Negligence The question presented for decision is whether or not the

defendant in maneuvering his car in the manner above

described was guilty of negligence such as gives rise to a civil
G.R. No. L-12219 March 15, 1918
obligation to repair the damage done; and we are of the opinion
that he is so liable. As the defendant started across the bridge,
AMADO PICART, plaintiff-appellant, he had the right to assume that the horse and the rider would
vs. pass over to the proper side; but as he moved toward the center
FRANK SMITH, JR., defendant-appellee. of the bridge it was demonstrated to his eyes that this would not
be done; and he must in a moment have perceived that it was
Alejo Mabanag for appellant. too late for the horse to cross with safety in front of the moving
G. E. Campbell for appellee. vehicle. In the nature of things this change of situation occurred
while the automobile was yet some distance away; and from this
moment it was not longer within the power of the plaintiff to
STREET, J.: escape being run down by going to a place of greater safety.
The control of the situation had then passed entirely to the
In this action the plaintiff, Amado Picart, seeks to recover of the defendant; and it was his duty either to bring his car to an
defendant, Frank Smith, jr., the sum of P31,000, as damages immediate stop or, seeing that there were no other persons on
alleged to have been caused by an automobile driven by the the bridge, to take the other side and pass sufficiently far away
defendant. From a judgment of the Court of First Instance of the from the horse to avoid the danger of collision. Instead of doing
Province of La Union absolving the defendant from liability the this, the defendant ran straight on until he was almost upon the
plaintiff has appealed. horse. He was, we think, deceived into doing this by the fact that
the horse had not yet exhibited fright. But in view of the known
The occurrence which gave rise to the institution of this action nature of horses, there was an appreciable risk that, if the animal
took place on December 12, 1912, on the Carlatan Bridge, at in question was unacquainted with automobiles, he might get
San Fernando, La Union. It appears that upon the occasion in exited and jump under the conditions which here confronted him.
question the plaintiff was riding on his pony over said bridge. When the defendant exposed the horse and rider to this danger
Before he had gotten half way across, the defendant he was, in our opinion, negligent in the eye of the law.
approached from the opposite direction in an automobile, going
at the rate of about ten or twelve miles per hour. As the The test by which to determine the existence of negligence in a
defendant neared the bridge he saw a horseman on it and blew particular case may be stated as follows: Did the defendant in
his horn to give warning of his approach. He continued his doing the alleged negligent act use that person would have used
course and after he had taken the bridge he gave two more in the same situation? If not, then he is guilty of negligence. The
successive blasts, as it appeared to him that the man on law here in effect adopts the standard supposed to be supplied
horseback before him was not observing the rule of the road. by the imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is not
The plaintiff, it appears, saw the automobile coming and heard determined by reference to the personal judgment of the actor in
the warning signals. However, being perturbed by the novelty of the situation before him. The law considers what would be
the apparition or the rapidity of the approach, he pulled the pony reckless, blameworthy, or negligent in the man of ordinary
closely up against the railing on the right side of the bridge intelligence and prudence and determines liability by that.
instead of going to the left. He says that the reason he did this
was that he thought he did not have sufficient time to get over to The question as to what would constitute the conduct of a
the other side. The bridge is shown to have a length of about 75 prudent man in a given situation must of course be always
meters and a width of 4.80 meters. As the automobile determined in the light of human experience and in view of the
approached, the defendant guided it toward his left, that being facts involved in the particular case. Abstract speculations
the proper side of the road for the machine. In so doing the cannot here be of much value but this much can be profitably
defendant assumed that the horseman would move to the other said: Reasonable men govern their conduct by the
side. The pony had not as yet exhibited fright, and the rider had circumstances which are before them or known to them. They
made no sign for the automobile to stop. Seeing that the pony are not, and are not supposed to be, omniscient of the future.
was apparently quiet, the defendant, instead of veering to the Hence they can be expected to take care only when there is
right while yet some distance away or slowing down, continued something before them to suggest or warn of danger. Could a
to approach directly toward the horse without diminution of prudent man, in the case under consideration, foresee harm as a
speed. When he had gotten quite near, there being then no result of the course actually pursued? If so, it was the duty of the
possibility of the horse getting across to the other side, the actor to take precautions to guard against that harm.
defendant quickly turned his car sufficiently to the right to escape Reasonable foresight of harm, followed by ignoring of the
hitting the horse alongside of the railing where it as then suggestion born of this prevision, is always necessary before
standing; but in so doing the automobile passed in such close negligence can be held to exist. Stated in these terms, the
proximity to the animal that it became frightened and turned its proper criterion for determining the existence of negligence in a
body across the bridge with its head toward the railing. In so given case is this: Conduct is said to be negligent when a
doing, it as struck on the hock of the left hind leg by the flange of prudent man in the position of the tortfeasor would have
the car and the limb was broken. The horse fell and its rider was foreseen that an effect harmful to another was sufficiently
thrown off with some violence. From the evidence adduced in probable to warrant his foregoing conduct or guarding against its
the case we believe that when the accident occurred the free consequences.
space where the pony stood between the automobile and the
railing of the bridge was probably less than one and one half Applying this test to the conduct of the defendant in the present
meters. As a result of its injuries the horse died. The plaintiff case we think that negligence is clearly established. A prudent
received contusions which caused temporary unconsciousness man, placed in the position of the defendant, would in our
and required medical attention for several days. opinion, have recognized that the course which he was pursuing
was fraught with risk, and would therefore have foreseen harm criminal prosecution for the offense mentioned would be res
to the horse and the rider as reasonable consequence of that adjudicata upon the question of his civil liability arising from
course. Under these circumstances the law imposed on the negligence -- a point upon which it is unnecessary to express an
defendant the duty to guard against the threatened harm. opinion -- the action of the justice of the peace in dismissing the
criminal proceeding upon the preliminary hearing can have no
It goes without saying that the plaintiff himself was not free from effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep.,
fault, for he was guilty of antecedent negligence in planting 564.)
himself on the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the From what has been said it results that the judgment of the lower
problem always is to discover which agent is immediately and court must be reversed, and judgment is her rendered that the
directly responsible. It will be noted that the negligent acts of the plaintiff recover of the defendant the sum of two hundred pesos
two parties were not contemporaneous, since the negligence of (P200), with costs of other instances. The sum here awarded is
the defendant succeeded the negligence of the plaintiff by an estimated to include the value of the horse, medical expenses of
appreciable interval. Under these circumstances the law is that the plaintiff, the loss or damage occasioned to articles of his
the person who has the last fair chance to avoid the impending apparel, and lawful interest on the whole to the date of this
harm and fails to do so is chargeable with the consequences, recovery. The other damages claimed by the plaintiff are remote
without reference to the prior negligence of the other party. or otherwise of such character as not to be recoverable. So
ordered
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. Rep., 359) should perhaps be mentioned in this
connection. This Court there held that while contributory
negligence on the part of the person injured did not constitute a
bar to recovery, it could be received in evidence to reduce the
damages which would otherwise have been assessed wholly
against the other party. The defendant company had there
employed the plaintiff, as a laborer, to assist in transporting iron
rails from a barge in Manila harbor to the company's yards
located not far away. The rails were conveyed upon cars which
were hauled along a narrow track. At certain spot near the
water's edge the track gave way by reason of the combined
effect of the weight of the car and the insecurity of the road bed.
The car was in consequence upset; the rails slid off; and the
plaintiff's leg was caught and broken. It appeared in evidence
that the accident was due to the effects of the typhoon which
had dislodged one of the supports of the track. The court found
that the defendant company was negligent in having failed to
repair the bed of the track and also that the plaintiff was, at the
moment of the accident, guilty of contributory negligence in
walking at the side of the car instead of being in front or behind.
