EN BANC

G.R. No. L-4977 March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.

W. H. Lawrence, for appellant.

W. L. Wright, for appellee.

CARSON, J.:

An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor,
a minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric
light system in the city of Manila. Its power plant is situated at the eastern end of a small island in
the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be
reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the
island.

The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years
of age, the son of a mechanical engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of
age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a cylinder for a miniature engine.
Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by
youthful curiosity and perhaps by the unusual interest which both seem to have taken in machinery,
spent some time in wandering about the company's premises. The visit was made on a Sunday
afternoon, and it does not appear that they saw or spoke to anyone after leaving the power house
where they had asked for Mr. Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they
walked across the open space in the neighborhood of the place where the company dumped in the
cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps
scattered on the ground. These caps are approximately of the size and appearance of small pistol
cartridges and each has attached to it two long thin wires by means of which it may be discharged
by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite,
and have in themselves a considerable explosive power. After some discussion as to the ownership
of the caps, and their right to take them, the boys picked up all they could find, hung them on stick,
of which each took end, and carried them home. After crossing the footbridge, they met a little girl
named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The
boys then made a series of experiments with the caps. They trust the ends of the wires into an
electric light socket and obtained no result. They next tried to break the cap with a stone and failed.
Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a
knife, and finding that it was filled with a yellowish substance they got matches, and David held
the cap while Manuel applied a lighted match to the contents. An explosion followed, causing
more or less serious injuries to all three. Jessie, who when the boys proposed putting a match to
the contents of the cap, became frightened and started to run away, received a slight cut in the
neck. Manuel had his hand burned and wounded, and David was struck in the face by several
particles of the metal capsule, one of which injured his right eye to such an extent as to the
necessitate its removal by the surgeons who were called in to care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the defendant's
premises, nor how long they had been there when the boys found them. It appears, however, that
some months before the accident, during the construction of the defendant's plant, detonating caps
of the same size and kind as those found by the boys were used in sinking a well at the power plant
near the place where the caps were found; and it also appears that at or about the time when these
caps were found, similarly caps were in use in the construction of an extension of defendant's street
car line to Fort William McKinley. The caps when found appeared to the boys who picked them
up to have been lying for a considerable time, and from the place where they were found would
seem to have been discarded as detective or worthless and fit only to be thrown upon the rubbish
heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent visitors
from entering and walking about its premises unattended, when they felt disposed so to do. As
admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes
crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed
premises of the defendant, in the neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children from visiting the defendant
company's premises, although it must be assumed that the company or its employees were aware
of the fact that they not infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing
and mechanical engineering. About a month after his accident he obtained employment as a
mechanical draftsman and continued in that employment for six months at a salary of P2.50 a day;
and it appears that he was a boy of more than average intelligence, taller and more mature both
mentally and physically than most boys of fifteen.

The facts set out in the foregoing statement are to our mind fully and conclusively established by
the evidence of record, and are substantially admitted by counsel. The only questions of fact which
are seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on
defendant company's premises were the property of the defendant, or that they had come from its
possession and control, and that the company or some of its employees left them exposed on its
premises at the point where they were found.

The evidence in support of these allegations is meager, and the defendant company, apparently
relying on the rule of law which places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however,
that plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this regard.

It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on
the McKinley extension of the defendant company's track; that some of these caps were used in
blasting a well on the company's premises a few months before the accident; that not far from the
place where the caps were found the company has a storehouse for the materials, supplies and so
forth, used by it in its operations as a street railway and a purveyor of electric light; and that the
place, in the neighborhood of which the caps were found, was being used by the company as a sort
of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in common use by the average citizen,
and under all the circumstances, and in the absence of all evidence to the contrary, we think that
the discovery of twenty or thirty of these caps at the place where they were found by the plaintiff
on defendant's premises fairly justifies the inference that the defendant company was either the
owner of the caps in question or had the caps under its possession and control. We think also that
the evidence tends to disclose that these caps or detonators were willfully and knowingly thrown
by the company or its employees at the spot where they were found, with the expectation that they
would be buried out of the sight by the ashes which it was engaged in dumping in that
neighborhood, they being old and perhaps defective; and, however this may be, we are satisfied
that the evidence is sufficient to sustain a finding that the company or some of its employees either
willfully or through an oversight left them exposed at a point on its premises which the general
public, including children at play, where not prohibited from visiting, and over which the company
knew or ought to have known that young boys were likely to roam about in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which
these conclusions are based by intimidating or rather assuming that the blasting work on the
company's well and on its McKinley extension was done by contractors. It was conclusively
proven, however, that while the workman employed in blasting the well was regularly employed
by J. G. White and Co., a firm of contractors, he did the work on the well directly and immediately
under the supervision and control of one of defendant company's foremen, and there is no proof
whatever in the record that the blasting on the McKinley extension was done by independent
contractors. Only one witness testified upon this point, and while he stated that he understood that
a part of this work was done by contract, he could not say so of his own knowledge, and knew
nothing of the terms and conditions of the alleged contract, or of the relations of the alleged
contractor to the defendant company. The fact having been proven that detonating caps were more
or less extensively employed on work done by the defendant company's directions and on its
behalf, we think that the company should have introduced the necessary evidence to support its
contention if it wished to avoid the not unreasonable inference that it was the owner of the material
used in these operations and that it was responsible for tortious or negligent acts of the agents
employed therein, on the ground that this work had been intrusted to independent contractors as
to whose acts the maxim respondent superior should not be applied. If the company did not in fact
own or make use of caps such as those found on its premises, as intimated by counsel, it was a
very simple matter for it to prove that fact, and in the absence of such proof we think that the other
evidence in the record sufficiently establishes the contrary, and justifies the court in drawing the
reasonable inference that the caps found on its premises were its property, and were left where
they were found by the company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon
the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908
of that code.

ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts
and omissions or by those in which any kind of fault or negligence occurs.

ART. 1902 A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.

ART. 1903 The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.

The father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.

xxx xxx xxx

Owners or directors of an establishment or enterprise are equally liable for damages caused
by their employees in the service of the branches in which the latter may be employed or
on account of their duties.

xxx xxx xxx

The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage.

ART. 1908 The owners shall also be liable for the damage caused

1 By the explosion of machines which may not have been cared for with due diligence, and
for kindling of explosive substances which may not have been placed in a safe and proper
place.

Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts
proven at the trial do not established the liability of the defendant company under the provisions
of these articles, and since we agree with this view of the case, it is not necessary for us to consider
the various questions as to form and the right of action (analogous to those raised in the case of
Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in
a decision affirming the judgment of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent evidence:

(1) Damages to the plaintiff.

 (2) Negligence by act or omission of which defendant personally, or some person for whose
acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

These proposition are, of course, elementary, and do not admit of discussion, the real difficulty
arising in the application of these principles to the particular facts developed in the case under
consideration.

It is clear that the accident could not have happened and not the fulminating caps been left exposed
at the point where they were found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for
his own pleasure and convenience, entered upon the defendant's premises, and strolled around
thereon without the express permission of the defendant, and had he not picked up and carried
away the property of the defendant which he found on its premises, and had he not thereafter
deliberately cut open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon
defendant company's premises, and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the accident which resulted in his injury
should not be held to have contributed in any wise to the accident, which should be deemed to be
the direct result of defendant's negligence in leaving the caps exposed at the place where they were
found by the plaintiff, and this latter the proximate cause of the accident which occasioned the
injuries sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the
courts of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases,
and the cases based thereon.

In a typical cases, the question involved has been whether a railroad company is liable for an injury
received by an infant of tender years, who from mere idle curiosity, or for the purposes of
amusement, enters upon the railroad company's premises, at a place where the railroad company
knew, or had good reason to suppose, children would be likely to come, and there found explosive
signal torpedoes left unexposed by the railroad company's employees, one of which when carried
away by the visitor, exploded and injured him; or where such infant found upon the premises a
dangerous machine, such as a turntable, left in such condition as to make it probable that children
in playing with it would be exposed to accident or injury therefrom and where the infant did in fact
suffer injury in playing with such machine.

In these, and in great variety of similar cases, the great weight of authority holds the owner of the
premises liable.

As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question
was whether a railroad company was liable for in injury received by an infant while upon its
premises, from idle curiosity, or for purposes of amusement, if such injury was, under
circumstances, attributable to the negligence of the company), the principles on which these cases
turn are that "while a railroad company is not bound to the same degree of care in regard to mere
strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not
exempt from responsibility to such strangers for injuries arising from its negligence or from its
tortious acts;" and that "the conduct of an infant of tender years is not to be judged by the same
rule which governs that of adult. While it is the general rule in regard to an adult that to entitle him
to recover damages for an injury resulting from the fault or negligence of another he must himself
have been free from fault, such is not the rule in regard to an infant of tender years. The care and
caution required of a child is according to his maturity and capacity only, and this is to be
determined in each case by the circumstances of the case."

The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs.
Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases,
especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held,
in the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon
for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this
rule exists in favor of children who are injured by dangerous machinery naturally calculated to
attract them to the premises; (3) that an invitation or license to cross the premises of another can
not be predicated on the mere fact that no steps have been taken to interfere with such practice; (4)
that there is no difference between children and adults as to the circumstances that will warrant the
inference of an invitation or a license to enter upon another's premises.

Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by
the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass.,
349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and
perhaps in other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and
approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29,
35, 36), lay down the rule in these cases in accord with that announced in the Railroad Company
vs. Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered
by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the
doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and
review of many of the adjudged cases, both English and American, formally declared that it
adhered "to the principles announced in the case of Railroad Co. vs. Stout."

In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The
plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited
the defendant's premises, without defendant's express permission or invitation, and while there,
was by accident injured by falling into a burning slack pile of whose existence he had no
knowledge, but which had been left by defendant on its premises without any fence around it or
anything to give warning of its dangerous condition, although defendant knew or had reason the
interest or curiosity of passers-by. On these facts the court held that the plaintiff could not be
regarded as a mere trespasser, for whose safety and protection while on the premises in question,
against the unseen danger referred to, the defendant was under no obligation to make provision.
We quote at length from the discussion by the court of the application of the principles involved
to the facts in that case, because what is said there is strikingly applicable in the case at bar, and
would seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser,
the defendant company owed him no duty, and in no case could be held liable for injuries which
would not have resulted but for the entry of plaintiff on defendant's premises.

We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the
case now before us, they require us to hold that the defendant was guilty of negligence in
leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could
have forbidden all persons from coming to its coal mine for purposes merely of curiosity
and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age,
to visit its mine, and witness its operation. It knew that the usual approach to the mine was
by a narrow path skirting its slack pit, close to its depot building, at which the people of
the village, old and young, would often assemble. It knew that children were in the habit
of frequenting that locality and playing around the shaft house in the immediate vicinity of
the slack pit. The slightest regard for the safety of these children would have suggested that
they were in danger from being so near a pit, beneath the surface of which was concealed
(except when snow, wind, or rain prevailed) a mass of burning coals into which a child
might accidentally fall and be burned to death. Under all the circumstances, the railroad
company ought not to be heard to say that the plaintiff, a mere lad, moved by curiosity to
see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or
for whose protection it was under no obligation to make provisions.

In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited
with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs
passing along the highway, or kept in his neighbors premises, would probably be attracted
by their instinct into the traps, and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie. "What difference," said Lord
Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means
of his instinct which he can not resist, and putting him there by manual force?" What
difference, in reason we may observe in this case, is there between an express license to
the children of this village to visit the defendant's coal mine, in the vicinity of its slack pile,
and an implied license, resulting from the habit of the defendant to permit them, without
objection or warning, to do so at will, for purposes of curiosity or pleasure? Referring it
the case of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence,
volume 1, page 305, note, well says: "It would be a barbarous rule of law that would make
the owner of land liable for setting a trap thereon, baited with stinking meat, so that his
neighbor's dog attracted by his natural instinct, might run into it and be killed, and which
would exempt him from liability for the consequence of leaving exposed and unguarded
on his land a dangerous machine, so that his neighbor's child attracted to it and tempted to
intermeddle with it by instincts equally strong, might thereby be killed or maimed for life."

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers
vs. Harlow (53 Mich., 507), said that (p. 515):
 Children, wherever they go, must be expected to act upon childlike instincts and impulses;
and others who are chargeable with a duty of care and caution toward them must calculate
upon this, and take precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play with, they should
expect that liberty to be taken.

And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to
visit the premises of another, says:

In the case of young children, and other persons not fully sui juris, an implied license might
sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for
children to play with exposed, where they would be likely to gather for that purpose, may
be equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw
away upon his premises, near the common way, things tempting to children, the same
implication should arise. (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusion in the cases
of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less
cogent and convincing in this jurisdiction than in that wherein those cases originated. Children
here are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by
the restless spirit of youth, boys here as well as there will usually be found whenever the public is
permitted to congregate. The movement of machinery, and indeed anything which arouses the
attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as
does the magnet draw the iron which comes within the range of its magnetic influence. The owners
of premises, therefore, whereon things attractive to children are exposed, or upon which the public
are expressly or impliedly permitted to enter or upon which the owner knows or ought to know
children are likely to roam about for pastime and in play, " must calculate upon this, and take
precautions accordingly." In such cases the owner of the premises can not be heard to say that
because the child has entered upon his premises without his express permission he is a trespasser
to whom the owner owes no duty or obligation whatever. The owner's failure to take reasonable
precautions to prevent the child from entering his premises at a place where he knows or ought to
know that children are accustomed to roam about of to which their childish instincts and impulses
are likely to attract them is at least equivalent to an implied license to enter, and where the child
does enter under such conditions the owner's failure to take reasonable precautions to guard the
child against injury from unknown or unseen dangers, placed upon such premises by the owner, is
clearly a breach of duty, responsible, if the child is actually injured, without other fault on its part
than that it had entered on the premises of a stranger without his express invitation or permission.
To hold otherwise would be expose all the children in the community to unknown perils and
unnecessary danger at the whim of the owners or occupants of land upon which they might
naturally and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessity, and neither is contention that a man
has a right to do what will with his own property or that children should be kept under the care of
their parents or guardians, so as to prevent their entering on the premises of others is of sufficient
weight to put in doubt. In this jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so used as to injure the equal rights
and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and
except as to infants of very tender years it would be absurd and unreasonable in a community
organized as is that in which we lived to hold that parents or guardian are guilty of negligence or
imprudence in every case wherein they permit growing boys and girls to leave the parental roof
unattended, even if in the event of accident to the child the negligence of the parent could in any
event be imputed to the child so as to deprive it a right to recover in such cases a point which
we neither discuss nor decide.

But while we hold that the entry of the plaintiff upon defendant's property without defendant's
express invitation or permission would not have relieved defendant from responsibility for injuries
incurred there by plaintiff, without other fault on his part, if such injury were attributable to the
negligence of the defendant, we are of opinion that under all the circumstances of this case the
negligence of the defendant in leaving the caps exposed on its premises was not the proximate
cause of the injury received by the plaintiff, which therefore was not, properly speaking,
"attributable to the negligence of the defendant," and, on the other hand, we are satisfied that
plaintiffs action in cutting open the detonating cap and putting match to its contents was the
proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that
the defendant, therefore is not civilly responsible for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's
youth the intervention of his action between the negligent act of the defendant in leaving the caps
exposed on its premises and the explosion which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we can not agree with this proposition,
although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper
to discuss and to consider that doctrine at length in this decision. As was said in case of Railroad
Co. vs. Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of another he must himself have been
free from fault, such is not the rule in regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity only, and this is to be determined in
each case by the circumstances of the case." As we think we have shown, under the reasoning on
which rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve
defendant of responsibility for injuries resulting from its negligence can be attributed to the
plaintiff, a well-grown boy of 15 years of age, because of his entry upon defendant's uninclosed
premises without express permission or invitation' but it is wholly different question whether such
youth can be said to have been free from fault when he willfully and deliberately cut open the
detonating cap, and placed a match to the contents, knowing, as he undoubtedly did, that his action
would result in an explosion. On this point, which must be determined by "the particular
circumstances of this case," the doctrine laid down in the Turntable and Torpedo cases lends us no
direct aid, although it is worthy of observation that in all of the "Torpedo" and analogous cases
which our attention has been directed, the record discloses that the plaintiffs, in whose favor
judgments have been affirmed, were of such tender years that they were held not to have the
capacity to understand the nature or character of the explosive instruments which fell into their
hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature
both mentally and physically than the average boy of his age; he had been to sea as a cabin boy;
was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred;
and the record discloses throughout that he was exceptionally well qualified to take care of himself.
The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he
well knew the explosive character of the cap with which he was amusing himself. The series of
experiments made by him in his attempt to produce an explosion, as described by the little girl
who was present, admit of no other explanation. His attempt to discharge the cap by the use of
electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of
his endeavors brought about by the application of a match to the contents of the caps, show clearly
that he knew what he was about. Nor can there be any reasonable doubt that he had reason to
anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9 years of
age, who was within him at the time when he put the match to the contents of the cap, became
frightened and ran away.

True, he may not have known and probably did not know the precise nature of the explosion which
might be expected from the ignition of the contents of the cap, and of course he did not anticipate
the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion
might be expected from his act, and yet he willfully, recklessly, and knowingly produced the
explosion. It would be going far to say that "according to his maturity and capacity" he exercised
such and "care and caution" as might reasonably be required of him, or that defendant or anyone
else should be held civilly responsible for injuries incurred by him under such circumstances.

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own acts, so as to make it negligence
on his part to fail to exercise due care and precaution in the commission of such acts; and indeed
it would be impracticable and perhaps impossible so to do, for in the very nature of things the
question of negligence necessarily depends on the ability of the minor to understand the character
of his own acts and their consequences; and the age at which a minor can be said to have such
ability will necessarily depends of his own acts and their consequences; and at the age at which a
minor can be said to have such ability will necessarily vary in accordance with the varying nature
of the infinite variety of acts which may be done by him. But some idea of the presumed capacity
of infants under the laws in force in these Islands may be gathered from an examination of the
varying ages fixed by our laws at which minors are conclusively presumed to be capable of
exercising certain rights and incurring certain responsibilities, though it can not be said that these
provisions of law are of much practical assistance in cases such as that at bar, except so far as they
illustrate the rule that the capacity of a minor to become responsible for his own acts varies with
the varying circumstances of each case. Under the provisions of the Penal Code a minor over
fifteen years of age is presumed to be capable of committing a crime and is to held criminally
responsible therefore, although the fact that he is less than eighteen years of age will be taken into
consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child
may, under certain circumstances, choose which parent it prefers to live with (Code of Civil
Procedure, sec. 771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may
consent or refuse to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of
contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be
sensible of the danger to which he exposed himself when he put the match to the contents of the
cap; that he was sui juris in the sense that his age and his experience qualified him to understand
and appreciate the necessity for the exercise of that degree of caution which would have avoided
the injury which resulted from his own deliberate act; and that the injury incurred by him must be
held to have been the direct and immediate result of his own willful and reckless act, so that while
it may be true that these injuries would not have been incurred but for the negligence act of the
defendant in leaving the caps exposed on its premises, nevertheless plaintiff's own act was the
proximate and principal cause of the accident which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire.
(Digest, book 50, tit. 17 rule 203.)

The Patidas contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his own
fault, and that he can not demand reparation therefor from another. (Law 25, tit.
5, Partida 3.)

And they even said that when a man received an injury through his own acts the grievance
should be against himself and not against another. (Law 2, tit. 7, Partida 2.)

According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays down the
law touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed
upon its provisions by the supreme court of Spain, and by this court in the case of Rakes vs.
Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the
right to recover damages from the defendant, in whole or in part, for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil,
391), is directly in point. In that case the court said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence
is a source of obligation when between such negligence and the injury there exists the
relation of cause and effect; but if the injury produced should not be the result of acts or
omissions of a third party, the latter has no obligation to repair the same, although such
acts or omission were imprudent or unlawful, and much less when it is shown that the
immediate cause of the injury was the negligence of the injured party himself.

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."

See also judgment of October 21, 1903.

 To similar effect Scaevola, the learned Spanish writer, writing under that title in
his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision
of March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when
between it and the damage there exists the relation of cause and effect; but if the damage
caused does not arise from the acts or omissions of a third person, there is no obligation to
make good upon the latter, even though such acts or omissions be imprudent or illegal, and
much less so when it is shown that the immediate cause of the damage has been the
recklessness of the injured party himself.

And again

In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898,
have especially supported the principle, the first setting forth in detail the necessary points
of the proof, which are two: An act or omission on the part of the person who is to be
charged with the liability, and the production of the damage by said act or omission.

This includes, by inference, the establishment of a relation of cause or effect between the
act or omission and the damage; the latter must be the direct result of one of the first two.
As the decision of March 22, 1881, said, it is necessary that the damages result immediately
and directly from an act performed culpably and wrongfully; "necessarily presupposing a
legal ground for imputability." (Decision of October 29, 1887.)

Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)

Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled
in this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra),
wherein we held that while "There are many cases (personal injury cases) was exonerated," on the
ground that "the negligence of the plaintiff was the immediate cause of the casualty" (decisions of
the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index
of that year); none of the cases decided by the supreme court of Spain "define the effect to be given
the negligence of its causes, though not the principal one, and we are left to seek the theory of the
civil law in the practice of other countries;" and in such cases we declared that law in this
jurisdiction to require the application of "the principle of proportional damages," but expressly and
definitely denied the right of recovery when the acts of the injured party were the immediate causes
of the accident.

The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be made
between the accident and the injury, between the event itself, without which there could
 have been no accident, and those acts of the victim not entering into it, independent of it,
but contributing to his own proper hurt. For instance, the cause of the accident under review
was the displacement of the crosspiece or the failure to replace it. This produces the event
giving occasion for damagesthat is, the sinking of the track and the sliding of the iron
rails. To this event, the act of the plaintiff in walking by the side of the car did not
contribute, although it was an element of the damage which came to himself. Had the
crosspiece been out of place wholly or partly through his act or omission of duty, that
would have been one of the determining causes of the event or accident, for which he would
have been responsible. Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction with the occurrence, he
contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion,
the accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents
of the cap, and that having "contributed to the principal occurrence, as one of its determining
factors, he can not recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of
cause and effect between the negligent act or omission of the defendant in leaving the caps exposed
on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps.
Under the doctrine of the Torpedo cases, such action on the part of an infant of very tender years
would have no effect in relieving defendant of responsibility, but whether in view of the well-
known fact admitted in defendant's brief that "boys are snappers-up of unconsidered trifles," a
youth of the age and maturity of plaintiff should be deemed without fault in picking up the caps in
question under all the circumstances of this case, we neither discuss nor decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment of the
court below, without costs to either party in this instance, and ten days thereafter let the record be
returned to the court wherein it originated, where the judgment will be entered in favor of the
defendant for the costs in first instance and the complaint dismissed without day. So ordered.
FIRST DIVISION

[G.R. No. 129792. December 21, 1999]

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA

PANELO, petitioners, vs. HONORABLE COURT OF APPEALS, CONRADO C.
AGUILAR and CRISELDA R. AGUILAR, respondents.

