is essential that the
following requisites concur: (1) The defendant should have acted in a manner that is contrary to morals, good
customs or public policy; (2) The acts should be willful; and (3) There was damage or injury to the plaintiff.15

The act of petitioners in constructing a fence within their lot is a valid exercise of their right as owners, hence
not contrary to morals, good customs or public policy. The law recognizes in the owner the right to enjoy and
dispose of a thing, without other limitations than those established by law.16 It is within the right of petitioners,
as owners, to enclose and fence their property. Article 430 of the Civil Code provides that "(e)very owner may
enclose or fence his land or tenements by means of walls, ditches, live or dead hedges, or by any other means
without detriment to servitudes constituted thereon."

At the time of the construction of the fence, the lot was not subject to any servitudes. There was no easement
of way existing in favor of private respondents, either by law or by contract. The fact that private respondents
had no existing right over the said passageway is confirmed by the very decision of the trial court granting a
compulsory right of way in their favor after payment of just compensation. It was only that decision which gave
private respondents the right to use the said passageway after payment of the compensation and imposed a
corresponding duty on petitioners not to interfere in the exercise of said right.

Hence, prior to said decision, petitioners had an absolute right over their property and their act of fencing and
enclosing the same was an act which they may lawfully perform in the employment and exercise of said right.
To repeat, whatever injury or damage may have been sustained by private respondents by reason of the
rightful use of the said land by petitioners is damnum absque injuria.17
Page 106 of 142
A person has a right to the natural use and enjoyment of his own property, according to his pleasure, for all the
purposes to which such property is usually applied. As a general rule, therefore, there is no cause of action for
acts done by one person upon his own property in a lawful and proper manner, although such acts incidentally
cause damage or an unavoidable loss to another, as such damage or loss is damnum absque injuria. 18 When
the owner of property makes use thereof in the general and ordinary manner in which the property is used,
such as fencing or enclosing the same as in this case, nobody can complain of having been injured, because
the incovenience arising from said use can be considered as a mere consequence of community life. 19

The proper exercise of a lawful right cannot constitute a legal wrong for which an action will lie, 20 although the
act may result in damage to another, for no legal right has been invaded. 21 One may use any lawful means to
accomplish a lawful purpose and though the means adopted may cause damage to another, no cause of action
arises in the latter's favor. An injury or damage occasioned thereby is damnum absque injuria. The courts can
give no redress for hardship to an individual resulting from action reasonably calculated to achieve a lawful
means. 22

WHEREFORE, under the compulsion of the foregoing premises, the appealed decision of respondent Court of
Appeals is hereby REVERSED and SET ASIDE and the judgment of the trial court is correspondingly
REINSTATED.

G.R. No. 85691 July 31, 1990

BACHELOR EXPRESS, INCORPORATED, and CRESENCIO RIVERA, petitioners,

vs.
THE HONORABLE COURT OF APPEALS (Sixth Division), RICARDO BETER, SERGIA BETER, TEOFILO
RAUTRAUT and ZOETERA RAUTRAUT, respondents.

GUTIERREZ, JR., J.:

This is a petition for review of the decision of the Court of Appeals which reversed and set aside the order of
the Regional Trial Court, Branch I, Butuan City dismissing the private respondents' complaint for collection of "a
sum of money" and finding the petitioners solidarily liable for damages in the total amount of One Hundred
Twenty Thousand Pesos (P120,000.00). The petitioners also question the appellate court's resolution denying
a motion for reconsideration.

On August 1, 1980, Bus No. 800 owned by Bachelor Express, Inc. and driven by Cresencio Rivera was the
situs of a stampede which resulted in the death of passengers Ornominio Beter and Narcisa Rautraut.

The evidence shows that the bus came from Davao City on its way to Cagayan de Oro City passing Butuan
City; that while at Tabon-Tabon, Butuan City, the bus picked up a passenger; that about fifteen (15) minutes
later, a passenger at the rear portion suddenly stabbed a PC soldier which caused commotion and panic
among the passengers; that when the bus stopped, passengers Ornominio Beter and Narcisa Rautraut were
found lying down the road, the former already dead as a result of head injuries and the latter also suffering from
Page 107 of 142
severe injuries which caused her death later. The passenger assailant alighted from the bus and ran toward the
bushes but was killed by the police. Thereafter, the heirs of Ornominio Beter and Narcisa Rautraut, private
respondents herein (Ricardo Beter and Sergia Beter are the parents of Ornominio while Teofilo Rautraut and
Zoetera [should be Zotera] Rautraut are the parents of Narcisa) filed a complaint for "sum of money" against
Bachelor Express, Inc. its alleged owner Samson Yasay and the driver Rivera.

In their answer, the petitioners denied liability for the death of Ornominio Beter and Narcisa Rautraut. They
alleged that ... the driver was able to transport his passengers safely to their respective places of destination
except Ornominio Beter and Narcisa Rautraut who jumped off the bus without the knowledge and consent,
much less, the fault of the driver and conductor and the defendants in this case; the defendant corporation had
exercised due diligence in the choice of its employees to avoid as much as possible accidents; the incident on
August 1, 1980 was not a traffic accident or vehicular accident; it was an incident or event very much beyond
the control of the defendants; defendants were not parties to the incident complained of as it was an act of a
third party who is not in any way connected with the defendants and of which the latter have no control and
supervision; ..." (Rollo, pp. 112-113).itc-asl

After due trial, the trial court issued an order dated August 8, 1985 dismissing the complaint.

Upon appeal however, the trial court's decision was reversed and set aside. The dispositive portion of the
decision of the Court of Appeals states:

WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE and a new one entered finding the
appellees jointly and solidarily liable to pay the plaintiffs-appellants the following amounts:

1) To the heirs of Ornominio Beter, the amount of Seventy Five Thousand Pesos (P75,000.00) in loss of
earnings and support, moral damages, straight death indemnity and attorney's fees; and,

2) To the heirs of Narcisa Rautraut, the amount of Forty Five Thousand Pesos (P45,000.00) for straight
death indemnity, moral damages and attorney's fees. Costs against appellees. (Rollo, pp. 71-72)

The petitioners now pose the following questions

What was the proximate cause of the whole incident? Why were the passengers on board the bus panicked
(sic) and why were they shoving one another? Why did Narcisa Rautraut and Ornominio Beter jump off from
the running bus?

The petitioners opine that answers to these questions are material to arrive at "a fair, just and equitable
judgment." (Rollo, p. 5) They claim that the assailed decision is based on a misapprehension of facts and its
conclusion is grounded on speculation, surmises or conjectures.

As regards the proximate cause of the death of Ornominio Beter and Narcisa Rautraut, the petitioners maintain
that it was the act of the passenger who ran amuck and stabbed another passenger of the bus. They contend
that the stabbing incident triggered off the commotion and panic among the passengers who pushed one
another and that presumably out of fear and moved by that human instinct of self-preservation Beter and
Rautraut jumped off the bus while the bus was still running resulting in their untimely death." (Rollo, p. 6) Under
Page 108 of 142
these circumstances, the petitioners asseverate that they were not negligent in the performance of their duties
and that the incident was completely and absolutely attributable to a third person, the passenger who ran
amuck, for without his criminal act, Beter and Rautraut could not have been subjected to fear and shock which
compelled them to jump off the running bus. They argue that they should not be made liable for damages
arising from acts of third persons over whom they have no control or supervision.

Furthermore, the petitioners maintain that the driver of the bus, before, during and after the incident was driving
cautiously giving due regard to traffic rules, laws and regulations. The petitioners also argue that they are not
insurers of their passengers as ruled by the trial court.

The liability, if any, of the petitioners is anchored on culpa contractual or breach of contract of carriage. The
applicable provisions of law under the New Civil Code are as follows:

ART. 1732. Common carriers are persons, corporations, firms or associations engaged in the business of
carrying or transporting passengers or goods or both by land, water, or air, for compensation, offering their
services to the public.

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

xxx xxx xxx

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

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault
or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in
Articles 1733 and 1755.

There is no question that Bachelor Express, Inc. is a common carrier. Hence, from the nature of its business
and for reasons of public policy Bachelor Express, Inc. is bound to carry its passengers safely as far as human
care and foresight can provide using the utmost diligence of very cautious persons, with a due regard for all the
circumstances.

In the case at bar, Ornominio Beter and Narcisa Rautraut were passengers of a bus belonging to petitioner
Bachelor Express, Inc. and, while passengers of the bus, suffered injuries which caused their death.
Consequently, pursuant to Article 1756 of the Civil Code, petitioner Bachelor Express, Inc. is presumed to have
acted negligently unless it can prove that it had observed extraordinary diligence in accordance with Articles
1733 and 1755 of the New Civil Code.

Bachelor Express, Inc. denies liability for the death of Beter and Rautraut on its posture that the death of the
said passengers was caused by a third person who was beyond its control and supervision. In effect, the
petitioner, in order to overcome the presumption of fault or negligence under the law, states that the vehicular

Page 109 of 142

incident resulting in the death of passengers Beter and Rautraut was caused by force majeure or caso fortuito
over which the common carrier did not have any control.

Article 1174 of the present Civil Code states:

Except in cases expressly specified by law, or when it is otherwise declared by stipulations, or when the nature
of the obligation requires the assumption of risk, no person shall be responsible for those events which could
not be foreseen, or which though foreseen, were inevitable.

The above-mentioned provision was substantially copied from Article 1105 of the old Civil Code which states"

No one shall be liable for events which could not be foreseen or which, even if foreseen, were inevitable, with
the exception of the cases in which the law expressly provides otherwise and those in which the obligation itself
imposes liability.

In the case of Lasam v. Smith (45 Phil. 657 [1924]), we defined "events" which cannot be foreseen and which,
having been foreseen, are inevitable in the following manner:

... The Spanish authorities regard the language employed as an effort to define the term 'caso fortuito' and hold
that the two expressions are synonymous. (Manresa Comentarios al Codigo Civil Espaol, vol. 8, pp. 88 et
seq.; Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.)

The antecedent to Article 1105 is found in Law II, Title 33, Partida 7, which defines caso fortuito as 'occasion
que acaese por aventura de que non se puede ante ver. E son estos, derrivamientos de casas e fuego que
enciende a so ora, e quebrantamiento de navio, fuerca de ladrones' (An event that takes place by incident and
could not have been foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence
of robbers ...)

Escriche defines caso fortuito as an unexpected event or act of God which could neither be foreseen nor
resisted, such as floods, torrents, shipwrecks, conflagrations, lightning, compulsion, insurrections, destruction
of buildings by unforeseen accidents and other occurrences of a similar nature.

In discussing and analyzing the term caso fortuito the Enciclopedia Juridica Espaola says: 'In a legal sense
and, consequently, also in relation to contracts, a caso fortuito presents the following essential characteristics:
(1) The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his
obligation, must be independent of the human will. (2) It must be impossible to foresee the event which
constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid. (3) The occurrence must be
such as to render it impossible for the debtor to fulfill his obligation in a normal manner. And (4) the obligor
(debtor) must be free from any participation in the aggravation of the injury resulting to the creditor. (5)
Enciclopedia Juridica Espaola, 309)

As will be seen, these authorities agree that some extraordinary circumstance independent of the will of the
obligor or of his employees, is an essential element of a caso fortuito. ...

Page 110 of 142

The running amuck of the passenger was the proximate cause of the incident as it triggered off a commotion
and panic among the passengers such that the passengers started running to the sole exit shoving each other
resulting in the falling off the bus by passengers Beter and Rautraut causing them fatal injuries. The sudden act
of the passenger who stabbed another passenger in the bus is within the context of force majeure.