It was held that while the defendant was liable to the plaintiff by
reason of its negligence in having failed to keep the track in
proper repair nevertheless the amount of the damages should
be reduced on account of the contributory negligence in the
plaintiff. As will be seen the defendant's negligence in that case
consisted in an omission only. The liability of the company arose
from its responsibility for the dangerous condition of its track. In
a case like the one now before us, where the defendant was
actually present and operating the automobile which caused the
damage, we do not feel constrained to attempt to weigh the
negligence of the respective parties in order to apportion the
damage according to the degree of their relative fault. It is
enough to say that the negligence of the defendant was in this
case the immediate and determining cause of the accident and
that the antecedent negligence of the plaintiff was a more
remote factor in the case.

A point of minor importance in the case is indicated in the

special defense pleaded in the defendant's answer, to the effect
that the subject matter of the action had been previously
adjudicated in the court of a justice of the peace. In this
connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be
instituted before a justice of the peace charging the defendant
with the infliction of serious injuries (lesiones graves). At the
preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding that
the acquittal of the defendant at the trial upon the merits in a
[G.R. No. 143008. June 10, 2002]
SMITH BELL DODWELL SHIPPING AGENCY
CORPORATION, petitioner, vs. CATALINO BORJA and
INTERNATIONAL TO WAGE AND TRANSPORT
CORPORATION, respondents.
DECISION
PANGANIBAN, J.:
The owner or the person in possession and control of a vessel is
liable for all natural and proximate damages caused to persons
and property by reason of negligence in its management or
navigation. The liability for the loss of the earning capacity of the
deceased is fixed by taking into account the net income of the
victim at the time of death -- of the incident in this case -- and
that persons probable life expectancy.
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of
the Rules of Court, challenging the March 6, 2000 Decision[1]
and the April 25, 2000 Resolution[2] of the Court of Appeals[3]
(CA) in CA-GR CV No. 57470. The assailed Decision disposed
as follows:
WHEREFORE, premises considered, the instant appeal is
hereby DENIED. The questioned decision of the lower court is
hereby AFFIRMED in toto. No pronouncement as to costs.[4]
Reconsideration was denied in the assailed Resolution.
The Facts
The facts of the case are set forth by the CA as follows:
It appears that on September 23, 1987, Smith Bell [herein
petitioner] filed a written request with the Bureau of Customs for
the attendance of the latters inspection team on vessel M/T King
Family which was due to arrive at the port of Manila on
September 24, 1987.
Said vessel contained 750 metric tons of alkyl benzene and
methyl methacrylate monomer.
On the same day, Supervising Customs Inspector Manuel Ma.
D. Nalgan instructed [Respondent Catalino Borja] to board said
vessel and perform his duties as inspector upon the vessels
arrival until its departure. At that time, [Borja] was a customs
inspector of the Bureau of Customs receiving a salary of
P31,188.25 per annum.
"At about 11 oclock in the morning on September 24, 1987,
while M/T King Family was unloading chemicals unto two (2)
barges [--] ITTC 101 and CLC-1002 [--] owned by [Respondent]
ITTC, a sudden explosion occurred setting the vessels afire.
Upon hearing the explosion, [Borja], who was at that time inside
the cabin preparing reports, ran outside to check what
happened. Again, another explosion was heard.
Seeing the fire and fearing for his life, [Borja] hurriedly jumped
over board to save himself. However, the [water] [was] likewise
on fire due mainly to the spilled chemicals. Despite the
tremendous heat, [Borja] swam his way for one (1) hour until he
was rescued by the people living in the squatters area and sent
to San Juan De Dios Hospital.
After weeks of intensive care at the hospital, his attending
physician diagnosed [Borja] to be permanently disabled due to
the incident. [Borja] made demands against Smith Bell and ITTC
for the damages caused by the explosion. However, both denied
liabilities and attributed to each other negligence.[5]
The trial court[6] (RTC) ruled in favor of Respondent Borja and
held petitioner liable for damages and loss of income. The RTC
disposed as follows:
WHEREFORE, premises considered, judgment is hereby
rendered ordering [Petitioner] Smith Bell Dodwell [S]hipping
Agency Corporation to pay [Borja]:
1. The amount of P495,360.00 as actual damages for loss of
earning capacity:
2. The amount of P100,000.00 for moral damages; and
3. The amount of P50,000.00 for and as reasonable attorneys
fees.
The cross-claim of [Petitioner] Smith Bell Dodwell Shipping
Agency Corporation against co-defendant International Towage
and Transport Corporation and the latters counterclaim against
[Borja] and cross-claim with compulsory counterclaim against
Smith Bell are hereby ordered dismissed.[7]
Ruling of the Court of Appeals
Affirming the trial court, the CA rejected the plea of petitioner
that it be exonerated from liability for Respondent Borjas injuries.
Contrary to the claim of petitioner that no physical evidence was
shown to prove that the explosion had originated from its vessel,
the CA held that the fire had originated from M/T King Family.
This conclusion was amply supported by the testimonies of Borja
and Eulogio Laurente (the eyewitness of International Towage
and Transport Corporation or ITTC) as well as by the
investigation conducted by the Special Board of Marine Inquiry
and affirmed by the secretary of the Department of National
Defense. On the other hand, the RTC, which the CA sustained,
had not given probative value to the evidence of petitioner,
whose sole eyewitness had not shown up for cross-examination.
Hence, this Petition.[8]
The Issues
In its Memorandum,[9] petitioner raises the following issues:
1. Whether petitioner should be held liable for the injuries of
Respondent Catalino Borja.
2. Whether Respondent ITTC should be held liable for the
injuries of Respondent Catalino Borja.
3. Assuming without admitting that Respondent Catalino Borja is
entitled to damages, whether Respondent Borja is entitled to the
amount of damages awarded to him by the trial court.[10]
Simply put, these issues can be summed up in these two
questions: (1) Who, if any, is liable for Borjas injuries? (2) What
is the proper amount of liability?
This Courts Ruling
The Petition is partly meritorious.
First Issue:
Responsibility for Injuries

Petitioner avers that both lower courts labored under a
misapprehension of the facts. It claims that the documents
adduced in the RTC conclusively revealed that the explosion
that caused the fire on M/T King Family had originated from the
barge ITTC-101, a conclusion based on three grounds. First, the
Survey Report (Exh. 10) dated October 21, 1987 submitted by
the Admiral Surveyors and Adjusters, Inc., showed that no part
of M/T King Family sustained any sharp or violent damage that
would otherwise be observed if indeed an explosion had
occurred on it. On the other hand, the fact that the vessel
sustained cracks on its shell plating was noted in two Survey
Reports from Greutzman Divers Underwater Specialist, dated
October 6, 1987 (Exh. 11), and during the underwater inspection
on the sunken barge ITTC-101.
Second, external fire damage on the hull of M/T King Family
indicated that the fire had started from outside the vessel and
from ITTC-101. The port side of the vessel to which the ITTC
barge was tied was completely gutted by fire, while the starboard
side to which the barge CLC-1002 was tied sustained only slight
fire damage.
Third, testimonial evidence proved that the explosion came from
the barge of the ITTC and not from its vessel. Security Guard
Vivencio Estrella testified that he had seen the sudden explosion
of monomer on the barge with fire that went up to about 60
meters. Third Mate Choi Seong Hwan and Second Mate Nam
Bang Choun of M/T King Family narrated that while they were
discharging the chemicals, they saw and heard an explosion
from the barge ITTC-101. Chief Security Guard Reynaldo
Patron, in turn, testified that he was 7 to 10 meters away from
the barge when he heard the explosion from the port side of M/T
King Family and saw the barge already on fire.
We are not persuaded. Both the RTC and the CA ruled that the
fire and the explosion had originated from petitioners vessel.