DECISION
DAVIDE, JR., C.J.:

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

Diagnoses:

1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury

2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver

3. Rupture, stomach, anterior & posterior walls

4. Complete transection, 4th position, duodenum

5. Hematoma, extensive, retroperitoneal

6. Contusion, lungs, severe

CRITICAL

After the burial of their daughter, private respondents demanded upon petitioners the
reimbursement of the hospitalization, medical bills and wake and funeral expenses[6] which
they had incurred. Petitioners refused to pay.Consequently, private respondents filed a
complaint for damages, docketed as Civil Case No. 7119 wherein they sought the payment
of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for attorneys fees
and an unspecified amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries and
consequent death of ZHIENETH. They claimed that CRISELDA was negligent in exercising
care and diligence over her daughter by allowing her to freely roam around in a store filled
with glassware and appliances. ZHIENETH too, was guilty of contributory negligence since
she climbed the counter, triggering its eventual collapse on her. Petitioners also emphasized
that the counter was made of sturdy wood with a strong support; it never fell nor collapsed for
the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed the
diligence of a good father of a family in the selection, supervision and control of its
employees. The other petitioners likewise raised due care and diligence in the performance of
their duties and countered that the complaint was malicious for which they suffered
besmirched reputation and mental anguish. They sought the dismissal of the complaint and an
award of moral and exemplary damages and attorneys fees in their favor.
In its decision[7] the trial court dismissed the complaint and counterclaim after finding that
the preponderance of the evidence favored petitioners. It ruled that the proximate cause of the
fall of the counter on ZHIENETH was her act of clinging to it. It believed petitioners witnesses
who testified that ZHIENETH clung to the counter, afterwhich the structure and the girl fell
with the structure falling on top of her, pinning her stomach. In contrast, none of private
respondents witnesses testified on how the counter fell. The trial court also held that
CRISELDAs negligence contributed to ZHIENETHs accident.
In absolving petitioners from any liability, the trial court reasoned that the counter was
situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not be
considered as an attractive nuisance.[8] The counter was higher than ZHIENETH. It has been
in existence for fifteen years. Its structure was safe and well-balanced. ZHIENETH, therefore,
had no business climbing on and clinging to it.
 Private respondents appealed the decision, attributing as errors of the trial court its
findings that: (1) the proximate cause of the fall of the counter was ZHIENETHs misbehavior;
(2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners were not negligent
in the maintenance of the counter; and (4) petitioners were not liable for the death of
ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to the conclusive
presumption that a child below nine (9) years is incapable of contributory negligence. And
even if ZHIENETH, at six (6) years old, was already capable of contributory negligence, still
it was physically impossible for her to have propped herself on the counter. She had a small
frame (four feet high and seventy pounds) and the counter was much higher and heavier than
she was. Also, the testimony of one of the stores former employees, Gerardo Gonzales, who
accompanied ZHIENETH when she was brought to the emergency room of the Makati
Medical Center belied petitioners theory that ZHIENETH climbed the counter. Gonzales
claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied,
[N]othing, I did not come near the counter and the counter just fell on me.[9]Accordingly,
Gonzales testimony on ZHIENETHs spontaneous declaration should not only be considered
as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her
to have let go of ZHIENETH at the precise moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of
ZHIENETHs death, was petitioners negligence in failing to institute measures to have the
counter permanently nailed.
On the other hand, petitioners argued that private respondents raised purely factual issues
which could no longer be disturbed. They explained that ZHIENETHs death while unfortunate
and tragic, was an accident for which neither CRISELDA nor even ZHIENETH could entirely
be held faultless and blameless. Further, petitioners adverted to the trial courts rejection of
Gonzales testimony as unworthy of credence.
As to private respondents claim that the counter should have been nailed to the ground,
petitioners justified that it was not necessary. The counter had been in existence for several
years without any prior accident and was deliberately placed at a corner to avoid such
accidents. Truth to tell, they acted without fault or negligence for they had exercised due
diligence on the matter. In fact, the criminal case[10] for homicide through simple negligence
filed by private respondents against the individual petitioners was dismissed; a verdict of
acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and reversed the
appealed judgment. It found that petitioners were negligent in maintaining a structurally
dangerous counter. The counter was shaped like an inverted L[11] with a top wider than the
base. It was top heavy and the weight of the upper portion was neither evenly distributed nor
supported by its narrow base. Thus, the counter was defective, unstable and dangerous; a
downward pressure on the overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had already previously brought to the
attention of the management the danger the counter could cause. But the latter ignored their
concern. The Court of Appeals faulted the petitioners for this omission, and concluded that
the incident that befell ZHIENETH could have been avoided had petitioners repaired the
defective counter. It was inconsequential that the counter had been in use for some time
without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at
the time of the incident, was absolutely incapable of negligence or other tort. It reasoned that
since a child under nine (9) years could not be held liable even for an intentional wrong, then
the six-year old ZHIENETH could not be made to account for a mere mischief or reckless
act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of the
ordinary in momentarily allowing ZHIENETH to walk while she signed the document at the
nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found
them biased and prejudiced. It instead gave credit to the testimony of disinterested witness
Gonzales. The Court of Appeals then awarded P99,420.86 as actual damages, the amount
representing the hospitalization expenses incurred by private respondents as evidenced by the
hospital's statement of account.[12] It denied an award for funeral expenses for lack of proof to
substantiate the same. Instead, a compensatory damage of P50,000 was awarded for the death
of ZHIENETH.
We quote the dispositive portion of the assailed decision,[13] thus:

WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and
another one is entered against [petitioners], ordering them to pay jointly and severally unto
[private respondents] the following:

1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with
legal interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest
(6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorneys fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the same was denied in
the Court of Appeals resolution[14] of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals decision and the reinstatement
of the judgment of the trial court. Petitioners primarily argue that the Court of Appeals erred
in disregarding the factual findings and conclusions of the trial court. They stress that since
the action was based on tort, any finding of negligence on the part of the private respondents
would necessarily negate their claim for damages, where said negligence was the proximate
cause of the injury sustained. The injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETHs act of clinging to the counter. This act in turn caused the
counter to fall on her. This and CRISELDAs contributory negligence, through her failure to
provide the proper care and attention to her child while inside the store, nullified private
respondents claim for damages. It is also for these reasons that parents are made accountable
for the damage or injury inflicted on others by their minor children. Under these
circumstances, petitioners could not be held responsible for the accident that befell
ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated from Syvels
at the time he testified; hence, his testimony might have been tarnished by ill-feelings against
them.
For their part, private respondents principally reiterated their arguments that neither
ZHIENETH nor CRISELDA was negligent at any time while inside the store; the findings
and conclusions of the Court of Appeals are substantiated by the evidence on record; the
testimony of Gonzales, who heard ZHIENETH comment on the incident while she was in the
hospitals emergency room should receive credence; and finally, ZHIENETHs part of theres
gestae declaration that she did nothing to cause the heavy structure to fall on her should be
considered as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or
attributable to negligence; and (2) in case of a finding of negligence, whether the same was
attributable to private respondents for maintaining a defective counter or to CRISELDA and
ZHIENETH for failing to exercise due and reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence attaches to
the defendant.[15] It is a fortuitous circumstance, event or happening; an event happening
without any human agency, or if happening wholly or partly through human agency, an event
which under the circumstances is unusual or unexpected by the person to whom it happens.[16]
On the other hand, negligence is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of human affairs, would
do, or the doing of something which a prudent and reasonable man would not
do.[17] Negligence is the failure to observe, for the protection of the interest of another person,
that degree of care, precaution and vigilance which the circumstances justly demand, whereby
such other person suffers injury.[18]
Accident and negligence are intrinsically contradictory; one cannot exist with the
other. Accident occurs when the person concerned is exercising ordinary care, which is not
caused by fault of any person and which could not have been prevented by any means
suggested by common prudence.[19]
The test in determining the existence of negligence is enunciated in the landmark case
of Picart v. Smith,[20] thus: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would have used in the same
situation? If not, then he is guilty of negligence.[21]
We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETHs
death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the incident and
accompanied CRISELDA and ZHIENETH to the hospital:
 Q While at the Makati Medical Center, did you hear or notice anything while the child was
being treated?
A At the emergency room we were all surrounding the child. And when the doctor asked
the child what did you do, the child said nothing, I did not come near the counter and
the counter just fell on me.
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate wala po, hindi po ako lumapit doon. Basta bumagsak.[22]
This testimony of Gonzales pertaining to ZHIENETHs statement formed (and should be
admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of Court, thus:

Part of res gestae. Statements made by a person while a startling occurrence is taking place
or immediately prior or subsequent thereto with respect to the circumstances thereof, may be
given in evidence as part of the res gestae.So, also, statements accompanying an equivocal act
material to the issue, and giving it a legal significance, may be received as part of the res
gestae.

It is axiomatic that matters relating to declarations of pain or suffering and statements

made to a physician are generally considered declarations and admissions.[23] All that is
required for their admissibility as part of the res gestae is that they be made or uttered under
the influence of a startling event before the declarant had the time to think and concoct a
falsehood as witnessed by the person who testified in court. Under the circumstances thus
described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to
have lied to a doctor whom she trusted with her life. We therefore accord credence to Gonzales
testimony on the matter, i.e.,ZHIENETH performed no act that facilitated her tragic
death. Sadly, petitioners did, through their negligence or omission to secure or make stable
the counters base.
Gonzales earlier testimony on petitioners insistence to keep and maintain the structurally
unstable gift-wrapping counter proved their negligence, thus:

Q When you assumed the position as gift wrapper at the second floor, will you please describe
the gift wrapping counter, were you able to examine?

A Because every morning before I start working I used to clean that counter and since it is not
nailed and it was only standing on the floor, it was shaky.

xxx
 Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon on [sic] May 9
1983?
A At that hour on May 9, 1983, that counter was standing beside the verification
counter. And since the top of it was heavy and considering that it was not nailed, it can
collapse at anytime, since the top is heavy.
xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond
of putting display decorations on tables, he even told me that I would put some
decorations. But since I told him that it not [sic]nailed and it is shaky he told me better
inform also the company about it. And since the company did not do anything about
the counter, so I also did not do anything about the counter.[24] [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of Gonzales,
thus:
Q Will you please described [sic] to the honorable Court the counter where you were
assigned in January 1983?
xxx
A That counter assigned to me was when my supervisor ordered me to carry that counter
to another place. I told him that the counter needs nailing and it has to be nailed
because it might cause injury or accident to another since it was shaky.
Q When that gift wrapping counter was transferred at the second floor on February 12,
1983, will you please describe that to the honorable Court?
A I told her that the counter wrapper [sic] is really in good [sic] condition; it was shaky. I
told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?
A She told me Why do you have to teach me. You are only my subordinate and you are to
teach me? And she even got angry at me when I told her that.
xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee
of the management do to that (sic)
xxx
Witness:
None, sir. They never nailed the counter. They only nailed the counter after the accident
happened.[25] [Emphasis supplied]
 Without doubt, petitioner Panelo and another store supervisor were personally informed
of the danger posed by the unstable counter. Yet, neither initiated any concrete action to
remedy the situation nor ensure the safety of the stores employees and patrons as a reasonable
and ordinary prudent man would have done. Thus, as confronted by the situation petitioners
miserably failed to discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish
that the formers testimonies were biased and tainted with partiality. Therefore, the allegation
that Gonzales and Guevarras testimonies were blemished by ill feelings against petitioners
since they (Gonzales and Guevarra) were already separated from the company at the time their
testimonies were offered in court was but mere speculation and deserved scant consideration.
It is settled that when the issue concerns the credibility of witnesses, the appellate courts
will not as a general rule disturb the findings of the trial court, which is in a better position to
determine the same. The trial court has the distinct advantage of actually hearing the testimony
of and observing the deportment of the witnesses.[26] However, the rule admits of exceptions
such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate
some facts or circumstances of weight and substance which could affect the result of the
case.[27] In the instant case, petitioners failed to bring their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that
favors children below nine (9) years old in that they are incapable of contributory
negligence. In his book,[28] former Judge Cezar S. Sangco stated:

In our jurisdiction, a person under nine years of age is conclusively presumed to have acted
without discernment, and is, on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains in a case of a person over
nine and under fifteen years of age, unless it is shown that he has acted with discernment. Since
negligence may be a felony and a quasi-delict and required discernment as a condition of
liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively
presumed to be incapable of negligence; and that the presumption of lack of discernment or
incapacity for negligence in the case of a child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must
be conclusively presumed incapable of contributory negligence as a matter of law. [Emphasis
supplied]

Even if we attribute contributory negligence to ZHIENETH and assume that she climbed
over the counter, no injury should have occurred if we accept petitioners theory that the
counter was stable and sturdy. For if that was the truth, a frail six-year old could not have
caused the counter to collapse. The physical analysis of the counter by both the trial court and
Court of Appeals and a scrutiny of the evidence[29]on record reveal otherwise, i.e., it was not
durable after all. Shaped like an inverted L, the counter was heavy, huge, and its top laden
with formica. It protruded towards the customer waiting area and its base was not secured.[30]
CRISELDA too, should be absolved from any contributory negligence. Initially,
ZHIENETH held on to CRISELDAs waist, later to the latters hand.[31] CRISELDA
momentarily released the childs hand from her clutch when she signed her credit card slip. At
this precise moment, it was reasonable and usual for CRISELDA to let go of her child. Further,
at the time ZHIENETH was pinned down by the counter, she was just a foot away from her
mother; and the gift-wrapping counter was just four meters away from CRISELDA.[32] The
time and distance were both significant. ZHIENETH was near her mother and did not loiter
as petitioners would want to impress upon us.She even admitted to the doctor who treated her
at the hospital that she did not do anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the
challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is
hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
EN BANC

G.R. No. L-35283 November 5, 1932

JULIAN DEL ROSARIO, plaintiff-appellant,

vs.
MANILA ELECTRIC COMPANY, defendant-appellee.

Vicente Sotto for appellant.

Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr. for appellee.

STREET, J.:

This action was instituted by Julian del Rosario for the purpose of recovering damages from the
Manila Electric Company for the death of his son, Alberto del Rosario, resulting from a shock
from a wire used by the defendant for the transmission of electricity. The accident occurred on
Dimas-Alang Street, in the municipality of Caloocan, Province of Rizal. Damages are claimed in
the complaint in the amount of P30,000. Upon hearing the cause the trial court absolved the
defendant, and the plaintiff appealed.

Shortly after 2 o'clock on the afternoon of August 4, 1930, trouble developed in a wire used by the
defendant on Dimas-Alang Street for the purpose of conducting electricity used in lighting the City
of Manila and its suburbs. Jose Noguera, who had charge of a tienda nearby, first noticed that the
wire was burning and its connections smoking. In a short while the wire parted and one of the ends
of the wire fell to the ground among some shrubbery close to the way. As soon as Noguera took
cognizance of the trouble, he stepped into a garage which was located nearby and asked Jose Soco,
the timekeeper, to telephone the Malabon station of the Manila Electric Company that an electrical
wire was burning at that place. Soco transmitted the message at 2.25 p.m. and received answer
from the station to the effect that they would send an inspector. From the testimony of the two
witnesses mentioned we are justified in the conclusion that information to the effect that the
electric wire at the point mentioned had developed trouble was received by the company's servant
at the time stated. At the time that message was sent the wire had not yet parted, but from the
testimony of Demetrio Bingao, one of the witnesses for the defense, it is clear that the end of the
wire was on the ground shortly after 3 p.m.

At 4 p. m. the neighborhood school was dismissed and the children went home. Among these was
Alberto del Rosario, of the age of 9 years, who was a few paces ahead of two other boys, all
members of the second grade in the public school. These other two boys were Jose Salvador, of
the age of 8, and Saturnino Endrina, of the age of 10. As the three neared the place where the wire
was down, Saturnino made a motion as if it touch it. His companion, Jose Salvador, happened to
be the son of an electrician and his father had cautioned him never to touch a broken electrical
wire, as it might have a current. Jose therefore stopped Saturnino, telling him that the wire might
be charged. Saturnino yielded to this admonition and desisted from his design, but Alberto del
Rosario, who was somewhat ahead, said, I have for some time been in the habit of touching wires
("Yo desde hace tiempo cojo alambres"). Jose Salvador rejoined that he should into touch wires as
they carry a current, but Alberto, no doubt feeling that he was challenged in the matter, put out his
index finger and touch the wire. He immediately fell face downwards, exclaiming "Ay! madre".
The end of the wire remained in contact with his body which fell near the post. A crowd soon
collected, and some one cut the wire and disengaged the body. Upon being taken to St. Luke's
Hospital the child was pronounced dead.

The wire was an ordinary number 6 triple braid weather proof wire, such as is commonly used by
the defendant company for the purpose of conducting electricity for lighting. The wire was cased
in the usual covering, but this had been burned off for some distance from the point where the wire
parted. The engineer of the company says that it was customary for the company to make a special
inspection of these wires at least once in six months, and that all of the company's inspectors were
required in their daily rounds to keep a lookout for trouble of this kind. There is nothing in the
record indicating any particular cause for the parting of the wire.lawphil.net

We are of the opinion that the presumption of negligence on the part of the company from the
breakage of this wire has not been overcome, and the defendant is in our opinion responsible for
the accident. Furthermore, when notice was received at the Malabon station at 2.25 p. m.,
somebody should have been dispatched to the scene of the trouble at once, or other measures taken
to guard the point of danger; but more than an hour and a half passed before anyone representing
the company appeared on the scene, and in the meantime this child had been claimed as a victim.

It is doubtful whether contributory negligence can properly be imputed to the deceased, owing to
his immature years and the natural curiosity which a child would feel to do something out of the
ordinary, and the mere fact that the deceased ignored the caution of a companion of the age of 8
years does not, in our opinion, alter the case. But even supposing that contributory negligence
could in some measure be properly imputed to the deceased, a proposition upon which the
members of the court do not all agree, yet such negligence would not be wholly fatal to the
right of action in this case, not having been the determining cause of the accident. (Rakes vs.
Atlantic, Gulf and Pacific Co., 7 Phil., 359.)

With respect to the amount of damages recoverable the majority of the members of this court are
of the opinion that the plaintiff is entitled to recover P250 for expenses incurred in connection with
the death and burial of the boy. For the rest, in accordance with the precedents cited in Astudillo
vs. Manila Electric Company (55 Phil., 427), the majority of the court are of the opinion that the
plaintiff should recover the sum of P1,000 as general damages for loss of service.

The judgment appealed from is therefore reversed and the plaintiff will recover of the defendant
the sum of P1,250, with costs of both instances. So ordered.

Avancea, C.J., Malcolm, Ostrand, Villa-Real, Vickers, Imperial and Butte, JJ., concur.

Separate Opinions
ABAD SANTOS, J., concurring in part and dissenting in part:

I concur in so far as the defendant company is held liable for the death of the plaintiff's son, but I
dissent in so far as the decision allows the plaintiff to recover of the defendant the sum of P1,250
only.

It is well settled in this jurisdiction that an action will lie to recover damages for death caused by
the wrongful act. (Manzanares vs. Moreta, 38 Phil., 821.) The question, however, arises as to the
amount of damages recoverable in this case. In criminal cases, this court has adopted the rule of
allowing, as a matter of course, the sum of P1,000 as indemnity to the heirs of the deceased.
Following that rule, the court has allowed the plaintiff in this case to recover the sum of P1,000 as
general damages for loss of service. Whatever may be the reasons for the rule followed in criminal
cases, I am of the opinion that those reasons do not obtain in fixing the amount of the damages
recoverable in the present case. The indemnity allowed in criminal case is merely incidental to the
main object sought, which is the punishment of the guilty party. In a civil action, the principal
object is the recovery of damages for wrongful death; and where, as in this case, the defendant is
a corporation, not subject to criminal prosecution for the act complained of, the question assumes
a vastly different aspect. Both in reason and in justice, there should be a distinction between the
civil liability of an ordinary person who, by wrongful act, has caused the death of another; and the
civil liability of a corporation, organized primarily for profit, which has caused the death of a
person by failure to exercise due care in the prosecution of its business. The liability of such a
corporation for damages must be regarded as a part of the risks which it assumes when it
undertakes to promote its own business; and just as it is entitled to earn adequate profits from its
business, so it should be made adequately to compensate those who have suffered damage by its
negligence.

Considering the circumstances of this case, I am of the opinion that the plaintiff should recover
the sum of P2,250 as damages.

FIRST DIVISION
G.R. No. L-33722 July 29, 1988

FEDERICO YLARDE and ADELAIDA DORONIO petitioners,

vs.
EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents.

Buenaventura C. Evangelista for petitioners.

Modesto V. Cabanela for respondent Edgardo Aquino.

Manuel P. Pastor for respondent Mauro Soriano.

GANCAYCO, J.:

In this petition for review on certiorari seeking the reversal of the decision of the Court of Appeals
in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which
originated from the Court of First Instance of Pangasinan, We are again caned upon determine the
responsibility of the principals and teachers towards their students or pupils.

In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary School, a
public educational institution located in Tayug, Pangasinan-Private respondent Edgardo Aquino
was a teacher therein. At that time, the school was fittered with several concrete blocks which were
remnants of the old school shop that was destroyed in World War II. Realizing that the huge stones
were serious hazards to the schoolchildren, another teacher by the name of Sergio Banez started
burying them one by one as early as 1962. In fact, he was able to bury ten of these blocks all by
himself.

Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his male
pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being their teacher-in-charge,
he ordered them to dig beside a one-ton concrete block in order to make a hole wherein the stone
can be buried. The work was left unfinished. The following day, also after classes, private
respondent Aquino called four of the original eighteen pupils to continue the digging. These four
pupils Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito Ylarde, dug until the
excavation was one meter and forty centimeters deep. At this point, private respondent Aquino
alone continued digging while the pupils remained inside the pit throwing out the loose soil that
was brought about by the digging.

When the depth was right enough to accommodate the concrete block, private respondent Aquino
and his four pupils got out of the hole. Then, said private respondent left the children to level the
loose soil around the open hole while he went to see Banez who was about thirty meters away.
Private respondent wanted to borrow from Banez the key to the school workroom where he could
get some rope. Before leaving. , private respondent Aquino allegedly told the children "not to touch
the stone."
A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara and
Ylarde, playfully jumped into the pit. Then, without any warning at all, the remaining Abaga
jumped on top of the concrete block causing it to slide down towards the opening. Alonso and
Alcantara were able to scramble out of the excavation on time but unfortunately fo Ylarde, the
concrete block caught him before he could get out, pinning him to the wall in a standing position.
As a result thereof, Ylarde sustained the following injuries:

1. Contusion with hematoma, left inguinal region and suprapubic region.

2. Contusion with ecchymosis entire scrotal region.

3. Lacerated wound, left lateral aspect of penile skin with phimosis

4. Abrasion, gluteal region, bilateral.

5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about 2

liters.

6. Fracture, simple, symphesis pubis

7. Ruptured (macerated) urinary bladder with body of bladder almost entirely

separated from its neck.

REMARKS:

1. Above were incurred by crushing injury.

2. Prognosis very poor.

(Sgd.)
MELQUIADES A.
BRAVO

Physici
an on
Duty. 1

Three days later, Novelito Ylarde died.

Ylarde's parents, petitioners in this case, filed a suit for damages against both private respondents
Aquino and Soriano. The lower court dismissed the complaint on the following grounds: (1) that
the digging done by the pupils is in line with their course called Work Education; (2) that Aquino
exercised the utmost diligence of a very cautious person; and (3) that the demise of Ylarde was
due to his own reckless imprudence. 2

On appeal, the Court of Appeals affirmed the Decision of the lower court.
Petitioners base their action against private respondent Aquino on Article 2176 of the Civil Code
for his alleged negligence that caused their son's death while the complaint against respondent
Soriano as the head of school is founded on Article 2180 of the same Code.

Article 2176 of the Civil Code provides:

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

On the other hand, the applicable provision of Article 2180 states:

Art. 2180. x x x

xxx xxx xxx

Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices, so long as they remain
in their custody. 3

The issue to be resolved is whether or not under the cited provisions, both private respondents can
be held liable for damages.

As regards the principal, We hold that he cannot be made responsible for the death of the child
Ylarde, he being the head of an academic school and not a school of arts and trades. This is in line
with Our ruling in Amadora vs. Court of Appeals, 4 wherein this Court thoroughly discussed the
doctrine that under Article 2180 of the Civil Code, it is only the teacher and not the head of an
academic school who should be answerable for torts committed by their students. This Court went
on to say that in a school of arts and trades, it is only the head of the school who can be held liable.
In the same case, We explained:

After an exhaustive examination of the problem, the Court has come to the
conclusion that the provision in question should apply to all schools, academic as
well as non-academic. Where the school is academic rather than technical or
vocational in nature, responsibility for the tort committed by the student will attach
to the teacher in charge of such student, following the first part of the provision.
This is the general rule. In the case of establishments of arts and trades, it is the
head thereof, and only he, who shall be held liable as an exception to the general
rule. In other words, teachers in general shall be liable for the acts of their students
except where the school is technical in nature, in which case it is the head thereof
who shall be answerable. Following the canon of reddendo singula
sinquilis 'teachers' should apply to the words "pupils and students' and 'heads of
establishments of arts and trades to the word "apprentices."
Hence, applying the said doctrine to this case, We rule that private respondent Soriano, as
principal, cannot be held liable for the reason that the school he heads is an academic school and
not a school of arts and trades. Besides, as clearly admitted by private respondent Aquino, private
respondent Soriano did not give any instruction regarding the digging.

From the foregoing, it can be easily seen that private respondent Aquino can be held liable under
Article 2180 of the Civil Code as the teacher-in-charge of the children for being negligent in his
supervision over them and his failure to take the necessary precautions to prevent any injury on
their persons. However, as earlier pointed out, petitioners base the alleged liability of private
respondent Aquino on Article 2176 which is separate and distinct from that provided for in Article
2180.

With this in mind, the question We need to answer is this: Were there acts and omissions on the
part of private respondent Aquino amounting to fault or negligence which have direct causal
relation to the death of his pupil Ylarde? Our answer is in the affirmative. He is liable for damages.

From a review of the record of this case, it is very clear that private respondent Aquino acted with
fault and gross negligence when he: (1) failed to avail himself of services of adult manual laborers
and instead utilized his pupils aged ten to eleven to make an excavation near the one-ton concrete
stone which he knew to be a very hazardous task; (2) required the children to remain inside the pit
even after they had finished digging, knowing that the huge block was lying nearby and could be
easily pushed or kicked aside by any pupil who by chance may go to the perilous area; (3) ordered
them to level the soil around the excavation when it was so apparent that the huge stone was at the
brink of falling; (4) went to a place where he would not be able to check on the children's safety;
and (5) left the children close to the excavation, an obviously attractive nuisance.

The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has
a direct causal connection to the death of the child Ylarde. Left by themselves, it was but natural
for the children to play around. Tired from the strenuous digging, they just had to amuse
themselves with whatever they found. Driven by their playful and adventurous instincts and not
knowing the risk they were facing three of them jumped into the hole while the other one jumped
on the stone. Since the stone was so heavy and the soil was loose from the digging, it was also a
natural consequence that the stone would fall into the hole beside it, causing injury on the
unfortunate child caught by its heavy weight. Everything that occurred was the natural and
probable effect of the negligent acts of private respondent Aquino. Needless to say, the child
Ylarde would not have died were it not for the unsafe situation created by private respondent
Aquino which exposed the lives of all the pupils concerned to real danger.

We cannot agree with the finding of the lower court that the injuries which resulted in the death of
the child Ylarde were caused by his own reckless imprudence, It should be remembered that he
was only ten years old at the time of the incident, As such, he is expected to be playful and daring.
His actuations were natural to a boy his age. Going back to the facts, it was not only him but the
three of them who jumped into the hole while the remaining boy jumped on the block. From this,
it is clear that he only did what any other ten-year old child would do in the same situation.
In ruling that the child Ylarde was imprudent, it is evident that the lower court did not consider his
age and maturity. This should not be the case. The degree of care required to be exercised must
vary with the capacity of the person endangered to care for himself. A minor should not be held to
the same degree of care as an adult, but his conduct should be judged according to the average
conduct of persons of his age and experience. 5 The standard of conduct to which a child must
conform for his own protection is that degree of care ordinarily exercised by children of the same
age, capacity, discretion, knowledge and experience under the same or similar
circumstances. 6 Bearing this in mind, We cannot charge the child Ylarde with reckless
imprudence.

The court is not persuaded that the digging done by the pupils can pass as part of their Work
Education. A single glance at the picture showing the excavation and the huge concrete
block 7 would reveal a dangerous site requiring the attendance of strong, mature laborers and not
ten-year old grade-four pupils. We cannot comprehend why the lower court saw it otherwise when
private respondent Aquino himself admitted that there were no instructions from the principal
requiring what the pupils were told to do. Nor was there any showing that it was included in the
lesson plan for their Work Education. Even the Court of Appeals made mention of the fact that
respondent Aquino decided all by himself to help his co-teacher Banez bury the concrete remnants
of the old school shop. 8 Furthermore, the excavation should not be placed in the category of school
gardening, planting trees, and the like as these undertakings do not expose the children to any risk
that could result in death or physical injuries.