However, in order that a common carrier may be absolved from liability in case of force majeure, it is not
enough that the accident was caused by force majeure. The common carrier must still prove that it was not
negligent in causing the injuries resulting from such accident. Thus, as early as 1912, we ruled:

From all the foregoing, it is concluded that the defendant is not liable for the loss and damage of the goods
shipped on the lorcha Pilar by the Chinaman, Ong Bien Sip, inasmuch as such loss and damage were the
result of a fortuitous event or force majeure, and there was no negligence or lack of care and diligence on the
part of the defendant company or its agents. (Tan Chiong Sian v. Inchausti & Co., 22 Phil. 152 [1912];
Emphasis supplied).

This principle was reiterated in a more recent case, Batangas Laguna Tayabas Co. v. Intermediate Appellate
Court (167 SCRA 379 [1988]), wherein we ruled:

... [F]or their defense of force majeure or act of God to prosper the accident must be due to natural causes and
exclusively without human intervention. (Emphasis supplied)

Therefore, the next question to be determined is whether or not the petitioner's common carrier observed
extraordinary diligence to safeguard the lives of its passengers.

In this regard the trial court and the appellate court arrived at conflicting factual findings.

The trial court found the following facts:

The parties presented conflicting evidence as to how the two deceased Narcisa Rautruat and Ornominio Beter
met their deaths.

However, from the evidence adduced by the plaintiffs, the Court could not see why the two deceased could
have fallen off the bus when their own witnesses testified that when the commotion ensued inside the bus, the
passengers pushed and shoved each other towards the door apparently in order to get off from the bus through
the door. But the passengers also could not pass through the door because according to the evidence the door
was locked.

On the other hand, the Court is inclined to give credence to the evidence adduced by the defendants that when
the commotion ensued inside the bus, the two deceased panicked and, in state of shock and fear, they jumped
off from the bus by passing through the window.

It is the prevailing rule and settled jurisprudence that transportation companies are not insurers of their
passengers. The evidence on record does not show that defendants' personnel were negligent in their duties.
The defendants' personnel have every right to accept passengers absent any manifestation of violence or

Page 111 of 142

drunkenness. If and when such passengers harm other passengers without the knowledge of the
transportation company's personnel, the latter should not be faulted. (Rollo, pp. 46-47)

A thorough examination of the records, however, show that there are material facts ignored by the trial court
which were discussed by the appellate court to arrive at a different conclusion. These circumstances show that
the petitioner common carrier was negligent in the provision of safety precautions so that its passengers may
be transported safely to their destinations. The appellate court states:

A critical eye must be accorded the lower court's conclusions of fact in its tersely written ratio decidendi. The
lower court concluded that the door of the bus was closed; secondly, the passengers, specifically the two
deceased, jumped out of the window. The lower court therefore concluded that the defendant common carrier
is not liable for the death of the said passengers which it implicitly attributed to the unforeseen acts of the
unidentified passenger who went amuck.

There is nothing in the record to support the conclusion that the solitary door of the bus was locked as to
prevent the passengers from passing through. Leonila Cullano, testifying for the defense, clearly stated that the
conductor opened the door when the passengers were shouting that the bus stop while they were in a state of
panic. Sergia Beter categorically stated that she actually saw her son fall from the bus as the door was forced
open by the force of the onrushing passengers.

Pedro Collango, on the other hand, testified that he shut the door after the last passenger had boarded the
bus. But he had quite conveniently neglected to say that when the passengers had panicked, he himself
panicked and had gone to open the door. Portions of the testimony of Leonila Cullano, quoted below, are
illuminating:

xxx xxx xxx

Q When you said the conductor opened the door, the door at the front or rear portion of the bus?

A Front door.

Q And these two persons whom you said alighted, where did they pass, the fron(t) door or rear door?

A Front door.

xxx xxx xxx

(Tsn., p. 4, Aug. 8, 1984)

xxx xxx xxx

Q What happened after there was a commotion at the rear portion of the bus?

Page 112 of 142

A When the commotion occurred, I stood up and I noticed that there was a passenger who was sounded
(sic). The conductor panicked because the passengers were shouting 'stop, stop'. The conductor opened the
bus.'

(Tsn. p. 3, August 8, 1984).

Accordingly, there is no reason to believe that the deceased passengers jumped from the window when it was
entirely possible for them to have alighted through the door. The lower court's reliance on the testimony of
Pedro Collango, as the conductor and employee of the common carrier, is unjustified, in the light of the clear
testimony of Leonila Cullano as the sole uninterested eyewitness of the entire episode. Instead we find Pedro
Collango's testimony to be infused by bias and fraught with inconsistencies, if not notably unreliable for lack of
veracity. On direct examination, he testified:

xxx xxx xxx

Q So what happened to the passengers inside your bus?

A Some of the passengers jumped out of the window.

COURT:

Q While the bus was in motion?

A Yes, your Honor, but the speed was slow because we have just picked up a passenger.

Atty. Gambe:

Q You said that at the time of the incident the bus was running slow because you have just picked up a
passenger. Can you estimate what was your speed at that time?

Atty. Calo:

No basis, your Honor, he is neither a driver nor a conductor.

COURT:

Let the witness answer. Estimate only, the conductor experienced.

Witness:

Not less than 30 to 40 miles.

COURT:

Kilometers or miles?
Page 113 of 142
A Miles.

Atty. Gambe:

Q That is only your estimate by your experience?

A Yes, sir, estimate.

(Tsn., pp. 4-5, Oct. 17, 1983).

At such speed of not less than 30 to 40 miles ..., or about 48 to 65 kilometers per hour, the speed of the bus
could scarcely be considered slow considering that according to Collango himself, the bus had just come from
a full stop after picking a passenger (Tsn, p. 4, Id.) and that the bus was still on its second or third gear (Tsn., p.
12, Id.).

In the light of the foregoing, the negligence of the common carrier, through its employees, consisted of the lack
of extraordinary diligence required of common carriers, in exercising vigilance and utmost care of the safety of
its passengers, exemplified by the driver's belated stop and the reckless opening of the doors of the bus while
the same was travelling at an appreciably fast speed. At the same time, the common carrier itself
acknowledged, through its administrative officer, Benjamin Granada, that the bus was commissioned to travel
and take on passengers and the public at large, while equipped with only a solitary door for a bus its size and
loading capacity, in contravention of rules and regulations provided for under the Land Transportation and
Traffic Code (RA 4136 as amended.) (Rollo, pp. 23-26)

Considering the factual findings of the Court of Appeals-the bus driver did not immediately stop the bus at the
height of the commotion; the bus was speeding from a full stop; the victims fell from the bus door when it was
opened or gave way while the bus was still running; the conductor panicked and blew his whistle after people
had already fallen off the bus; and the bus was not properly equipped with doors in accordance with law-it is
clear that the petitioners have failed to overcome the presumption of fault and negligence found in the law
governing common carriers.

The petitioners' argument that the petitioners "are not insurers of their passengers" deserves no merit in view
of the failure of the petitioners to prove that the deaths of the two passengers were exclusively due to force
majeure and not to the failure of the petitioners to observe extraordinary diligence in transporting safely the
passengers to their destinations as warranted by law. (See Batangas Laguna Tayabas Co. v. Intermediate
Appellate Court, supra).

The petitioners also contend that the private respondents failed to show to the court that they are the parents of
Ornominio Beter and Narcisa Rautraut respectively and therefore have no legal personality to sue the
petitioners. This argument deserves scant consideration. We find this argument a belated attempt on the part
of the petitioners to avoid liability for the deaths of Beter and Rautraut. The private respondents were Identified
as the parents of the victims by witnesses during the trial and the trial court recognized them as such. The trial
court dismissed the complaint solely on the ground that the petitioners were not negligent.

Page 114 of 142

Finally, the amount of damages awarded to the heirs of Beter and Rautraut by the appellate court is supported
by the evidence. The appellate court stated:

Ornominio Beter was 32 years of age at the time of his death, single, in good health and rendering support and
service to his mother. As far as Narcisa Rautraut is concerned, the only evidence adduced is to the effect that
at her death, she was 23 years of age, in good health and without visible means of support.

In accordance with Art. 1764 in conjunction with Art. 2206 of the Civil Code, and established jurisprudence,
several factors may be considered in determining the award of damages, namely: 1) life expectancy
(considering the state of health of the deceased and the mortality tables are deemed conclusive) and loss of
earning capacity; (2) pecuniary loss, loss of support and service; and (3) moral and mental suffering
(Alcantara, et al. v. Surro, et al., 93 Phil. 470).

In the case of People v. Daniel (No. L-66551, April 25, 1985, 136 SCRA 92, at page 104), the High Tribunal,
reiterating the rule in Villa Rey Transit, Inc. v. Court of Appeals (31 SCRA 511), stated that the amount of loss
of earring capacity is based mainly on two factors, namely, (1) the number of years on the basis of which the
damages shall be computed; and (2) the rate at which the losses sustained by the heirs should be fixed.

As the formula adopted in the case of Davila v. Philippine Air Lines, 49 SCRA 497, at the age of 30 one's
normal life expectancy is 33-1/3 years based on the American Expectancy Table of Mortality (2/3 x 80-32).itc-
asl By taking into account the pace and nature of the life of a carpenter, it is reasonable to make allowances
for these circumstances and reduce the life expectancy of the deceased Ornominio Beter to 25 years (People
v. Daniel, supra). To fix the rate of losses it must be noted that Art. 2206 refers to gross earnings less
necessary living expenses of the deceased, in other words, only net earnings are to be considered (People v.
Daniel, supra; Villa Rey Transit, Inc. v. Court of Appeals, supra).

Applying the foregoing rules with respect to Ornominio Beter, it is both just and reasonable, considering his
social standing and position, to fix the deductible, living and incidental expenses at the sum of Four Hundred
Pesos (P400.00) a month, or Four Thousand Eight Hundred Pesos (P4,800.00) annually. As to his income,
considering the irregular nature of the work of a daily wage carpenter which is seasonal, it is safe to assume
that he shall have work for twenty (20) days a month at Twenty Five Pesos (P150,000.00) for twenty five years.
Deducting therefrom his necessary expenses, his heirs would be entitled to Thirty Thousand Pesos
(P30,000.00) representing loss of support and service (P150,000.00 less P120,000.00). In addition, his heirs
are entitled to Thirty Thousand Pesos (P30,000.00) as straight death indemnity pursuant to Article 2206
(People v. Daniel, supra). For damages for their moral and mental anguish, his heirs are entitled to the
reasonable sum of P10,000.00 as an exception to the general rule against moral damages in case of breach of
contract rule Art. 2200 (Necesito v. Paras, 104 Phil. 75). As attorney's fees, Beter's heirs are entitled to
P5,000.00. All in all, the plaintiff-appellants Ricardo and Sergia Beter as heirs of their son Ornominio are
entitled to an indemnity of Seventy Five Thousand Pesos (P75,000.00).

In the case of Narcisa Rautraut, her heirs are entitled to a straight death indemnity of Thirty Thousand Pesos
(P30,000.00), to moral damages in the amount of Ten Thousand Pesos (P10,000.00) and Five Thousand
Pesos (P5,000.00) as attorney's fees, or a total of Forty Five Thousand Pesos (P45,000.00) as total indemnity
for her death in the absence of any evidence that she had visible means of support. (Rollo, pp. 30-31)

Page 115 of 142

WHEREFORE, the instant petition is DISMISSED. The questioned decision dated May 19, 1988 and the
resolution dated August 1, 1988 of the Court of Appeals are AFFIRMED.

SO ORDERED.

G.R. No. L-29640 June 10, 1971

GUILLERMO AUSTRIA, petitioner,

vs.
THE COURT OF APPEALS (Second Division), PACIFICO ABAD and MARIA G. ABAD, respondents.