Said the trial court:
The attempts of [Petitioner] Smith Bell to shift the blame on x x x
ITTC were all for naught. First, the testimony of its alleged
eyewitness was stricken off the record for his failure to appear
for cross-examination (p. 361, Record). Second, the documents
offered to prove that the fire originated from barge ITTC-101
were all denied admission by the [c]ourt for being, in effect,
hearsay (pp. 335 and 362). x x x Thus, there is nothing in the
record to support [petitioners] contention that the fire and
explosion originated from barge ITTC-101.[11]
We find no cogent reason to overturn these factual findings.
Nothing is more settled in jurisprudence than that this Court is
bound by the factual findings of the Court of Appeals when these
are supported by substantial evidence and are not under any of
the exceptions in Fuentes v. Court of Appeals;[12] more so,
when such findings affirm those of the trial court.[13] Verily, this
Court reviews only issues of law.
Negligence is conduct that creates undue risk of harm to
another. It is the failure to observe that degree of care,
precaution and vigilance that the circumstances justly demand,
whereby that other person suffers injury.[14] Petitioners vessel
was carrying chemical cargo -- alkyl benzene and methyl
methacrylate monomer.[15] While knowing that their vessel was
carrying dangerous inflammable chemicals, its officers and crew
failed to take all the necessary precautions to prevent an
accident. Petitioner was, therefore, negligent.
The three elements of quasi delict are: (a) damages suffered by
the plaintiff, (b) fault or negligence of the defendant, and (c) the
connection of cause and effect between the fault or negligence
of the defendant and the damages inflicted on the plaintiff.[16]
All these elements were established in this case. Knowing fully
well that it was carrying dangerous chemicals, petitioner was
negligent in not taking all the necessary precautions in
transporting the cargo.
As a result of the fire and the explosion during the unloading of
the chemicals from petitioners vessel, Respondent Borja
suffered the following damage: and injuries: (1) chemical burns
of the face and arms; (2) inhalation of fumes from burning
chemicals; (3) exposure to the elements [while] floating in sea
water for about three (3) hours; (4) homonymous hemianopsia or
blurring of the right eye [which was of] possible toxic origin; and
(5) [c]erebral infract with neo-vascularization, left occipital region
with right sided headache and the blurring of vision of right
eye.[17]
Hence, the owner or the person in possession and control of a
vessel and the vessel are liable for all natural and proximate
damage caused to persons and property by reason of negligent
management or navigation.[18]
Second Issue:
Amount of Liability
Petitioner insists that Borja is not entitled to the full amount of
damages awarded by the lower courts. It disputes the use of his
gross earning as basis for the computation of the award for loss
of earning capacity. Both courts, in computing the value of such
loss, used the remaining years of the victim as a government
employee and the amount he had been receiving per annum at
the time of the incident.
Counsel for Respondent Borja, on the other hand, claims that
petitioner had no cause to complain, because the
miscomputation had ironically been in its favor. The multiplier
used in the computation was erroneously based on the
remaining years in government service, instead of the life
expectancy, of the victim. Borjas counsel also points out that the
award was based on the formers meager salary in 1987, or
about 23 years ago when the foreign exchange was still P14 to
$1. Hence, the questioned award is consistent with the primary
purpose of giving what is just, moral and legally due the victim
as the aggrieved party.
Both parties have a point. In determining the reasonableness of
the damages awarded under Article 1764 in conjunction with
Article 2206 of the Civil Code, the factors to be considered are:
(1) life expectancy (considering the health of the victim and the
mortality table which is deemed conclusive) and loss of earning
capacity; (b) pecuniary loss, loss of support and service; and (c)
moral and mental sufferings.[19] The loss of earning capacity is
based mainly on the number of years remaining in the persons
expected life span. In turn, this number is the basis of the
damages that shall be computed and the rate at which the loss
sustained by the heirs shall be fixed.[20]
The formula for the computation of loss of earning capacity is as
follows:[21]
Net earning capacity = Life expectancy x [Gross Annual Income
- Living Expenses (50% of gross annual income)], where life
expectancy = 2/3 (80 - the age of the deceased).[22]
Petitioner is correct in arguing that it is net income (or gross
income less living expenses) which is to be used in the
computation of the award for loss of income. Villa Rey Transit v.
Court of Appeals[23] explained that the amount recoverable is
not the loss of the entire earning, but rather the loss of that
portion of the earnings which the beneficiary would have
received. Hence, in fixing the amount of the said damages, the
necessary expenses of the deceased should be deducted from
his earnings.
In other words, only net earnings, not gross earnings, are to be
considered; that is, the total of the earnings less expenses
necessary in the creation of such earnings or income, less living
and other incidental expenses. When there is no showing that
the living expenses constituted a smaller percentage of the
gross income, we fix the living expenses at half of the gross
income. To hold that one would have used only a small part of
the income, with the larger part going to the support of ones
children, would be conjectural and unreasonable.[24]
Counsel for Respondent Borja is also correct in saying that life
expectancy should not be based on the retirement age of
government employees, which is pegged at 65. In Negros
Navigation Co, Inc. v. CA,[25] the Court resolved that in
calculating the life expectancy of an individual for the purpose of
determining loss of earning capacity under Article 2206(1) of the
Civil Code, it is assumed that the deceased would have earned
income even after retirement from a particular job.
Respondent Borja should not be situated differently just because
he was a government employee. Private employees, given the
retirement packages provided by their companies, usually retire
earlier than government employees; yet, the life expectancy of
the former is not pegged at 65 years.
Petitioner avers that Respondent Borja died nine years after the
incident and, hence, his life expectancy of 80 years should yield
to the reality that he was only 59 when he actually died.
We disagree. The Court uses the American
Experience/Expectancy Table of Mortality or the Actuarial or
Combined Experience Table of Mortality, which consistently
pegs the life span of the average Filipino at 80 years, from which
it extrapolates the estimated income to be earned by the
deceased had he or she not been killed.[26]
Respondent Borjas demise earlier than the estimated life span is
of no moment. For purposes of determining loss of earning
capacity, life expectancy remains at 80. Otherwise, the
computation of loss of earning capacity will never become final,
being always subject to the eventuality of the victims death. The
computation should not change even if Borja lived beyond 80
years. Fair is fair.
Based on the foregoing discussion, the award for loss of earning
capacity should be computed as follows:
Loss of earning = [2 (80-50)] x [(P2,752x12)-16,512]
capacity 3
= P330,240
Having been duly proven, the moral damages and attorneys fees
awarded are justified under the Civil Codes Article 2219,
paragraph 2; and Article 2208, paragraph 11, respectively.
WHEREFORE, the Petition is PARTLY GRANTED. The assailed
Decision is AFFIRMED with the following MODIFICATIONS:
petitioner is ordered to pay the heirs of the victim damages in the
amount of P320,240 as loss of earning capacity, moral damages
in the amount of P100,000, plus another P50,000 as attorneys
fees. Costs against petitioner.
SO ORDERED.
[G.R. No. 156034. October 1, 2003]
DELSAN TRANSPORT LINES, INC., petitioner, vs. C & A
CONSTRUCTION, INC., respondent.
DECISION
YNARES-SANTIAGO, J.:
Assailed in this petition for review under Rule 45 of the Revised
Rules of Court are the June 14, 2002 decision[1] of the Court of
Appeals in CA-G.R. CV No. 59034, which reversed the
decision[2] of the Regional Trial Court of Manila, Branch 46, in
Civil Case No. 95-75565, and its November 7, 2002 resolution[3]
denying petitioners motion for reconsideration.