The contention that private respondent Aquino exercised the utmost diligence of a very cautious
person is certainly without cogent basis. A reasonably prudent person would have foreseen that
bringing children to an excavation site, and more so, leaving them there all by themselves, may
result in an accident. An ordinarily careful human being would not assume that a simple warning
"not to touch the stone" is sufficient to cast away all the serious danger that a huge concrete block
adjacent to an excavation would present to the children. Moreover, a teacher who stands in loco
parentis to his pupils would have made sure that the children are protected from all harm in his
company.

We close by categorically stating that a truly careful and cautious person would have acted in all
contrast to the way private respondent Aquino did. Were it not for his gross negligence, the
unfortunate incident would not have occurred and the child Ylarde would probably be alive today,
a grown- man of thirty-five. Due to his failure to take the necessary precautions to avoid the hazard,
Ylarde's parents suffered great anguish all these years.

WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the questioned
judgment of the respondent court is REVERSED and SET ASIDE and another judgment is hereby
rendered ordering private respondent Edagardo Aquino to pay petitioners the following:

(1) Indemnity for the death of Child Ylarde P30,000.00

(2) Exemplary damages 10,000.00

(3) Moral damages 20,000.00

SO ORDERED.
EN BANC

G.R. No. L-32611 November 3, 1930

CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,

vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.

Gibbs and McDonough for appellant.

Benj. S. Ohnick for appellee.

STREET, J.:

This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish & Electric
Co., Inc., for the purpose of recovering from the Philippine Motors Corporation the sum of
P11,350, with interest and costs. Upon hearing the cause the trial court gave judgment in favor of
the plaintiff to recover of the defendant the sum of P9,850, with interest at 6 per centum per annum
from March 24,1927, the date of the filing of the complaint, until satisfaction of the judgment,
with costs. From this judgment the defendant appealed.

The plaintiff and defendant are domestic corporations; and at the time of the incident with which
we are here concerned, H.D. Cranston was the representative of the plaintiff in the City of Manila.
At the same time the plaintiff was the registered owner of the motor schooner Gwendoline, which
was used in the fishing trade in the Philippine Islands. In January, 1925, Cranston decided, if
practicable, to have the engine on the Gwendoline changed from a gasoline consumer to a crude
oil burner, expecting thereby to effect economy in the cost of running the boat. He therefore made
known his desire to McLeod & Co., a firm dealing in tractors, and was told by Mc Kellar, of said
company, that he might make inquiries of the Philippine Motors Corporations, which had its office
on Ongpin Street, in the City of Manila. Cranston accordingly repaired to the office of the
Philippine Motors Corporation and had a conference with C.E. Quest, its manager, who agreed to
do the job, with the understanding that payment should be made upon completion of the work.

The Philippine Motors Corporation was at this time engaged in business as an automobile agency,
but, under its charter, it had authority to deal in all sorts of machinery engines and motors, as well
as to build, operate, buy and sell the same and the equipment therof. Quest, as general manager,
had full charge of the corporations in all its branches.

As a result of the aforesaid interview, Quest, in company with Cranston, visited

the Gwendoline while it lay at anchor in the Pasig River, and the work of effecting the change in
the engine was begun and conducted under the supervision of Quest, chiefly by a mechanic whom
Quest took with him to the boat. In this work Quest had the assistance of the members of the crew
of the Gwendoline, who had been directed by Cranston to place themselves under Quest's
directions.
Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing
necessary to accomplish the end in view was to install a new carburetor, and a Zenith carburetor
was chosen as the one most adapted to the purpose. After this appliance had been installed, the
engine was tried with gasoline as a fuel, supplied from the tank already in use. The result of this
experiment was satisfactory. The next problem was to introduce into the carburetor the baser fuel,
consisting of a low grade of oil mixed with distillate. For this purpose a temporary tank to contain
the mixture was placed on deck above and at a short distance from the compartment covering the
engine. This tank was connected with the carburetor by a piece of tubing, which was apparently
not well fitted at the point where it was connected with the tank. Owing to this fact the fuel mixture
leaked from the tank and dripped sown into the engine compartment. The new fuel line and that
already in use between the gasoline tank and carburetor were so fixed that it was possible to change
from the gasoline fuel to the mixed fuel. The purpose of this arrangement was to enable the
operator to start the engine on gasoline and then, after the engine had been operating for a few
moments, to switch to the new fuel supply. lawphil.net

In the course of the preliminary work upon the carburetor and its connections, it was observed that
the carburetor was flooding, and that the gasoline, or other fuel, was trickling freely from the lower
part to the carburetor to the floor. This fact was called to Quest's attention, but he appeared to think
lightly of the matter and said that, when the engine had gotten to running well, the flooding would
disappear.

After preliminary experiments and adjustments had been made the boat was taken out into the bay
for a trial run at about 5 p.m. or a little later, on the evening of January 30,1925. The first part of
the course was covered without any untoward development, other than he fact that the engine
stopped a few times, owing no doubt to the use of an improper mixture of fuel. In the course of the
trial Quest remained outside of the engine compartment and occupied himself with making
distillate, with a view to ascertaining what proportion of the two elements would give best results
in the engine.

As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the
engine stopped, and connection again had to be made with the gasoline line to get a new start.
After this had been done the mechanic, or engineer, switched to the tube connecting with the new
mixture. A moment later a back fire occurred in the cylinder chamber. This caused a flame to shoot
back into the carburetor, and instantly the carburetor and adjacent parts were covered with a mass
of flames, which the members of the crew were unable to subdue. They were therefore compelled,
as the fire spread, to take to a boat, and their escape was safely effected, but theGwendoline was
reduced to a mere hulk. The salvage from, the wreck, when sold, brought only the sum of P150.
The value of the boat, before the accident occured, as the court found, was P10,000.

A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the
negligence and lack of skill of Quest. The temporary tank in which the mixture was prepared was
apparently at too great an elevation from the carburetor, with the result that when the fuel line was
opened, the hydrostatic pressure in the carburetor was greater than the delicate parts of the
carburetor could sustain. This was no doubt the cause of the flooding of the carburetor; and the
result was that; when the back fire occurred, the external parts of the carburetor, already saturated
with gasoline, burst into flames, whence the fire was quickly communicated to the highly
inflammable material near-by. Ordinarily a back fire from an engine would not be followed by any
disaster, but in this case the leak along the pipe line and the flooding of the carburetor had created
a dangerous situation, which a prudent mechanic, versed in repairs of this nature, would have taken
precautions to avoid. The back fire may have been due either to the fact that the spark was too
advanced or the fuel improperly mixed.

In this connection it must be remembered that when a person holds himself out as being competent
to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit
the care and skill of one ordinarily skilled in the particular work which he attempts to do. The
proof shows that Quest had had ample experience in fixing the engines of automobiles and tractors,
but it does not appear that he was experienced in the doing of similar work on boats. For this
reason, possibly the dripping of the mixture form the tank on deck and the flooding of the
carburetor did not convey to his mind an adequate impression of the danger of fire. But a person
skilled in that particular sort of work would, we think have been sufficiently warned from those
circumstances to cause him to take greater and adequate precautions against the danger. In other
words Quest did not use the skill that would have been exhibited by one ordinarily expert in
repairing gasoline engines on boats. There was here, in our opinion, on the part of Quest, a
blameworthy antecedent inadvertence to possible harm, and this constitutes negligence. The
burning of the Gwendoline may be said to have resulted from accident, but this accident was in no
sense an unavoidable accident. It would not have occured but for Quest's carelessness or lack of
skill. The test of liability is not whether the injury was accidental in a sense, but whether Quest
was free from blame.

We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or
negligence in effecting the changes which Quest undertook to accomplish; and even supposing
that our theory as to the exact manner in which the accident occurred might appear to be in some
respects incorrect, yet the origin of the fire in not so inscrutable as to enable us to say that it
was casus fortuitus.

The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of
the Gwendolineduring the experimental run, the defendant corporation was in the position of a
bailee and that, as a consequence, the burden of proof was on the defendant to exculpate itself from
responsibility by proving that the accident was not due to the fault of Quest. We are unable to
accede to this point of view. Certainly, Quest was not in charge of the navigation of the boat on
this trial run. His employment contemplated the installation of new parts in the engine only, and it
seems rather strained to hold that the defendant corporation had thereby become bailee of the boat.
As a rule workmen who make repairs on a ship in its owner's yard, or a mechanic who repairs a
coach without taking it to his shop, are not bailees, and their rights and liabilities are determined
by the general rules of law, under their contract. The true bailee acquires possession and what is
usually spoken of as special property in the chattel bailed. As a consequence of such possession
and special property, the bailee is given a lien for his compensation. These ideas seem to be
incompatible with the situation now under consideration. But though defendant cannot be held
liable in the supposition that the burden of proof had not been sustained by it in disproving the
negligence of its manager, we are nevertheless of the opinion that the proof shows by a clear
preponderance that the accident to the Gwendoline and the damages resulting therefrom are
chargeable to the negligence or lack of skill of Quest.
This action was instituted about two years after the accident in question had occured, and after
Quest had ceased to be manager of the defendant corporation and had gone back to the United
States. Upon these facts, the defendant bases the contention that the action should be considered
stale. It is sufficient reply to say that the action was brought within the period limited by the statute
of limitations and the situation is not one where the defense of laches can be properly invoked.

It results that the judgment appealed from, awarding damages to the plaintiff in the amount of
P9,850, with interest, must be affirmed; and it is so ordered, with costs against the appellant.
EN BANC

G.R. No. L-12858 January 22, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
SANTIAGO PINEDA, defendant-appellant.

Francisco and Lualhati for appellant.

Acting Attorney-General Paredes for appellee.

MALCOLM, J.:

This appeal requires a construction and an application, for the first time, of the penal provisions of
the Pharmacy Law.

Santiago Pineda, the defendant, is a registered pharmacist of long standing and the owner of a drug
store located at Nos. 442, 444, Calle Santo Cristo, city of Manila. One Feliciano Santos, having
some sick horses, presented a copy of a prescription obtained from Dr. Richardson, and which on
other occasions Santos had given to his horses with good results, at Pineda's drug store for filling.
The prescription read "clorato de potasa 120 gramos en seis papelitos de 20 gramos, para
caballo." Under the supervision of Pineda, the prescription was prepared and returned to Santos in
the form of six papers marked, "Botica Pineda Clorato potasa 120.00 en seis papeles
para caballo Sto. Cristo 442, 444, Binondo, Manila." Santos, under the belief that he had
purchased the potassium chlorate which he had asked for, put two of the packages in water the
doses to two of his sick horses. Another package was mixed with water for another horse, but was
not used. The two horses, to which had been given the preparation, died shortly afterwards. Santos,
thereupon, took the three remaining packages to the Bureau of Science for examination. Drs. Pea
and Darjuan, of the Bureau of Science, on analysis found that the packages contained not
potassium chlorate but barium chlorate. At the instance of Santos, the two chemists also went to
the drug store of the defendant and bought potassium chlorate, which when analyzed was found to
be barium chlorate. (Barium chlorate, it should be noted, is a poison; potassium chlorate is not.)
Dr. Buencamino, a veterinarian, performed an autopsy on the horses, and found that death was the
result of poisoning.

Four assignments of error are made. The first is that the lower court erred in admitting the
testimony of the chemist Pena and Darjuan as to their purchase of potassium chlorate at the drug
store of the accused, which substance proved on analysis to be barium chlorate. What the appellant
is here relying on is the maxim res inter alios acta. As a general rule, the evidence of other offenses
committed by a defendant is inadmissible. But appellant has confused this maxim and this rule
with certain exceptions thereto. The effort is not to convict the accused of a second offense. Nor
is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant's
case. The purpose is to ascertain defendant's knowledge and intent, and to fix his negligence. If
the defendant has on more than one occasion performed similar acts, accident in good faith is
possibly excluded, negligence is intensified, and fraudulent intent may even be established. It has
been said that there is no better evidence of negligence than the frequency of accidents. (See 10 R.
C. L., pp. 938, 940.) The United States Supreme Court has held that:

On the trial of a criminal case the question relates to the tendency of certain testimony to
throw light upon a particular fact, or to explain the conduct of a particular person, there is
a certain discretion on the part of the trial judge which a court of errors will not interfere
with, unless it manifestly appear that the testimony has no legitimate bearing upon the
question at issue, and is calculated to prejudice the accused.

Whenever the necessity arises for a resort to circumstantial evidence, either from the nature
of the inquiry or the failure of direct proof, objections to the testimony on the ground of
irrelevancy are not favored.

Evidence is admissible in a criminal action which tends to show motive, although it tends
to prove the commission of another offense by the defendant. (Moore vs. U. S. [1893], 150
U. S., 57.)

The second assignment of error is that the lower court erred in finding that the substance sold by
the accused to Feliciano Santos on the 22d of June, 1916, was barium chlorate and not potassium
chlorate. The proof demonstrates the contrary.

The third and fourth assignments of error that the lower court erred in finding that the accused has
been proved guilty beyond a reasonable doubt of an infraction of Act No. 597, section 17, as
amended. The third assignment contains the points we should consider, including, we may remark,
a somewhat difficult question concerning which the briefs have given little assistance.

The Pharmacy Law was first enacted as Act No. 597, was later amended by Act Nos. 1921, 2236,
and 2382, and is now found as Chapter 30 of the Administrative Code. The law provides for a
board of pharmaceutical examiners, and the examination and registration of pharmacists, and
finally contains sundry provisions relative to the practice of pharmacy. High qualification for
applicants for the pharmaceutical; examination are established. The program of subjects for the
examination is wide. Responsibility for the quality of drugs is fixed by section 17 of the Pharmacy
Law, as amended (now Administrative Code [1917], section 751), in the following term:

Every pharmacist shall be responsible for the quality of all drugs, chemicals, medicines,
and poisons he may sell or keep for sale; and it shall be unlawful for any
person whomsoever to manufacture, prepare, sell, or administer any prescription, drug,
chemical, medicine, or poison under any fraudulent name, direction, or pretense, or to
adulterate any drug, chemical, medicine, or poison so used, sold or offered for sale. Any
drug, chemical, medicine, or poison shall be held to be adulterated or deteriorated within
the meaning of this section if it differs from the standard of quality or purity given in the
United States Pharmacopoeia.

The same section of the Pharmacy Law also contains the following penal provision: "Any person
violating the provisions of this Act shall, upon conviction, be punished by a fine of not more than
five hundred dollar." The Administrative Code, section 2676, changes the penalty somewhat by
providing that:

Any person engaging in the practice of pharmacy in the Philippine Islands contrary to any
provision of the Pharmacy Law or violating any provisions of said law for which no
specific penalty s provided shall, for each offense, be punished by a fine not to exceed two
hundred pesos, or by imprisonment for not more than ninety days, or both, in the discretion
of the court.

These are the provisions of law, pursuant to which prosecution has been initiated and which it is
now incumbent upon us to construe.

Turning to the law, certain points therein as bearing on our present facts must be admitted. Thus,
defendant is a pharmacist. As a pharmacist, he is made responsible for the quality of all drugs and
poisons which he sells. And finally it is provided that it shall be unlawful for him to sell any drug
or poison under any "fraudulent name." It is the one word "fraudulent" which has given the court
trouble. What did the Legislature intend to convey by this restrictive adjective?

Were we to adhere to the technical definition of fraud, which the appellant vigorously insists upon,
it would be difficult, if not impossible, to convict any druggist of a violation of the law. The
prosecution would have to prove to a reasonable degree of certainty that the druggist made a
material representation; that it was false; that when he made it he knew that it was false or made it
recklessly without any knowledge of its truth and as positive assertion; that he made it with the
intention that it should be acted upon by the purchaser; that the purchaser acted in reliance upon
it, and that the purchased thereby suffered injury. Such a construction with a literal following of
well-known principles on the subject of fraud would strip the law of at least much of its force. It
would leave the innocent purchaser of drugs, who must blindly trust in the good faith and vigilance
of the pharmacist, at the mercy of any unscrupulous vendor. We should not, therefore, without
good reason so devitalize the law.

The profession of pharmacy, it has been said again and again, is one demanding care and skill. The
responsibility of the druggist to use care has been variously qualified as "ordinary care," "care of
a special high degree," "the highest degree of care known to practical men." Even under the first
conservative expression, "ordinary care" with reference to the business of a druggist, the Supreme
Court of Connecticut has said must be held to signify "the highest practicable degree of prudence,
thoughtfulness, and vigilance, and most exact and reliable safeguards consistent with the
reasonable conduct of the business, in order that human life may not be constantly be exposed to
the danger flowing from the substitution of deadly poisons for harmless medicine." (Tombari vs.
Connors [1912], 85 Conn., 235. See also Willson vs. Faxon, Williams and Faxon [1913], 208 N.
Y., 108; Knoefel vs. Atkins [1907], 81 N. E., 600.) The "skill" required of a druggist is
denominated as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 L. R. A., 428.)
In other words, the care required must be commensurate with the danger involved, and the skill
employed must correspond with the superior knowledge of the business which the law demands.
Under one conception, and it should not be forgotten that the case we consider are civil in nature,
the question of negligence or ignorance is irrelevant. The druggist is responsible as an absolute
guarantor of what he sells. In a decision which stands alone, the Supreme Court of Kentucky said:

As applicable to the owners of drug stores, or persons engaged in vending drugs and
medicines by retail, the legal maxim should be reversed. Instead of caveat emptor, it should
be caveat venditor. That is to say, let him be certain that he does not sell to a purchaser or
send to a patient one drug for another, as arsenic for calomel, cantharides for or mixed with
snakeroot and Peruvian bark, or even one innocent drug, calculated to produce a certain
effect, in place of another sent for and designed to produce a different effect. If he does
these things, he cannot escape civil responsibility, upon the alleged pretext that it was an
accidental or an innocent mistake; that he had been very careful and particular, and had
used extraordinary care and diligence in preparing or compounding the medicines as
required, etc. Such excuses will not avail him. (Fleet vs. Hollenkemp [1852], 56 Am. Dec.,
563.)

Under the other conception, in which the proof of negligence is considered as material, where a
customer calls upon a druggist for a harmless remedy, delivery of a poisonous drug by mistake by
the druggist is prima facienegligence, placing the burden on him to show that the mistake was
under the circumstances consistent with the exercise of due care. (See Knoefel vs. Atkins, supra,)
The druggist cannot, for example in filling a prescription calling for potassium chlorate give
instead to the customer barium chlorate, a poison, place this poison in a package labeled
"potassium chlorate," and expect to escape responsibility on plea of mistake. His mistake, under
the most favorable aspect for himself, was negligence. So in a case where a druggist filled an order
for calomel tablets with morphine and placed the morphine in a box labeled calomel, it was said:

It is not suggested, nor can we apprehend that it is in any wise probable, that the act of
furnishing the wrong drug in this case was willful. If it was furnished by the clerk, it was
undoubtedly a mistake and unintentional. However, it was a mistake of the gravest kind,
and of the most disastrous effect. We cannot say that one holding himself out as competent
to handle such drugs, and who does so, having rightful access to them, and relied upon by
those dealing with him to exercise that high degree of caution and care called for by the
peculiarly dangerous nature of this business, can be heard to say that his mistakes by which
he furnishes a customer the most deadly of drugs for those comparatively harmless is not,
in and of itself, gross negligence, and that of an aggravated form. (Smith's Admrx. vs.
Middleton [1902], 56 L. R. A., 484.)

The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the
vendee do not stand at arms length as in ordinary transactions. An imperative duty is on the
druggist to take precautions to prevent death or serious injury to anyone who relies on his absolute
honesty and peculiar leaning. The nature of drugs is such that examination would not avail the
purchaser anything. It would be idle mockery for the customer to make an examination of a
compound of which he can know nothing. Consequently, it must be that the druggist warrants that
he will deliver the drug called for.
In civil cases, the druggist is made liable for any injury approximately resulting from his
negligence. If B negligently sells poison under the guise of a beneficial drug to A, he is liable for
the injury done to A. In a case, which has repeatedly been termed the leading case on the subject
and which has been followed by the United States Supreme Court, it was said, "Pharmacists or
apothecaries who compound or sell medicines, if they carelessly label a poison as a harmless
medicine, and sent it so labeled into the market, are liable to all persons who, without fault on their
part, are injured by using it as such medicine, in consequence of the false label; the rule being that
the liability in such a case arises not out of any contract or direct privity between the wrong-doer
and the person injured, but out of the duty which the law imposes on him to avoid acts in their
nature dangerous to the lives of others." (Nat. Savings Bank vs. Ward [1879], 100 U. S., 195,
following Thomas vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the druggist, mistake
is negligence and care is no defense. Throughout the criminal law, run the same rigorous rules.
For example, apothecaries or apothecary clerks, who are guilty of negligence in the sale of
medicine when death ensues in consequence, have been held guilty of manslaughter. (See
Tessymond's Case [1828], 1 Lewin, C. C., 169.)

Bearing these general principles in mind, and remembering particularly the care and skill which
are expected of druggist, that in some jurisdictions they are liable even for their mistake and in
others have the burden placed upon them to establish that they were not negligent, it cannot be that
the Philippine Legislature intended to use the word "fraudulent" in all its strictness. A plea of
accident and mistake cannot excuse for they cannot take place unless there be wanton and criminal
carelessness and neglect. How the misfortune occurs is unimportant, if under all the circumstances
the fact of occurrence is attributed to the druggist as a legal fault. Rather considering the
responsibility for the quality of drugs which the law imposes on druggists and the position of the
word "fraudulent" in juxtaposition to "name," what is made unlawful is the giving of a false name
to the drug asked for. This view is borne out by Spanish translation, which we are permitted to
consult to explain the English text. In the Spanish "supuesto" is used, and this word is certainly
not synonymous with "fraudulent." The usual badges of fraud, falsify, deception, and injury must
be present-but not scienter.

In view of the tremendous an imminent danger to the public from the careless sale of poisons and
medicines, we do not deem it too rigid a rule to hold that the law penalizes any druggist who shall
sell one drug for another whether it be through negligence or mistake.

The judgment of the lower court, sentencing the defendant to pay a fine of P100, with subsidiary
imprisonment in case of insolvency, and to pay the costs, is affirmed with the cost of this instance
against the appellant, without prejudice to any civil action which may be instituted. So ordered.
FIRST DIVISION

G.R. No. 112392 February 29, 2000

BANK OF THE PHILIPPINE ISLANDS, petitioner,

vs.
COURT OF APPEALS and BENJAMIN C. NAPIZA, respondents.

YNARES-SANTIAGO, J.:

This is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. CV
No. 37392 affirming in toto that of the Regional Trial Court of Makati, Branch 139,2 which
dismissed the complaint filed by petitioner Bank of the Philippine Islands against private
respondent Benjamin C. Napiza for sum of money.

On September 3, 1987, private respondent deposited in Foreign Currency Deposit Unit (FCDU)
Savings Account No. 028-1873 which he maintained in petitioner bank's Buendia Avenue
Extension Branch, Continental Bank Manager's Check No. 000147574 dated August 17, 1984,
payable to "cash" in the amount of Two Thousand Five Hundred Dollars ($2,500.00) and duly
endorsed by private respondent on its dorsal side.5 It appears that the check belonged to a certain
Henry who went to the office of private respondent and requested him to deposit the check in his
dollar account by way of accommodation and for the purpose of clearing the same. Private
respondent acceded, and agreed to deliver to Chan a signed blank withdrawal slip, with the
understanding that as soon as the check is cleared, both of them would go to the bank to withdraw
the amount of the check upon private respondent's presentation to the bank of his passbook.

Using the blank withdrawal slip given by private respondent to Chan, on October 23, 1984, one
Ruben Gayon, Jr. was able to withdraw the amount of $2,541.67 from FCDU Savings Account
No. 028-187. Notably, the withdrawal slip shows that the amount was payable to Ramon A. de
Guzman and Agnes C. de Guzman and was duly initialed by the branch assistant manager, Teresita
Lindo.6

On November 20, 1984, petitioner received communication from the Wells Fargo Bank
International of New York that the said check deposited by private respondent was a counterfeit
check7 because it was "not of the type or style of checks issued by Continental Bank
International."8 Consequently, Mr. Ariel Reyes, the manager of petitioner's Buendia Avenue
Extension Branch, instructed one of its employees, Benjamin D. Napiza IV, who is private
respondent's son, to inform his father that the check bounced.9 Reyes himself sent a telegram to
private respondent regarding the dishonor of the check. In turn, private respondent's son wrote to
Reyes stating that the check been assigned "for encashment" to Ramon A. de Guzman and/or
Agnes C. de Guzman after it shall have been cleared upon instruction of Chan. He also said that
upon learning of the dishonor of the check, his father immediately tried to contact Chan but the
latter was out of town.10

Private respondent's son undertook to return the amount of $2,500.00 to petitioner bank. On
December 18, 1984, Reyes reminded private respondent of his son's promise and warned that
should he fail to return that amount within seven (7) days, the matter would be referred to the
bank's lawyers for appropriate action to protect the bank's interest.11 This was followed by a letter
of the bank's lawyer dated April 8, 1985 demanding the return of the $2,500.00.12

In reply, private respondent wrote petitioner's counsel on April 20, 198513 stating that he deposited
the check "for clearing purposes" only to accommodate Chan. He added:

Further, please take notice that said check was deposited on September 3, 1984 and
withdrawn on October 23, 1984, or a total period of fifty (50) days had elapsed at the time
of withdrawal. Also, it may not be amiss to mention here that I merely signed an authority
to withdraw said deposit subject to its clearing, the reason why the transaction is not
reflected in the passbook of the account. Besides, I did not receive its proceeds as may be
gleaned from the withdrawal slip under the captioned signature of recipient.1wphi1.nt

If at all, my obligation on the transaction is moral in nature, which (sic) I have been and is
(sic) still exerting utmost and maximum efforts to collect from Mr. Henry Chan who is
directly liable under the circumstances.

xxx xxx xxx

On August 12, 1986, petitioner filed a complaint against private respondent, praying for the return
of the amount of $2,500.00 or the prevailing peso equivalent plus legal interest from date of
demand to date of full payment, a sum equivalent to 20% of the total amount due as attorney's fees,
and litigation and/or costs of suit.