REYES, J.B.L., J.:

Guillermo Austria petitions for the review of the decision rendered by the Court of Appeal (in CA-G.R. No.
33572-R), on the sole issue of whether in a contract of agency (consignment of goods for sale) it is necessary
that there be prior conviction for robbery before the loss of the article shall exempt the consignee from liability
for such loss.

In a receipt dated 30 January 1961, Maria G. Abad acknowledged having received from Guillermo Austria one
(1) pendant with diamonds valued at P4,500.00, to be sold on commission basis or to be returned on demand.
On 1 February 1961, however, while walking home to her residence in Mandaluyong, Rizal, Abad was said to
have been accosted by two men, one of whom hit her on the face, while the other snatched her purse
containing jewelry and cash, and ran away. Among the pieces of jewelry allegedly taken by the robbers was the
consigned pendant. The incident became the subject of a criminal case filed in the Court of First Instance of
Rizal against certain persons (Criminal Case No. 10649, People vs. Rene Garcia, et al.).

As Abad failed to return the jewelry or pay for its value notwithstanding demands, Austria brought in the Court
of First Instance of Manila an action against her and her husband for recovery of the pendant or of its value,
and damages. Answering the allegations of the complaint, defendants spouses set up the defense that the
alleged robbery had extinguished their obligation.

After due hearing, the trial court rendered judgment for the plaintiff, and ordered defendants spouses, jointly
and severally, to pay to the former the sum of P4,500.00, with legal interest thereon, plus the amount of
P450.00 as reasonable attorneys' fees, and the costs. It was held that defendants failed to prove the fact of
robbery, or, if indeed it was committed, that defendant Maria Abad was guilty of negligence when she went
home without any companion, although it was already getting dark and she was carrying a large amount of
cash and valuables on the day in question, and such negligence did not free her from liability for damages for
the loss of the jewelry.

Not satisfied with his decision, the defendants went to the Court of Appeals, and there secured a reversal of the
judgment. The appellate court overruling the finding of the trial court on the lack of credibility of the two defense
witnesses who testified on the occurrence of the robbery, and holding that the facts of robbery and defendant
Page 116 of 142
Maria Abad's possesion of the pendant on that unfortunate day have been duly published, declared
respondents not responsible for the loss of the jewelry on account of a fortuitous event, and relieved them from
liability for damages to the owner. Plaintiff thereupon instituted the present proceeding.

It is now contended by herein petitioner that the Court of Appeals erred in finding that there was robbery in the
case, although nobody has been found guilty of the supposed crime. It is petitioner's theory that for robbery to
fall under the category of a fortuitous event and relieve the obligor from his obligation under a contract,
pursuant to Article 1174 of the new Civil Code, there ought to be prior finding on the guilt of the persons
responsible therefor. In short, that the occurrence of the robbery should be proved by a final judgment of
conviction in the criminal case. To adopt a different view, petitioner argues, would be to encourage persons
accountable for goods or properties received in trust or consignment to connive with others, who would be
willing to be accused in court for the robbery, in order to be absolved from civil liability for the loss or
disappearance of the entrusted articles.

We find no merit in the contention of petitioner.

It is recognized in this jurisdiction that to constitute a caso fortuito that would exempt a person from
responsibility, it is necessary that (1) the event must be independent of the human will (or rather, of the debtor's
or obligor's); (2) the occurrence must render it impossible for the debtor to fulfill the obligation in a normal
manner; and that (3) the obligor must be free of participation in or aggravation of the injury to the creditor. 1 A
fortuitous event, therefore, can be produced by nature, e.g., earthquakes, storms, floods, etc., or by the act of
man, such as war, attack by bandits, robbery, 2 etc., provided that the event has all the characteristics
enumerated above.

It is not here disputed that if respondent Maria Abad were indeed the victim of robbery, and if it were really true
that the pendant, which she was obliged either to sell on commission or to return to petitioner, were taken
during the robbery, then the occurrence of that fortuitous event would have extinguished her liability. The point
at issue in this proceeding is how the fact of robbery is to be established in order that a person may avail of the
exempting provision of Article 1174 of the new Civil Code, which reads as follows:

ART. 1174. Except in cases expressly specified by law, or when it is otherwise declared by stipulation, or
when the nature of the obligation requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen, or which, though foreseen, were inevitable.

It may be noted the reform that the emphasis of the provision is on the events, not on the agents or factors
responsible for them. To avail of the exemption granted in the law, it is not necessary that the persons
responsible for the occurrence should be found or punished; it would only be sufficient to established that the
enforceable event, the robbery in this case did take place without any concurrent fault on the debtor's part, and
this can be done by preponderant evidence. To require in the present action for recovery the prior conviction of
the culprits in the criminal case, in order to establish the robbery as a fact, would be to demand proof beyond
reasonable doubt to prove a fact in a civil case.

It is undeniable that in order to completely exonerate the debtor for reason of a fortutious event, such debtor
must, in addition to the cams itself, be free of any concurrent or contributory fault or negligence. 3 This is
apparent from Article 1170 of the Civil Code of the Philippines, providing that:
Page 117 of 142
ART. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and
those who in any manner contravene the tenor thereof, are liable for damages.

It is clear that under the circumstances prevailing at present in the City of Manila and its suburbs, with their
high incidence of crimes against persons and property that renders travel after nightfall a matter to be
sedulously avoided without suitable precaution and protection, the conduct of respondent Maria G. Abad, in
returning alone to her house in the evening, carrying jewelry of considerable value would be negligent per se
and would not exempt her from responsibility in the case of a robbery. We are not persuaded, however, that the
same rule should obtain ten years previously, in 1961, when the robbery in question did take place, for at that
time criminality had not by far reached the levels attained in the present day.

There is likewise no merit in petitioner's argument that to allow the fact of robbery to be recognized in the civil
case before conviction is secured in the criminal action, would prejudice the latter case, or would result in
inconsistency should the accused obtain an acquittal or should the criminal case be dismissed. It must be
realized that a court finding that a robbery has happened would not necessarily mean that those accused in the
criminal action should be found guilty of the crime; nor would a ruling that those actually accused did not
commit the robbery be inconsistent with a finding that a robbery did take place. The evidence to establish these
facts would not necessarily be the same.

WHEREFORE, finding no error in the decision of the Court of Appeals under review, the petition in this case is
hereby dismissed with costs against the petitioner.

G.R. No. L-55300 March 15, 1990

FRANKLIN G. GACAL and CORAZON M. GACAL, the latter assisted by her husband, FRANKLIN G. GACAL,
petitioners,
vs.
PHILIPPINE AIR LINES, INC., and THE HONORABLE PEDRO SAMSON C. ANIMAS, in his capacity as
PRESIDING JUDGE of the COURT OF FIRST INSTANCE OF SOUTH COTABATO, BRANCH I, respondents.

PARAS, J.:

This is a, petition for review on certiorari of the decision of the Court of First Instance of South Cotabato,
Branch 1, * promulgated on August 26, 1980 dismissing three (3) consolidated cases for damages: Civil Case
No. 1701, Civil Case No. 1773 and Civil Case No. 1797 (Rollo, p. 35).

The facts, as found by respondent court, are as follows:

Plaintiffs Franklin G. Gacal and his wife, Corazon M. Gacal, Bonifacio S. Anislag and his wife, Mansueta L.
Anislag, and the late Elma de Guzman, were then passengers boarding defendant's BAC 1-11 at Davao Airport
for a flight to Manila, not knowing that on the same flight, Macalinog, Taurac Pendatum known as Commander
Zapata, Nasser Omar, Liling Pusuan Radia, Dimantong Dimarosing and Mike Randa, all of Marawi City and
Page 118 of 142
members of the Moro National Liberation Front (MNLF), were their co-passengers, three (3) armed with
grenades, two (2) with .45 caliber pistols, and one with a .22 caliber pistol. Ten (10) minutes after take off at
about 2:30 in the afternoon, the hijackers brandishing their respective firearms announced the hijacking of the
aircraft and directed its pilot to fly to Libya. With the pilot explaining to them especially to its leader, Commander
Zapata, of the inherent fuel limitations of the plane and that they are not rated for international flights, the
hijackers directed the pilot to fly to Sabah. With the same explanation, they relented and directed the aircraft to
land at Zamboanga Airport, Zamboanga City for refueling. The aircraft landed at 3:00 o'clock in the afternoon
of May 21, 1976 at Zamboanga Airport. When the plane began to taxi at the runway, it was met by two armored
cars of the military with machine guns pointed at the plane, and it stopped there. The rebels thru its
commander demanded that a DC-aircraft take them to Libya with the President of the defendant company as
hostage and that they be given $375,000 and six (6) armalites, otherwise they will blow up the plane if their
demands will not be met by the government and Philippine Air Lines. Meanwhile, the passengers were not
served any food nor water and it was only on May 23, a Sunday, at about 1:00 o'clock in the afternoon that they
were served 1/4 slice of a sandwich and 1/10 cup of PAL water. After that, relatives of the hijackers were
allowed to board the plane but immediately after they alighted therefrom, an armored car bumped the stairs.
That commenced the battle between the military and the hijackers which led ultimately to the liberation of the
surviving crew and the passengers, with the final score of ten (10) passengers and three (3) hijackers dead on
the spot and three (3) hijackers captured.

City Fiscal Franklin G. Gacal was unhurt. Mrs. Corazon M. Gacal suffered injuries in the course of her jumping
out of the plane when it was peppered with bullets by the army and after two (2) hand grenades exploded
inside the plane. She was hospitalized at General Santos Doctors Hospital, General Santos City, for two (2)
days, spending P245.60 for hospital and medical expenses, Assistant City Fiscal Bonifacio S. Anislag also
escaped unhurt but Mrs. Anislag suffered a fracture at the radial bone of her left elbow for which she was
hospitalized and operated on at the San Pedro Hospital, Davao City, and therefore, at Davao Regional
Hospital, Davao City, spending P4,500.00. Elma de Guzman died because of that battle. Hence, the action of
damages instituted by the plaintiffs demanding the following damages, to wit:

Civil Case No. 1701

City Fiscal Franklin G. Gacal and Mrs. Corazon M. Gacal actual damages: P245.60 for hospital and medical
expenses of Mrs Gacal; P8,995.00 for their personal belongings which were lost and not recovered;
P50,000.00 each for moral damages; and P5,000.00 for attorney's fees, apart from the prayer for an award of
exemplary damages (Record, pp. 4-6, Civil Case No. 1701).

Civil Case No. 1773

xxx xxx xxx

Civil Case No. 1797

xxx xxx xxx

The trial court, on August 26, 1980, dismissed the complaints finding that all the damages sustained in the
premises were attributed to force majeure.
Page 119 of 142
On September 12, 1980 the spouses Franklin G. Gacal and Corazon M. Gacal, plaintiffs in Civil Case No.
1701, filed a notice of appeal with the lower court on pure questions of law (Rollo, p. 55) and the petition for
review on certiorari was filed with this Court on October 20, 1980 (Rollo, p. 30).

The Court gave due course to the petition (Rollo, p. 147) and both parties filed their respective briefs but
petitioner failed to file reply brief which was noted by the Court in the resolution dated May 3, 1982 (Rollo, p.
183).

Petitioners alleged that the main cause of the unfortunate incident is the gross, wanton and inexcusable
negligence of respondent Airline personnel in their failure to frisk the passengers adequately in order to
discover hidden weapons in the bodies of the six (6) hijackers. They claimed that despite the prevalence of
skyjacking, PAL did not use a metal detector which is the most effective means of discovering potential
skyjackers among the passengers (Rollo, pp. 6-7).

Respondent Airline averred that in the performance of its obligation to safely transport passengers as far as
human care and foresight can provide, it has exercised the utmost diligence of a very cautious person with due
regard to all circumstances, but the security checks and measures and surveillance precautions in all flights,
including the inspection of baggages and cargo and frisking of passengers at the Davao Airport were
performed and rendered solely by military personnel who under appropriate authority had assumed exclusive
jurisdiction over the same in all airports in the Philippines.