The undisputed facts reveal that respondent C & A Construction,
Inc. was engaged by the National Housing Authority (NHA) to
construct a deflector wall at the Vitas Reclamation Area in Vitas,
Tondo, Manila.[4] The project was completed in 1994 but it was
not formally turned over to NHA.
On October 9, 1994, M/V Delsan Express, a ship owned and
operated by petitioner Delsan Transport Lines, Inc., anchored at
the Navotas Fish Port for the purpose of installing a cargo pump
and clearing the cargo oil tank. At around 12:00 midnight of
October 20, 1994, Captain Demetrio T. Jusep of M/V Delsan
Express received a report from his radio head operator in
Japan[5] that a typhoon was going to hit Manila[6] in about eight
(8) hours.[7] At approximately 8:35 in the morning of October 21,
1994, Capt. Jusep tried to seek shelter at the North Harbor but
could not enter the area because it was already congested.[8] At
10:00 a.m., Capt. Jusep decided to drop anchor at the vicinity of
Vitas mouth, 4 miles away from a Napocor power barge. At that
time, the waves were already reaching 8 to 10 feet high. Capt.
Jusep ordered his crew to go full ahead to counter the wind
which was dragging the ship towards the Napocor power barge.
To avoid collision, Capt. Jusep ordered a full stop of the
vessel.[9] He succeeded in avoiding the power barge, but when
the engine was re-started and the ship was maneuvered full
astern, it hit the deflector wall constructed by respondent.[10]
The damage caused by the incident amounted to
P456,198.24.[11]
Respondent demanded payment of the damage from petitioner
but the latter refused to pay. Consequently, respondent filed a
complaint for damages with the Regional Trial Court of Manila,
Branch 46, which was docketed as Civil Case No. 95-75565. In
its answer, petitioner claimed that the damage was caused by a
fortuitous event.[12]
On February 13, 1998, the complaint filed by respondent was
dismissed. The trial court ruled that petitioner was not guilty of
negligence because it had taken all the necessary precautions to
avoid the accident. Applying the emergency rule, it absolved
petitioner of liability because the latter had no opportunity to
adequately weigh the best solution to a threatening situation. It
further held that even if the maneuver chosen by petitioner was
a wrong move, it cannot be held liable as the cause of the
damage sustained by respondent was typhoon Katring, which is
an act of God.[13]
On appeal to the Court of Appeals, the decision of the trial court
was reversed and set aside.[14] It found Capt. Jusep guilty of
negligence in deciding to transfer the vessel to the North Harbor
only at 8:35 a.m. of October 21, 1994 and thus held petitioner
liable for damages.
Hence, petitioner filed the instant petition contending that Capt.
Jusep was not negligent in waiting until 8:35 in the morning of
October 21, 1994 before transferring the vessel to the North
Harbor inasmuch as it was not shown that had the transfer been
made earlier, the vessel could have sought shelter.[15] It further
claimed that it cannot be held vicariously liable under Article
2180 of the Civil Code because respondent failed to allege in the
complaint that petitioner was negligent in the selection and
supervision of its employees.[16] Granting that Capt. Jusep was
indeed guilty of negligence, petitioner is not liable because it
exercised due diligence in the selection of Capt. Jusep who is a
duly licensed and competent Master Mariner.[17]
The issues to be resolved in this petition are as follows (1)
Whether or not Capt. Jusep was negligent; (2) If yes, whether or
not petitioner is solidarily liable under Article 2180 of the Civil
Code for the quasi-delict committed by Capt. Jusep?
danger in which he finds himself is brought about by his own
negligence.[27] Clearly, the emergency rule is not applicable to
the instant case because the danger where Capt. Jusep found
himself was caused by his own negligence.
Anent the second issue, we find petitioner vicariously liable for
the negligent act of Capt. Jusep. Under Article 2180 of the Civil
Code an employer may be held solidarily liable for the negligent
act of his employee. Thus
Art. 2180. The obligation imposed in Article 2176 is demandable
not only for ones own acts or omissions, but also for those of
persons for whom one is responsible.
xxxxxxxxx

Article 2176 of the Civil Code provides that whoever by act or
omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict. The test for
determining the existence of negligence in a particular case may
be stated as follows: Did the defendant in doing the alleged
negligent act use the reasonable care and caution which an
ordinary prudent person would have used in the same situation?
If not, then he is guilty of negligence.[18]
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in
any business or industry.
xxxxxxxxx
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.

In the case at bar, the Court of Appeals was correct in holding Whenever an employees negligence causes damage or injury to
that Capt. Jusep was negligent in deciding to transfer the vessel another, there instantly arises a presumption juris tantum that
only at 8:35 in the morning of October 21, 1994. As early as the employer failed to exercise diligentissimi patris families in the
12:00 midnight of October 20, 1994, he received a report from selection (culpa in eligiendo) or supervision (culpa in vigilando)
his radio head operator in Japan[19] that a typhoon was going to of its employees. To avoid liability for a quasi-delict committed
hit Manila[20] after 8 hours.[21] This, notwithstanding, he did by his employee, an employer must overcome the presumption
nothing, until 8:35 in the morning of October 21, 1994, when he by presenting convincing proof that he exercised the care and
decided to seek shelter at the North Harbor, which unfortunately diligence of a good father of a family in the selection and
was already congested. The finding of negligence cannot be supervision of his employee. [28]
rebutted upon proof that the ship could not have sought refuge
at the North Harbor even if the transfer was done earlier. It is not There is no question that petitioner, who is the owner/operator of
the speculative success or failure of a decision that determines M/V Delsan Express, is also the employer of Capt. Jusep who at
the existence of negligence in the present case, but the failure to the time of the incident acted within the scope of his duty. The
take immediate and appropriate action under the circumstances. defense raised by petitioner was that it exercised due diligence
Capt. Jusep, despite knowledge that the typhoon was to hit in the selection of Capt. Jusep because the latter is a licensed
Manila in 8 hours, complacently waited for the lapse of more and competent Master Mariner. It should be stressed, however,
than 8 hours thinking that the typhoon might change that the required diligence of a good father of a family pertains
direction.[22] He cannot claim that he waited for the sun to rise not only to the selection, but also to the supervision of
instead of moving the vessel at midnight immediately after employees. It is not enough that the employees chosen be
receiving the report because of the difficulty of traveling at night. competent and qualified, inasmuch as the employer is still
The hour of 8:35 a.m. is way past sunrise. Furthermore, he did required to exercise due diligence in supervising its employees.
not transfer as soon as the sun rose because, according to him,
it was not very cloudy[23] and there was no weather disturbance In Fabre, Jr. v. Court of Appeals,[29] it was held that due
yet.[24] diligence in supervision requires the formulation of rules and
regulations for the guidance of employees and the issuance of
When he ignored the weather report notwithstanding reasonable proper instructions as well as actual implementation and
foresight of harm, Capt. Jusep showed an inexcusable lack of monitoring of consistent compliance with the rules. Corollarily, in
care and caution which an ordinary prudent person would have Ramos v. Court of Appeals,[30] the Court stressed that once
observed in the same situation.[25] Had he moved the vessel negligence on the part of the employees is shown, the burden of
earlier, he could have had greater chances of finding a space at proving that he observed the diligence in the selection and
the North Harbor considering that the Navotas Port where they supervision of its employees shifts to the employer.
docked was very near North Harbor.[26] Even if the latter was
already congested, he would still have time to seek refuge in In the case at bar, however, petitioner presented no evidence
other ports. that it formulated rules/guidelines for the proper performance of
functions of its employees and that it strictly implemented and
The trial court erred in applying the emergency rule. Under this monitored compliance therewith. Failing to discharge the burden,
rule, one who suddenly finds himself in a place of danger, and is petitioner should therefore be held liable for the negligent act of
required to act without time to consider the best means that may Capt. Jusep.
be adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and upon So also, petitioner cannot disclaim liability on the basis of
reflection may appear to have been a better method, unless the respondents failure to allege in its complaint that the former did
not exercise due diligence in the selection and supervision of its
employees. In Viron Transportation Co., Inc. v. Delos
Santos,[31] it was held that it is not necessary to state that
petitioner was negligent in the supervision or selection of its
employees, inasmuch as its negligence is presumed by
operation of law. Allegations of negligence against the employee
and that of an employer-employee relation in the complaint are
enough to make out a case of quasi-delict under Article 2180 of
the Civil Code.[32]
Considering that petitioner did not assail the damages awarded
by the trial court, we find no reason to alter the same. The
interest imposed should, however, be modified. In Eastern
Shipping Lines, Inc. v. Court of Appeals,[33] it was held that the
rate of interest on obligations not constituting a loan or
forbearance of money is six percent (6%) per annum. If the
purchase price can be established with certainty at the time of
the filing of the complaint, the six percent (6%) interest should be
computed from the date the complaint was filed until finality of
the decision. After the judgment becomes final and executory
until the obligation is satisfied, the amount due shall earn interest
at 12% per year, the interim period being deemed equivalent to
a forbearance of credit.[34]
Accordingly, the amount of P456,198.27 due the respondent
shall earn 6% interest per annum from October 3, 1995 until the
finality of this decision. If the adjudged principal and the interest
(or any part thereof) remain unpaid thereafter, the interest rate
shall be twelve percent (12%) per annum computed from the
time the judgment becomes final and executory until it is fully
satisfied.
WHEREFORE, in view of all the foregoing, the instant petition is
DENIED. The June 14, 2002 decision of the Court of Appeals in
CA-G.R. CV No. 59034 ordering petitioner Delsan Transport
Lines, Inc., to pay respondent C & A Construction, Inc.,
damages in the amount of P456,198.27, plus P30,000.00 as
attorneys fees, is AFFIRMED with the MODIFICATION that the
award of P456,198.27 shall earn interest at the rate of 6% per
annum from October 3, 1995, until finality of this decision, and
12% per annum thereafter on the principal and interest (or any
part thereof) until full payment.
SO ORDERED.
Burden of Proof
G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and Juan C.
Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a
government-owned corporation, the sum of P50,000 as
damages, P5,000 as funeral expenses, and P11,000 as
attorneys' fees, for the death of their son Dominador Ong in one
of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one
of its swimming pools but avers that his death was caused by his
own negligence or by unavoidable accident. Defendant also
avers that it had exercised due diligence in the selection of, and
supervision over, its employees and that it had observed the
diligence required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is
untenable and dismissed the complaint without pronouncement
as to costs. Plaintiffs took the case on appeal directly to this
Court because the amount involved exceeds the sum of
P50,000.
Defendant owns and operates three recreational swimming
pools at its Balara filters, Diliman, Quezon City, to which people
are invited and for which a nominal fee of P0.50 for adults and
P0.20 for children is charged. The main pool it between two
small pools of oval shape known as the "Wading pool" and the
"Beginners Pool." There are diving boards in the big pools and
the depths of the water at different parts are indicated by
appropriate marks on the wall. The care and supervision of the
pools and the users thereof is entrusted to a recreational section
composed of Simeon Chongco as chief, Armando Rule, a male
nurse, and six lifeguards who had taken the life-saving course
given by the Philippine Red Cross at the YMCA in Manila. For
the safety of its patrons, defendant has provided the pools with a
ring buoy, toy roof, towing line, saving kit and a resuscitator.
There is also a sanitary inspector who is in charge of a clinic
established for the benefit of the patrons. Defendant has also on
display in a conspicuous place certain rules and regulations
governing the use of the pools, one of which prohibits the
swimming in the pool alone or without any attendant. Although
defendant does not maintain a full-time physician in the
swimming pool compound, it has however a nurse and a
sanitary inspector ready to administer injections or operate the
oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock,
Dominador Ong, a 14-year old high school student and boy
scout, and his brothers Ruben and Eusebio, went to defendant's
swimming pools. This was not the first time that the three
brothers had gone to said natatorium for they had already been
there four or five times before. They arrived at the natatorium at
about 1:45 p.m. After paying the requisite admission fee, they
immediately went to one of the small pools where the water was
shallow. At about 4:35 p.m., Dominador Ong told his brothers
that he was going to the locker room in an adjoining building to
drink a bottle of coke. Upon hearing this, Ruben and Eusebio
went to the bigger pool leaving Dominador in the small pool and management and maintenance of such resorts, to the end of
so they did not see the latter when he left the pool to get a bottle making them reasonably safe for visitors" (Larkin vs. Saltair
of coke. In that afternoon, there were two lifeguards on duty in Beach Co., 30 Utah 86, 83 Pac. 686).
the pool compound, namely, Manuel Abao and Mario
Villanueva. The tour of duty of Abao was from 8:00 to 12:00 in "Although the proprietor of a natatorium is liable for injuries to a
the morning and from 2:00 to 6:00 in the afternoon, and of patron, resulting from lack of ordinary care in providing for his
Villanueva from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m. safety, without the fault of the patron, he is not, however, in any
Between 4:00 to 5:00 that afternoon, there were about twenty sense deemed to be the insurer of the safety of patrons. And the
bathers inside the pool area and Manuel Abao was going death of a patron within his premises does not cast upon him the
around the pools to observe the bathers in compliance with the burden of excusing himself from any presumption of negligence"
instructions of his chief. (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs.
Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot
Between 4:40 to 4:45 p.m., some boys who were in the pool vs. Kinnare, supra, it was held that there could be no recovery
area informed a bather by the name of Andres Hagad, Jr., that for the death by drowning of a fifteen-year boy in defendant's
somebody was swimming under water for quite a long time. natatorium, where it appeared merely that he was lastly seen
Another boy informed lifeguard Manuel Abao of the same alive in water at the shallow end of the pool, and some ten or
happening and Abao immediately jumped into the big fifteen minutes later was discovered unconscious, and perhaps
swimming pool and retrieved the apparently lifeless body of lifeless, at the bottom of the pool, all efforts to resuscitate him
Dominador Ong from the bottom. The body was placed at the being without avail.
edge of the pool and Abao immediately applied manual artificial
respiration. Soon after, male nurse Armando Rule came to Since the present action is one for damages founded on
render assistance, followed by sanitary inspector Iluminado culpable negligence, the principle to be observed is that the
Vicente who, after being called by phone from the clinic by one person claiming damages has the burden of proving that the
of the security guards, boarded a jeep carrying with him the damage is caused by the fault or negligence of the person from
resuscitator and a medicine kit, and upon arriving he injected the whom the damage is claimed, or of one of his employees
boy with camphorated oil. After the injection, Vicente left on a (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55
jeep in order to fetch Dr. Ayuyao from the University of the Phil., 517). The question then that arises is: Have appellants
Philippines. Meanwhile, Abao continued the artificial manual established by sufficient evidence the existence of fault or
respiration, and when this failed to revive him, they applied the negligence on the part of appellee so as to render it liable for
resuscitator until the two oxygen tanks were exhausted. Not long damages for the death of Dominador Ong?