Private respondent filed his answer, admitting that he indeed signed a "blank" withdrawal slip with
the understanding that the amount deposited would be withdrawn only after the check in question
has been cleared. He likewise alleged that he instructed the party to whom he issued the signed
blank withdrawal slip to return it to him after the bank draft's clearance so that he could lend that
party his passbook for the purpose of withdrawing the amount of $2,500.00. However, without his
knowledge, said party was able to withdraw the amount of $2,541.67 from his dollar savings
account through collusion with one of petitioner's employees. Private respondent added that he
had "given the Plaintiff fifty one (51) days with which to clear the bank draft in question."
Petitioner should have disallowed the withdrawal because his passbook was not presented. He
claimed that petitioner had no one to blame except itself "for being grossly negligent;" in fact, it
had allegedly admitted having paid the amount in the check "by mistake" . . . "if not altogether due
to collusion and/or bad faith on the part of (its) employees." Charging petitioner with "apparent
ignorance of routine bank procedures," by way of counterclaim, private respondent prayed for
moral damages of P100,000.00, exemplary damages of P50,000.00 and attorney's fees of 30% of
whatever amount that would be awarded to him plus an honorarium of P500.00 per appearance in
court.

Private respondent also filed a motion for admission of a third party complaint against Chan. He
alleged that "thru strategem and/or manipulation," Chan was able to withdraw the amount of
$2,500.00 even without private respondent's passbook. Thus, private respondent prayed that third
party defendant Chan be made to refund to him the amount withdrawn and to pay attorney's fees
of P5,000.00 plus P300.00 honorarium per appearance.

Petitioner filed a comment on the motion for leave of court to admit the third party complaint,
whenever it asserted that per paragraph 2 of the Rules and Regulations governing BPI savings
accounts, private respondent alone was liable "for the value of the credit given on account of the
draft or check deposited." It contended that private respondent was estopped from disclaiming
liability because he himself authorized the withdrawal of the amount by signing the withdrawal
slip. Petitioner prayed for the denial of the said motion so as not to unduly delay the disposition of
the main case asserting that private respondent's claim could be ventilated in another case.

Private respondent replied that for the parties to obtain complete relief and to avoid multiplicity of
suits, the motion to admit third party complaint should be granted. Meanwhile, the trial court issued
orders on August 25, 1987 and October 28, 1987 directing private respondent to actively
participate in locating Chan. After private respondent failed to comply, the trial court, on May 18,
1988, dismissed the third party complaint without prejudice.

On November 4, 1991, a decision was rendered dismissing the complaint. The lower court held
that petitioner could not hold private respondent liable based on the check's face value alone. To
so hold him liable "would render inutile the requirement of "clearance" from the drawee bank
before the value of a particular foreign check or draft can be credited to the account of a depositor
making such deposit." The lower court further held that "it was incumbent upon the petitioner to
credit the value of the check in question to the account of the private respondent only upon receipt
of the notice of final payment and should not have authorized the withdrawal from the latter's
account of the value or proceeds of the check." Having admitted that it committed a "mistake" in
not waiting for the clearance of the check before authorizing the withdrawal of its value or
proceeds, petitioner should suffer the resultant loss.

On appeal, the Court of Appeals affirmed the lower court's decision. The appellate court held that
petitioner committed "clears gross negligence" in allowing Ruben Gayon, Jr. to withdraw the
money without presenting private respondent's passbook and, before the check was cleared and in
crediting the amount indicated therein in private respondent's account. It stressed that the mere
deposit of a check in private respondent's account did not mean that the check was already private
respondent's property. The check still had to be cleared and its proceeds can only be withdrawn
upon presentation of a passbook in accordance with the bank's rules and regulations. Furthermore,
petitioner's contention that private respondent warranted the check's genuineness by endorsing it
is untenable for it would render useless the clearance requirement. Likewise, the requirement of
presentation of a passbook to ascertain the propriety of the accounting reflected would be a
meaningless exercise. After all, these requirements are designed to protect the bank from deception
or fraud.

The Court of Appeals cited the case of Roman Catholic Bishop of Malolos, Inc. v. IAC,14 where
this Court stated that a personal check is not legal tender or money, and held that the check
deposited in this case must be cleared before its value could be properly transferred to private
respondent's account.
Without filing a motion for the reconsideration of the Court of Appeals' Decision, petitioner filed
this petition for review on certiorari, raising the following issues:

1. WHETHER OR NOT RESPONDENT NAPIZA IS LIABLE UNDER HIS

WARRANTIES AS A GENERAL INDORSER.

2. WHETHER OR NOT A CONTRACT OF AGENCY WAS CREATED BETWEEN

RESPONDENT NAPIZA AND RUBEN GAYON.

3. WHETHER OR NOT PETITIONER WAS GROSSLY NEGLIGENT IN ALLOWING

THE WITHDRAWAL.

Petitioner claims that private respondent, having affixed his signature at the dorsal side of the
check, should be liable for the amount stated therein in accordance with the following provision
of the Negotiable Instruments Law (Act No. 2031):

Sec. 66. Liability of general indorser. Every indorser who indorses without
qualification, warrants to all subsequent holders in due course

(a) The matters and things mentioned in subdivisions (a), (b), and (c) of the next preceding
section; and

(b) That the instrument is at the time of his indorsement, valid and subsisting.

And, in addition, he engages that on due presentment, it shall be accepted or paid, or both,
as the case may be, according to its tenor, and that if it be dishonored, and the necessary
proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to
any subsequent indorser who may be compelled to pay it.

Sec. 65, on the other hand, provides for the following warranties of a person negotiating an
instrument by delivery or by qualified indorsement: (a) that the instrument is genuine and in all
respects what it purports to be; (b) that he has a good title to it, and (c) that all prior parties had
capacity to contract.15 In People v. Maniego,16 this Court described the liabilities of an indorser as
follows:

Appellant's contention that as mere indorser, she may not be liable on account of the
dishonor of the checks indorsed by her, is likewise untenable. Under the law, the holder or
last indorsee of a negotiable instrument has the right "to enforce payment of the instrument
for the full amount thereof against all parties liable thereon. Among the "parties liable
thereon." Is an indorser of the instrument, i.e., "a person placing his signature upon an
instrument otherwise than as a maker, drawer or acceptor * * unless he clearly indicated
by appropriate words his intention to be bound in some other capacity." Such an indorser
"who indorses without qualification," inter alia "engages that on due presentment, * * (the
instrument) shall be accepted or paid, or both, as the case may be, according to its tenor,
and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he
will pay the amount thereof to the holder, or any subsequent indorser who may be
 compelled to pay it." Maniego may also be deemed an "accommodation party" in the light
of the facts, i.e., a person "who has signed the instrument as maker, drawer, acceptor, or
indorser, without receiving value thereof, and for the purpose of lending his name to some
other person." As such, she is under the law "liable on the instrument to a holder for value,
notwithstanding such holder at the time of taking the instrument knew * * (her) to be only
an accommodation party," although she has the right, after paying the holder, to obtain
reimbursement from the party accommodated, "since the relation between them is in effect
that of principal and surety, the accommodation party being the surety.

It is thus clear that ordinarily private respondent may be held liable as an indorser of the check or
even as an accommodation party.17 However, to hold private respondent liable for the amount of
the check he deposited by the strict application of the law and without considering the attending
circumstances in the case would result in an injustice and in the erosion of the public trust in the
banking system. The interest of justice thus demands looking into the events that led to the
encashment of the check.

Petitioner asserts that by signing the withdrawal slip, private respondent "presented the opportunity
for the withdrawal of the amount in question." Petitioner relied "on the genuine signature on the
withdrawal slip, the personality of private respondent's son and the lapse of more than fifty (50)
days from date of deposit of the Continental Bank draft, without the same being returned
yet."18 We hold, however, that the propriety of the withdrawal should be gauged by compliance
with the rules thereon that both petitioner bank and its depositors are duty-bound to observe.

In the passbook that petitioner issued to private respondent, the following rules on withdrawal of
deposits appear:

4. Withdrawals must be made by the depositor personally but in some exceptional

circumstances, the Bank may allow withdrawal by another upon the depositor's written
authority duly authenticated; and neither a deposit nor a withdrawal will be permitted
except upon the presentation of the depositor's savings passbook, in which the amount
deposited withdrawn shall be entered only by the Bank.

5. Withdrawals may be made by draft, mail or telegraphic transfer in currency of the

account at the request of the depositor in writing on the withdrawal slip or by authenticated
cable. Such request must indicate the name of the payee/s, amount and the place where the
funds are to be paid. Any stamp, transmission and other charges related to such withdrawals
shall be for the account of the depositor and shall be paid by him/her upon demand.
Withdrawals may also be made in the form of travellers checks and in pesos. Withdrawals
in the form of notes/bills are allowed subject however, to their (availability).

6. Deposits shall not be subject to withdrawal by check, and may be withdrawal only in the
manner above provided, upon presentation of the depositor's savings passbook and with
the withdrawal form supplied by the Bank at the counter.19

Under these rules, to be able to withdraw from the savings account deposit under the Philippine
foreign currency deposit system, two requisites must be presented to petitioner bank by the person
withdrawing an amount: (a) a duly filled-up withdrawal slip, and (b) the depositor's passbook.
Private respondent admits he signed a blank withdrawal slip ostensibly in violation of Rule No. 6
requiring that the request for withdrawal must name the payee, the amount to be withdrawn and
the place where such withdrawal should be made. That the withdrawal slip was in fact a blank one
with only private respondent's two signatures affixed on the proper spaces is buttressed by
petitioner's allegation in the instant petition that had private respondent indicated therein the person
authorized to receive the money, then Ruben Gayon, Jr. could not have withdrawn any amount.
Petitioner contends that "(I)n failing to do so (i.e., naming his authorized agent), he practically
authorized any possessor thereof to write any amount and to collect the same."20

Such contention would have been valid if not for the fact that the withdrawal slip itself indicates a
special instruction that the amount is payable to "Ramon A. de Guzman &/or Agnes C. de
Guzman." Such being the case, petitioner's personnel should have been duly warned that Gayon,
who was also employed in petitioner's Buendia Ave. Extension branch,21 was not the proper payee
of the proceeds of the check. Otherwise, either Ramon or Agnes de Guzman should have issued
another authority to Gayon for such withdrawal. Of course, at the dorsal side of the withdrawal
slip is an "authority to withdraw" naming Gayon the person who can withdraw the amount
indicated in the check. Private respondent does not deny having signed such authority. However,
considering petitioner's clear admission that the withdrawal slip was a blank one except for private
respondent's signature, the unavoidable conclusion is that the typewritten name of "Ruben C.
Gayon, Jr." was intercalated and thereafter it was signed by Gayon or whoever was allowed by
petitioner to withdraw the amount. Under these facts, there could not have been a principal-agent
relationship between private respondent and Gayon so as to render the former liable for the amount
withdrawn.

Moreover, the withdrawal slip contains a boxed warning that states: "This receipt must be signed
and presented with the corresponding foreign currency savings passbook by the depositor in
person. For withdrawals thru a representative, depositor should accomplish the authority at the
back." The requirement of presentation of the passbook when withdrawing an amount cannot be
given mere lip service even though the person making the withdrawal is authorized by the
depositor to do so. This is clear from Rule No. 6 set out by petitioner so that, for the protection of
the bank's interest and as a reminder to the depositor, the withdrawal shall be entered in the
depositor's passbook. The fact that private respondent's passbook was not presented during the
withdrawal is evidenced by the entries therein showing that the last transaction that he made with
the bank was on September 3, 1984, the date he deposited the controversial check in the amount
of $2,500.00.22

In allowing the withdrawal, petitioner likewise overlooked another rule that is printed in the
passbook. Thus:

2. All deposits will be received as current funds and will be repaid in the same
manner; provided, however, that deposits of drafts, checks, money orders, etc. will be
accented as subject to collection only and credited to the account only upon receipt of the
notice of final payment. Collection charges by the Bank's foreign correspondent in effecting
such collection shall be for the account of the depositor. If the account has sufficient
balance, the collection shall be debited by the Bank against the account. If, for any reason,
 the proceeds of the deposited checks, drafts, money orders, etc., cannot be collected or if
the Bank is required to return such proceeds, the provisional entry therefor made by the
Bank in the savings passbook and its records shall be deemed automatically cancelled
regardless of the time that has elapsed, and whether or not the defective items can be
returned to the depositor; and the Bank is hereby authorized to execute immediately the
necessary corrections, amendments or changes in its record, as well as on the savings
passbook at the first opportunity to reflect such cancellation. (Emphasis and underlining
supplied.)

As correctly held by the Court of Appeals, in depositing the check in his name, private respondent
did not become the outright owner of the amount stated therein. Under the above rule, by
depositing the check with petitioner, private respondent was, in a way, merely designating
petitioner as the collecting bank. This is in consonance with the rule that a negotiable instrument,
such as a check, whether a manager's check or ordinary check, is not legal tender.23 As such, after
receiving the deposit, under its own rules, petitioner shall credit the amount in private respondent's
account or infuse value thereon only after the drawee bank shall have paid the amount of the check
or the check has been cleared for deposit. Again, this is in accordance with ordinary banking
practices and with this Court's pronouncement that "the collecting bank or last endorser generally
suffers the loss because has the duty to ascertain the genuineness of all prior endorsements
considering that the act of presenting the check for payment to the drawee is an assertion that the
party making the presentment has done its duty to ascertain the genuineness of the
endorsements."24 The rule finds more meaning in this case where the check involved is drawn on
a foreign bank and therefore collection is more difficult than when the drawee bank is a local one
even though the check in question is a manager's check.25

In Banco Atlantico v. Auditor General,26 Banco Atlantico, a commercial bank in Madrid, Spain,
paid the amounts represented in three (3) checks to Virginia Boncan, the finance officer of the
Philippine Embassy in Madrid. The bank did so without previously clearing the checks with the
drawee bank, the Philippine National Bank in New York, on account of the "special treatment"
that Boncan received from the personnel of Banco Atlantico's foreign department. The Court held
that the encashment of the checks without prior clearance is "contrary to normal or ordinary
banking practice specially so where the drawee bank is a foreign bank and the amounts involved
were large." Accordingly, the Court approved the Auditor General's denial of Banco Atlantico's
claim for payment of the value of the checks that was withdrawn by Boncan.

Said ruling brings to light the fact that the banking business is affected with public interest. By the
nature of its functions, a bank is under obligation to treat the accounts of its depositors "with
meticulous care, always having in mind the fiduciary nature of their relationship."27 As such, in
dealing with its depositors, a bank should exercise its functions not only with the diligence of a
good father of a family but it should do so with the highest degree of care.28

In the case at bar, petitioner, in allowing the withdrawal of private respondent's deposit, failed to
exercise the diligence of a good father of a family. In total disregard of its own rules, petitioner's
personnel negligently handled private respondent's account to petitioner's detriment. As this Court
once said on this matter:
 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, provides that 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 effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet pater-familias 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.29

Petitioner violated its own rules by allowing the withdrawal of an amount that is definitely over
and above the aggregate amount of private respondent's dollar deposits that had yet to be cleared.
The bank's ledger on private respondent's account shows that before he deposited $2,500.00,
private respondent had a balance of only $750.00.30 Upon private respondent's deposit of
$2,500.00 on September 3, 1984, that amount was credited in his ledger as a deposit resulting in
the corresponding total balance of $3,250.00.31 On September 10, 1984, the amount of $600.00
and the additional charges of $10.00 were indicated therein as withdrawn thereby leaving a balance
$2,640.00. On September 30, 1984, an interest of $11.59 was reflected in the ledger and on October
23, 1984, the amount of $2,541.67 was entered as withdrawn with a balance of $109.92.32 On
November 19, 1984 the word "hold" was written beside the balance of $109.92.33 That must have
been the time when Reyes, petitioner's branch manager, was informed unofficially of the fact that
the check deposited was a counterfeit, but petitioner's Buendia Ave. Extension Branch received a
copy of the communication thereon from Wells Fargo Bank International in New York the
following day, November 20, 1984.34 According to Reyes, Wells Fargo Bank International
handled the clearing of checks drawn against U.S. banks that were deposited with petitioner.35

From these facts on record, it is at once apparent that petitioner's personnel allowed the withdrawal
of an amount bigger than the original deposit of $750.00 and the value of the check deposited in
the amount of $2,500.00 although they had not yet received notice from the clearing bank in the
United States on whether or not the check was funded. Reyes' contention that after the lapse of the
35-day period the amount of a deposited check could be withdrawn even in the absence of a
clearance thereon, otherwise it could take a long time before a depositor could make a
withdrawal,36 is untenable. Said practice amounts to a disregard of the clearance requirement of
the banking system.

While it is true that private respondent's having signed a blank withdrawal slip set in motion the
events that resulted in the withdrawal and encashment of the counterfeit check, the negligence of
petitioner's personnel was the proximate cause of the loss that petitioner sustained. Proximate
cause, which is determined by a mixed consideration of logic, common sense, policy and
precedent, is "that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred."37 The proximate cause of the withdrawal and eventual loss of the amount of $2,500.00
on petitioner's part was its personnel's negligence in allowing such withdrawal in disregard of its
own rules and the clearing requirement in the banking system. In so doing, petitioner assumed the
risk of incurring a loss on account of a forged or counterfeit foreign check and hence, it should
suffer the resulting damage.1wphi1.nt

WHEREFORE, the petition for review on certiorari is DENIED. The Decision of the Court of
Appeals in CA-G.R. CV No. 37392 is AFFIRMED.

SO ORDERED.
EN BANC

G.R. No. L-7760 October 1, 1914

E. M. WRIGHT, plaintiff-appellant,
vs.
MANILA ELECTRIC R.R. & LIGHT CO., defendant-appellant.

W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for plaintiff.

Bruce, Lawrence, Ross & Block for defendant.

MORELAND, J.:

This is an action brought to recover damages for injuries sustained in an accident which occurred
in Caloocan on the night of August 8, 1909.

The defendant is a corporation engaged in operating an electric street railway in the city of Manila
and its suburbs, including the municipality of Caloocan. The plaintiff's residence in Caloocan
fronts on the street along which defendant's tracks run, so that to enter his premises from the street
plaintiff is obliged to cross defendant's tracks. On the night mentioned plaintiff drove home in a
calesa and in crossing the tracks to enter his premises the horse stumbled, leaped forward, and fell,
causing the vehicle with the rails, resulting in a sudden stop, threw plaintiff from the vehicle and
caused the injuries complained of.

It is undisputed that at the point where plaintiff crossed the tracks on the night in question not only
the rails were above-ground, but that the ties upon which the rails rested projected from one-third
to one-half of their depth out of the ground, thus making the tops of the rails some 5 or 6 inches or
more above the level of the street.

It is admitted that the defendant was negligent in maintaining its tracks as described, but it is
contended that the plaintiff was also negligent in that he was intoxicated to such an extent at the
time of the accident that he was unable to take care of himself properly and that such intoxication
was the primary cause of the accident.

The trial court held that both parties were negligent, but that the plaintiff's negligence was not as
great as defendant's and under the authority of the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep.,
359) apportioned the damages and awarded plaintiff a judgment of P1,000.

The question before us is stated by the defendant thus: "Accepting the findings of the trial court
that both plaintiff and defendant were guilty of negligence, the only question to be considered is
whether the negligence of plaintiff contributed t the 'principal occurrence' or 'only to his own
injury.' If the former, he cannot recover; if the latter, the trial court was correct in apportioning the
damages."
The questioned as stated by plaintiff is as follows: "The main question at issue is whether or not
the plaintiff was negligent, and, if so, to what extent. If the negligence of the plaintiff was the
primary cause of the accident then, of course, he cannot recover; if his negligence had nothing to
do with the accident but contributed to his injury, then the court was right in apportioning the
damages, but if there was no negligence on the part of the plaintiff, then he should be awarded
damages adequates to the injury sustained."

In support of the defendant's contention counsel says: "Defendant's negligence was its failure
properly to maintain the track; plaintiff's negligence was his intoxication; the 'principal occurrence'
was plaintiff's fall from his calesa. It seems clear that plaintiff's intoxication contributed to the fall;
if he had been sober, it can hardly be doubted that he would have crossed the track safely, as he
had done a hundred times before."

While both parties appealed from the decision, the defendant on the ground that it was not liable
and the plaintiff on the ground that the damages were insufficient according to the evidence, and
while the plaintiff made a motion for a new trial upon the statutory grounds and took proper
exception to the denial thereof, thus conferring upon this court jurisdiction to determine the
question of fact, nevertheless, not all of the testimony taken on the trial, so far as can be gathered
from the record, has been brought to this court. There seems to have been two hearings, one on the
31st of August and the other on the 28th of September. The evidence taken on the first hearing is
here; that taken on the second is not. Not all the evidence taken on the hearings being before the
court, we must refuse, under our rules, to consider even that evidence which is here; and, in the
decision of this case, we are, therefore, relegated to the facts stated in the opinion of the court and
the pleadings filed.

A careful reading of the decision of the trial court leads us to the conclusion that there is nothing
in the opinion which sustains the conclusion of the court that the plaintiff was negligent with
reference to the accident which is the basis of this action. Mere intoxication establish a want of
ordinary care. It is but a circumstance to be considered with the other evidence tending to prove
negligence. It is the general rule that it is immaterial whether a man is drunk or sober if no want
of ordinary care or prudence can be imputed to him, and no greater degree of care is required than
by a sober one. If one's conduct is characterized by a proper degree of care and prudence, it is
immaterial whether he is drunk or sober. (Ward vs. Chicago etc., R. R. Co., 85 Wis., 601; H & T.
C. R. Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell, 3 Allen, Mass., 402; Central R. R. Co. vs.
Phinazee, 93 Ga., 488; Maguirevs. Middlesex R. R. Co., 115 Mass., 239; Meyer vs. Pacific R. R.
Co., 40 Mo., 151., Chicago & N. W. R. R. Co. vs. Drake, 33 Ill. App., 114.)

If intoxication is not in itself negligence, what are the facts found by the trial court and stated in
its opinion upon which may be predicated the finding that the plaintiff did not use ordinary care
and prudence and that the intoxication contributed to the injury complained of? After showing
clearly and forcibly the negligence of the defendant in leaving its tracks in the condition in which
they were on the night of the injury, the court has the following to say, and it is all that can be
found in its opinion, with reference to the negligence of the plaintiff: "With respect to the condition
in which Mr. Wright was on returning to his house on the night in question, the testimony of Doctor
Kneedler, who was the physician who attended him an hour after the accident, demonstrates that
he was intoxicated. . . . .
 If the defendant or its employees were negligent by reason of having left the rails and a
part of the ties uncovered in a street where there is a large amount of travel, the plaintiff
was no less negligent, he not having abstained from his custom of taking more wine than
he could carry without disturbing his judgment and his self-control, he knowing that he had
to drive a horse and wagon and to cross railroad tracks which were to a certain extent
dangerous by reason of the rails being elevated above the level of the street.

If the plaintiff had been prudent on the night in question and had not attempted to drive his
conveyance while in a drunken condition, he would certainly have avoided the damages
which he received, although the company, on its part, was negligent in maintaining its
tracks in a bad condition for travel.

Both parties, therefore, were negligent and both contributed to the damages resulting to the
plaintiff, although the plaintiff, in the judgment of the court, contributed in greater
proportion to the damages that did the defendant.

As is clear from reading the opinion, no facts are stated therein which warrant the conclusion that
the plaintiff was negligent. The conclusion that if he had been sober he would not have been injured
is not warranted by the facts as found. It is impossible to say that a sober man would not have
fallen from the vehicle under the conditions described. A horse crossing the railroad tracks with
not only the rails but a portion of the ties themselves aboveground, stumbling by reason of the
unsure footing and falling, the vehicle crashing against the rails with such force as to break a wheel,
this might be sufficient to throw a person from the vehicle no matter what his condition; and to
conclude that, under such circumstances, a sober man would not have fallen while a drunken man
did, is to draw a conclusion which enters the realm of speculation and guesswork.

It having been found that the plaintiff was not negligent, it is unnecessary to discuss the question
presented by the appellant company with reference to the applicability of the case of Rakes vs. A.
G. & P. Co., above; and we do not find facts in the opinion of the court below which justify a
larger verdict than the one found.

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

EN BANC

G.R. No. 6659 September 1, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
BAGGAY, JR., defendant-appellant.

Roman Lacson, for appellant.

Acting Attorney-General Harvey, for appellee.

TORRES, J.:

This is an appeal by the defendant from the judgment rendered on April 28, 1910, whereby he was
declared exempt from criminal liability but was obliged to indemnify the heirs if the murdered
woman, Bil-liingan, in the sum of P1,000, to pay the costs in the case and to be confined in an
institution for the insane until further order of the court.

About the 4th of October, 1909, several persons were assembled in the defendant's house in the
township of Penarrubia, Abra, Province of Ilocos Sur, for the purpose of holding a song service
called "buni" according to the Tinguian custom, when he, the non-Christian Baggay, without
provocation suddenly attacked the woman Bil-liingan with a bolo, inflicting a serious wound on
her head from which she expired immediately; and with the same bolo he like wise inflicted various
wounds on the women named Calabayan, Agueng, Quisamay, Calapini, and on his own mother,
named Dioalan.

For this reason the provincial fiscal filed a complaint in the court of Ilocos Sur, dated February 15,
charging the non-Christian Baggay, jr., with murder, because of the violent death of the woman
Bil-liingan. This cause was instituted separately from the other, No. 1109, for lesiones. After trial
and proof that the defendant was suffering from mental aberration, the judge on April 28 rendered
the judgment cited above, whereupon the defendant's counsel appealed to this court.

By another writing of June 27, the same counsel asked for immediate suspension of execution of
the judgment, because it had been appealed and had not become final. He also requested annulment
of the sale at public auction of the property attached by the sheriff or his deputy under order of the
court, for making indemnification with the defendant's property in accordance with said judgment,
as the attachment had been executed upon the property of the non-Christian woman named Dioalan
and of other persons, and not upon that of the defendant.