Similarly, the negotiations with the hijackers were a purely government matter and a military operation, handled
by and subject to the absolute and exclusive jurisdiction of the military authorities. Hence, it concluded that the
accident that befell RP-C1161 was caused by fortuitous event, force majeure and other causes beyond the
control of the respondent Airline.

The determinative issue in this case is whether or not hijacking or air piracy during martial law and under the
circumstances obtaining herein, is a caso fortuito or force majeure which would exempt an aircraft from
payment of damages to its passengers whose lives were put in jeopardy and whose personal belongings were
lost during the incident.

Under the Civil Code, common carriers are required to exercise extraordinary diligence in their vigilance over
the goods and for the safety of passengers transported by them, according to all the circumstances of each
case (Article 1733). They are presumed at fault or to have acted negligently whenever a passenger dies or is
injured (Philippine Airlines, Inc. v. National Labor Relations Commission, 124 SCRA 583 [1983]) or for the loss,
destruction or deterioration of goods in cases other than those enumerated in Article 1734 of the Civil Code
(Eastern Shipping Lines, Inc. v. Intermediate Appellate Court, 150 SCRA 463 [1987]).

The source of a common carrier's legal liability is the contract of carriage, and by entering into said contract, it
binds itself to carry the passengers safely as far as human care and foresight can provide. There is breach of
this obligation if it fails to exert extraordinary diligence according to all the circumstances of the case in
exercise of the utmost diligence of a very cautious person (Isaac v. Ammen Transportation Co., 101 Phil. 1046
[1957]; Juntilla v. Fontanar, 136 SCRA 624 [1985]).

Page 120 of 142

It is the duty of a common carrier to overcome the presumption of negligence (Philippine National Railways v.
Court of Appeals, 139 SCRA 87 [1985]) and it must be shown that the carrier had observed the required
extraordinary diligence of a very cautious person as far as human care and foresight can provide or that the
accident was caused by a fortuitous event (Estrada v. Consolacion, 71 SCRA 523 [1976]). Thus, as ruled by
this Court, no person shall be responsible for those "events which could not be foreseen or which though
foreseen were inevitable. (Article 1174, Civil Code). The term is synonymous with caso fortuito (Lasam v.
Smith, 45 Phil. 657 [1924]) which is of the same sense as "force majeure" (Words and Phrases Permanent
Edition, Vol. 17, p. 362).

In order to constitute a caso fortuito or force majeure that would exempt a person from liability under Article
1174 of the Civil Code, it is necessary that the following elements must concur: (a) the cause of the breach of
the obligation must be independent of the human will (the will of the debtor or the obligor); (b) the event must
be either unforeseeable or unavoidable; (c) the event must be such as to render it impossible for the debtor to
fulfill his obligation in a normal manner; and (d) the debtor must be free from any participation in, or
aggravation of the injury to the creditor (Lasam v. Smith, 45 Phil. 657 [1924]; Austria v. Court of Appeals, 39
SCRA 527 [1971]; Estrada v. Consolacion, supra; Vasquez v. Court of Appeals, 138 SCRA 553 [1985]; Juan F.
Nakpil & Sons v. Court of Appeals, 144 SCRA 596 [1986]). Caso fortuito or force majeure, by definition, are
extraordinary events not foreseeable or avoidable, events that could not be foreseen, or which, though
foreseen, are inevitable. It is, therefore, not enough that the event should not have been foreseen or
anticipated, as is commonly believed, but it must be one impossible to foresee or to avoid. The mere difficulty
to foresee the happening is not impossibility to foresee the same (Republic v. Luzon Stevedoring Corporation,
21 SCRA 279 [1967]).

Applying the above guidelines to the case at bar, the failure to transport petitioners safely from Davao to Manila
was due to the skyjacking incident staged by six (6) passengers of the same plane, all members of the Moro
National Liberation Front (MNLF), without any connection with private respondent, hence, independent of the
will of either the PAL or of its passengers.

Under normal circumstances, PAL might have foreseen the skyjacking incident which could have been avoided
had there been a more thorough frisking of passengers and inspection of baggages as authorized by R.A. No.
6235. But the incident in question occurred during Martial Law where there was a military take-over of airport
security including the frisking of passengers and the inspection of their luggage preparatory to boarding
domestic and international flights. In fact military take-over was specifically announced on October 20, 1973 by
General Jose L. Rancudo, Commanding General of the Philippine Air Force in a letter to Brig. Gen. Jesus
Singson, then Director of the Civil Aeronautics Administration (Rollo, pp. 71-72) later confirmed shortly before
the hijacking incident of May 21, 1976 by Letter of Instruction No. 399 issued on April 28, 1976 (Rollo, p. 72).

Otherwise stated, these events rendered it impossible for PAL to perform its obligations in a nominal manner
and obviously it cannot be faulted with negligence in the performance of duty taken over by the Armed Forces
of the Philippines to the exclusion of the former.

Finally, there is no dispute that the fourth element has also been satisfied. Consequently the existence of force
majeure has been established exempting respondent PAL from the payment of damages to its passengers who
suffered death or injuries in their persons and for loss of their baggages.

Page 121 of 142

PREMISES CONSIDERED, the petition is hereby DISMISSED for lack of merit and the decision of the Court of
First Instance of South Cotabato, Branch I is hereby AFFIRMED.

SO ORDERED.

G.R. No. 115024 February 7, 1996

MA. LOURDES VALENZUELA, petitioner,

vs.
COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL, INC., respondents.

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x

G.R. No. 117944 February 7, 1996

RICHARD LI, petitioner,

vs.
COURT OF APPEALS and LOURDES VALENZUELA, respondents.

DECISION

KAPUNAN, J.:

These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem from an action to
recover damages by petitioner Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuries
sustained by her in a vehicular accident in the early morning of June 24, 1990. The facts found by the trial court
are succinctly summarized by the Court of Appeals below:

This is an action to recover damages based on quasi-delict, for serious physical injuries sustained in a
vehicular accident.

Plaintiff's version of the accident is as follows: At around 2:00 in the morning of June 24, 1990, plaintiff Ma.
Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542 from her restaurant at Marcos
highway to her home at Palanza Street, Araneta Avenue. She was travelling along Aurora Blvd. with a
companion, Cecilia Ramon, heading towards the direction of Manila. Before reaching A. Lake Street, she
noticed something wrong with her tires; she stopped at a lighted place where there were people, to verify
whether she had a flat tire and to solicit help if needed. Having been told by the people present that her rear
right tire was flat and that she cannot reach her home in that car's condition, she parked along the sidewalk,
about 1-1/2 feet away, put on her emergency lights, alighted from the car, and went to the rear to open the
trunk. She was standing at the left side of the rear of her car pointing to the tools to a man who will help her fix
the tire when she was suddenly bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li and
registered in the name of defendant Alexander Commercial, Inc. Because of the impact plaintiff was thrown
against the windshield of the car of the defendant, which was destroyed, and then fell to the ground. She was
pulled out from under defendant's car. Plaintiff's left leg was severed up to the middle of her thigh, with only
Page 122 of 142
some skin and sucle connected to the rest of the body. She was brought to the UERM Medical Memorial
Center where she was found to have a "traumatic amputation, leg, left up to distal thigh (above knee)". She
was confined in the hospital for twenty (20) days and was eventually fitted with an artificial leg. The expenses
for the hospital confinement (P120,000.00) and the cost of the artificial leg (P27,000.00) were paid by
defendants from the car insurance.

In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary damages in the
amount of P100,000.00 and other medical and related expenses amounting to a total of P180,000.00, including
loss of expected earnings.

Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph; considering
that it was raining, visibility was affected and the road was wet. Traffic was light. He testified that he was driving
along the inner portion of the right lane of Aurora Blvd. towards the direction of Araneta Avenue, when he was
suddenly confronted, in the vicinity of A. Lake Street, San Juan, with a car coming from the opposite direction,
travelling at 80 kph, with "full bright lights". Temporarily blinded, he instinctively swerved to the right to avoid
colliding with the oncoming vehicle, and bumped plaintiff's car, which he did not see because it was midnight
blue in color, with no parking lights or early warning device, and the area was poorly lighted. He alleged in his
defense that the left rear portion of plaintiff's car was protruding as it was then "at a standstill diagonally" on the
outer portion of the right lane towards Araneta Avenue (par. 18, Answer). He confirmed the testimony of
plaintiff's witness that after being bumped the car of the plaintiff swerved to the right and hit another car parked
on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was reckless or negligent, as
she was not a licensed driver.

The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the sketch of the
three cars involved in the accident, testified that the plaintiff's car was "near the sidewalk"; this witness did not
remember whether the hazard lights of plaintiff's car were on, and did not notice if there was an early warning
device; there was a street light at the corner of Aurora Blvd. and F. Roman, about 100 meters away. It was not
mostly dark, i.e. "things can be seen" (p. 16, tsn, Oct. 28, 1991).

A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car and opened the
trunk compartment, defendant's car came approaching very fast ten meters from the scene; the car was
"zigzagging". The rear left side of plaintiff's car was bumped by the front right portion of defendant's car; as a
consequence, the plaintiff's car swerved to the right and hit the parked car on the sidewalk. Plaintiff was thrown
to the windshield of defendant's car, which was destroyed, and landed under the car. He stated that defendant
was under the influence of liquor as he could "smell it very well" (pp. 43, 79, tsn, June 17, 1991).

After trial, the lower court sustained the plaintiff's submissions and found defendant Richard Li guilty of gross
negligence and liable for damages under Article 2176 of the Civil Code. The trial court likewise held Alexander
Commercial, Inc., Li's employer, jointly and severally liable for damages pursuant to Article 2180. It ordered the
defendants to jointly and severally pay the following amounts:

1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff as a result of
her severed left leg;

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2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiff's Bistro La
Conga restaurant three (3) weeks after the accident on June 24, 1990; (b) P20,000.00, a month, as unrealized
profits of the plaintiff in her Bistro La Conga restaurant, from August, 1990 until the date of this judgment and
(c) P30,000.00, a month for unrealized profits in plaintiff's two (2) beauty salons from July, 1990 until the date
of this decision;

3. P1,000,000.00, in moral damages;

4. P50,000.00, as exemplary damages;

5. P60,000.00, as reasonable attorney's fees; and

6. Costs.

As a result of the trial court's decision, defendants filed an Omnibus Motion for New Trial and for
Reconsideration, citing testimony in Criminal Case O.C. No. 804367 (People vs. Richard Li), tending to show
that the point of impact, as depicted by the pieces of glass/debris from the parties' cars, appeared to be at the
center of the right lane of Aurora Blvd. The trial court denied the motion. Defendants forthwith filed an appeal
with the respondent Court of Appeals. In a Decision rendered March 30, 1994, the Court of Appeals found that
there was "ample basis from the evidence of record for the trial court's finding that the plaintiff's car was
properly parked at the right, beside the sidewalk when it was bumped by defendant's car."1 Dismissing the
defendants' argument that the plaintiff's car was improperly parked, almost at the center of the road, the
respondent court noted that evidence which was supposed to prove that the car was at or near center of the
right lane was never presented during the trial of the case.2 The respondent court furthermore observed that:

Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is self serving; it was not
corroborated. It was in fact contradicted by eyewitness Rodriguez who stated that he was outside his
beerhouse located at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of June 24, 1990 when his
attention was caught by a beautiful lady (referring to the plaintiff) alighting from her car and opening the trunk
compartment; he noticed the car of Richard Li "approaching very fast ten (10) meters away from the scene";
defendant's car was zigzagging", although there were no holes and hazards on the street, and "bumped the leg
of the plaintiff" who was thrown against the windshield of defendant's care, causing its destruction. He came to
the rescue of the plaintiff, who was pulled out from under defendant's car and was able to say "hurting words"
to Richard Li because he noticed that the latter was under the influence of liquor, because he "could smell it
very well" (p. 36, et. seq., tsn, June 17, 1991). He knew that plaintiff owned a beerhouse in Sta. Mesa in the
1970's, but did not know either plaintiff or defendant Li before the accident.