thereafter, Dr. Ayuyao arrived with another resuscitator, but the
same became of no use because he found the boy already There is no question that appellants had striven to prove that
dead. The doctor ordered that the body be taken to the clinic. appellee failed to take the necessary precaution to protect the
lives of its patrons by not placing at the swimming pools efficient
In the evening of the same day, July 5, 1952, the incident was and competent employees who may render help at a moment's
investigated by the Police Department of Quezon City and in the notice, and they ascribed such negligence to appellee because
investigation boys Ruben Ong and Andres Hagad, Jr. gave the lifeguard it had on the occasion minor Ong was drowning
written statements. On the following day, July 6, 1952, an was not available or was attending to something else with the
autopsy was performed by Dr. Enrique V. de los Santos, Chief, result that his help came late. Thus, appellants tried to prove
Medico Legal Division, National Bureau of Investigation, who through the testimony of Andres Hagad, Jr. and Ruben Ong that
found in the body of the deceased the following: an abrasion on when Eusebio Ong and Hagad, Jr. detected that there was a
the right elbow lateral aspect; contusion on the right forehead; drowning person in the bottom of the big swimming pool and
hematoma on the scalp, frontal region, right side; a congestion in shouted to the lifeguard for help, lifeguard Manuel Abao did not
the brain with petechial subcortical hemorrhage, frontal lobe; immediately respond to the alarm and it was only upon the third
cyanosis on the face and on the nails; the lung was soggy with call that he threw away the magazine he was reading and
fine froth in the bronchioles; dark fluid blood in the heart; allowed three or four minutes to elapse before retrieving the
congestion in the visceral organs, and brownish fluid in the body from the water. This negligence of Abao, they contend, is
stomach. The death was due to asphyxia by submersion in attributable to appellee.
water.
But the claim of these two witnesses not only was vehemently
The issue posed in this appeal is whether the death of minor denied by lifeguard Abao, but is belied by the written
Dominador Ong can be attributed to the negligence of defendant statements given by them in the investigation conducted by the
and/or its employees so as to entitle plaintiffs to recover Police Department of Quezon City approximately three hours
damages. after the happening of the accident. Thus, these two boys
admitted in the investigation that they narrated in their
The present action is governed by Article 2176 in relation to statements everything they knew of the accident, but, as found
Article 2080 of the new Civil Code. The first article provides that by the trial, nowhere in said statements do they state that the
"whoever by act or omission causes damage to another, there lifeguard was chatting with the security guard at the gate of the
being fault or negligence, is obliged to pay for the damages swimming pool or was reading a comic magazine when the
done." Such fault or negligence is called quasi-delict. Under the alarm was given for which reason he failed to immediately
second article, this obligation is demandable not only for one's respond to the alarm. On the contrary, what Ruben Ong
own acts or omissions but also for those of persons for whom particularly emphasized therein was that after the lifeguard
one is responsible. In addition, we may quote the following heard the shouts for help, the latter immediately dived into the
authorities cited in the decision of the trial court: pool to retrieve the person under water who turned out to be his
brother. For this reason, the trial court made this conclusion:
"The rule is well settled that the owners of resorts to which "The testimony of Ruben Ong and Andres Hagad, Jr. as to the
people generally are expressly or by implication invited are alleged failure of the lifeguard Abao to immediately respond to
legally bound to exercise ordinary care and prudence in the
their call may therefore be disregarded because they are belied himself in the wrong side of the road. But as we have already
by their written statements. (Emphasis supplied.) stated, the defendant was also negligent; and in such case the
problem always is to discover which agent is immediately and
On the other hand, there is sufficient evidence to show that directly responsible. It will be noted that the negligent acts of the
appellee has taken all necessary precautions to avoid danger to two parties were not contemporaneous, since the negligence of
the lives of its patrons or prevent accident which may cause their the defendant succeeded the negligence of the plaintiff by an
death. Thus, it has been shown that the swimming pools of appreciable interval. Under these circumstances, the law is that
appellee are provided with a ring buoy, toy roof, towing line, a person who has the last clear chance to avoid the impending
oxygen resuscitator and a first aid medicine kit. The bottom of harm and fails to do so is chargeable with the consequences,
the pools is painted with black colors so as to insure clear without reference to the prior negligence of the other party.
visibility. There is on display in a conspicuous place within the (Picart vs. Smith, 37 Phil., 809)
area certain rules and regulations governing the use of the
pools. Appellee employs six lifeguards who are all trained as Since it is not known how minor Ong came into the big
they had taken a course for that purpose and were issued swimming pool and it being apparent that he went there without
certificates of proficiency. These lifeguards work on schedule any companion in violation of one of the regulations of appellee
prepared by their chief and arranged in such a way as to have as regards the use of the pools, and it appearing that lifeguard
two guards at a time on duty to look after the safety of the Aba__o responded to the call for help as soon as his attention
bathers. There is a male nurse and a sanitary inspector with a was called to it and immediately after retrieving the body all
clinic provided with oxygen resuscitator. And there are security efforts at the disposal of appellee had been put into play in order
guards who are available always in case of emergency. to bring him back to life, it is clear that there is no room for the
application of the doctrine now invoked by appellants to impute
The record also shows that when the body of minor Ong was liability to appellee..
retrieved from the bottom of the pool, the employees of appellee
did everything possible to bring him back to life. Thus, after he The last clear chance doctrine can never apply where the party
was placed at the edge of the pool, lifeguard Abao immediately charged is required to act instantaneously, and if the injury
gave him manual artificial respiration. Soon thereafter, nurse cannot be avoided by the application of all means at hand after
Armando Rule arrived, followed by sanitary inspector Iluminado the peril is or should have been discovered; at least in cases in
Vicente who brought with him an oxygen resuscitator. When which any previous negligence of the party charged cannot be
they found that the pulse of the boy was abnormal, the inspector said to have contributed to the injury. O'Mally vs. Eagan, 77 ALR
immediately injected him with camphorated oil. When the 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp.
manual artificial respiration proved ineffective they applied the 955-956)
oxygen resuscitator until its contents were exhausted. And while
all these efforts were being made, they sent for Dr. Ayuyao from Before closing, we wish to quote the following observation of the
the University of the Philippines who however came late trial court, which we find supported by the evidence: "There is
because upon examining the body he found him to be already (also) a strong suggestion coming from the expert evidence
dead. All of the foregoing shows that appellee has done what is presented by both parties that Dominador Ong might have dived
humanly possible under the circumstances to restore life to where the water was only 5.5 feet deep, and in so doing he
minor Ong and for that reason it is unfair to hold it liable for his might have hit or bumped his forehead against the bottom of the
death. pool, as a consequence of which he was stunned, and which to
his drowning. As a boy scout he must have received instructions
Sensing that their former theory as regards the liability of in swimming. He knew, or have known that it was dangerous for
appellee may not be of much help, appellants now switch to the him to dive in that part of the pool."
theory that even if it be assumed that the deceased is partly to
be blamed for the unfortunate incident, still appellee may be held Wherefore, the decision appealed from being in accordance with
liable under the doctrine of "last clear chance" for the reason law and the evidence, we hereby affirm the same, without
that, having the last opportunity to save the victim, it failed to do pronouncement as to costs.
so.

We do not see how this doctrine may apply considering that the
record does not show how minor Ong came into the big
swimming pool. The only thing the record discloses is that minor
Ong informed his elder brothers that he was going to the locker
room to drink a bottle of coke but that from that time on nobody
knew what happened to him until his lifeless body was retrieved.
The doctrine of last clear chance simply means that the
negligence of a claimant does not preclude a recovery for the
negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided
injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a person who
has the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or the
negligence of a third person which is imputed to his opponent, is
considered in law solely responsible for the consequences of the
accident." (38 Am. Jur. pp. 900-902)

It goes without saying that the plaintiff himself was not free from
fault, for he was guilty of antecedent negligence in planting
G.R. No. 152040 March 31, 2006 Valdellon filed a criminal complaint for reckless imprudence
resulting in damage to property against Suelto. After the
MARIKINA AUTO LINE TRANSPORT CORPORATION and requisite preliminary investigation, an Information was filed with
FREDDIE L. SUELTO, Petitioners, the RTC of Quezon City. The accusatory portion of the
vs. Information reads:
PEOPLE OF THE PHILIPPINES and ERLINDA V.