In opposition thereto, the provincial fiscal on the 30th of the same month requested in writing that
the appeal from this judgment filed by the counsel for the defense be not admitted or carried
forward, representing that it was out of order as having been submitted beyond the limit; for the
very day said judgment was rendered, April 28, 1910, the accused's counsel, Sotero Serrano, was
verbally notified thereof, and it is therefore untrue that he was notified only on June 17 of said
year, on which date he read and examined the case and without the clerk's knowledge signed the
same, making it appear that he was notified on that date, June 17, what he had known since April
28 of the judgment, of which the judge had verbally informed him, although the latter did not then
have him sign it.

In reply to this motion of the provincial fiscal, the defense requested that the appeal filed be
admitted and carried for ward, representing that, when the court verbally announced his decision
to defendant's counsel, the judgment had not yet been entered, and therefore neither the defendant
nor his counsel could be notified thereof in legal form until said date, June 17.

Passing upon this motion on August 2, 1910, the court declared said appeal out of order and
dismissed it; and, furthermore, denied the petition for suspension of judgment, as said judgment
had become final.

Thereupon, counsel for the defendant resorted to this court with a petition praying that a writ be
issued directing said judge, Chanco, to admit the appeal and forward it, at the same time annulling
all action taken for execution of the judgments rendered in the causes for murder and for lesiones.
After consideration thereof, the Attorney-General, on behalf of said judge and of the provincial
fiscal, requested that this remedy be declared out of order, as the issuance of such writ against the
judge of the Court of First Instance of Ilocos Sur, and much more against the provincial fiscal, was
not in accordance with law; but this court by order of November 15 saw fit to declare said remedy
of mandamus to be in order and issued a written order directing the judge of the Court of First
Instance to immediately admit the appeal filed in these two causes and to forward all the records
to this higher court. At the same time he was instructed to refrain absolutely from executing said
judgments or causing them to be executed while said appeals were pending, a prohibition that was
extended to the provincial sheriff, his agents and representatives, until further order from this court.
Upon notification of the foregoing and in compliance therewith, the judge by order of November
22 admitted the appeal filed by counsel for the defense both in the cause for murder and in that
for lesiones.

The question raised on the appeal filed in this case by counsel for the insane defendant, Baggay,
jr., is solely whether he, notwithstanding that he was held exempt from criminal liability, has
nevertheless incurred civil liability, with obligation to indemnify the heirs of the murdered woman
and to pay the costs.

Article 17 of the Penal Code states:

Every person criminally liable for a crime or misdemeanor is also civilly liable.

Article 18 of the same code says:

The exemption from criminal liability declared in Nos. 1, 2, 3, 7, and 10 of article 8 does
not include exemption from civil liability, which shall be enforced, subject to the following:

(1) In cases 1, 2, and 3, the persons who are civilly liable for acts committed by a lunatic
or imbecile, or a person under 9 years of age, or over this age and under 15, who has not
acted with the exercise of judgment, are those who have them under their authority, legal
 guardianship or power, unless they prove that there was no blame or negligence on their
part.

Should there be no person having them under his authority, legal guardian, or power, if
such person be insolvent, the said lunatics, imbeciles, or minors shall answer with their
own property, excepting that part which is exempted for their support in accordance with
the civil law.

True it is that civil liability accompanies criminal liability, because every person liable criminally
for a crime or misdemeanor is also liable for reparation of damage and for indemnification of the
harm done, but there may be civil liability because of acts ordinarily punishable, although the law
has declared their perpetrators exempt from criminal liability. Such is the case of a lunatic or insane
person who, in spite of his irresponsibility on account of the deplorable condition of his deranged
mind, is still reasonably and justly liable with his property for the consequences of his acts, even
though they be performed unwittingly, for the reason that his fellows ought not to suffer for the
disastrous results of his harmful acts more than is necessary, in spite of his unfortunate condition.
Law and society are under obligation to protect him during his illness and so when he is declared
to be liable with his property for reparation and indemnification, he is still entitled to the benefit
of what is necessary for his decent maintenance, but this protection does not exclude liability for
damage caused to those who may have the misfortune to suffer the consequences of his acts.

According to the law, the persons in the first place liable. are those who have the insane party
under their care or guardianship, unless they prove that there was no blame or negligence on their
part; but if the demented person or imbecile lack a guardian or some person charged with his care,
if the latter be insolvent, then his own property must meet the civil liability of indemnifying or
repairing the damage done, and for this reason judges and courts in rendering judgment in a
criminal cause prosecuted against an insane or demented person, even when they hold the accused
exempt from criminal liability, must fix the civil liability of the persons charged with watching
over and caring for him or the liability of the demented person him self with his property for
reparation of the damage and indemnification for the harm done, unless the offended party or the
heirs of the person murdered expressly renounce such reparation or indemnification.

Therefore, the judgment appealed from being in accordance with law, affirmation thereof is proper,
and it is hereby affirmed, with costs against the appellant.
SECOND DIVISION
[G.R. No. L-8110. June 30, 1956.]
MARINDUQUE IRON MINES AGENTS, INC., Petitioner, vs. THE WORKMENS
COMPENSATION COMMISSION, THE HEIRS OF PEDRO MAMADOR and
GERONIMO MA. COLL, Respondents.

DECISION
BENGZON, J.:
The Marinduque Iron Mines Agents Inc. questions by certiorari the order of the Workmens
Compensation Commissioner confirming the referees award of compensation to the heirs of Pedro
Mamador for his accidental death.
Only the right to compensation is disputed; chan roblesvirtualawlibrarynot the amount.
It appears, says the award, that on August 23, 1951, at 6:chanroblesvirtuallawlibrary00 a.m. in
Bo. Sumangga, Mogpog, Marinduque, the deceased Mamador together with other laborers of
theRespondent-corporation, (Marinduque Iron Mines Agents Inc.) boarded a truck belonging to
the latter, which was then driven by one Procopio Macunat, also employed by the corporation, and
on its way to their place of work at the mine camp at Talantunan, while trying to overtake another
truck on the company road, it turned over and hit a coconut tree, resulting in the death of said
Mamador and injury to the others.
Procopio Macunat was prosecuted, convicted and sentenced to indemnify the heirs of the deceased.
(Criminal Case No. 1491). He has paid nothing however, to the latter.
In his first proposition Petitioner challenges the validity of the proceedings before the
Commission, asserting it had not been given the opportunity to cross-examine the opposing
witnesses. According to Respondents.
The records show that pursuant to a request made by this Commission on March 28, 1953 to
investigate the above-entitled case, the Public Defender of Boac, Marinduque,
notifiedRespondent Geronimo Ma. Coll and the general manager of the Respondent company, Mr.
Eric Lenze, to appear before him in an investigation, first on May 12, 1953, when neither of them
appeared, and the second on May 29, 1953, when only Mr. Geronimo Ma. Coll. appeared. The
sworn testimony of Mr. Ma. Coll was then taken down in a question and answer method. On
August 18, 1953, thru Referee Ramon Villaflor, this Commission wrote the Respondentcompany
to comment on the enclosed copy of the sworn declaration of Ma. Coll. TheRespondent company,
thru its Vice President, denied its liability under the Workmens Compensation Act, as amended.
In an investigation conducted on February 8, 1954 by the undersigned referee,
the Respondent company thru Mr. Lenze who was assisted by counsel, was allowed to examine
the records of the case including the sworn declaration of Ma. Coll and was given all the
opportunity to rebut the same by additional evidence.
In our opinion, Petitioners grievance does not rest on any sound basis, because it was given notice,
and therefore had the chance, to examine (and cross-examine) the witnesses against it. The statute
even permits the Commissioner (or his referee) to take testimony without notice (section 48 Act
3428 as amended) provided of course such ex parte evidence is reduced to writing, and the adverse
party is afforded opportunity to examine and rebut the same which was done in this instance.
Anyway we are not shown how its failure to cross-examine the witnesses prejudiced
thePetitioners position.
In its second proposition, Petitioner maintains that this claim is barred by section 6 of the
Workmens Compensation Law, because (a) Macunat was prosecuted and required to indemnify
the heirs of the deceased and (b) an amicable settlement was concluded between said heirs and
Macunat.
Section 6 provides as follows:chanroblesvirtuallawlibrary
Sec. 6. Liability of third parties. In case an employee suffers an injury for which compensation
is due under this Act by any other person besides his employer, it shall be optional with such
injured employee either to claim compensation from his employer, under this Act, or sue such
other person for damages, in accordance with law; chan roblesvirtualawlibraryand in case
compensation is claimed and allowed in accordance with this Act, the employer who paid such
compensation or was found liable to pay the same, shall succeed the injured employee to the right
of recovering from such person what he paid:chanroblesvirtuallawlibrary Provided, That in case
the employer recovers from such third person damages in excess of those paid or allowed under
this Act, such excess shall be delivered to the injured employee or any other person entitled thereto,
after deduction of the expenses of the employer and the costs of the proceedings. The sum paid by
the employer for compensation or the amount of compensation to which the employee or his
dependents are entitled, shall not be admissible as evidence in any damage suit or action.
It is the Petitioners contention that Criminal Case No. 1491 and its outcome constituted an
election by the employee (or his heirs) to sue the third person, such election having the effect of
releasing the employer. However, Criminal Case No. 1491 was not a suit for damages against the
third person, it being alleged, without contradiction that the heirs did not intervene therein and
have not so far received the indemnity ordered by the court. At any rate, we have already decided
in Nava vs. Inchausti Co. 1 that the indemnity granted the heirs in a criminal prosecution of the
other person does not affect the liability of the employer to pay compensation. 2
As to the alleged amicable settlement, it consists of an affidavit wherein, for the sum of 150
pesos, Mamadors widow promised to forgive Macunat for the wrong committed and not to bring
him before the authorities for prosecution. Upon making such promise Petitionerargues she
elected one of the remedies, (against the third person) and is barred from the other remedy (against
the employer). The contention may not be sustained, inasmuch as all the widow promised was to
forego the offenders criminal prosecution. Note further that a question may be raised whether she
could bind the other heirs of the deceased.
The most important aspect of this appeal, is the effect of the deceaseds having violated the
employers prohibition against laborers riding the haulage trucks. Petitioner claims such violation
was the laborers notorious negligence which, under the law, precludes recovery. The
Commission has not declared that the prohibition was known to Mamador. Yet the employer does
not point out in the record evidence to that effect. Supposing Mamador knew the prohibition, said
the referee, can we truthfully say that he boarded the fatal truck with full apprehension of the
existence of the danger, if any at all, that an ordinary prudent man would try to avoid? I do not
believe so, and even in the presence of doubt, the same must be resolved in his favor. Unless of
course, we can attribute to him a desire to end his life. Nowhere in the records of this case can we
find the slightest insinuation of that desire.
There is no doubt that mere riding on haulage truck or stealing a ride thereon is not negligence,
ordinarily. It couldnt be, because transportation by truck is not dangerous per se. It is argued that
there was notorious negligence in this particular instance because there was the employers
prohibition. Does violation of this order constitute negligence? Many courts hold that violation of
a statute or ordinance constitutes negligence per se. Others consider the circumstances.
However there is practical unanimity in the proposition that violation of a rule promulgated by a
Commission or board is not negligence per se; chan roblesvirtualawlibrarybut it may be evidence
of negligence. (C.J.S., Vol. 65, p. 427.)
This order of the employer (prohibition rather) couldnt be of a greater obligation than the rule of
a Commission or board. And the referee correctly considered this violation as possible evidence
of negligence; chan roblesvirtualawlibrarybut it declared that under the circumstance, the laborer
could not be declared to have acted with negligence. Correctly, it is believed, since the prohibition
had nothing to do with personal safety of the riders.
Such finding is virtually a finding of fact which we may not overrule in this certiorari proceeding.
Nevertheless, even granting there was negligence, it surely was not notorious negligence, which
we have interpreted to mean the same thing as gross negligence 3 implying conscious
indifference to consequences pursuing a course of conduct which would naturally and probably
result in injury utter disregard of consequences. (38 Am. Jur., 691) Getting or accepting a free
ride on the companys haulage truck couldnt be gross negligence, because as the referee found,
no danger or risk was apparent.
There being no other material point raised in the petition for review, the award of compensation is
hereby affirmed, with costs against Petitioner.
Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.
Reyes, A., J., concurs in the result.

Separate Opinions

MONTEMAYOR, J.:
I concur in the result. I believe that the injury suffered herein was not in the course of the
employments, neither did it arise out of it, but this question does not seem to have been raised
below or in the appeal.
SECOND DIVISION

G.R. No. 73998 November 14, 1988

PEDRO T. LAYUGAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS
MULTI-INDEMNITY CORPORATION, respondents.

Edralin S. Mateo for petitioner.

Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.

Roberto T. Vallarta for respondent Godofredo Isidro.

SARMIENTO, J.:

Assailed in this petition for review on certiorari are 1) the decision 1 of the then Intermediate
Appellate Court 2 in AC-G.R. CV No. 01055, entitled "Pedro T. Layugan, Plaintiff-Appellee,
versus Godofredo Isidro, Defendant-Appellant and Third-Party Plaintiff-Appellee, versus
Travellers Multi-Indemnity Corporation, Third Party Defendant- Appellant, "which reversed and
set aside the decision 3 of the Regional Trial Court, Third Judicial Region, Branch XXVI,
Cabanatuan City, and also dismissed the complaint, third party complaint, and the counter claims
of the parties and 2) the resolution 4 denying the plaintiff-appellee's (herein petitioner) motion for
reconsideration, for lack of merit.

The findings of fact by the trial court which were adopted by the appellate court are as follows: 5

xxx xxx xxx

Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging
that on May 15, 1979 while at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and
a companion were repairing the tire of their cargo truck with Plate No. SU-730
which was parked along the right side of the National Highway; that defendant's
truck bearing Plate No. PW-583, driven recklessly by Daniel Serrano bumped the
plaintiff, that as a result, plaintiff was injured and hospitalized at Dr. Paulino J.
Garcia Research and Medical Center and the Our Lady of Lourdes Hospital; that
he spent TEN THOUSAND PESOS (Pl0,000.00) and will incur more expenses as
he recuperates from said injuries; that because of said injuries he would be deprived
of a lifetime income in the sum of SEVENTY THOUSAND PESOS (P70,000.00);
and that he agreed to pay his lawyer the sum of TEN THOUSAND PESOS
(Pl0,000.00).
As prayed for by the plaintiffs counsel, the Court declared the defendant in default
on October 12, 1979, and plaintiff's evidence was received ex-parte on January 11,
1978 and February 19, 1980. The decision on behalf of the plaintiff was set aside
to give a chance to the defendant to file his answer and later on, a third-party
complaint.

Defendant admitted his ownership of the vehicle involved in the accident driven by
Daniel Serrano. Defendant countered that the plaintiff was merely a bystander, not
a truck helper being a brother-in-law law of the driver of said truck; that the truck
allegedly being repaired was parked, occupying almost half of the right lane
towards Solano, Nueva Vizcaya, right after the curve; that the proximate cause of
the incident was the failure of the driver of the parked truck in installing the early
warning device, hence the driver of the parked car should be liable for damages
sustained by the truck of the herein defendant in the amount of more than
P20,000.00; that plaintiff being a mere bystander and hitchhiker must suffer all the
damages he incurred. By way of counterclaim defendant alleged that due to
plaintiffs baseless complaint he was constrained to engage the services of counsel
for P5,000.00 and P200.00 per court appearance; that he suffered sleepless nights,
humiliation, wounded feelings which may be estimated at P30.000.00.

On May 29, 1981, a third-party complaint was filed by the defendant against his
insurer, the Travellers Multi Indemnity Corporation; that the third-party plaintiff,
without admitting his liability to the plaintiff, claimed that the third-party defendant
is liable to the former for contribution, indemnity and subrogation by virtue of their
contract under Insurance Policy No. 11723 which covers the insurer's liability for
damages arising from death, bodily injuries and damage to property.

Third-party defendant answered that, even assuming that the subject matter of the
complaint is covered by a valid and existing insurance policy, its liability shall in
no case exceed the limit defined under the terms and conditions stated therein; that
the complaint is premature as no claim has been submitted to the third party
defendant as prescribed under the Insurance Code; that the accident in question was
approximately caused by the carelessness and gross negligence of the plaintiff-, that
by reason of the third-party complaint, third-party defendant was constrained to
engage the services of counsel for a fee of P3,000.00.

Pedro Layugan declared that he is a married man with one (1) child. He was
employed as security guard in Mandaluyong, Metro Manila, with a salary of SIX
HUNDRED PESOS (600.00) a month. When he is off-duty, he worked as a truck
helper and while working as such, he sustained injuries as a result of the bumping
of the cargo truck they were repairing at Baretbet, Bagabag, Nueva Vizcaya by the
driver of the defendant. He used to earn TWO HUNDRED PESOS (P200.00) to
THREE HUNDRED PESOS (P300.00) monthly, at the rate of ONE HUNDRED
PESOS (Pl00.00) per trip. Due to said injuries, his left leg was amputated so he had
to use crutches to walk. Prior to the incident, he supported his family sufficiently,
 but after getting injured, his family is now being supported by his parents and
brother.

GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his truck

involved in this vehicular accident is insured with the Travellers Multi Indemnity
Corporation covering own damage and third-party liability, under vehicle policy
No. 11723 (Exh. "1") dated May 30, 1978; that after he filed the insurance claim
the insurance company paid him the sum of P18,000.00 for the damages sustained
by this truck but not the third party liability.

DANIEL SERRANO, defendant driver, declared that he gave a statement before

the municipal police of Bagabag, Nueva Vizcaya on May 16, 1979; that he knew
the responsibilities of a driver; that before leaving, he checked the truck. The truck
owner used to instruct him to be careful in driving. He bumped the truck being
repaired by Pedro Layugan, plaintiff, while the same was at a stop position. From
the evidence presented, it has been established clearly that the injuries sustained by
the plaintiff was caused by defendant's driver, Daniel Serrano. The police report
confirmed the allegation of the plaintiff and admitted by Daniel Serrano on cross-
examination. The collision dislodged the jack from the parked truck and pinned the
plaintiff to the ground. As a result thereof, plaintiff sustained injuries on his left
forearm and left foot. The left leg of the plaintiff from below the knee was later on
amputated (Exh. "C") when gangrene had set in, thereby rendering him
incapacitated for work depriving him of his income. (pp. 118 to 120, Record on
Appeal.)

xxx xxx xxx

Upon such findings, amply supported by the evidence on record, the trial court rendered its
decision, the dispositive part of which reads as follows: 6

WHEREFORE, premises considered, the defendant is hereby ordered:

a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS actual and

compensatory damages;

b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;

c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and

d) To pay the costs of this suit. On the third-party complaint, the third-party
defendant is ordered to indemnify the defendant/third party plaintiff-.

a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and

compensatory damages; and

b) The costs of this suit.

The Intermediate Appellate Court as earlier stated reversed the decision of the trial court and
dismissed the complaint, the third-party complaint, and the counter- claims of both appellants. 7

Hence, this petition.

The petitioner alleges the following errors. 8

1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE

APPELLATE COURT ACTED CORRECTLY IN REVERSING AND SETTING
ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S COMPLAINT.

2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED

CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA LOQUITUR"
WITH PROPER JURIS- PRUDENTIAL (sic) BASIS.

The crux of the controversy lies in the correctness or error of the decision of the respondent court
finding the petitioner negligent under the doctrine of Res ipsa loquitur (The thing speaks for
itself).<re||an1w> Corollary thereto, is the question as to who is negligent, if the doctrine is
inapplicable.

The respondent corporation stresses that the issues raised in the petition being factual, the same is
not reviewable by this Court in a petition for review by certiorari. 9

Indeed, it is an elementary rule in the review of decisions of the Court of Appeals that its findings
of fact are entitled to great respect and will not ordinarily be disturbed by this Court. 10 For if we
have to review every question of fact elevated to us, we would hardly have any more time left for
the weightier issues compelling and deserving our preferential attention. 11 Be that as it may, this
rule is not inflexible. Surely there are established exceptions 12 when the Court should review
and rectify the findings of fact of the lower court, such as:

1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2)

the inference made is manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment
is based on misapprehension of facts; 5) the Court of Appeals went beyond the issues of the case
if the findings are contrary to the admission of both the appellant and the appellee; 6) the findings
of the Court of Appeals are contrary to those of the trial court; 7) the said findings of fact are
conclusions without citation of specific evidence on which they are based; 8) the facts set forth in
the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents;
and 9) when the findings of fact of the Court of Appeals are premised on the absence of evidence
and are contradicted on record.

Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation from the general
rule.

From its finding that the parked truck was loaded with ten (10) big round logs 13 the Court of
Appeals inferred that because of its weight the truck could not have been driven to the shoulder of
the road and concluded that the same was parked on a portion of the road 14 at the time of the
accident. Consequently, the respondent court inferred that the mishap was due to the negligence
of the driver of the parked truck. 15 The inference or conclusion is manifestly erroneous. In a large
measure, it is grounded on speculation, surmise, or conjecture. How the respondent court could
have reversed the finding of the trial court that a warning device was installed 16 escapes us because
it is evident from the record that really such a device, in the form of a lighted kerosene lamp, was
installed by the driver of the parked truck three to four meters from the rear of his parked
truck. 17 We see this negative finding of the respondent appellate court as a misreading of the facts
and the evidence on record and directly contravening the positive finding of the trial court that an
early warning device was in proper place when the accident happened and that the driver of the
private respondent was the one negligent. On the other hand, the respondent court, in refusing to
give its "imprimatur to the trial court's finding and conclusion that Daniel Serrano (private
respondent Isidro's driver) was negligent in driving the truck that bumped the parked truck", did
not cite specific evidence to support its conclusion. In cavalier fashion, it simply and nebulously
adverted to unspecified "scanty evidence on record." 18

On the technical aspect of the case, the respondent corporation would want us to dismiss this
petition on the ground that it was filed out of time. It must be noted that there was a motion for
extension, 19 albeit filed erroneously with the respondent court, dated March 19, 1986, requesting
for 30 days from March 20, 1986, to file the necessary petition or pleading before the Supreme
Court". Also, on April 1, 1986, an appearance of a new lawyer for the petitioner before the
Supreme Court" with motion 20 was filed, again erroneously, with the Court of Appeals, requesting
for 20 days extension "to file the Petition for Review on Certiorari." Likewise a similar
motion 21 was filed with this Court also on April 1, 1986. On the other hand, the instant petition
for review was filed on April 17, 1986 22 but it was only after three months, on August 1, 1986, in
its comment 23 that the respondent corporation raised the issue of tardiness. The respondent
corporation should not have waited in ambush before the comment was required and before due
course was given. In any event, to exact its "a pound of flesh", so to speak, at this very late stage,
would cause a grave miscarriage of justice. Parenthetically, it must be noted that private respondent
Isidro did not raise this issue of late filing.

We now come to the merits of this petition.

The question before us is who was negligent? Negligence is the omission to do something which
a reasonable man, guided by those considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent and reasonable man would not do 24 or
as Judge Cooley defines it, "(T)he failure to observe for the protection of the interests of another
person, that degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury. 25

In Picart vs. Smith, 26 decided more than seventy years ago but still a sound rule, we held:

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. The existence of negligence in a given
case is not determined by reference to the personal judgment of the actor in the situation before
him. The Law considers what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.

Respondent Isidro posits that any immobile object along the highway, like a parked truck, poses
serious danger to a moving vehicle which has the right to be on the highway. He argues that since
the parked cargo truck in this case was a threat to life and limb and property, it was incumbent
upon the driver as well as the petitioner, who claims to be a helper of the truck driver, to exercise
extreme care so that the motorist negotiating the road would be properly forewarned of the peril
of a parked vehicle. Isidro submits that the burden of proving that care and diligence were observed
is shifted to the petitioner, for, as previously claimed, his (Isidro's) Isuzu truck had a right to be on
the road, while the immobile cargo truck had no business, so to speak, to be there. Likewise, Isidro
proffers that the petitioner must show to the satisfaction of a reasonable mind that the driver and
he (petitioner) himself, provided an early warning device, like that required by law, or, by some
other adequate means that would properly forewarn vehicles of the impending danger that the
parked vehicle posed considering the time, place, and other peculiar circumstances of the occasion.
Absent such proof of care, as in the case at bar, Isidro concludes, would, under the doctrine of Res
ipsa loquitur, evoke the presumption of negligence on the part of the driver of the parked cargo
truck as well as his helper, the petitioner herein, who was fixing the flat tire of the said truck. 27

Respondent Isidro's contention is untenable.

The evidence on record discloses that three or four meters from the rear of the parked truck, a
lighted kerosene lamp was placed. 28 Moreover, there is the admission of respondent Isidro's driver,
Daniel Serrano, to Wit: 29

Question No. 8 (by Patrolman Josefino Velasco)Will you narrate to me in brief

how the accident happens (sic) if you can still remember?

Answer: (by Daniel Serrano)

That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck
at Baretbet, Bagabag, Nueva Vizcaya and at KM 285, I met another
vehicle who (sic) did not dim his (sic) lights which cause (sic) me to
be blinded with intense glare of the light that's why I did not notice
a parked truck who (sic) was repairing a front flat tire. When I was
a few meters away, I saw the truck which was loaded with round
logs. I step (sic) on my foot brakes but it did not function with my
many attempts. I have (sic) found out later that the fluid pipe on the
rear right was cut that's why the breaks did not function. (Emphasis
supplied).

Whether the cargo truck was parked along the road or on half the shoulder of the right side of the
road would be of no moment taking into account the warning device consisting of the lighted
kerosene lamp placed three or four meters from the back of the truck. 30 But despite this warning
which we rule as sufficient, the Isuzu truck driven by Daniel Serrano, an employee of the private
respondent, still bumped the rear of the parked cargo truck. As a direct consequence of such
accident the petitioner sustained injuries on his left forearm and left foot. His left leg was later
amputated from below the knee when gangrene had set in. 31

It is clear from the foregoing disquisition that the absence or want of care of Daniel Serrano has
been established by clear and convincing evidence. It follows that in stamping its imprimatur upon
the invocation by respondent Isidro of the doctrine of Res ipsa loquitur to escape liability for the
negligence of his employee, the respondent court committed reversible error.