In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the plaintiff, the
Court of Appeals, in its decision, however, absolved the Li's employer, Alexander Commercial, Inc. from any
liability towards petitioner Lourdes Valenzuela and reduced the amount of moral damages to P500,000.00.
Finding justification for exemplary damages, the respondent court allowed an award of P50,000.00 for the
same, in addition to costs, attorney's fees and the other damages. The Court of Appeals, likewise, dismissed
the defendants' counterclaims.3

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Consequently, both parties assail the respondent court's decision by filing two separate petitions before this
Court. Richard Li, in G.R. No. 117944, contends that he should not be held liable for damages because the
proximate cause of the accident was Ma. Lourdes Valenzuela's own negligence. Alternatively, he argues that in
the event that this Court finds him negligent, such negligence ought to be mitigated by the contributory
negligence of Valenzuela.

On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent court's decision
insofar as it absolves Alexander Commercial, Inc. from liability as the owner of the car driven by Richard Li and
insofar as it reduces the amount of the actual and moral damages awarded by the trial court.4

As the issues are intimately related, both petitions are hereby consolidated.

It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial questions of law. What
it, in effect, attempts to have this Court review are factual findings of the trial court, as sustained by the Court of
Appeals finding Richard Li grossly negligent in driving the Mitsubishi Lancer provided by his company in the
early morning hours of June 24, 1990. This we will not do. As a general rule, findings of fact of the Court of
Appeals are binding and conclusive upon us, and this Court will not normally disturb such factual findings
unless the findings of fact of the said court are palpably unsupported by the evidence on record or unless the
judgment itself is based on a misapprehension of facts.5

In the first place, Valenzuela's version of the incident was fully corroborated by an uninterested witness,
Rogelio Rodriguez, the owner-operator of an establishment located just across the scene of the accident. On
trial, he testified that he observed a car being driven at a "very fast" speed, racing towards the general direction
of Araneta Avenue.6 Rodriguez further added that he was standing in front of his establishment, just ten to
twenty feet away from the scene of the accident, when he saw the car hit Valenzuela, hurtling her against the
windshield of the defendant's Mitsubishi Lancer, from where she eventually fell under the defendant's car.
Spontaneously reacting to the incident, he crossed the street, noting that a man reeking with the smell of liquor
had alighted from the offending vehicle in order to survey the incident.7 Equally important, Rodriguez declared
that he observed Valenzuela's car parked parallel and very near the sidewalk,8 contrary to Li's allegation that
Valenzuela's car was close to the center of the right lane. We agree that as between Li's "self-serving"
asseverations and the observations of a witness who did not even know the accident victim personally and who
immediately gave a statement of the incident similar to his testimony to the investigator immediately after the
incident, the latter's testimony deserves greater weight. As the court emphasized:

The issue is one of credibility and from Our own examination of the transcript, We are not prepared to set aside
the trial court's reliance on the testimony of Rodriguez negating defendant's assertion that he was driving at a
safe speed. While Rodriguez drives only a motorcycle, his perception of speed is not necessarily impaired. He
was subjected to cross-examination and no attempt was made to question .his competence or the accuracy of
his statement that defendant was driving "very fast". This was the same statement he gave to the police
investigator after the incident, as told to a newspaper report (Exh. "P"). We see no compelling basis for
disregarding his testimony.

The alleged inconsistencies in Rodriguez' testimony are not borne out by an examination of the testimony.
Rodriguez testified that the scene of the accident was across the street where his beerhouse is located about
ten to twenty feet away (pp. 35-36, tsn, June 17, 1991). He did not state that the accident transpired
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immediately in front of his establishment. The ownership of the Lambingan se Kambingan is not material; the
business is registered in the name of his mother, but he explained that he owns the establishment (p. 5, tsn,
June 20, 1991). Moreover, the testimony that the streetlights on his side of Aurora Boulevard were on the night
the accident transpired (p. 8) is not necessarily contradictory to the testimony of Pfc. Ramos that there was a
streetlight at the corner of Aurora Boulevard and F. Roman Street (p. 45, tsn, Oct. 20, 1991).

With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a heavy rain and the
rain has stopped and he was outside his establishment at the time the accident transpired (pp. 64-65, tsn, June
17, 1991). This was consistent with plaintiff's testimony that it was no longer raining when she left Bistro La
Conga (pp. 10-11, tsn, April 29, 1991). It was defendant Li who stated that it was raining all the way in an
attempt to explain why he was travelling at only 50-55 kph. (p. 11, tsn, Oct. 14, 1991). As to the testimony of
Pfc. Ramos that it was raining, he arrived at the scene only in response to a telephone call after the accident
had transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no substantial inconsistencies in Rodriguez's testimony
that would impair the essential integrity of his testimony or reflect on his honesty. We are compelled to affirm
the trial court's acceptance of the testimony of said eyewitness.

Against the unassailable testimony of witness Rodriguez we note that Li's testimony was peppered with so
many inconsistencies leading us to conclude that his version of the accident was merely adroitly crafted to
provide a version, obviously self-serving, which would exculpate him from any and all liability in the incident.
Against Valenzuela's corroborated claims, his allegations were neither backed up by other witnesses nor by the
circumstances proven in the course of trial. He claimed that he was driving merely at a speed of 55 kph. when
"out of nowhere he saw a dark maroon lancer right in front of him, which was (the) plaintiff's car". He alleged
that upon seeing this sudden "apparition" he put on his brakes to no avail as the road was slippery.9

One will have to suspend disbelief in order to give credence to Li's disingenuous and patently self-serving
asseverations. The average motorist alert to road conditions will have no difficulty applying the brakes to a car
traveling at the speed claimed by Li. Given a light rainfall, the visibility of the street, and the road conditions on
a principal metropolitan thoroughfare like Aurora Boulevard, Li would have had ample time to react to the
changing conditions of the road if he were alert - as every driver should be - to those conditions. Driving exacts
a more than usual toll on the senses. Physiological "fight or flight" 10 mechanisms are at work, provided such
mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness, etc.11 Li's failure to react in a manner
which would have avoided the accident could therefore have been only due to either or both of the two factors:
1) that he was driving at a "very fast" speed as testified by Rodriguez; and 2) that he was under the influence of
alcohol.12 Either factor working independently would have diminished his responsiveness to road conditions,
since normally he would have slowed down prior to reaching Valenzuela's car, rather than be in a situation
forcing him to suddenly apply his brakes. As the trial court noted (quoted with approval by respondent court):

Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the incident, he said
that while driving along Aurora Blvd., out of nowhere he saw a dark maroon lancer right in front of him which
was plaintiff's car, indicating, again, thereby that, indeed, he was driving very fast, oblivious of his surroundings
and the road ahead of him, because if he was not, then he could not have missed noticing at a still far distance
the parked car of the plaintiff at the right side near the sidewalk which had its emergency lights on, thereby
avoiding forcefully bumping at the plaintiff who was then standing at the left rear edge of her car.

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Since, according to him, in his narration to the San Juan Police, he put on his brakes when he saw the
plaintiff's car in front of him, but that it failed as the road was wet and slippery, this goes to show again, that,
contrary to his claim, he was, indeed, running very fast. For, were it otherwise, he could have easily completely
stopped his car, thereby avoiding the bumping of the plaintiff, notwithstanding that the road was wet and
slippery. Verily, since, if, indeed, he was running slow, as he claimed, at only about 55 kilometers per hour,
then, inspite of the wet and slippery road, he could have avoided hitting the plaintiff by the mere expedient or
applying his brakes at the proper time and distance.

It could not be true, therefore, as he now claims during his testimony, which is contrary to what he told the
police immediately after the accident and is, therefore, more believable, that he did not actually step on his
brakes but simply swerved a little to the right when he saw the on-coming car with glaring headlights, from the
opposite direction, in order to avoid it.

For, had this been what he did, he would not have bumped the car of the plaintiff which was properly parked at
the right beside the sidewalk. And, it was not even necessary for him to swerve a little to the right in order to
safely avoid a collision with the on-coming car, considering that Aurora Blvd. is a double lane avenue separated
at the center by a dotted white paint, and there is plenty of space for both cars, since her car was running at the
right lane going towards Manila on the on-coming car was also on its right lane going to Cubao.13

Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi Lancer, the next
question for us to determine is whether or not Valenzuela was likewise guilty of contributory negligence in
parking her car alongside Aurora Boulevard, which entire area Li points out, is a no parking zone.

We agree with the respondent court that Valenzuela was not guilty of contributory negligence.

Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he
has suffered, which falls below the standard to which he is required to conform for his own protection.14 Based
on the foregoing definition, the standard or act to which, according to petitioner Li, Valenzuela ought to have
conformed for her own protection was not to park at all at any point of Aurora Boulevard, a no parking zone.
We cannot agree.

Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not
to be held up to the standard of conduct normally applied to an individual who is in no such situation. The law
takes stock of impulses of humanity when placed in threatening or dangerous situations and does not require
the same standard of thoughtful and reflective care from persons confronted by unusual and oftentimes
threatening conditions.15

Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,16 an individual who suddenly
finds himself in a situation of danger and is required to act without much time to consider the best means that
may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what
subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his
own negligence.17

Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to avoid
hitting two children suddenly darting into the street, we held, in Mc Kee vs. Intermediate Appellate Court,18 that
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the driver therein, Jose Koh, "adopted the best means possible in the given situation" to avoid hitting the
children. Using the "emergency rule" the Court concluded that Koh, in spite of the fact that he was in the wrong
lane when the collision with an oncoming truck occurred, was not guilty of negligence.19

While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately
weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated
not exclusively by the suddenness of the event which absolutely negates thoroughful care, but by the over-all
nature of the circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not
be faulted for stopping at a point which is both convenient for her to do so and which is not a hazard to other
motorists. She is not expected to run the entire boulevard in search for a parking zone or turn on a dark street
or alley where she would likely find no one to help her. It would be hazardous for her not to stop and assess the
emergency (simply because the entire length of Aurora Boulevard is a no-parking zone) because the hobbling
vehicle would be both a threat to her safety and to other motorists. In the instant case, Valenzuela, upon
reaching that portion of Aurora Boulevard close to A. Lake St., noticed that she had a flat tire. To avoid putting
herself and other motorists in danger, she did what was best under the situation. As narrated by respondent
court: "She stopped at a lighted place where there were people, to verify whether she had a flat tire and to
solicit help if needed. Having been told by the people present that her rear right tire was flat and that she
cannot reach her home she parked along the sidewalk, about 1 1/2 feet away, behind a Toyota Corona Car."20
In fact, respondent court noted, Pfc. Felix Ramos, the investigator on the scene of the accident confirmed that
Valenzuela's car was parked very close to the sidewalk.21 The sketch which he prepared after the incident
showed Valenzuela's car partly straddling the sidewalk, clear and at a convenient distance from motorists
passing the right lane of Aurora Boulevard. This fact was itself corroborated by the testimony of witness
Rodriguez.22

Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by the
emergency and could not be considered to have contributed to the unfortunate circumstances which eventually
led to the amputation of one of her lower extremities. The emergency which led her to park her car on a
sidewalk in Aurora Boulevard was not of her own making, and it was evident that she had taken all reasonable
precautions.

Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the night of the
accident. "Negligence, as it is commonly understood is conduct which creates an undue risk of harm to
others."23 It is the failure to observe that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury.24 We stressed, in Corliss vs. Manila Railroad
Company,25 that negligence is the want of care required by the circumstances.

The circumstances established by the evidence adduced in the court below plainly demonstrate that Li was
grossly negligent in driving his Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at about
2:00 A.M. after a heavy downpour had settled into a drizzle rendering the street slippery. There is ample
testimonial evidence on record to show that he was under the influence of liquor. Under these conditions, his
chances of effectively dealing with changing conditions on the road were significantly lessened. As Presser and
Keaton emphasize:

[U]nder present day traffic conditions, any driver of an automobile must be prepared for the sudden
appearance of obstacles and persons on the highway, and of other vehicles at intersections, such as one who
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sees a child on the curb may be required to anticipate its sudden dash into the street, and his failure to act
properly when they appear may be found to amount to negligence.26

Li's obvious unpreparedness to cope with the situation confronting him on the night of the accident was clearly
of his own making.

We now come to the question of the liability of Alexander Commercial, Inc. Li's employer. In denying liability on
the part of Alexander Commercial, the respondent court held that:

There is no evidence, not even defendant Li's testimony, that the visit was in connection with official matters.
His functions as assistant manager sometimes required him to perform work outside the office as he has to
visit buyers and company clients, but he admitted that on the night of the accident he came from BF Homes
Paranaque he did not have "business from the company" (pp. 25-26, ten, Sept. 23, 1991). The use of the
company car was partly required by the nature of his work, but the privilege of using it for non-official business
is a "benefit", apparently referring to the fringe benefits attaching to his position.

Under the civil law, an employer is liable for the negligence of his employees in the discharge of their respective
duties, the basis of which liability is not respondeat superior, but the relationship of pater familias, which theory
bases the liability of the master ultimately on his own negligence and not on that of his servant (Cuison v.
Norton and Harrison Co., 55 Phil. 18). Before an employer may be held liable for the negligence of his
employee, the act or omission which caused damage must have occurred while an employee was in the actual
performance of his assigned tasks or duties (Francis High School vs. Court of Appeals, 194 SCRA 341). In
defining an employer's liability for the acts done within the scope of the employee's assigned tasks, the
Supreme Court has held that this includes any act done by an employee, in furtherance of the interests of the
employer or for the account of the employer at the time of the infliction of the injury or damage (Filamer
Christian Institute vs. Intermediate Appellate Court, 212 SCRA 637). An employer is expected to impose upon
its employees the necessary discipline called for in the performance of any act "indispensable to the business
and beneficial to their employer" (at p. 645).

In light of the foregoing, We are unable to sustain the trial court's finding that since defendant Li was authorized
by the company to use the company car "either officially or socially or even bring it home", he can be
considered as using the company car in the service of his employer or on the occasion of his functions. Driving
the company car was not among his functions as assistant manager; using it for non-official purposes would
appear to be a fringe benefit, one of the perks attached to his position. But to impose liability upon the
employer under Article 2180 of the Civil Code, earlier quoted, there must be a showing that the damage was
caused by their employees in the service of the employer or on the occasion of their functions. There is no
evidence that Richard Li was at the time of the accident performing any act in furtherance of the company's
business or its interests, or at least for its benefit. The imposition of solidary liability against defendant
Alexander Commercial Corporation must therefore fail.27

We agree with the respondent court that the relationship in question is not based on the principle of respondeat
superior, which holds the master liable for acts of the servant, but that of pater familias, in which the liability
ultimately falls upon the employer, for his failure to exercise the diligence of a good father of the family in the
selection and supervision of his employees. It is up to this point, however, that our agreement with the
respondent court ends. Utilizing the bonus pater familias standard expressed in Article 2180 of the Civil Code,
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28 we are of the opinion that Li's employer, Alexander Commercial, Inc. is jointly and solidarily liable for the
damage caused by the accident of June 24, 1990.

First, the case of St. Francis High School vs. Court of Appeals29 upon which respondent court has placed
undue reliance, dealt with the subject of a school and its teacher's supervision of students during an
extracurricular activity. These cases now fall under the provision on special parental authority found in Art. 218
of the Family Code which generally encompasses all authorized school activities, whether inside or outside
school premises.

Second, the employer's primary liability under the concept of pater familias embodied by Art 2180 (in relation to
Art. 2176) of the Civil Code is quasi-delictual or tortious in character. His liability is relieved on a showing that
he exercised the diligence of a good father of the family in the selection and supervision of its employees. Once
evidence is introduced showing that the employer exercised the required amount of care in selecting its
employees, half of the employer's burden is overcome. The question of diligent supervision, however, depends
on the circumstances of employment.

Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee during
the performance of the latter's assigned tasks would be enough to relieve him of the liability imposed by Article
2180 in relation to Article 2176 of the Civil Code. The employer is not expected to exercise supervision over
either the employee's private activities or during the performance of tasks either unsanctioned by the former or
unrelated to the employee's tasks. The case at bench presents a situation of a different character, involving a
practice utilized by large companies with either their employees of managerial rank or their representatives.

It is customary for large companies to provide certain classes of their employees with courtesy vehicles. These
company cars are either wholly owned and maintained by the company itself or are subject to various plans
through which employees eventually acquire their vehicles after a given period of service, or after paying a
token amount. Many companies provide liberal "car plans" to enable their managerial or other employees of
rank to purchase cars, which, given the cost of vehicles these days, they would not otherwise be able to
purchase on their own.

Under the first example, the company actually owns and maintains the car up to the point of turnover of
ownership to the employee; in the second example, the car is really owned and maintained by the employee
himself. In furnishing vehicles to such employees, are companies totally absolved of responsibility when an
accident involving a company-issued car occurs during private use after normal office hours?

Most pharmaceutical companies, for instance, which provide cars under the first plan, require rigorous tests of
road worthiness from their agents prior to turning over the car (subject of company maintenance) to their
representatives. In other words, like a good father of a family, they entrust the company vehicle only after they
are satisfied that the employee to whom the car has been given full use of the said company car for company
or private purposes will not be a threat or menace to himself, the company or to others. When a company gives
full use and enjoyment of a company car to its employee, it in effect guarantees that it is, like every good father,
satisfied that its employee will use the privilege reasonably and responsively.

In the ordinary course of business, not all company employees are given the privilege of using a company-
issued car. For large companies other than those cited in the example of the preceding paragraph, the privilege
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serves important business purposes either related to the image of success an entity intends to present to its
clients and to the public in general, or - for practical and utilitarian reasons - to enable its managerial and other
employees of rank or its sales agents to reach clients conveniently. In most cases, providing a company car
serves both purposes. Since important business transactions and decisions may occur at all hours in all sorts
of situations and under all kinds of guises, the provision for the unlimited use of a company car therefore
principally serves the business and goodwill of a company and only incidentally the private purposes of the
individual who actually uses the car, the managerial employee or company sales agent. As such, in providing
for a company car for business use and/or for the purpose of furthering the company's image, a company owes
a responsibility to the public to see to it that the managerial or other employees to whom it entrusts virtually
unlimited use of a company issued car are able to use the company issue capably and responsibly.

In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his testimony before the trial
court, he admitted that his functions as Assistant Manager did not require him to scrupulously keep normal
office hours as he was required quite often to perform work outside the office, visiting prospective buyers and
contacting and meeting with company clients. 30 These meetings, clearly, were not strictly confined to routine
hours because, as a managerial employee tasked with the job of representing his company with its clients,
meetings with clients were both social as well as work-related functions. The service car assigned to Li by
Alexander Commercial, Inc. therefore enabled both Li - as well as the corporation - to put up the front of a
highly successful entity, increasing the latter's goodwill before its clientele. It also facilitated meeting between Li
and its clients by providing the former with a convenient mode of travel.

Moreover, Li's claim that he happened to be on the road on the night of the accident because he was coming
from a social visit with an officemate in Paranaque was a bare allegation which was never corroborated in the
court below. It was obviously self-serving. Assuming he really came from his officemate's place, the same
could give rise to speculation that he and his officemate had just been from a work-related function, or they
were together to discuss sales and other work related strategies.

In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it exercised the care and
diligence of a good father of the family in entrusting its company car to Li. No allegations were made as to
whether or not the company took the steps necessary to determine or ascertain the driving proficiency and
history of Li, to whom it gave full and unlimited use of a company car.31 Not having been able to overcome the
burden of demonstrating that it should be absolved of liability for entrusting its company car to Li, said
company, based on the principle of bonus pater familias, ought to be jointly and severally liable with the former
for the injuries sustained by Ma. Lourdes Valenzuela during the accident.

Finally, we find no reason to overturn the amount of damages awarded by the respondent court, except as to
the amount of moral damages. In the case of moral damages, while the said damages are not intended to
enrich the plaintiff at the expense of a defendant, the award should nonetheless be commensurate to the
suffering inflicted. In the instant case we are of the opinion that the reduction in moral damages from an
amount of P1,000,000.00 to P800,000,00 by the Court of Appeals was not justified considering the nature of
the resulting damage and the predictable sequelae of the injury.

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
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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 re-adjusted 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.

The foregoing discussion does not even scratch the surface of the nature of the resulting damage because it
would be highly speculative to estimate the amount of psychological pain, damage and injury which goes with
the sudden severing of a vital portion of the human body. A prosthetic device, 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.

As the amount of moral damages are subject to this Court's discretion, we are of the opinion that the amount of
P1,000,000.00 granted by the trial court is in greater accord with the extent and nature of the injury - physical
and psychological - suffered by Valenzuela as a result of Li's grossly negligent driving of his Mitsubishi Lancer
in the early morning hours of the accident.

WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals is modified with the effect of
REINSTATING the judgment of the Regional Trial Court.

SO ORDERED.

[G.R. No. 111127. July 26, 1996]

MR. & MRS. ENGRACIO FABRE, JR.* and PORFIRIO CABIL, petitioners, vs. COURT OF APPEALS, THE
WORD FOR THE WORLD CHRISTIAN FELLOWSHIP, INC., AMYLINE ANTONIO, JOHN RICHARDS,
GONZALO GONZALES, VICENTE V. QUE, JR., ICLI CORDOVA, ARLENE GOJOCCO, ALBERTO ROXAS
CORDERO, RICHARD BAUTISTA, JOCELYN GARCIA, YOLANDA CORDOVA, NOEL ROQUE, EDWARD
TAN, ERNESTO NARCISO, ENRIQUETA LOCSIN, FRANCIS NORMAN O. LOPEZ, JULIUS CAESAR
GARCIA, ROSARIO MA. V. ORTIZ, MARIETTA C. CLAVO, ELVIE SENIEL, ROSARIO MARA-MARA,
Page 132 of 142
 TERESITA REGALA, MELINDA TORRES, MARELLA MIJARES, JOSEFA CABATINGAN, MARA NADOC,
DIANE MAYO, TESS PLATA, MAYETTE JOCSON, ARLENE Y. MORTIZ, LIZA MAYO, CARLOS RANARIO,
ROSAMARIA T. RADOC and BERNADETTE FERRER, respondents.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals[1] in CA-GR No. 28245, dated
September 30, 1992, which affirmed with modification the decision of the Regional Trial Court of Makati,
Branch 58, ordering petitioners jointly and severally to pay damages to private respondent Amyline Antonio,
and its resolution which denied petitioners motion for reconsideration for lack of merit.

Petitioners Engracio Fabre, Jr. and his wife were owners of a 1982 model Mazda minibus. They used the bus
principally in connection with a bus service for school children which they operated in Manila. The couple had a
driver, Porfirio J. Cabil, whom they hired in 1981, after trying him out for two weeks. His job was to take school
children to and from the St. Scholasticas College in Malate, Manila.