VALDELLON, Respondents. That on or about the 3rd day of October 1992, in Quezon City,
Philippines, the said accused, being then the driver and/or
DECISION person in charge of a Marikina Auto Line bus bearing Plate No.
NVC-849, did then and there unlawfully, and feloniously drive,
CALLEJO, SR., J.: manage, and operate the same along Kamias Road, in said City,
in a careless, reckless, negligent, and imprudent manner, by
Before the Court is a Petition for Review on Certiorari of the then and there making the said vehicle run at a speed greater
Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. than was reasonable and proper without taking the necessary
16739 affirming the Joint Decision of the Regional Trial Court precaution to avoid accident to person/s and damage to
(RTC) in Criminal Case No. Q-93-42629 and Civil Case No. Q- property, and considering the condition of the traffic at said place
93-16051, where Freddie Suelto was convicted of reckless at the time, causing as a consequence of his said carelessness,
imprudence resulting in damages to property. negligence, imprudence and lack of precaution, the said vehicle
so driven, managed and operated by him to hit and bump, as in
Erlinda V. Valdellon is the owner of a two-door commercial fact it hit and bump a commercial apartment belonging to
apartment located at No. 31 Kamias Road, Quezon City. The ERLINDA V. VALDELLON located at No. 31 Kamias Road, this
Marikina Auto Line Transport Corporation (MALTC) is the owner- City, thereby causing damages to said apartment in the total
operator of a passenger bus with Plate Number NCV-849. amount of P171,088.46, Philippine Currency, to her damage and
Suelto, its employee, was assigned as the regular driver of the prejudice in the total amount aforementioned.
bus.2
CONTRARY TO LAW.10
At around 2:00 p.m. on October 3, 1992, Suelto was driving the
aforementioned passenger bus along Kamias Road, Kamuning, Valdellon also filed a separate civil complaint against Suelto and
Quezon City, going towards Epifanio de los Santos Avenue the bus company for damages. She prayed that after due
(EDSA). The bus suddenly swerved to the right and struck the proceedings, judgment be rendered in her favor, thus:
terrace of the commercial apartment owned by Valdellon located
along Kamuning Road.3 Upon Valdellons request, the court WHEREFORE, it is respectfully prayed of this Honorable Court
ordered Sergio Pontiveros, the Senior Building Inspection Officer to issue a writ of preliminary attachment against the defendants
of the City Engineers Office, to inspect the damaged terrace. upon approval of plaintiffs bond, and after trial on the merits, to
Pontiveros submitted a report enumerating and describing the render a decision in favor of the plaintiff, ordering the
damages: defendants, jointly and severally, to pay

(1) The front exterior and the right side concrete columns of the
covered terrace were vertically displaced from its original
position causing exposure of the vertical reinforcement.
(2) The beams supporting the roof and parapet walls are found
with cracks on top of the displaced columns.
(3) The 6 CHB walls at [the] right side of the covered terrace
were found with cracks caused by this accident.
(4) The front iron grills and concrete balusters were found totally
damaged and the later [sic] beyond repair.4
He recommended that since the structural members made of
concrete had been displaced, the terrace would have to be
demolished "to keep its monolithicness, and to insure the safety
and stability of the building."5
Photographs6 of the damaged terrace were taken. Valdellon
commissioned Engr. Jesus R. Regal, Jr. to estimate the cost of
repairs, inclusive of labor and painting, and the latter pegged the
cost at P171,088.46.7
a) the total sum of P171,088.46 constituting the expenses for the
repair of the damaged apartment of plaintiff, with interests to be
charged thereon at the legal rate from the date of the formal
demand until the whole obligation is fully paid;
b) the sum of not less than P20,000.00 each as compensatory
and exemplary damages;
c) the sum of P20,000.00 as attorneys fees and the sum of
P1,000.00 for each appearance of plaintiffs counsel; and costs
of suit;
PLAINTIFF further prays for such other reliefs as may be just
and equitable in the premises.11
A joint trial of the two cases was ordered by the trial court.12
The trial court conducted an ocular inspection of the damaged
terrace, where defendants offered to have it repaired and
restored to its original state. Valdellon, however, disagreed
because she wanted the building demolished to give way for the
construction of a new one.13

In a letter dated October 19, 1992 addressed to the bus
company and Suelto, Valdellon demanded payment of
P148,440.00, within 10 days from receipt thereof, to cover the
cost of the damage to the terrace.8 The bus company and
Suelto offered a P30,000.00 settlement which Valdellon
refused.9
During the trial, Valdellon testified on the damage caused to the
terrace of her apartment, and, in support thereof, adduced in
evidence a receipt for P35,000.00, dated October 20, 1993,
issued by the BB Construction and Steel Fabricator for
"carpentry, masonry, welding job and electrical [work]."14
Pontiveros of the Office of the City Engineer testified that there
was a need to change the column of the terrace, but that the
building should also be demolished because "if concrete is In its Brief for the People of the Philippines, the Office of the
destroyed, [one] cannot have it restored to its original Solicitor General (OSG) submitted that the appealed decision
position."15 should be affirmed with modification. On Sueltos claim that the
prosecution failed to prove his guilt for the crime of reckless
Engr. Jesus Regal, Jr., the proprietor of the SSP Construction, imprudence resulting in damage to property, the OSG contended
declared that he inspected the terrace and estimated the cost of that, applying the principle of res ipsa loquitur, the prosecution
repairs, including labor, at P171,088.46. was able to prove that he drove the bus with negligence and
recklessness. The OSG averred that the prosecution was able to
Suelto testified that at 2:00 p.m. on October 3, 1992, he was prove that Sueltos act of swerving the bus to the right was the
driving the bus on its way to Ayala Avenue, Makati, Metro cause of damage to the terrace of Valdellons apartment, and in
Manila. When he reached the corner of K-H Street at Kamias the absence of an explanation to the contrary, the accident was
Road, Quezon City, a passenger jeepney suddenly crossed from evidently due to appellants want of care. Consequently, the
EDSA going to V. Luna and swerved to the lane occupied by the OSG posited, the burden was on the appellant to prove that, in
bus. Suelto had to swerve the bus to the right upon which it hit swerving the bus to the right, he acted on an emergency, and
the side front of the terrace of Valdellons two-door apartment.16 failed to discharge this burden. However, the OSG averred that
Based on his estimate, the cost to the damage on the terrace of the trial court erred in sentencing appellant to a straight penalty
the apartment amounted to P40,000.00.17 On cross- of one year, and recommended a penalty of fine.
examination, Suelto declared that he saw the passenger jeepney
when it was a meter away from the bus. Before then, he had On June 20, 2000, the CA rendered judgment affirming the
seen some passenger jeepneys on the right trying to overtake decision of the trial court, but the award for actual damages was
one another.18 reduced to P100,000.00. The fallo of the decision reads:

Architect Arnulfo Galapate testified that the cost of the repair of WHEREFORE, premises considered, the decision dated April
the damaged terrace amounted to P55,000.00.19 28, 1994, rendered by the court a quo is AFFIRMED with the
modification that the sum of P150,000.00 as compensation
On April 28, 1994, the trial court rendered judgment finding sustained by the plaintiff-appellee for her damaged apartment be
Suelto guilty beyond reasonable doubt of reckless imprudence reduced to P100,000.00 without pronouncement as to costs.
resulting in damage to property, and ordered MALTC and Suelto
to pay, jointly and severally, P150,000.00 to Valdellon, by way of SO ORDERED.21
actual and compensatory damages, as well as attorneys fees
and costs of suit. The fallo of the decision reads: Appellants filed a Motion for Reconsideration, but the CA denied
the same.22
WHEREFORE, finding the accused FREDDIE SUELTO Y
LIWAG guilty beyond reasonable doubt of the crime of Reckless MALTC and Suelto, now petitioners, filed the instant petition
Imprudence Resulting in Damage to Property, said accused is reiterating its submissions in the CA: (a) the prosecution failed to
hereby sentenced to suffer imprisonment of ONE (1) YEAR. prove the crime charged against petitioner Suelto; (b) the
prosecution failed to adduce evidence to prove that respondent
With respect to the civil liability, judgment is hereby rendered in suffered actual damages in the amount of P100,000.00; and (c)
favor of plaintiff Erlinda Valdellon and against defendant the trial court erred in sentencing petitioner Suelto to one (1)
Marikina Auto Line Transport Corporation and accused Freddie year prison term.