The respondent court ruled: 32

xxx xxx xxx

In addition to this, we agree with the following arguments of appellant Godofredo

Isidro which would show that the accident was caused due to the negligence of the
driver of the cargo truck:

xxx xxx xxx

... In the case at bar the burden of proving that care and diligence
was (sic) observed is shifted evidently to the plaintiff, for, as
adverted to, the motorists have the right to be on the road, while the
immobile truck has no business, so to speak, to be there. It is thus
for the plaintiff to show to the satisfaction of a reasonable mind that
the driver and he himself did employ early warning device such as
that required by law or by some other adequate means or device that
would properly forewarn vehicles of the impending danger that the
parked vehicle posed considering the time, place and other peculiar
circumstances of the occasion. Absent such proof of care, as in the
case at bar, will evoke the presumption of negligence under the
doctrine of res ipsa loquitur, on the part of the driver of the parked
cargo truck as well as plaintiff who was fixing the flat tire of said
truck. (pp. 14-17, Appellant's Brief). (Emphasis supplied).

At this juncture, it may be enlightening and helpful in the proper resolution of the issue of
negligence to examine the doctrine of Res ipsa loquitur.

This doctrine is stated thus: "Where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the ordinary course of things does not
happen if those who have the management use proper care, it affords reasonable evidence, in the
absence of an explanation by the defendant, that the accident arose from want of care. 33 Or
as Black's Law Dictionary 34 puts it:

Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or inference
that defendant was negligent, which arises upon proof that instrumentality causing
injury was in defendant's exclusive control, and that the accident was one which
 ordinarily does not happen in absence of negligence. Res ipsa loquitur is rule of
evidence whereby negligence of alleged wrongdoer may be inferred from mere fact
that accident happened provided character of accident and circumstances attending
it lead reasonably to belief that in absence of negligence it would not have occurred
and that thing which caused injury is shown to have been under management and
control of alleged wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App., 484
S.W. 2d 133, 155. Under doctrine of "res ipsa loquitur" the happening of an injury
permits an inference of negligence where plaintiff produces substantial evidence
that injury was caused by an agency or instrumentality under exclusive control and
management of defendant, and that the occurrence was such that in the ordinary
course of things would not happen if reasonable care had been used.

In this jurisdiction we have applied this doctrine in quite a number of cases, notably in Africa et
al. vs. Caltex, Inc., et al., 35 and the latest is in the case of F.F. Cruz and Co., Inc. vs. CA. 36

The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. 37 The doctrine is not a rule of substantive law 38 but
merely a mode of proof or a mere procedural convenience. 39 The rule, when applicable to the facts
and circumstances of a particular case, is not intended to and does not dispense with the
requirement of proof of culpable negligence on the part of the party charged. 40 It merely
determines and regulates what shall be prima facie evidence thereof and facilitates the burden of
plaintiff of proving a breach of the duty of due care. 41 The doctrine can be invoked when and only
when, under the circumstances involved, direct evidence is absent and not readily
available. 42 Hence, it has generally been held that the presumption of inference arising from the
doctrine cannot be availed of, or is overcome, where plaintiff has knowledge and testifies or
presents evidence as to the specific act of negligence which is the cause of the injury complained
of or where there is direct evidence as to the precise cause of the accident and all the facts and
circumstances attendant on the occurrence clearly appear. 43 Finally, once the actual cause of
injury is established beyond controversy, whether by the plaintiff or by the defendant, no
presumptions will be involved and the doctrine becomes inapplicable when the circumstances have
been so completely eludicated that no inference of defendant's liability can reasonably be made,
whatever the source of the evidence, 44 as in this case.

The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil
Code. In the latter, when an injury is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on the part of the master or
employer either in the selection of the servant or employee, or in supervision over him after
selection, or both. Such presumption is juris tantum and not juris et de jure and consequently, may
be rebutted. If follows necessarily that if the employer shows to the satisfaction of the court that
in the selection and in the supervision he has exercised the care and diligence of a good father of
a family, the presumption is overcome and he is relieved from liability. 45 In disclaiming liability
for the incident, the private respondent stresses that the negligence of his employee has already
been adequately overcome by his driver's statement that he knew his responsibilities as a driver
and that the truck owner used to instruct him to be careful in driving.46
We do not agree with the private respondent in his submission. In the first place, it is clear that the
driver did not know his responsibilities because he apparently did not check his vehicle before he
took it on the road. If he did he could have discovered earlier that the brake fluid pipe on the right
was cut, and could have repaired it and thus the accident could have been avoided. Moveover, to
our mind, the fact that the private respondent used to intruct his driver to be careful in his driving,
that the driver was licensed, and the fact that he had no record of any accident, as found by the
respondent court, are not sufficient to destroy the finding of negligence of the Regional Trial Court
given the facts established at the trial 47 The private respondent or his mechanic, who must be
competent, should have conducted a thorough inspection of his vehicle before allowing his driver
to drive it. In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove
that the diligence of a good father of a family in the supervision of his employees which would
exculpate him from solidary liability with his driver to the petitioner. But even if we concede that
the diligence of a good father of a family was observed by Isidro in the supervision of his driver,
there is not an iota of evidence on record of the observance by Isidro of the same quantum of
diligence in the supervision of his mechanic, if any, who would be directly in charge in maintaining
the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof that Isidro
exercised the diligence of a good father of a family in the selection of his driver, Daniel Serrano,
as well as in the selection of his mechanic, if any, in order to insure the safe operation of his truck
and thus prevent damage to others. Accordingly, the responsibility of Isidro as employer treated
in Article 2180, paragraph 5, of the Civil Code has not ceased.

WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent court as well
as its Resolution denying the petitioner's motion for reconsideration are hereby SET ASIDE and
the decision of the trial court, dated January 20, 1983, is hereby REINSTATED in toto. With costs
against the private respondents.

SO ORDERED.
FIRST DIVISION

G.R. No. 124354 April 11, 2002

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, DE LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA
and DR. PERFECTA GUTIERREZ, respondents.

RESOLUTION

KAPUNAN, J.:

Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta Gutierrez
move for a reconsideration of the Decision, dated December 29, 1999, of this Court holding them
civilly liable for petitioner Erlinda Ramos comatose condition after she delivered herself to them
for their professional care and management.

For better understanding of the issues raised in private respondents respective motions, we will
briefly restate the facts of the case as follows:

Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help, was advised
to undergo an operation for the removal of a stone in her gall bladder (cholecystectomy). She was
referred to Dr. Hosaka, a surgeon, who agreed to perform the operation on her. The operation was
scheduled for June 17, 1985 at 9:00 in the morning at private respondent De Los Santos Medical
Center (DLSMC). Since neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of
any anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez.

Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation. By 7:30 in
the morning of the following day, petitioner Erlinda was already being prepared for operation.
Upon the request of petitioner Erlinda, her sister-in-law, Herminda Cruz, who was then Dean of
the College of Nursing at the Capitol Medical Center, was allowed to accompany her inside the
operating room.

At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to get in touch
with him by phone. Thereafter, Dr. Gutierrez informed Cruz that the operation might be delayed
due to the late arrival of Dr. Hosaka. In the meantime, the patient, petitioner Erlinda said to Cruz,
"Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor."

By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already wanted
to pull out his wife from the operating room. He met Dr. Garcia, who remarked that he was also
tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the hospital at around 12:10 in the
afternoon, or more than three (3) hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about Dr. Hosakas arrival. While she
held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate the patient. Cruz heard Dr.
Gutierrez utter: "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan."
Cruz noticed a bluish discoloration of Erlindas nailbeds on her left hand. She (Cruz) then heard
Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr.
Calderon attempted to intubate the patient. The nailbeds of the patient remained bluish, thus, she
was placed in a trendelenburg position a position where the head of the patient is placed in a
position lower than her feet. At this point, Cruz went out of the operating room to express her
concern to petitioner Rogelio that Erlindas operation was not going well.

Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg
position. At almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care
Unit (ICU). The doctors explained to petitioner Rogelio that his wife had bronchospasm. Erlinda
stayed in the ICU for a month. She was released from the hospital only four months later or on
November 15, 1985. Since the ill-fated operation, Erlinda remained in comatose condition until
she died on August 3, 1999.1

Petitioners filed with the Regional Trial Court of Quezon City a civil case for damages against
private respondents. After due trial, the court a quo rendered judgment in favor of petitioners.
Essentially, the trial court found that private respondents were negligent in the performance of
their duties to Erlinda. On appeal by private respondents, the Court of Appeals reversed the trial
courts decision and directed petitioners to pay their "unpaid medical bills" to private respondents.

Petitioners filed with this Court a petition for review on certiorari. The private respondents were
then required to submit their respective comments thereon. On December 29, 1999, this Court
promulgated the decision which private respondents now seek to be reconsidered. The dispositive
portion of said Decision states:

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby
modified so as to award in favor of petitioners, and solidarily against private respondents
the following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation
of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda
Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3)
P1,500,000.00 as temperate damages; 4) P100,000.00 each exemplary damages and
attorneys fees; and 5) the costs of the suit.2

In his Motion for Reconsideration, private respondent Dr. Hosaka submits the following as
grounds therefor:

THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR WHEN IT

HELD RESPONDENT DR. HOSAKA LIABLE ON THE BASIS OF THE "CAPTAIN-OF-THE-
SHIP" DOCTRINE.

II
THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT DR. HOSAKA
LIABLE DESPITE THE FACT THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO
HIM.

III

ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA IS LIABLE, THE

HONORABLE SUPREME COURT ERRED IN AWARDING DAMAGES THAT WERE
CLEARLY EXCESSIVE AND WITHOUT LEGAL BASIS.3

Private respondent Dr. Gutierrez, for her part, avers that:

A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY

OVERLOOKED THE FACT THAT THE COURT OF APPEALS DECISION DATED
29 MAY 1995 HAD ALREADY BECOME FINAL AND EXECUTORY AS OF 25 JUNE
1995, THEREBY DEPRIVING THIS HONORABLE COURT OF JURISDICTION
OVER THE INSTANT PETITION;

B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY

OVERLOOKED SEVERAL MATERIAL FACTUAL CIRCUMSTANCES WHICH, IF
PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER
CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS WERE NOT
GUILTY OF ANY NEGLIGENCE IN RESPECT OF THE INSTANT CASE;

B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY

DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF
OF HER COMPLIANCE WITH THE STANDARDS OF DUE CARE
EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL SPECIALIZATION.

B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY

DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF
OF HER HAVING SUCCESSFULLY INTUBATED PATIENT ERLINDA
RAMOS

C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO MUCH

RELIANCE ON THE TESTIMONY OF PETITIONERS WITNESS HERMINDA
CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL CIRCUMSTANCES
WHICH RENDERS DOUBT ON HER CREDIBILITY

D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED THE

EXPERT TESTIMONY OF DR. JAMORA AND DRA. CALDERON

E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY

AWARDED DAMAGES TO PETITIONERS DESPITE THE FACT THAT THERE
WAS NO NEGLIGENCE ON THE PART OF RESPONDENT DOCTOR.4
Private respondent De Los Santos Medical Center likewise moves for reconsideration on the
following grounds:

THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE INSTANT

PETITION AS THE DECISION OF THE HONORABLE COURT OF APPEALS HAD
ALREADY BECOME FINAL AND EXECUTORY

II

THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN EMPLOYER-

EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN RESPONDENT DE LOS SANTOS
MEDICAL CENTER AND DRS. ORLINO HOSAKA AND PERFECTA GUTIERREZ

III

THE HONORABLE SUPREME COURT ERRED IN FINDING THAT RESPONDENT DE LOS

SANTOS MEDICAL CENTER IS SOLIDARILY LIABLE WITH RESPONDENT DOCTORS

IV

THE HONORABLE SUPREME COURT ERRED IN INCREASING THE AWARD OF

DAMAGES IN FAVOR OF PETITIONERS.5

In the Resolution of February 21, 2000, this Court denied the motions for reconsideration of private
respondents Drs. Hosaka and Gutierrez. They then filed their respective second motions for
reconsideration. The Philippine College of Surgeons filed its Petition-in-Intervention contending
in the main that this Court erred in holding private respondent Dr. Hosaka liable under the captain
of the ship doctrine. According to the intervenor, said doctrine had long been abandoned in the
United States in recognition of the developments in modern medical and hospital practice.6 The
Court noted these pleadings in the Resolution of July 17, 2000.7

On March 19, 2001, the Court heard the oral arguments of the parties, including the intervenor.
Also present during the hearing were the amicii curiae: Dr. Felipe A. Estrella, Jr., Consultant of
the Philippine Charity Sweepstakes, former Director of the Philippine General Hospital and former
Secretary of Health; Dr. Iluminada T. Camagay, President of the Philippine Society of
Anesthesiologists, Inc. and Professor and Vice-Chair for Research, Department of Anesthesiology,
College of Medicine-Philippine General Hospital, University of the Philippines; and Dr. Lydia M.
Egay, Professor and Vice-Chair for Academics, Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of the Philippines.

The Court enumerated the issues to be resolved in this case as follows:

1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR

NEGLIGENCE;
 2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS
LIABLE FOR NEGLIGENCE; AND

3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS

LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR VISITING
CONSULTANT SURGEON AND ANESTHESIOLOGIST.8

We shall first resolve the issue pertaining to private respondent Dr. Gutierrez. She maintains that
the Court erred in finding her negligent and in holding that it was the faulty intubation which was
the proximate cause of Erlindas comatose condition. The following objective facts allegedly
negate a finding of negligence on her part: 1) That the outcome of the procedure was a comatose
patient and not a dead one; 2) That the patient had a cardiac arrest; and 3) That the patient was
revived from that cardiac arrest.9 In effect, Dr. Gutierrez insists that, contrary to the finding of this
Court, the intubation she performed on Erlinda was successful.

Unfortunately, Dr. Gutierrez claim of lack of negligence on her part is belied by the records of
the case. It has been sufficiently established that she failed to exercise the standards of care in the
administration of anesthesia on a patient. Dr. Egay enlightened the Court on what these standards
are:

x x x What are the standards of care that an anesthesiologist should do before we administer
anesthesia? The initial step is the preparation of the patient for surgery and this is a pre-
operative evaluation because the anesthesiologist is responsible for determining the
medical status of the patient, developing the anesthesia plan and acquainting the patient or
the responsible adult particularly if we are referring with the patient or to adult patient who
may not have, who may have some mental handicaps of the proposed plans. We do pre-
operative evaluation because this provides for an opportunity for us to establish
identification and personal acquaintance with the patient. It also makes us have an
opportunity to alleviate anxiety, explain techniques and risks to the patient, given the
patient the choice and establishing consent to proceed with the plan. And lastly, once this
has been agreed upon by all parties concerned the ordering of pre-operative medications.
And following this line at the end of the evaluation we usually come up on writing,
documentation is very important as far as when we train an anesthesiologist we always
emphasize this because we need records for our protection, well, records. And it entails
having brief summary of patient history and physical findings pertinent to anesthesia, plan,
organize as a problem list, the plan anesthesia technique, the plan post operative, pain
management if appropriate, special issues for this particular patient. There are needs for
special care after surgery and if it so it must be written down there and a request must be
made known to proper authorities that such and such care is necessary. And the request for
medical evaluation if there is an indication. When we ask for a cardio-pulmonary clearance
it is not in fact to tell them if this patient is going to be fit for anesthesia, the decision to
give anesthesia rests on the anesthesiologist. What we ask them is actually to give us the
functional capacity of certain systems which maybe affected by the anesthetic agent or the
technique that we are going to use. But the burden of responsibility in terms of selection of
agent and how to administer it rest on the anesthesiologist.10
The conduct of a preanesthetic/preoperative evaluation prior to an operation, whether elective or
emergency, cannot be dispensed with.11 Such evaluation is necessary for the formulation of a plan
of anesthesia care suited to the needs of the patient concerned.

Pre-evaluation for anesthesia involves taking the patients medical history, reviewing his current
drug therapy, conducting physical examination, interpreting laboratory data, and determining the
appropriate prescription of preoperative medications as necessary to the conduct of anesthesia.12

Physical examination of the patient entails not only evaluating the patients central nervous system,
cardiovascular system and lungs but also the upper airway. Examination of the upper airway would
in turn include an analysis of the patients cervical spine mobility, temporomandibular mobility,
prominent central incisors, deceased or artificial teeth, ability to visualize uvula and the
thyromental distance.13

Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation on Erlinda. As

she herself admitted, she saw Erlinda for the first time on the day of the operation itself, one hour
before the scheduled operation. She auscultated14 the patients heart and lungs and checked the
latters blood pressure to determine if Erlinda was indeed fit for operation.15 However, she did not
proceed to examine the patients airway. Had she been able to check petitioner Erlindas airway
prior to the operation, Dr. Gutierrez would most probably not have experienced difficulty in
intubating the former, and thus the resultant injury could have been avoided. As we have stated in
our Decision:

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time
on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations
with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda.
She was likewise not properly informed of the possible difficulties she would face during
the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her
patient for the first time only an hour before the scheduled operative procedure was,
therefore, an act of exceptional negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives lie at the core of the
physicians centuries-old Hippocratic Oath. Her failure to follow this medical procedure
is, therefore, a clear indicia of her negligence.16

Further, there is no cogent reason for the Court to reverse its finding that it was the faulty intubation
on Erlinda that caused her comatose condition. There is no question that Erlinda became comatose
after Dr. Gutierrez performed a medical procedure on her. Even the counsel of Dr. Gutierrez
admitted to this fact during the oral arguments:

CHIEF JUSTICE:

Mr. Counsel, you started your argument saying that this involves a comatose
patient?

ATTY. GANA:
 Yes, Your Honor.

CHIEF JUSTICE:

How do you mean by that, a comatose, a comatose after any other acts were done
by Dr. Gutierrez or comatose before any act was done by her?

ATTY. GANA:

No, we meant comatose as a final outcome of the procedure.

CHIEF JUSTICE:

Meaning to say, the patient became comatose after some intervention, professional
acts have been done by Dr. Gutierrez?

ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:

In other words, the comatose status was a consequence of some acts performed by
D. Gutierrez?

ATTY. GANA:

It was a consequence of the well, (interrupted)

CHIEF JUSTICE:

An acts performed by her, is that not correct?

ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:

Thank you.17

What is left to be determined therefore is whether Erlindas hapless condition was due to any fault
or negligence on the part of Dr. Gutierrez while she (Erlinda) was under the latters care. Dr.
Gutierrez maintains that the bronchospasm and cardiac arrest resulting in the patients comatose
condition was brought about by the anaphylactic reaction of the patient to Thiopental Sodium
(pentothal).18 In the Decision, we explained why we found Dr. Gutierrez theory unacceptable. In
the first place, Dr. Eduardo Jamora, the witness who was presented to support her (Dr. Gutierrez)
theory, was a pulmonologist. Thus, he could not be considered an authority on anesthesia practice
and procedure and their complications.19

Secondly, there was no evidence on record to support the theory that Erlinda developed an allergic
reaction to pentothal. Dr. Camagay enlightened the Court as to the manifestations of an allergic
reaction in this wise:

DR. CAMAGAY:

All right, let us qualify an allergic reaction. In medical terminology an allergic

reaction is something which is not usual response and it is further qualified by the
release of a hormone called histamine and histamine has an effect on all the organs
of the body generally release because the substance that entered the body reacts
with the particular cell, the mass cell, and the mass cell secretes this histamine. In
a way it is some form of response to take away that which is not mine, which is not
part of the body. So, histamine has multiple effects on the body. So, one of the
effects as you will see you will have redness, if you have an allergy you will have
tearing of the eyes, you will have swelling, very crucial swelling sometimes of the
larynges which is your voice box main airway, that swelling may be enough to
obstruct the entry of air to the trachea and you could also have contraction,
constriction of the smaller airways beyond the trachea, you see you have the trachea
this way, we brought some visual aids but unfortunately we do not have a projector.
And then you have the smaller airways, the bronchi and then eventually into the
mass of the lungs you have the bronchus. The difference is that these tubes have
also in their walls muscles and this particular kind of muscles is smooth muscle so,
when histamine is released they close up like this and that phenomenon is known
as bronco spasm. However, the effects of histamine also on blood vessels are
different. They dilate blood vessel open up and the patient or whoever has this
histamine release has hypertension or low blood pressure to a point that the patient
may have decrease blood supply to the brain and may collapse so, you may have
people who have this.20

These symptoms of an allergic reaction were not shown to have been extant in Erlindas case. As
we held in our Decision, "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."21

Dr. Gutierrez, however, insists that she successfully intubated Erlinda as evidenced by the fact that
she was revived after suffering from cardiac arrest. Dr. Gutierrez faults the Court for giving
credence to the testimony of Cruz on the matter of the administration of anesthesia when she
(Cruz), being a nurse, was allegedly not qualified to testify thereon. Rather, Dr. Gutierrez invites
the Courts attention to her synopsis on what transpired during Erlindas intubation:

12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by slow IV.
02 was started by mask. After pentothal injection this was followed by IV injection of
 Norcuron 4mg. After 2 minutes 02 was given by positive pressure for about one minute.
Intubation with endotracheal tube 7.5 m in diameter was done with slight difficulty (short
neck & slightly prominent upper teeth) chest was examined for breath sounds & checked
if equal on both sides. The tube was then anchored to the mouth by plaster & cuff inflated.
Ethrane 2% with 02 4 liters was given. Blood pressure was checked 120/80 & heart rate
regular and normal 90/min.

12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02 given
alone. Cyanosis disappeared. Blood pressure and heart beats stable.

12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all over
the chest. D_5%_H20 & 1 ampule of aminophyline by fast drip was started. Still the
cyanosis was persistent. Patient was connected to a cardiac monitor. Another ampule of of
[sic] aminophyline was given and solu cortef was given.

12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac injection of
adrenalin was given & heart beat reappeared in less than one minute. Sodium bicarbonate
& another dose of solu cortef was given by IV. Cyanosis slowly disappeared & 02
continuously given & assisted positive pressure. Laboratory exams done (see results in
chart).

Patient was transferred to ICU for further management.22

From the foregoing, it can be allegedly seen that there was no withdrawal (extubation) of the tube.
And the fact that the cyanosis allegedly disappeared after pure oxygen was supplied through the
tube proved that it was properly placed.

The Court has reservations on giving evidentiary weight to the entries purportedly contained in
Dr. Gutierrez synopsis. It is significant to note that the said record prepared by Dr. Gutierrez was
made only after Erlinda was taken out of the operating room. The standard practice in anesthesia
is that every single act that the anesthesiologist performs must be recorded. In Dr. Gutierrez case,
she could not account for at least ten (10) minutes of what happened during the administration of
anesthesia on Erlinda. The following exchange between Dr. Estrella, one of the amicii curiae, and
Dr. Gutierrez is instructive:

DR. ESTRELLA

Q You mentioned that there were two (2) attempts in the intubation period?

DR. GUTIERREZ

Yes.

Q There were two attempts. In the first attempt was the tube inserted or was the
laryngoscope only inserted, which was inserted?
A All the laryngoscope.

Q All the laryngoscope. But if I remember right somewhere in the re-direct, a certain
lawyer, you were asked that you did a first attempt and the question was did you withdraw
the tube? And you said you never withdrew the tube, is that right?

A Yes.

Q Yes. And so if you never withdrew the tube then there was no, there was no insertion
of the tube during that first attempt. Now, the other thing that we have to settle here is
when cyanosis occurred, is it recorded in the anesthesia record when the cyanosis, in your
recording when did the cyanosis occur?

A (sic)

Q Is it a standard practice of anesthesia that whatever you do during that period or

from the time of induction to the time that you probably get the patient out of the operating
room that every single action that you do is so recorded in your anesthesia record?

A I was not able to record everything I did not have time anymore because I did that
after the, when the patient was about to leave the operating room. When there was second
cyanosis already that was the (interrupted)

Q When was the first cyanosis?

A The first cyanosis when I was (interrupted)

Q What time, more or less?

A I think it was 12:15 or 12:16.

Q Well, if the record will show you started induction at 12:15?

A Yes, Your Honor.

Q And the first medication you gave was what?

A The first medication, no, first the patient was oxygenated for around one to two
minutes.

Q Yes, so, that is about 12:13?

A Yes, and then, I asked the resident physician to start giving the pentothal very slowly
and that was around one minute.

Q So, that is about 12:13 no, 12:15, 12:17?

A Yes, and then, after one minute another oxygenation was given and after
(interrupted)

Q 12:18?

A Yes, and then after giving the oxygen we start the menorcure which is a relaxant.
After that relaxant (interrupted)

Q After that relaxant, how long do you wait before you do any manipulation?

A Usually you wait for two minutes or three minutes.

Q So, if our estimate of the time is accurate we are now more or less 12:19, is that
right?

A Maybe.

Q 12:19. And at that time, what would have been done to this patient?

A After that time you examine the, if there is relaxation of the jaw which you push it
downwards and when I saw that the patient was relax because that monorcure is a relaxant,
you cannot intubate the patient or insert the laryngoscope if it is not keeping him relax. So,
my first attempt when I put the laryngoscope on I saw the trachea was deeply interiorly.
So, what I did ask "mahirap ata ito ah." So, I removed the laryngoscope and oxygenated
again the patient.

Q So, more or less you attempted to do an intubation after the first attempt as you
claimed that it was only the laryngoscope that was inserted.

A Yes.

Q And in the second attempt you inserted the laryngoscope and now possible
intubation?

A Yes.

Q And at that point, you made a remark, what remark did you make?

A I said "mahirap ata ito" when the first attempt I did not see the trachea right away.
That was when I (interrupted)

Q That was the first attempt?

A Yes.

Q What about the second attempt?

A On the second attempt I was able to intubate right away within two to three seconds.

Q At what point, for purposes of discussion without accepting it, at what point did
you make the comment "na mahirap ata to intubate, mali ata ang pinasukan"

A I did not say "mali ata ang pinasukan" I never said that.