On November 2, 1984 private respondent Word for the World Christian Fellowship Inc. (WWCF) arranged with
petitioners for the transportation of 33 members of its Young Adults Ministry from Manila to La Union and back
in consideration of which private respondent paid petitioners the amount of P3,000.00.

The group was scheduled to leave on November 2, 1984, at 5:00 oclock in the afternoon. However, as several
members of the party were late, the bus did not leave the Tropical Hut at the corner of Ortigas Avenue and
EDSA until 8:00 oclock in the evening. Petitioner Porfirio Cabil drove the minibus.

The usual route to Caba, La Union was through Carmen, Pangasinan. However, the bridge at Carmen was
under repair, so that petitioner Cabil, who was unfamiliar with the area (it being his first trip to La Union), was
forced to take a detour through the town of Ba-ay in Lingayen, Pangasinan. At 11:30 that night, petitioner Cabil
came upon a sharp curve on the highway, running on a south to east direction, which he described as siete.
The road was slippery because it was raining, causing the bus, which was running at the speed of 50
kilometers per hour, to skid to the left road shoulder. The bus hit the left traffic steel brace and sign along the
road and rammed the fence of one Jesus Escano, then turned over and landed on its left side, coming to a full
stop only after a series of impacts. The bus came to rest off the road. A coconut tree which it had hit fell on it
and smashed its front portion.

Several passengers were injured. Private respondent Amyline Antonio was thrown on the floor of the bus and
pinned down by a wooden seat which came off after being unscrewed. It took three persons to safely remove
her from this position. She was in great pain and could not move.

The driver, petitioner Cabil, claimed he did not see the curve until it was too late. He said he was not familiar
with the area and he could not have seen the curve despite the care he took in driving the bus, because it was
dark and there was no sign on the road. He said that he saw the curve when he was already within 15 to 30
meters of it. He allegedly slowed down to 30 kilometers per hour, but it was too late.

Page 133 of 142

The Lingayen police investigated the incident the next day, November 3, 1984. On the basis of their finding they
filed a criminal complaint against the driver, Porfirio Cabil. The case was later filed with the Lingayen Regional
Trial Court. Petitioners Fabre paid Jesus Escano P1,500.00 for the damage to the latters fence. On the basis of
Escanos affidavit of desistance the case against petitioners Fabre was dismissed.

Amyline Antonio, who was seriously injured, brought this case in the RTC of Makati, Metro Manila. As a result
of the accident, she is now suffering from paraplegia and is permanently paralyzed from the waist down. During
the trial she described the operations she underwent and adduced evidence regarding the cost of her
treatment and therapy. Immediately after the accident, she was taken to the Nazareth Hospital in Ba-ay,
Lingayen. As this hospital was not adequately equipped, she was transferred to the Sto. Nio Hospital, also in
the town of Ba-ay, where she was given sedatives. An x-ray was taken and the damage to her spine was
determined to be too severe to be treated there. She was therefore brought to Manila, first to the Philippine
General Hospital and later to the Makati Medical Center where she underwent an operation to correct the
dislocation of her spine.

In its decision dated April 17, 1989, the trial court found that:

No convincing evidence was shown that the minibus was properly checked for travel to a long distance trip and
that the driver was properly screened and tested before being admitted for employment. Indeed, all the
evidence presented have shown the negligent act of the defendants which ultimately resulted to the accident
subject of this case.

Accordingly, it gave judgment for private respondents holding:

Considering that plaintiffs Word for the World Christian Fellowship, Inc. and Ms. Amyline Antonio were the only
ones who adduced evidence in support of their claim for damages, the Court is therefore not in a position to
award damages to the other plaintiffs.

WHEREFORE, premises considered, the Court hereby renders judgment against defendants Mr. & Mrs.
Engracio Fabre, Jr. and Porfirio Cabil y Jamil pursuant to articles 2176 and 2180 of the Civil Code of the
Philippines and said defendants are ordered to pay jointly and severally to the plaintiffs the following amount:

1) P93,657.11 as compensatory and actual damages;

2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff Amyline Antonio;

3) P20,000.00 as moral damages;

4) P20,000.00 as exemplary damages; and

5) 25% of the recoverable amount as attorneys fees;

6) Costs of suit.

SO ORDERED.
Page 134 of 142
The Court of Appeals affirmed the decision of the trial court with respect to Amyline Antonio but dismissed it
with respect to the other plaintiffs on the ground that they failed to prove their respective claims. The Court of
Appeals modified the award of damages as follows:

1) P93,657.11 as actual damages;

2) P600,000.00 as compensatory damages;

3) P50,000.00 as moral damages;

4) P20,000.00 as exemplary damages;

5) P10,000.00 as attorneys fees; and

6) Costs of suit.

The Court of Appeals sustained the trial courts finding that petitioner Cabil failed to exercise due care and
precaution in the operation of his vehicle considering the time and the place of the accident. The Court of
Appeals held that the Fabres were themselves presumptively negligent. Hence, this petition. Petitioners raise
the following issues:

I. WHETHER OR NOT PETITIONERS WERE NEGLIGENT.

II. WHETHER OR NOT PETITIONERS WERE LIABLE FOR THE INJURIES SUFFERED BY PRIVATE
RESPONDENTS.

III. WHETHER OR NOT DAMAGES CAN BE AWARDED AND IN THE POSITIVE, UP TO WHAT EXTENT.

Petitioners challenge the propriety of the award of compensatory damages in the amount of P600,000.00. It is
insisted that, on the assumption that petitioners are liable, an award of P600,000.00 is unconscionable and
highly speculative. Amyline Antonio testified that she was a casual employee of a company called Suaco,
earning P1,650.00 a month, and a dealer of Avon products, earning an average of P1,000.00 monthly.
Petitioners contend that as casual employees do not have security of tenure, the award of P600,000.00,
considering Amyline Antonios earnings, is without factual basis as there is no assurance that she would be
regularly earning these amounts.

With the exception of the award of damages, the petition is devoid of merit.

First, it is unnecessary for our purpose to determine whether to decide this case on the theory that petitioners
are liable for breach of contract of carriage or culpa contractual or on the theory of quasi delict or culpa
aquiliana as both the Regional Trial Court and the Court of Appeals held, for although the relation of passenger
and carrier is contractual both in origin and nature, nevertheless the act that breaks the contract may be also a
tort.[2] In either case, the question is whether the bus driver, petitioner Porfirio Cabil, was negligent.

Page 135 of 142

The finding that Cabil drove his bus negligently, while his employer, the Fabres, who owned the bus, failed to
exercise the diligence of a good father of the family in the selection and supervision of their employee is fully
supported by the evidence on record. These factual findings of the two courts we regard as final and
conclusive, supported as they are by the evidence. Indeed, it was admitted by Cabil that on the night in
question, it was raining, and, as a consequence, the road was slippery, and it was dark. He averred these facts
to justify his failure to see that there lay a sharp curve ahead. However, it is undisputed that Cabil drove his bus
at the speed of 50 kilometers per hour and only slowed down when he noticed the curve some 15 to 30 meters
ahead.[3] By then it was too late for him to avoid falling off the road. Given the conditions of the road and
considering that the trip was Cabils first one outside of Manila, Cabil should have driven his vehicle at a
moderate speed. There is testimony[4] that the vehicles passing on that portion of the road should only be
running 20 kilometers per hour, so that at 50 kilometers per hour, Cabil was running at a very high speed.

Considering the foregoing the fact that it was raining and the road was slippery, that it was dark, that he drove
his bus at 50 kilometers an hour when even on a good day the normal speed was only 20 kilometers an hour,
and that he was unfamiliar with the terrain, Cabil was grossly negligent and should be held liable for the injuries
suffered by private respondent Amyline Antonio.

Pursuant to Arts. 2176 and 2180 of the Civil Code his negligence gave rise to the presumption that his
employers, the Fabres, were themselves negligent in the selection and supervision of their employee.

Due diligence in selection of employees is not satisfied by finding that the applicant possessed a professional
drivers license. The employer should also examine the applicant for his qualifications, experience and record of
service.[5] Due diligence in supervision, on the other hand, requires the formulation of rules and regulations for
the guidance of employees and the issuance of proper instructions as well as actual implementation and
monitoring of consistent compliance with the rules.[6]

In the case at bar, the Fabres, in allowing Cabil to drive the bus to La Union, apparently did not consider the
fact that Cabil had been driving for school children only, from their homes to the St. Scholasticas College in
Metro Manila.[7] They had hired him only after a two-week apprenticeship. They had tested him for certain
matters, such as whether he could remember the names of the children he would be taking to school, which
were irrelevant to his qualification to drive on a long distance travel, especially considering that the trip to La
Union was his first. The existence of hiring procedures and supervisory policies cannot be casually invoked to
overturn the presumption of negligence on the part of an employer.[8]

Petitioners argue that they are not liable because (1) an earlier departure (made impossible by the
congregations delayed meeting) could have averted the mishap and (2) under the contract, the WWCF was
directly responsible for the conduct of the trip. Neither of these contentions hold water. The hour of departure
had not been fixed. Even if it had been, the delay did not bear directly on the cause of the accident. With
respect to the second contention, it was held in an early case that:

[A] person who hires a public automobile and gives the driver directions as to the place to which he wishes to
be conveyed, but exercises no other control over the conduct of the driver, is not responsible for acts of
negligence of the latter or prevented from recovering for injuries suffered from a collision between the
automobile and a train, caused by the negligence either of the locomotive engineer or the automobile driver.[9]

Page 136 of 142

As already stated, this case actually involves a contract of carriage. Petitioners, the Fabres, did not have to be
engaged in the business of public transportation for the provisions of the Civil Code on common carriers to
apply to them. As this Court has held:[10]

Art. 1732. Common carriers are persons, corporations, firms or associations engaged in the business of
carrying or transporting passengers or goods or both, by land, water, or air for compensation, offering their
services to the public.

The above article makes no distinction between one whose principal business activity is the carrying of
persons or goods or both, and one who does such carrying only as an ancillary activity (in local idiom, as a
sideline). Article 1732 also carefully avoids making any distinction between a person or enterprise offering
transportation service on a regular or scheduled basis and one offering such service on an occasional,
episodic or unscheduled basis. Neither does Article 1732 distinguish between a carrier offering its services to
the general public, i.e., the general community or population, and one who offers services or solicits business
only from a narrow segment of the general population. We think that Article 1732 deliberately refrained from
making such distinctions.

As common carriers, the Fabres were bound to exercise extraordinary diligence for the safe transportation of
the passengers to their destination. This duty of care is not excused by proof that they exercised the diligence
of a good father of the family in the selection and supervision of their employee. As Art. 1759 of the Code
provides:

Common carriers are liable for the death of or injuries to passengers through the negligence or wilful acts of
the formers employees, although such employees may have acted beyond the scope of their authority or in
violation of the orders of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good
father of a family in the selection and supervision of their employees.

The same circumstances detailed above, supporting the finding of the trial court and of the appellate court that
petitioners are liable under Arts. 2176 and 2180 for quasi delict, fully justify finding them guilty of breach of
contract of carriage under Arts. 1733, 1755 and 1759 of the Civil Code.

Secondly, we sustain the award of damages in favor of Amyline Antonio. However, we think the Court of
Appeals erred in increasing the amount of compensatory damages because private respondents did not
question this award as inadequate.[11] To the contrary, the award of P500,000.00 for compensatory damages
which the Regional Trial Court made is reasonable considering the contingent nature of her income as a casual
employee of a company and as distributor of beauty products and the fact that the possibility that she might be
able to work again has not been foreclosed. In fact she testified that one of her previous employers had
expressed willingness to employ her again.