Q Well, just for the information of the group here the remarks I am making is based
on the documents that were forwarded to me by the Supreme Court. That is why for
purposes of discussion I am trying to clarify this for the sake of enlightenment. So, at what
point did you ever make that comment?

A Which one, sir?

Q The "mahirap intubate ito" assuming that you (interrupted)

A Iyon lang, that is what I only said "mahirap intubate (interrupted)

Q At what point?

A When the first attempt when I inserted the laryngoscope for the first time.

Q So, when you claim that at the first attempt you inserted the laryngoscope, right?

A Yes.

Q But in one of the recordings somewhere at the, somewhere in the transcript of

records that when the lawyer of the other party try to inquire from you during the first
attempt that was the time when "mayroon ba kayong hinugot sa tube, I do not remember
the page now, but it seems to me it is there. So, that it was on the second attempt that
(interrupted)

A I was able to intubate.

Q And this is more or less about what time 12:21?

A Maybe, I cannot remember the time, Sir.

Q Okay, assuming that this was done at 12:21 and looking at the anesthesia records
from 12:20 to 12:30 there was no recording of the vital signs. And can we presume that at
this stage there was already some problems in handling the patient?

A Not yet.

Q But why are there no recordings in the anesthesia record?

 A I did not have time.

Q Ah, you did not have time, why did you not have time?

A Because it was so fast, I really (at this juncture the witness is laughing)

Q No, I am just asking. Remember I am not here not to pin point on anybody I am
here just to more or less clarify certainty more ore less on the record.

A Yes, Sir.

Q And so it seems that there were no recording during that span of ten (10) minutes.
From 12:20 to 12:30, and going over your narration, it seems to me that the cyanosis
appeared ten (10) minutes after induction, is that right?

A Yes.

Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?

A Yes.

Q And that the 12:25 is after the 12:20?

A We cannot (interrupted)

Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going over
the record ano,kung mali ito kuwan eh di ano. So, ganoon po ano, that it seems to me that
there is no recording from 12:20 to 12:30, so, I am just wondering why there were no
recordings during the period and then of course the second cyanosis, after the first cyanosis.
I think that was the time Dr. Hosaka came in?

A No, the first cyanosis (interrupted).23

We cannot thus give full credence to Dr. Gutierrez synopsis in light of her admission that it does
not fully reflect the events that transpired during the administration of anesthesia on Erlinda. As
pointed out by Dr. Estrella, there was a ten-minute gap in Dr. Gutierrez synopsis, i.e., the vital
signs of Erlinda were not recorded during that time. The absence of these data is particularly
significant because, as found by the trial court, it was the absence of oxygen supply for four (4) to
five (5) minutes that caused Erlindas comatose condition.

On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As we stated in
the Decision, she is competent to testify on matters 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.24 Cruz, Erlindas sister-in-law, was with her inside the operating
room. Moreover, being a nurse and Dean of the Capitol Medical Center School of Nursing at that,
she is not entirely ignorant of anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez
remark, "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." She
observed that the nailbeds of Erlinda became bluish and thereafter Erlinda was placed in
trendelenburg position.25 Cruz further averred that she noticed that the abdomen of Erlinda became
distended.26

The cyanosis (bluish discoloration of the skin or mucous membranes caused by lack of oxygen or
abnormal hemoglobin in the blood) and enlargement of the stomach of Erlinda indicate that the
endotracheal tube was improperly inserted into the esophagus instead of the trachea. Consequently,
oxygen was delivered not to the lungs but to the gastrointestinal tract. This conclusion is supported
by the fact that Erlinda was placed in trendelenburg position. This indicates that there was a
decrease of blood supply to the patients brain. The brain was thus temporarily deprived of oxygen
supply causing Erlinda to go into coma.

The injury incurred by petitioner Erlinda does not normally happen absent any negligence in the
administration of anesthesia and in the use of an endotracheal tube. As was noted in our Decision,
the instruments used in the administration of anesthesia, including the endotracheal tube, were all
under the exclusive control of private respondents Dr. Gutierrez and Dr. Hosaka.27 In Voss vs.
Bridwell,28 which involved a patient who suffered brain damage due to the wrongful
administration of anesthesia, and even before the scheduled mastoid operation could be performed,
the Kansas Supreme Court applied the doctrine of res ipsa loquitur, reasoning that the injury to
the patient therein was one which does not ordinarily take place in the absence of negligence in
the administration of an anesthetic, and in the use and employment of an endotracheal tube. The
court went on to say that "[o]rdinarily 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."29 Considering the application of
the doctrine of res ipsa loquitur, the testimony of Cruz was properly given credence in the case at
bar.

For his part, Dr. Hosaka mainly contends that the Court erred in finding him negligent as a surgeon
by applying the Captain-of-the-Ship doctrine.30 Dr. Hosaka argues that the trend in United States
jurisprudence has been to reject said doctrine in light of the developments in medical practice. He
points out that anesthesiology and surgery are two distinct and specialized fields in medicine and
as a surgeon, he is not deemed to have control over the acts of Dr. Gutierrez. As anesthesiologist,
Dr. Gutierrez is a specialist in her field and has acquired skills and knowledge in the course of her
training which Dr. Hosaka, as a surgeon, does not possess.31 He states further that current
American jurisprudence on the matter recognizes that the trend towards specialization in medicine
has created situations where surgeons do not always have the right to control all personnel within
the operating room,32 especially a fellow specialist.33

Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,34 which involved a suit filed by
a patient who lost his voice due to the wrongful insertion of the endotracheal tube preparatory to
the administration of anesthesia in connection with the laparotomy to be conducted on him. The
patient sued both the anesthesiologist and the surgeon for the injury suffered by him. The Supreme
Court of Appeals of West Virginia held that the surgeon could not be held liable for the loss of the
patients voice, considering that the surgeon did not have a hand in the intubation of the patient.
The court rejected the application of the "Captain-of-the-Ship Doctrine," citing the fact that the
field of medicine has become specialized such that surgeons can no longer be deemed as having
control over the other personnel in the operating room. It held that "[a]n assignment of liability
based on actual control more realistically reflects the actual relationship which exists in a modern
operating room."35 Hence, only the anesthesiologist who inserted the endotracheal tube into the
patients throat was held liable for the injury suffered by the latter.

This contention fails to persuade.

That there is a trend in American jurisprudence to do away with the Captain-of-the-Ship doctrine
does not mean that this Court will ipso facto follow said trend. Due regard for the peculiar factual
circumstances obtaining in this case justify the application of the Captain-of-the-Ship doctrine.
From the facts on record it can be logically inferred that Dr. Hosaka exercised a certain degree of,
at the very least, supervision over the procedure then being performed on Erlinda.

First, it was Dr. Hosaka who recommended to petitioners the services of Dr. Gutierrez. In effect,
he represented to petitioners that Dr. Gutierrez possessed the necessary competence and skills.
Drs. Hosaka and Gutierrez had worked together since 1977. Whenever Dr. Hosaka performed a
surgery, he would always engage the services of Dr. Gutierrez to administer the anesthesia on his
patient.36

Second, Dr. Hosaka himself admitted that he was the attending physician of Erlinda. Thus, when
Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave instructions to call for another
anesthesiologist and cardiologist to help resuscitate Erlinda.37

Third, it is conceded that in performing their responsibilities to the patient, Drs. Hosaka and
Gutierrez worked as a team. Their work cannot be placed in separate watertight compartments
because their duties intersect with each other.38

While the professional services of Dr. Hosaka and Dr. Gutierrez were secured primarily for their
performance of acts within their respective fields of expertise for the treatment of petitioner
Erlinda, and that one does not exercise control over the other, they were certainly not completely
independent of each other so as to absolve one from the negligent acts of the other physician.

That they were working as a medical team is evident from the fact that Dr. Hosaka was keeping
an eye on the intubation of the patient by Dr. Gutierrez, and while doing so, he observed that the
patients nails had become dusky and had to call Dr. Gutierrezs attention thereto. The Court also
notes that the counsel for Dr. Hosaka admitted that in practice, the anesthesiologist would also
have to observe the surgeons acts during the surgical process and calls the attention of the surgeon
whenever necessary39 in the course of the treatment. The duties of Dr. Hosaka and those of Dr.
Gutierrez in the treatment of petitioner Erlinda are therefore not as clear-cut as respondents claim
them to be. On the contrary, it is quite apparent that they have a common responsibility to treat the
patient, which responsibility necessitates that they call each others attention to the condition of
the patient while the other physician is performing the necessary medical procedures.
It is equally important to point out that Dr. Hosaka was remiss in his duty of attending to petitioner
Erlinda promptly, for he arrived more than three (3) hours late for the scheduled operation.
The cholecystectomy was set for June 17, 1985 at 9:00 a.m., but he arrived at DLSMC only at
around 12:10 p.m. In reckless disregard for his patients well being, Dr. Hosaka scheduled two
procedures on the same day, just thirty minutes apart from each other, at different hospitals. Thus,
when the first procedure (protoscopy) at the Sta. Teresita Hospital did not proceed on time, Erlinda
was kept in a state of uncertainty at the DLSMC.

The unreasonable delay in petitioner Erlindas scheduled operation subjected her to continued
starvation and consequently, to the risk of acidosis,40 or the condition of decreased alkalinity of
the blood and tissues, marked by sickly sweet breath, headache, nausea and vomiting, and visual
disturbances.41 The long period that Dr. Hosaka made Erlinda wait for him certainly aggravated
the anxiety that she must have been feeling at the time. It could be safely said that her anxiety
adversely affected the administration of anesthesia on her. As explained by Dr. Camagay, the
patients anxiety usually causes the outpouring of adrenaline which in turn results in high blood
pressure or disturbances in the heart rhythm:

DR. CAMAGAY:

x x x Pre-operative medication has three main functions: One is to alleviate anxiety.

Second is to dry up the secretions and Third is to relieve pain. Now, it is very
important to alleviate anxiety because anxiety is associated with the outpouring of
certain substances formed in the body called adrenalin. When a patient is anxious
there is an outpouring of adrenalin which would have adverse effect on the patient.
One of it is high blood pressure, the other is that he opens himself to disturbances
in the heart rhythm, which would have adverse implications. So, we would like to
alleviate patients anxiety mainly because he will not be in control of his body there
could be adverse results to surgery and he will be opened up; a knife is going to
open up his body. x x x42

Dr. Hosaka cannot now claim that he was entirely blameless of what happened to Erlinda. His
conduct clearly constituted a breach of his professional duties to Erlinda:

CHIEF JUSTICE:

Two other points. The first, Doctor, you were talking about anxiety, would you
consider a patient's stay on the operating table for three hours sufficient enough to
aggravate or magnify his or her anxiety?

DR. CAMAGAY:

Yes.

CHIEF JUSTICE:
 In other words, I understand that in this particular case that was the case, three hours
waiting and the patient was already on the operating table (interrupted)

DR. CAMAGAY:

Yes.

CHIEF JUSTICE:

Would you therefore conclude that the surgeon contributed to the aggravation of
the anxiety of the patient?

DR. CAMAGAY:

That this operation did not take place as scheduled is already a source of anxiety
and most operating tables are very narrow and that patients are usually at risk of
falling on the floor so there are restraints that are placed on them and they are never,
never left alone in the operating room by themselves specially if they are already
pre-medicated because they may not be aware of some of their movement that they
make which would contribute to their injury.

CHIEF JUSTICE:

In other words due diligence would require a surgeon to come on time?

DR. CAMAGAY:

I think it is not even due diligence it is courtesy.

CHIEF JUSTICE:

Courtesy.

DR. CAMAGAY:

And care.

CHIEF JUSTICE:

Duty as a matter of fact?

DR. CAMAGAY:

Yes, Your Honor.43

Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation of petitioner
Erlinda is violative, not only of his duty as a physician "to serve the interest of his patients with
the greatest solicitude, giving them always his best talent and skill,"44 but also of Article 19 of the
Civil Code which requires a person, in the performance of his duties, to act with justice and give
everyone his due.

Anent private respondent DLSMCs liability for the resulting injury to petitioner Erlinda, we held
that respondent hospital is solidarily liable with respondent doctors therefor under Article 2180 of
the Civil Code45 since there exists an employer-employee relationship between private respondent
DLSMC and Drs. Gutierrez and Hosaka:

In other words, private hospitals, hire, fire and exercise real control over their attending
and visiting "consultant" staff. While "consultants" are not, technically employees, x x x
the control exercised, the hiring and the right to terminate consultants all fulfill the
important hallmarks of an employer-employee relationship, with the exception of the
payment of wages. In assessing whether such a relationship in fact exists, the control test
is determining. x x x46

DLSMC however contends that applying the four-fold test in determining whether such a
relationship exists between it and the respondent doctors, the inescapable conclusion is that
DLSMC cannot be considered an employer of the respondent doctors.

It has been consistently held that in determining whether an employer-employee relationship exists
between the parties, the following elements must be present: (1) selection and engagement of
services; (2) payment of wages; (3) the power to hire and fire; and (4) the power to control not
only the end to be achieved, but the means to be used in reaching such an end.47

DLSMC maintains that first, a hospital does not hire or engage the services of a consultant, but
rather, accredits the latter and grants him or her the privilege of maintaining a clinic and/or
admitting patients in the hospital upon a showing by the consultant that he or she possesses the
necessary qualifications, such as accreditation by the appropriate board (diplomate), evidence of
fellowship and references.48 Second, it is not the hospital but the patient who pays the consultants
fee for services rendered by the latter.49 Third, a hospital does not dismiss a consultant; instead,
the latter may lose his or her accreditation or privileges granted by the hospital.50 Lastly, DLSMC
argues that when a doctor refers a patient for admission in a hospital, it is the doctor who prescribes
the treatment to be given to said patient. The hospitals obligation is limited to providing the patient
with the preferred room accommodation, the nutritional diet and medications prescribed by the
doctor, the equipment and facilities necessary for the treatment of the patient, as well as the
services of the hospital staff who perform the ministerial tasks of ensuring that the doctors orders
are carried out strictly.51

After a careful consideration of the arguments raised by DLSMC, the Court finds that respondent
hospitals position on this issue is meritorious. There is no employer-employee relationship
between DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC solidarily liable for
the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code.
As explained by respondent hospital, that the admission of a physician to membership in DLSMCs
medical staff as active or visiting consultant is first decided upon by the Credentials Committee
thereof, which is composed of the heads of the various specialty departments such as the
Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the
particular specialty applied for as chairman. The Credentials Committee then recommends to
DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant
physician, and said director or administrator validates the committee's
recommendation.52 Similarly, in cases where a disciplinary action is lodged against a consultant,
the same is initiated by the department to whom the consultant concerned belongs and filed with
the Ethics Committee consisting of the department specialty heads. The medical director/hospital
administrator merely acts as ex-officio member of said committee.

Neither is there any showing that it is DLSMC which pays any of its consultants for medical
services rendered by the latter to their respective patients. Moreover, the contract between the
consultant in respondent hospital and his patient is separate and distinct from the contract between
respondent hospital and said patient. The first has for its object the rendition of medical services
by the consultant to the patient, while the second concerns the provision by the hospital of facilities
and services by its staff such as nurses and laboratory personnel necessary for the proper treatment
of the patient.

Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due
to a failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary
for her treatment.

For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered
by petitioner Erlinda.

Finally, the Court also deems it necessary to modify the award of damages to petitioners in view
of the supervening event of petitioner Erlindas death. In the assailed Decision, the Court awarded
actual damages of One Million Three Hundred Fifty Two Thousand Pesos (P1,352,000.00) to
cover the expenses for petitioner Erlindas treatment and care from the date of promulgation of the
Decision up to the time the patient expires or survives.53 In addition thereto, the Court awarded
temperate damages of One Million Five Hundred Thousand Pesos (P1,500,000.00) in view of the
chronic and continuing nature of petitioner Erlindas injury and the certainty of further pecuniary
loss by petitioners as a result of said injury, the amount of which, however, could not be made with
certainty at the time of the promulgation of the decision. The Court justified such award in this
manner:

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. In other words, temperate damages can and should be awarded on top of actual
or compensatory damages in instances where the injury is chronic and continuing. And
because of the unique nature of such cases, no incompatibility arises when both actual and
temperate damages are provided for. The reason is that these damages cover two distinct
phases.

As it would not be equitableand certainly not in the best interests of the administration
of justicefor 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.54

However, subsequent to the promulgation of the Decision, the Court was informed by petitioner
Rogelio that petitioner Erlinda died on August 3, 1999.55 In view of this supervening event, the
award of temperate damages in addition to the actual or compensatory damages would no longer
be justified since the actual damages awarded in the Decision are sufficient to cover the medical
expenses incurred by petitioners for the patient. Hence, only the amounts representing actual,
moral and exemplary damages, attorneys fees and costs of suit should be awarded to petitioners.

WHEREFORE, the assailed Decision is hereby modified as follows:

(1) Private respondent De Los Santos Medical Center is hereby absolved from liability arising
from the injury suffered by petitioner Erlinda Ramos on June 17, 1985;

(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby declared to be
solidarily liable for the injury suffered by petitioner Erlinda on June 17, 1985 and are ordered to
pay petitioners

(a) P1,352,000.00 as actual damages;

(b) P2,000,000.00 as moral damages;

 (c) P100,000.00 as exemplary damages;

(d) P100,000.00 as attorneys fees; and

(e) the costs of the suit.

SO ORDERED.
[G.R. No. 118231. July 5, 1996]

DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs. COURT OF

APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G.
VILLEGAS,respondents.

DECISION
DAVIDE, JR., J.:

Throughout history, patients have consigned their fates and lives to the skill of their
doctors. For a breach of this trust, men have been quick to demand retribution. Some 4,000 years
ago, the Code of Hammurabi[1] then already provided: "If a physician make a deep incision upon
a man with his bronze lancet and cause the man's death, or operate on the eye socket of a man with
his bronze lancet and destroy the man's eyes, they shall cut off his hand."[2] Subsequently,
Hippocrates[3] wrote what was to become part of the healer's oath: "I will follow that method of
treatment which according to my ability and judgment, I consider for the benefit of my patients,
and abstain from whatever is deleterious and mischievous . . . . While I continue to keep this oath
unviolated may it be granted me to enjoy life and practice the art, respected by all men at all times
but should I trespass and violate this oath, may the reverse be my lot." At present, the primary
objective of the medical profession is the preservation of life and maintenance of the health of the
people.[4]
Needless to say then, when a physician strays from his sacred duty and endangers instead the
life of his patient, he must be made to answer therefor. Although society today cannot and will not
tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would
show, let the act go uncondemned.
The petitioners appeal from the decision[5] of the Court of Appeals of 11 May 1994 in CA-
G.R. CV No. 30851, which reversed the decision[6] of 21 December 1990 of Branch 30 of the
Regional Trial Court (RTC) of Negros Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City
from January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the
Actg. Head of the Department of Obstetrics and Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the
latter's private patient sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita
Sy who was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones
and some student nurses performed a simple cesarean section on Mrs. Villegas at the Negros
Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered her first child, Rachel
Acogido, at about 11:45 that morning. Thereafter, Plaintiff remained confined at the Hospital until
September 27, 1988 during which period of confinement she was regularly visited by Dr.
Batiquin. On September 28, 1988, Mrs. Villegas checked out of the Hospital . . . and on the same
day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as "professional fee"
....
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained
of being feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's
polyclinic who prescribed for her certain medicines . . . which she had been taking up to December,
1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October
31, 1988 . . . certifying to her physical fitness to return to her work on November 7, 1988. So, on
the second week of November, 1988 Mrs. Villegas returned to her work at the Rural Bank of
Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end and
despite the medications administered by Dr. Batiquin. When the pains become unbearable and she
was rapidly losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in
Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the
Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was
breathing fast.Upon examination she felt an abdominal mass one finger below the umbilicus which
she suspected to be either a tumor of the uterus or an ovarian cyst, either of which could be
cancerous. She had an x-ray taken of Mrs. Villegas' chest, abdomen and kidney. She also took
blood tests of Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside her
abdominal cavity. The result of all those examinations impelled Dr. Kho to suggest that Mrs.
Villegas submit to another surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge
inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind
the uterus, and a piece of rubber materials on the right side of the uterus embedded on [sic] the
ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described
as a "foreign body" looked like a piece of a "rubber glove" . . . and which is [sic] also "rubber-
drain like . . . . It could have been a torn section of a surgeon's gloves or could have come from
other sources. And this foreign body was the cause of the infection of the ovaries and consequently
of all the discomfort suffered by Mrs. Villegas after her delivery on September 21, 1988.[7]
The piece of rubber allegedly found near private respondent Flotilde Villegas' uterus was not
presented in court, and although Dr. Ma. Salud Kho testified that she sent it to a pathologist in
Cebu City for examination,[8] it was not mentioned in the pathologist's Surgical Pathology
Report.[9]
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a
Medical Certificate,[10] a Progress Record,[11] an Anesthesia Record,[12] a Nurse's Record,[13] and a
Physician's Discharge Summary.[14] The trial court, however, regarded these documentary
evidence as mere hearsay, "there being no showing that the person or persons who prepared them
are deceased or unable to testify on the facts therein stated . . . . Except for the Medical Certificate
(Exhibit "F"), all the above documents were allegedly prepared by persons other than Dr. Kho, and
she merely affixed her signature on some of them to express her agreement thereto . . . ."[15] The
trial court also refused to give weight to Dr. Kho's testimony regarding the subject piece of rubber
as Dr. Kho "may not have had first-hand knowledge" thereof,[16] as could be gleaned from her
statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with
the tissues but unluckily I don't know where the rubber was.[17]
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr.
Kho regarding the piece of rubber, "Dr. Kho answered that there was rubber indeed but that she
threw it away."[18] This statement, the trial court noted, was never denied nor disputed by Dr. Kho,
leading it to conclude:

There are now two different versions on the whereabouts of that offending "rubber" (1) that it was
sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it
away as told by her to Defendant. The failure of the Plaintiffs to reconcile these two different
versions serve only to weaken their claim against Defendant Batiquin.[19]

All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without
admitting the private respondents' documentary evidence, deemed Dr. Kho's positive testimony to
definitely establish that a piece of rubber was found near private respondent Villegas' uterus. Thus,
the Court of Appeals reversed the decision of the trial court, holding:

4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of

evidence. The trial court itself had narrated what happened to appellant Flotilde after the cesarean
operation made by appellee doctor . . . . After the second operation, appellant Flotilde became well
and healthy. Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was
left inside her abdomen. Both appellants testified that after the operation made by appellee doctor,
they did not go to any other doctor until they finally decided to see another doctor in January, 1989
when she was not getting any better under the care of appellee Dr. Batiquin . . . . Appellee Dr.
Batiquin admitted on the witness stand that she alone decided when to close the operating area;
that she examined the portion she operated on before closing the same . . . . Had she exercised due
diligence, appellee Dr. Batiquin would have found the rubber and removed it before closing the
operating area.[20]

The appellate court then ruled:

Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-
1-A) plus hospital and medical expenses together with doctor's fees in the total amount P9,900.00
(Exhs. G and G-2)] for the second operation that saved her life.

For the miseries appellants endured for more than three (3) months, due to the negligence of
appellee Dr. Batiquin, they are entitled to moral damages in the amount of P100,000.00; exemplary
damages in the amount of P20,000.00 and attorney's fees in the amount of P25,000.00.

The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were
removed by Dr. Kho is not taken into consideration as it is not shown that the removal of said
organs were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is
established is that the rubber left by appellee cause infection, placed the life of appellant Flotilde
in jeopardy and caused appellants fear, worry and anxiety . . . .

WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and
SET ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-
appellants the amounts of P17,000.00 as and for actual damages; P100,000.00 as and for moral
damages; P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees
plus the cost of litigation.