With respect to the other awards, while the decisions of the trial court and the Court of Appeals do not
sufficiently indicate the factual and legal basis for them, we find that they are nevertheless supported by
evidence in the records of this case. Viewed as an action for quasi delict, this case falls squarely within the
purview of Art. 2219(2) providing for the payment of moral damages in cases of quasi delict. On the theory that
Page 137 of 142
petitioners are liable for breach of contract of carriage, the award of moral damages is authorized by Art. 1764,
in relation to Art. 2220, since Cabils gross negligence amounted to bad faith.[12] Amyline Antonios testimony,
as well as the testimonies of her father and co-passengers, fully establish the physical suffering and mental
anguish she endured as a result of the injuries caused by petitioners negligence.

The award of exemplary damages and attorneys fees was also properly made. However, for the same reason
that it was error for the appellate court to increase the award of compensatory damages, we hold that it was
also error for it to increase the award of moral damages and reduce the award of attorneys fees, inasmuch as
private respondents, in whose favor the awards were made, have not appealed.[13]

As above stated, the decision of the Court of Appeals can be sustained either on the theory of quasi delict or
on that of breach of contract. The question is whether, as the two courts below held, petitioners, who are the
owners and driver of the bus, may be made to respond jointly and severally to private respondent. We hold that
they may be. In Dangwa Trans. Co. Inc. v. Court of Appeals,[14] on facts similar to those in this case, this Court
held the bus company and the driver jointly and severally liable for damages for injuries suffered by a
passenger. Again, in Bachelor Express, Inc. v. Court of Appeals[15] a driver found negligent in failing to stop
the bus in order to let off passengers when a fellow passenger ran amuck, as a result of which the passengers
jumped out of the speeding bus and suffered injuries, was held also jointly and severally liable with the bus
company to the injured passengers.

The same rule of liability was applied in situations where the negligence of the driver of the bus on which
plaintiff was riding concurred with the negligence of a third party who was the driver of another vehicle, thus
causing an accident. In Anuran v. Buo,[16] Batangas Laguna Tayabas Bus Co. v. Intermediate Appellate Court,
[17] and Metro Manila Transit Corporation v. Court of Appeals,[18] the bus company, its driver, the operator of
the other vehicle and the driver of the vehicle were jointly and severally held liable to the injured passenger or
the latters heirs. The basis of this allocation of liability was explained in Viluan v. Court of Appeals,[19] thus:

Nor should it make any difference that the liability of petitioner [bus owner] springs from contract while that of
respondents [owner and driver of other vehicle] arises from quasi-delict. As early as 1913, we already ruled in
Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of injury to a passenger due to the negligence of the driver of
the bus on which he was riding and of the driver of another vehicle, the drivers as well as the owners of the two
vehicles are jointly and severally liable for damages. Some members of the Court, though, are of the view that
under the circumstances they are liable on quasi-delict.[20]

It is true that in Philippine Rabbit Bus Lines, Inc. v. Court of Appeals[21] this Court exonerated the jeepney
driver from liability to the injured passengers and their families while holding the owners of the jeepney jointly
and severally liable, but that is because that case was expressly tried and decided exclusively on the theory of
culpa contractual. As this Court there explained:

The trial court was therefore right in finding that Manalo [the driver] and spouses Mangune and Carreon [the
jeepney owners] were negligent. However, its ruling that spouses Mangune and Carreon are jointly and
severally liable with Manalo is erroneous. The driver cannot be held jointly and severally liable with the carrier
in case of breach of the contract of carriage. The rationale behind this is readily discernible. Firstly, the contract
of carriage is between the carrier and the passenger, and in the event of contractual liability, the carrier is

Page 138 of 142

exclusively responsible therefore to the passenger, even if such breach be due to the negligence of his driver
(see Viluan v. The Court of Appeals, et al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742) . . .[22]

As in the case of BLTB, private respondents in this case and her co-plaintiffs did not stake out their claim
against the carrier and the driver exclusively on one theory, much less on that of breach of contract alone. After
all, it was permitted for them to allege alternative causes of action and join as many parties as may be liable on
such causes of action[23] so long as private respondent and her co-plaintiffs do not recover twice for the same
injury. What is clear from the cases is the intent of the plaintiff there to recover from both the carrier and the
driver, thus justifying the holding that the carrier and the driver were jointly and severally liable because their
separate and distinct acts concurred to produce the same injury.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with MODIFICATION as to the award of
damages. Petitioners are ORDERED to PAY jointly and severally the private respondent Amyline Antonio the
following amounts:

1) P93,657.11 as actual damages;

2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff Amyline Antonio;

3) P20,000.00 as moral damages;

4) P20,000.00 as exemplary damages;

5) 25% of the recoverable amount as attorneys fees; and

6) costs of suit.

SO ORDERED.

G.R. No. 78911-25 December 11, 1987

CHARMINA B. BANAL, petitioner,

vs.
THE HON. TOMAS V. TADEO, JR., Presiding Judge, RTC-Quezon City, Branch 105 and Rosario Claudia
respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to review and set aside the orders of the respondent Regional Trial Court, Branch
105, Quezon City dated (1) 8 January 1987 which rejected the appearance of Atty. Nicolito L. Bustos as private
prosecutor in Criminal Cases Nos. Q-40909 to Q-40913 where respondent Rosario Claudio is the accused for
Page 139 of 142
violation of Batas Pambansa Blg. 22; and (2) 31 March 1987 which denied the petitioner's motion for
reconsideration of the order dated 8 January 1987; and for mandamus to allow Atty. Bustos to enter his
appearance as private prosecutor in the aforestated criminal cases.

It appears that fifteen (15) separate informations for violation of Batas Pambansa Blg. 22 or the Bouncing
Checks Law, docketed as Criminal Cases Nos. 40909-40913, were filed against respondent Claudio before the
Regional Trial Court of Quezon City and originally assigned to Branch 84.

The presiding judge of Branch 84 inhibited himself when respondent Claudio, through counsel, filed a petition
for recuse dated May 19,1986.

The cases were re-raffled and consequently assigned on June 25, 1986 to Branch 105 which was then
presided over by Judge Johnico G. Serquina

During these proceedings, respondent Claudio was finally arraigned on November 20, 1986 where she
pleaded not guilty to the charges. Pre-trial was then set on January 8, 1987.

In the meantime Judge Tomas V. Tadeo, Jr. replaced Judge Serquina as presiding judge of Branch 105.

On January 8, 1987, the respondent court issued an order rejecting the appearance of Atty. Nicolito L. Bustos
as private prosecutor on the ground that the charge is for the violation of Batas Pambansa Blg. 22 which does
not provide for any civil liability or indemnity and hence, "it is not a crime against property but public order."

The petitioner, through counsel filed a motion for reconsideration of the order dated 8 January 1987 on March
10, 1987.

Respondent Claudio filed her opposition to the motion for reconsideration on March 25, 1987.

In an order dated 31 March 1987, the respondent court denied petitioner's motion for reconsideration.

Hence, this petition questioning the orders of the respondent Court.

The issue to be resolved is whether or not the respondent Court acted with grave abuse of discretion or in
excess of its jurisdiction in rejecting the appearance of a private prosecutor.

The respondents make capital of the fact that Batas Pambansa Blg. 22 punishes the act of knowingly issuing
worthless checks as an offense against public order. As such, it is argued that it is the State and the public that
are the principal complainants and, therefore, no civil indemnity is provided for by Batas Pambansa Blg. 22 for
which a private party or prosecutor may intervene.

On the other hand, the petitioner, relying on the legal axiom that "Every man criminally liable is also civilly
liable," contends that indemnity may be recovered from the offender regardless of whether or not Batas
Pambansa Blg. 22 so provides.

A careful study of the concept of civil liability allows a solution to the issue in the case at bar.
Page 140 of 142
Generally, the basis of civil liability arising from crime is the fundamental postulate of our law that "Every man
criminally liable is also civilly liable" (Art. 100, The Revised Penal Code). Underlying this legal principle is the
traditional theory that when a person commits a crime he offends two entities namely ( 1) the society in which
he lives in or the political entity called the State whose law he had violated; and (2) the individual member of
that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the
same punishable act or omission. However, this rather broad and general provision is among the most complex
and controversial topics in criminal procedure. It can be misleading in its implications especially where the
same act or omission may be treated as a crime in one instance and as a tort in another or where the law
allows a separate civil action to proceed independently of the course of the criminal prosecution with which it is
intimately intertwined. Many legal scholars treat as a misconception or fallacy the generally accepted notion
that, the civil liability actually arises from the crime when, in the ultimate analysis, it does not. While an act or
omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a
crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what
gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the
damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or
not the same be punishable by law. In other words, criminal liability will give rise to civil liability only if the same
felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof.
Damage or injury to another is evidently the foundation of the civil action. Such is not the case in criminal
actions for, to be criminally liable, it is enough that the act or omission complained of is punishable, regardless
of whether or not it also causes material damage to another. (See Sangco, Philippine Law on Torts and
Damages, 1978, Revised Edition, pp. 246-247).

Article 20 of the New Civil Code provides:

Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter
for the same.

Regardless, therefore, of whether or not a special law so provides, indemnification of the offended party may
be had on account of the damage, loss or injury directly suffered as a consequence of the wrongful act of
another. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by
law for the commission of a crime (Quemel v. Court of Appeals, 22 SCRA 44, citing Bagtas v. Director of
Prisons, 84 Phil. 692). Every crime gives rise to a penal or criminal action for the punishment of the guilty party,
and also to civil action for the restitution of the thing, repair of the damage, and indemnification for the losses.
(United States v. Bernardo, 19 Phil. 265).

Indeed one cannot disregard the private party in the case at bar who suffered the offenses committed against
her. Not only the State but the petitioner too is entitled to relief as a member of the public which the law seeks
to protect. She was assured that the checks were good when she parted with money, property or services. She
suffered with the State when the checks bounced.

In Lozano v. Hon. Martinez (G.R. No. 63419, December 18, 1986) and the cases consolidated therewith, we
held that "The effects of a worthless check transcend the private interests of the parties directly involved in the
transaction and touch the interests of the community at large." Yet, we too recognized the wrong done to the

Page 141 of 142

private party defrauded when we stated therein that "The mischief it creates is not only a wrong to the payee or
the holder, but also an injury to the public."

Civil liability to the offended private party cannot thus be denied, The payee of the check is entitled to receive
the payment of money for which the worthless check was issued. Having been caused the damage, she is
entitled to recompense.

Surely, it could not have been the intendment of the framers of Batas Pambansa Big. 22 to leave the offended
private party defrauded and empty- handed by excluding the civil liability of the offender, giving her only the
remedy, which in many cases results in a Pyrrhic victory, of having to file a separate civil suit. To do so, may
leave the offended party unable to recover even the face value of the check due her, thereby unjustly enriching
the errant drawer at the expense of the payee. The protection which the law seeks to provide would, therefore,
be brought to naught.

The petitioner's intervention in the prosecution of Criminal Cases 40909 to 40913 is justified not only for the
protection of her interests but also in the interest of the speedy and inexpensive administration of justice
mandated by the Constitution (Section 16, Article III, Bill of Rights, Constitution of 1987). A separate civil action
for the purpose would only prove to be costly, burdensome, and time-consuming for both parties and further
delay the final disposition of the case. This multiplicity of suits must be avoided. Where petitioner's rights may
be fulIy adjudicated in the proceedings before the trial court, resort t o a separate action to recover civil liability
is clearly unwarranted.

WHEREFORE the petition is hereby GRANTED. The respondent court is ordered to permit the intervention of
a private prosecutor in behalf of petitioner Charmina B. Banal, in the prosecution of the civil aspect of Criminasl
Cases Nos. 40909 to 40913. The temporary restraining order issued by this court a quo for further
proceedings. This decision is immediately executory.

SO ORDERED.

Page 142 of 142