SO ORDERED.[21]

From the above judgment, the petitioners appealed to this Court claiming that the appellate
court; (1) committed grave abuse of discretion by resorting to findings of fact not supported by the
evidence on record, and (2) exceeded its discretion, amounting to lack or excess of jurisdiction,
when it gave credence to testimonies punctured with contradictions and falsities.
The private respondents commented that the petition raised only questions of fact, which were
not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition for review on certiorari,
there are exceptions, among which are when the factual findings of the trial court and the appellate
court conflict, when the appealed decision is clearly contradicted by the evidence on record, or
when the appellate court misapprehended the facts.[22]
After deciphering the cryptic petition, we find that the focal point of the instant appeal is the
appreciation of Dr. Kho's testimony. The petitioners contend that the Court of Appeals
misappreciated the following portion of Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case this would turn out to
be a medico-legal case, I have heard somebody that [sic] says [sic] there is [sic] a foreign
body that goes with the tissues but unluckily I don't know where the rubber was. It was
not in the Lab, it was not in Cebu.[23] (Italics supplied)
The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's
knowledge of the piece of rubber was based on hearsay. The Court of Appeals, on the other hand,
concluded that the underscored phrase was taken out of context by the trial court. According to the
Court of Appeals, the trial court should have likewise considered the other portions of Dr. Kho's
testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen, there
was an ovarian cyst on the left and side and there was also an ovarian cyst on the right
which, on opening up or freeing it up from the uterus, turned out to be pus. Both ovaries
turned out . . . to have pus. And then, cleaning up the uterus, at the back of the uterus it
 was very dirty, it was full of pus. And there was a [piece of] rubber, we found a [piece
of] rubber on the right side.[24]
We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate
the fact that Dr. Kho saw a piece of rubber in private respondent Villegas' abdomen, and that she
sent it to a laboratory and then to Cebu City for examination by a pathologist. [25] Not even the
Pathologist's Report, although devoid of any mention of a piece of rubber, could alter what Dr.
Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on other
than first hand knowledge for, as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it.[26]
The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony
with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about
the foreign body, the latter said that there was a piece of rubber but that she threw it
away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is
admissible[27] but it carries no probative value.[28] Nevertheless, assuming otherwise, Dr.
Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private
respondent Villegas' uterus. And even if we were to doubt Dr. Kho as to what she did to the piece
of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in distrusting
her as to her recovery of a piece of rubber from private respondent Villegas' abdomen. On this
score, it is perfectly reasonable to believe the testimony of a witness with respect to some facts
and disbelieve his testimony with respect to other facts. And it has been aptly said that even when
a witness is found to have deliberately falsified in some material particulars, it is not required that
the whole of his uncorroborated testimony be rejected, but such portions thereof deemed worthy
of belief may be credited.[29]
It is here worth nothing that the trial court paid heed to the following portions of Dr. Batiquin's
testimony: that no rubber drain was used in the operation,[30] and that there was neither any tear on
Dr. Batiquin's gloves after the operation nor blood smears on her hands upon removing her
gloves.[31] Moreover, the trial court pointed out that the absence of a rubber drain was corroborated
by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on private respondent
Villegas.[32] But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were
denials or negative testimonies. Well-settled is the rule that positive testimony is stronger than
negative testimony.[33] Of course, as the petitioners advocate, such positive testimony must come
from a credible source, which leads us to the second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a
reading of the said testimony reveals no such infirmity and establishes Dr. Kho as a credible
witness. Dr. Kho was frank throughout her turn on the witness stand. Furthermore, no motive to
state any untruth was ever imputed against Dr. Kho, leaving her trustworthiness
unimpaired.[34] The trial court's following declaration shows that while it was critical of the lack
of care with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's
credibility, thus only supporting out appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about her findings, but it can also
be said that she did not take the most appropriate precaution to preserve that "piece of rubber" as
an eloquent evidence of what she would reveal should there be a "legal problem" which she
claim[s] to have anticipated.[35]
Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony
[that a piece of rubber was indeed found in private respondent Villegas' abdomen] prevails over
the negative testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into
the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown
to be under the management of the defendant, and the accident is such as in the ordinary course of
things does not happen if those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the accident arose from want of
care." Or asBlack's Law Dictionary puts it:

Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or inference that defendant
was negligent, which arises upon proof that [the] instrumentality causing injury was in defendant's
exclusive control, and that the accident was one which ordinary does not happen in absence of
negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of [the] alleged
wrongdoer may be inferred from [the] mere fact that [the] accident happened provided [the]
character of [the] accident and circumstances attending it lead reasonably to belief that in [the]
absence of negligence it would not have occurred and that thing which caused injury is shown to
have been under [the] management and control of [the] alleged wrongdoer . . . . Under [this]
doctrine . . . the happening of an injury permits an inference of negligence where plaintiff produces
substantial evidence that [the] injury was caused by an agency or instrumentality under [the]
exclusive control and management of defendant, and that the occurrence [sic] was such that in the
ordinary course of things would not happen if reasonable care had been used.

xxx xxx xxx

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. The doctrine is not a rule of substantive law, but merely
a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and does not dispense with the requirement
of proof of culpable negligence on the party charged. It merely determines and regulates what shall
be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the
duty of due care. The doctrine can be invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily available.[36]
In the instant case, all the requisites for recourse to the doctrine are present. First, the entire
proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this light,
the private respondents were bereft of direct evidence as to the actual culprit or the exact cause of
the foreign object finding its way into private respondent Villegas' body, which, needless to say,
does not occur unless through the intervention of negligence. Second, since aside from the
cesarean section, private respondent Villegas underwent no other operation which could have
caused the offending piece of rubber to appear in her uterus, it stands to reason that such could
only have been a by-product of the cesarean section performed by Dr. Batiquin. The petitioners,
in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine
of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber
in private respondent Villegas' abdomen and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the medical profession
plays in the lives of the people,[37] and State's compelling interest to enact measures to protect the
public from "the potentially deadly effects of incompetence and ignorance in those who would
undertake to treat our bodies and minds for disease or trauma."[38] Indeed, a physician is bound to
serve the interest of his patients "with the greatest of solicitude, giving them always his best talent
and skill."[39] Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas,
in violation of her profession's rigid ethical code and in contravention of the legal standards set
forth for professionals, in the general,[40] and members of the medical profession,[41] in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R.
CV No. 30851 is hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
FIRST DIVISION

G.R. No. 137873 April 20, 2001

D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.

KAPUNAN, J.:

At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji,
Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death.

PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report
dated November 25, 1990, stating that:

x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila
where he was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de
Yzo[,] at around 2:15 p.m. of the same date.

Investigation disclosed that at the given time, date and place, while victim Jose A. Juego
together with Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s]
at the elevator core of the 14th floor of the Tower D, Renaissance Tower Building on board
a [p]latform made of channel beam (steel) measuring 4.8 meters by 2 meters wide with
pinulid plywood flooring and cable wires attached to its four corners and hooked at the 5
ton chain block, when suddenly, the bolt or pin which was merely inserted to connect the
chain block with the [p]latform, got loose xxx causing the whole [p]latform assembly and
the victim to fall down to the basement of the elevator core, Tower D of the building under
construction thereby crushing the victim of death, save his two (2) companions who luckily
jumped out for safety.

It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then
on board and performing work, fell. And the falling of the [p]latform was due to the
removal or getting loose of the pin which was merely inserted to the connecting points of
the chain block and [p]latform but without a safety lock.1

On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a
complaint for damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised,
among other defenses, the widows prior availment of the benefits from the State Insurance Fund.

After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion
of the RTC decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as

follows:
 1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

3. P464,000.00 for the loss of Jose A. Juegos earning capacity.

4. P100,000.00 as moral damages.

5. P20,000.00 as attorneys fees, plus the costs of suit.

SO ORDERED.2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.

D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE

REPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE
OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE

OF RES IPSA LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE
ON THE PART OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS

PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE,
AND

THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS

NOT PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL
CODE.3

Petitioner maintains that the police report reproduced above is hearsay and, therefore,
inadmissible. The CA ruled otherwise. It held that said report, being an entry in official records, is
an exception to the hearsay rule.

The Rules of Court provide that a witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his perception.4 A witness, therefore, may not
testify as what he merely learned from others either because he was told or read or heard the same.
Such testimony is considered hearsay and may not be received as proof of the truth of what he has
learned.5 This is known as the hearsay rule.

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error
and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best
brought to light and exposed by the test of cross-examiantion.7 The hearsay rule, therefore,
excludes evidence that cannot be tested by cross-examination.8

The Rules of Court allow several exceptions to the rule,9 among which are entries in official
records. Section 44, Rule 130 provides:

Entries in official records made in the performance of his duty made in the performance of
his duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law areprima facie evidence of the facts therein stated.

In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the above rule:

(a) that the entry was made by a public officer or by another person specially enjoined by
law to do so;

(b) that it was made by the public officer in the performance of his duties, or by such other
person in the performance of a duty specially enjoined by law; and

(c) that the public officer or other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or through official information.

The CA held that the police report meets all these requisites. Petitioner contends that the last
requisite is not present.

The Court notes that PO3 Villanueva, who signed the report in question, also testified before the
trial court. InRodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the
officer who signed the fire report also testified before the trial court. This Court held that the report
was inadmissible for the purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who executed the report.

x x x. Since Major Enriquez himself took the witness stand and was available for cross-
examination, the portions of the report which were of his personal knowledge or which
consisted of his perceptions and conclusions were not hearsay. The rest of the report, such
as the summary of the statements of the parties based on their sworn statements (which
were annexed to the Report) as well as the latter, having been included in the first purpose
of the offer [as part of the testimony of Major Enriquez], may then be considered
as independently relevant statements which were gathered in the course of the investigation
and may thus be admitted as such, but not necessarily to prove the truth thereof. It has been
said that:

"Where regardless of the truth or falsity of a statement, the fact that it has been
made is relevant, the hearsay rule does not apply, but the statement may be shown.
Evidence as to the making of such statement is not secondary but primary, for the
 statement itself may constitute a fact in issue, or be circumstantially relevant as to
the existence of such a fact."

When Major Enriquez took the witness stand, testified for petitioners on his Report and
made himself available for cross-examination by the adverse party, the Report, insofar as
it proved that certain utterances were made (but not their truth), was effectively removed
from the ambit of the aforementioned Section 44 of Rule 130. Properly understood, this
section does away with the testimony in open court of the officer who made the official
record, considers the matter as an exception to the hearsay rule and makes the entries in
said official record admissible in evidence as prima facie evidence of the facts therein
stated. The underlying reasons for this exceptionary rule are necessity and trustworthiness,
as explained in Antillon v. Barcelon.

The litigation is unlimited in which testimony by officials is daily needed; the

occasions in which the officials would be summoned from his ordinary duties to
declare as a witness are numberless. The public officers are few in whose daily
work something is not done in which testimony is not needed from official sources.
Were there no exception for official statements, hosts of officials would be found
devoting the greater part of their time to attending as witnesses in court or
delivering deposition before an officer. The work of administration of government
and the interest of the public having business with officials would alike suffer in
consequence. For these reasons, and for many others, a certain verity is accorded
such documents, which is not extended to private documents. (3 Wigmore on
Evidence, Sec. 1631).

The law reposes a particular confidence in public officers that it presumes they will
discharge their several trusts with accuracy and fidelity; and, therefore, whatever
acts they do in discharge of their duty may be given in evidence and shall be taken
to be true under such a degree of caution as to the nature and circumstances of each
case may appear to require.

It would have been an entirely different matter if Major Enriquez was not presented to
testify on his report. In that case the applicability of Section 44 of Rule 143 would have
been ripe for determination, and this Court would have agreed with the Court of Appeals
that said report was inadmissible since the aforementioned third requisite was not satisfied.
The statements given by the sources of information of Major Enriquez failed to qualify as
"official information," there being no showing that, at the very least, they were under a
duty to give the statements for record.

Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of PO3
Villanueva.

In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his
personal knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash.
PO3 Villanueva had seen Juegos remains at the morgue,12 making the latters death beyond
dispute. PO3 Villanueva also conducted an ocular inspection of the premises of the building the
day after the incident13 and saw the platform for himself.14 He observed that the platform was
crushed15 and that it was totally damaged.16 PO3 Villanueva also required Garcia and Fabro to
bring the chain block to the police headquarters. Upon inspection, he noticed that the chain was
detached from the lifting machine, without any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the
fall of the platform was the loosening of the bolt from the chain block. It is claimed that such
portion of the testimony is mere opinion. Subject to certain exceptions,18 the opinion of a witness
is generally not admissible.19

Petitioners contention, however, loses relevance in the face of the application of res ipsa
loquitur by the CA. The effect of the doctrine is to warrant a presumption or inference that the
mere fall of the elevator was a result of the person having charge of the instrumentality was
negligent. As a rule of evidence, the doctrine of res ipsa loquituris peculiar to the law of negligence
which recognizes that prima facie negligence may be established without direct proof and
furnishes a substitute for specific proof of negligence.20

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of
an accident or injury will not generally give rise to an inference or presumption that it was
due to negligence on defendants part, under the doctrine of res ipsa loquitur, which means,
literally, the thing or transaction speaks for itself, or in one jurisdiction, that the thing or
instrumentality speaks for itself, the facts or circumstances accompanying an injury may
be such as to raise a presumption, or at least permit an inference of negligence on the part
of the defendant, or some other person who is charged with negligence.

x x x where it is shown that the thing or instrumentality which caused the injury complained
of was under the control or management of the defendant, and that the occurrence resulting
in the injury was such as in the ordinary course of things would not happen if those who
had its control or management used proper care, there is sufficient evidence, or, as
sometimes stated, reasonable evidence, in the absence of explanation by the defendant, that
the injury arose from or was caused by the defendants want of care.21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent
or not available.22

The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge
of the instrumentality which causes the injury either knows the cause of the accident or has
the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and
therefore is compelled to allege negligence in general terms and to rely upon the proof of
the happening of the accident in order to establish negligence. The inference which the
doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether
culpable or innocent, is practically accessible to the defendant but inaccessible to the
injured person.
 It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff,
without knowledge of the cause, reaches over to defendant who knows or should know the
cause, for any explanation of care exercised by the defendant in respect of the matter of
which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a
rule of necessity, in that it proceeds on the theory that under the peculiar circumstances in
which the doctrine is applicable, it is within the power of the defendant to show that there
was no negligence on his part, and direct proof of defendants negligence is beyond
plaintiffs power. Accordingly, some court add to the three prerequisites for the application
of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine
to apply, it must appear that the injured party had no knowledge or means of knowledge as
to the cause of the accident, or that the party to be charged with negligence has superior
knowledge or opportunity for explanation of the accident.23

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellees husband fell down from the 14th floor of a building to
the basement while he was working with appellants construction project, resulting to his
death. The construction site is within the exclusive control and management of appellant.
It has a safety engineer, a project superintendent, a carpenter leadman and others who are
in complete control of the situation therein. The circumstances of any accident that would
occur therein are peculiarly within the knowledge of the appellant or its employees. On the
other hand, the appellee is not in a position to know what caused the accident. Res ipsa
loquitur is a rule of necessity and it applies where evidence is absent or not readily
available, provided the following requisites are present: (1) the accident was of a kind
which does not ordinarily occur unless someone is negligent; (2) the instrumentality or
agency which caused the injury was under the exclusive control of the person charged with
negligence; and (3) the injury suffered must not have been due to any voluntary action or
contribution on the part of the person injured. x x x.

No worker is going to fall from the 14th floor of a building to the basement while
performing work in a construction site unless someone is negligent[;] thus, the first
requisite for the application of the rule of res ipsa loquitur is present. As explained earlier,
the construction site with all its paraphernalia and human resources that likely caused the
injury is under the exclusive control and management of appellant[;] thus[,] the second
requisite is also present. No contributory negligence was attributed to the appellees
deceased husband[;] thus[,] the last requisite is also present. All the requisites for the
application of the rule of res ipsa loquitur are present, thus a reasonable presumption or
inference of appellants negligence arises. x x x.24

Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur,
but argues that the presumption or inference that it was negligent did not arise since it "proved that
it exercised due care to avoid the accident which befell respondents husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendants negligence is presumed or inferred25 when the plaintiff establishes the requisites for
the application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the
elements, the burden then shifts to defendant to explain.26 The presumption or inference may be
rebutted or overcome by other evidence and, under appropriate circumstances disputable
presumption, such as that of due care or innocence, may outweigh the inference.27 It is not for the
defendant to explain or prove its defense to prevent the presumption or inference from arising.
Evidence by the defendant of say, due care, comes into play only after the circumstances for the
application of the doctrine has been established.1wphi1.nt

In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before
the police investigator as evidence of its due care. According to Fabros sworn statement, the
company enacted rules and regulations for the safety and security of its workers. Moreover, the
leadman and the bodegero inspect the chain block before allowing its use.

It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in arguing
that private respondent failed to prove negligence on the part of petitioners employees, also assails
the same statement for being hearsay.

Petitioner is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand
to testify thereon.28 The inadmissibility of this sort of evidence is based not only on the lack of
opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly
known fact that, generally, an affidavit is not prepared by the affiant himself but by another who
uses his own language in writing the affiants statements which may either be omitted or
misunderstood by the one writing them.29 Petitioner, therefore, cannot use said statement as proof
of its due care any more than private respondent can use it to prove the cause of her husbands
death. Regrettably, petitioner does not cite any other evidence to rebut the inference or presumption
of negligence arising from the application of res ipsa loquitur, or to establish any defense relating
to the incident.

Next, petitioner argues that private respondent had previously availed of the death benefits
provided under the Labor Code and is, therefore, precluded from claiming from the deceaseds
employer damages under the Civil Code.

Article 173 of the Labor Code states:

Article 173. Extent of liability. Unless otherwise provided, the liability of the State
Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the
employer to the employee, his dependents or anyone otherwise entitled to receive damages
on behalf of the employee or his dependents. The payment of compensation under this Title
shall not bar the recovery of benefits as provided for in Section 699 of the Revised
Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as amended,
Republic Act Numbered Six hundred ten, as amended, Republic Act Numbered Forty-eight
hundred sixty-four as amended, and other laws whose benefits are administered by the
System or by other agencies of the government.

The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act,
provided that:
 Section 5. Exclusive right to compensation. The rights and remedies granted by this Act
to an employee by reason of a personal injury entitling him to compensation shall exclude
all other rights and remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil Code and other laws
because of said injury x x x.

Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as well
as under the Civil Code used to be the subject of conflicting decisions. The Court finally settled
the matter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the
death of the employees of the Philex Mining Corporation. Alleging that the mining corporation, in
violation of government rules and regulations, failed to take the required precautions for the
protection of the employees, the heirs of the deceased employees filed a complaint against Philex
Mining in the Court of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the
complaint for lack of jurisdiction. The heirs sought relief from this Court.

Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,31 following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative.

WE now come to the query as to whether or not the injured employee or his heirs in case
of death have a right of selection or choice of action between availing themselves of the
workers right under the Workmens Compensation Act and suing in the regular courts
under the Civil Code for higher damages (actual, moral and exemplary) from the employers
by virtue of the negligence or fault of the employers or whether they may avail themselves
cumulatively of both actions, i.e., collect the limited compensation under the Workmens
Compensation Act and sue in addition for damages in the regular courts.

In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA
442, ruled thatan injured worker has a choice of either to recover from the employer the
fixed amounts set by the Workmens Compensation Act or to prosecute an ordinary civil
action against the tortfeasor for higher damages but he cannot pursue both courses of action
simultaneously. [Underscoring supplied.]

Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under
the Civil Code despite having availed of the benefits provided under the Workmens Compensation
Act. The Court reasoned:

With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated
May 14, 1968 before the court a quo, that the heirs of the deceased employees, namely
Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted
notices and claims for compensation to the Regional Office No. 1 of the then Department
of Labor and all of them have been paid in full as of August 25, 1967, except Saturnino
Martinez whose heirs decided that they be paid in installments x x x. Such allegation was
admitted by herein petitioners in their opposition to the motion to dismiss dated may 27,
1968 x x x in the lower court, but they set up the defense that the claims were filed under
the Workmens Compensation Act before they learned of the official report of the
committee created to investigate the accident which established the criminal negligence
 and violation of law by Philex, and which report was forwarded by the Director of Mines
to then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.

WE hold that although the other petitioners had received the benefits under the Workmens
Compensation Act, such my not preclude them from bringing an action before the regular
court because they became cognizant of the fact that Philex has been remiss in its
contractual obligations with the deceased miners only after receiving compensation under
the Act. Had petitioners been aware of said violation of government rules and regulations
by Philex, and of its negligence, they would not have sought redress under the Workmens
Compensation Commission which awarded a lesser amount for compensation. The choice
of the first remedy was based on ignorance or a mistake of fact, which nullifies the choice
as it was not an intelligent choice. The case should therefore be remanded to the lower
court for further proceedings. However, should the petitioners be successful in their bid
before the lower court, the payments made under the Workmens Compensation Act should
be deducted from the damages that may be decreed in their favor. [Underscoring supplied.]

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael
Maritime Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining
Corp. vs. Abeleda.34 In the last case, the Court again recognized that a claimant who had been paid
under the Act could still sue under the Civil Code. The Court said:

In the Robles case, it was held that claims for damages sustained by workers in the course
of their employment could be filed only under the Workmens Compensation Law, to the
exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated
in favor of the new rule that the claimants may invoke either the Workmens Compensation
Act or the provisions of the Civil Code, subject to the consequence that the choice of one
remedy will exclude the other and that the acceptance of compensation under the remedy
chosen will preclude a claim for additional benefits under the other remedy. The exception
is where a claimant who has already been paid under the Workmens Compensation Act
may still sue for damages under the Civil Code on the basis of supervening facts or
developments occurring after he opted for the first remedy. (Underscoring supplied.)

Here, the CA held that private respondents case came under the exception because private
respondent was unaware of petitioners negligence when she filed her claim for death benefits
from the State Insurance Fund. Private respondent filed the civil complaint for damages after she
received a copy of the police investigation report and the Prosecutors Memorandum dismissing
the criminal complaint against petitioners personnel. While stating that there was no negligence
attributable to the respondents in the complaint, the prosecutor nevertheless noted in the
Memorandum that, "if at all," the "case is civil in nature." The CA thus applied the exception
in Floresca:

x x x We do not agree that appellee has knowledge of the alleged negligence of appellant
as early as November 25, 1990, the date of the police investigators report. The appellee
merely executed her sworn statement before the police investigator concerning her personal
circumstances, her relation to the victim, and her knowledge of the accident. She did not
file the complaint for "Simple Negligence Resulting to Homicide" against appellants
 employees. It was the investigator who recommended the filing of said case and his
supervisor referred the same to the prosecutors office. This is a standard operating
procedure for police investigators which appellee may not have even known. This may
explain why no complainant is mentioned in the preliminary statement of the public
prosecutor in her memorandum dated February 6, 1991, to wit: "Respondent Ferdinand
Fabro x x x are being charged by complainant of "Simple Negligence Resulting to
Homicide." It is also possible that the appellee did not have a chance to appear before the
public prosecutor as can be inferred from the following statement in said memorandum:
"Respondents who were notified pursuant to Law waived their rights to present
controverting evidence," thus there was no reason for the public prosecutor to summon the
appellee. Hence, notice of appellants negligence cannot be imputed on appellee before she
applied for death benefits under ECC or before she received the first payment therefrom.
Her using the police investigation report to support her complaint filed on May 9, 1991
may just be an afterthought after receiving a copy of the February 6, 1991 Memorandum
of the Prosecutors Office dismissing the criminal complaint for insufficiency of evidence,
stating therein that: "The death of the victim is not attributable to any negligence on the
part of the respondents. If at all and as shown by the records this case is civil in nature."
(Underscoring supplied.) Considering the foregoing, We are more inclined to believe
appellees allegation that she learned about appellants negligence only after she applied
for and received the benefits under ECC. This is a mistake of fact that will make this case
fall under the exception held in the Floresca ruling.35

The CA further held that not only was private respondent ignorant of the facts, but of her rights as
well:

x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her
educational attainment; that she did not know what damages could be recovered from the
death of her husband; and that she did not know that she may also recover more from
the Civil Code than from the ECC. x x x.36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in
her complaint that her application and receipt of benefits from the ECC were attended by ignorance
or mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to
hear or adjudicate that issue."

Petitioner also claims that private respondent could not have been ignorant of the facts because as
early as November 28, 1990, private respondent was the complainant in a criminal complaint for
"Simple Negligence Resulting to Homicide" against petitioners employees. On February 6, 1991,
two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued a
resolution finding that, although there was insufficient evidence against petitioners employees,
the case was "civil in nature." These purportedly show that prior to her receipt of death benefits
from the ECC on January 2, 1991 and every month thereafter, private respondent also knew of the
two choices of remedies available to her and yet she chose to claim and receive the benefits from
the ECC.
When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in
the absence of fraud by the other party. The first act of election acts as a bar.37 Equitable in nature,
the doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It
rests on the moral premise that it is fair to hold people responsible for their choices. The purpose
of the doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a
single wrong.38

The choice of a party between inconsistent remedies results in a waiver by election. Hence, the
rule in Florescathat a claimant cannot simultaneously pursue recovery under the Labor Code and
prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of one
remedy, is deemed to have waived the other.

Waiver is the intentional relinquishment of a known right.39

[It] is an act of understanding that presupposes that a party has knowledge of its rights, but
chooses not to assert them. It must be generally shown by the party claiming a waiver that
the person against whom the waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the partys rights or of all material facts upon which they
depended. Where one lacks knowledge of a right, there is no basis upon which waiver of it
can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by
a consent given under a mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person knows that a right
exists and has adequate knowledge upon which to make an intelligent decision.

Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an
awareness of its consequences. That a waiver is made knowingly and intelligently must be
illustrated on the record or by the evidence.40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception
in Floresca.

It is in light of the foregoing principles that we address petitioners contentions.

Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in
her complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to
burden private respondent with raising waiver as an issue. On the contrary, it is the defendant who
ought to plead waiver, as petitioner did in pages 2-3 of its Answer;41 otherwise, the defense is
waived. It is, therefore, perplexing for petitioner to now contend that the trial court had no
jurisdiction over the issue when petitioner itself pleaded waiver in the proceedings before the trial
court.

Does the evidence show that private respondent knew of the facts that led to her husbands death
and the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case,
the "fact" that served as a basis for nullifying the waiver is the negligence of petitioners
employees, of which private respondent purportedly learned only after the prosecutor issued a
resolution stating that there may be civil liability. InFloresca, it was the negligence of the mining
corporation and its violation of government rules and regulations. Negligence, or violation of
government rules and regulations, for that matter, however, is not a fact, but aconclusion of law,
over which only the courts have the final say. Such a conclusion binds no one until the courts have
decreed so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies a
waiver has been misapplied in Floresca and in the case at bar.

In any event, there is no proof that private respondent knew that her husband died in the elevator
crash when on November 15, 1990 she accomplished her application for benefits from the ECC.
The police investigation report is dated November 25, 1990, 10 days after the accomplishment of
the form. Petitioner filed the application in her behalf on November 27, 1990.

There is also no showing that private respondent knew of the remedies available to her when the
claim before the ECC was filed. On the contrary, private respondent testified that she was not
aware of her rights.

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no
one from compliance therewith. As judicial decisions applying or interpreting the laws or the
Constitution form part of the Philippine legal system (Article 8, Civil Code), private respondent
cannot claim ignorance of this Courts ruling inFloresca allowing a choice of remedies.

The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws.42 This may be deduced from the language of the provision, which, notwithstanding a
persons ignorance, does not excuse his or her compliance with the laws. The rule
in Floresca allowing private respondent a choice of remedies is neither mandatory nor prohibitory.
Accordingly, her ignorance thereof cannot be held against her.

Finally, the Court modifies the affirmance of the award of damages. The records do not indicate
the total amount private respondent ought to receive from the ECC, although it appears from
Exhibit "K"43 that she received P3,581.85 as initial payment representing the accrued pension from
November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K,"
was P596.97 and present total monthly pension was P716.40. Whether the total amount she will
eventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded by
the trial court is subject to speculation, and the case is remanded to the trial court for such
determination. Should the trial court find that its award is greater than that of the ECC, payments
already received by private respondent under the Labor Code shall be deducted from the trial
court' award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent
double compensation.

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more than that of the ECC. Should the award decreed
by the trial court be greater than that awarded by the ECC, payments already made to private
respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the
Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.