Suelto, where both are ordered, jointly and severally, to pay
plaintiff: On the first issue, petitioners aver that the prosecution was
mandated to prove that petitioner Suelto acted with recklessness
a. the sum of P150,000.00, as reasonable compensation in swerving the bus to the right thereby hitting the terrace of
sustained by plaintiff for her damaged apartment; private respondents apartment. However, the prosecution failed
to discharge its burden. On the other hand, petitioner Suelto was
b. the sum of P20,000.00, as compensatory and exemplary able to prove that he acted in an emergency when a passenger
damages; jeepney coming from EDSA towards the direction of the bus
overtook another vehicle and, in the process, intruded into the
c. the sum of P20,000.00, as attorneys fees; and, lane of the bus.

d. the costs of suit.
SO ORDERED.20
MALTC and Suelto, now appellants, appealed the decision to
the CA, alleging that the prosecution failed to prove Sueltos guilt
beyond reasonable doubt. They averred that the prosecution
merely relied on Valdellon, who testified only on the damage
caused to the terrace of her apartment which appellants also
alleged was excessive. Appellant Suelto further alleged that he
should be acquitted in the criminal case for the prosecutions
failure to prove his guilt beyond reasonable doubt. He
maintained that, in an emergency case, he was not, in law,
negligent. Even if the appellate court affirmed his conviction, the
penalty of imprisonment imposed on him by the trial court is
contrary to law.
On the second issue, petitioners insist that private respondent
was able to prove only the amount of P35,000.00 by way of
actual damages; hence, the award of P100,000.00 is barren of
factual basis.
On the third issue, petitioner Suelto posits that the straight
penalty of imprisonment recommended by the trial court, and
affirmed by the CA, is contrary to Article 365 of the Revised
Penal Code.
The petition is partially granted.
On the first issue, we find and so resolve that respondent People
of the Philippines was able to prove beyond reasonable doubt
that petitioner Suelto swerved the bus to the right with
recklessness, thereby causing damage to the terrace of private
respondents apartment. Although she did not testify to seeing
the incident as it happened, petitioner Suelto himself admitted
this in his answer to the complaint in Civil Case No. Q-93-16051, However, the trial court correctly rejected petitioner Sueltos
and when he testified in the trial court. defense, in light of his contradictory testimony vis--vis his
Counter-Affidavit submitted during the preliminary investigation:
Suelto narrated that he suddenly swerved the bus to the right of
the road causing it to hit the column of the terrace of private It is clear from the photographs submitted by the prosecution
respondent. Petitioners were burdened to prove that the damage (Exhs. C, D, G, H & I) that the commercial apartment of Dr.
to the terrace of private respondent was not the fault of petitioner Valdellon sustained heavy damage caused by the bus being
Suelto. driven by Suelto. "It seems highly improbable that the said
damages were not caused by a strong impact. And, it is quite
We have reviewed the evidence on record and find that, as ruled reasonable to conclude that, at the time of the impact, the bus
by the trial court and the appellate court, petitioners failed to was traveling at a high speed when Suelto tried to avoid the
prove that petitioner acted on an emergency caused by the passenger jeepney." Such a conclusion finds support in the
sudden intrusion of a passenger jeepney into the lane of the bus decision of the Supreme Court in People vs. Ison, 173 SCRA
he was driving. 118, where the Court stated that "physical evidence is of the
highest order. It speaks more eloquently than a hundred
It was the burden of petitioners herein to prove petitioner witnesses." The pictures submitted do not lie, having been taken
Sueltos defense that he acted on an emergency, that is, he had immediately after the incident. The damages could not have
to swerve the bus to the right to avoid colliding with a passenger been caused except by a speeding bus. Had the accused not
jeep coming from EDSA that had overtaken another vehicle and been speeding, he could have easily reduced his speed and
intruded into the lane of the bus. The sudden emergency rule come to a full stop when he noticed the jeep. Were he more
was enunciated by this Court in Gan v. Court of Appeals,23 thus: prudent in driving, he could have avoided the incident or even if
he could not avoid the incident, the damages would have been
[O]ne who suddenly finds himself in a place of danger, and is less severe.
required to act without time to consider the best means that may
be adopted to avoid the impending danger, is not guilty of In addition to this, the accused has made conflicting statements
negligence if he fails to adopt what subsequently and upon in his counter-affidavit and his testimony in court. In the former,
reflection may appear to have been a better method unless the he stated that the reason why he swerved to the right was
emergency in which he finds himself is brought about by his own because he wanted to avoid the passenger jeepney in front of
negligence. him that made a sudden stop. But, in his testimony in court, he
said that it was to avoid a passenger jeepney coming from
Under Section 37 of Republic Act No. 4136, as amended, EDSA that was overtaking by occupying his lane. Such glaring
otherwise known as the Land Transportation and Traffic Code, inconsistencies on material points render the testimony of the
motorists are mandated to drive and operate vehicles on the witness doubtful and shatter his credibility. Furthermore, the
right side of the road or highway: variance between testimony and prior statements renders the
witness unreliable. Such inconsistency results in the loss in the
SEC. 37. Driving on right side of highway. Unless a different credibility of the witness and his testimony as to his prudence
course of action is required in the interest of the safety and the and diligence.
security of life, person or property, or because of unreasonable
difficulty of operation in compliance herewith, every person As already maintained and concluded, the severe damages
operating a motor vehicle or an animal-drawn vehicle on a sustained could not have resulted had the accused acted as a
highway shall pass to the right when meeting persons or reasonable and prudent man would. The accused was not
vehicles coming toward him, and to the left when overtaking diligent as he claims to be. What is more probable is that the
persons or vehicles going the same direction, and when turning accused had to swerve to the right and hit the commercial
to the left in going from one highway to another, every vehicle apartment of the plaintiff because he could not make a full stop
shall be conducted to the right of the center of the intersection of as he was driving too fast in a usually crowded street.24
the highway.
Moreover, if the claim of petitioners were true, they should have
Section 35 of the law provides, thus: filed a third-party complaint against the driver of the offending
passenger jeepney and the owner/operator thereof.
Sec. 35. Restriction as to speed.(a) Any person driving a
motor vehicle on a highway shall drive the same at a careful and Petitioner Sueltos reliance on the sudden emergency rule to
prudent speed, not greater nor less than is reasonable and escape conviction for the crime charged and his civil liabilities
proper, having due regard for the traffic, the width of the based thereon is, thus, futile.
highway, and of any other condition then and there existing; and
no person shall drive any motor vehicle upon a highway at such On the second issue, we agree with the contention of petitioners
a speed as to endanger the life, limb and property of any person, that respondents failed to prove that the damages to the terrace
nor at a speed greater than will permit him to bring the vehicle to caused by the incident amounted to P100,000.00. The only
a stop within the assured clear distance ahead (emphasis evidence adduced by respondents to prove actual damages
supplied). claimed by private respondent were the summary computation of
damage made by Engr. Jesus R. Regal, Jr. amounting to
In relation thereto, Article 2185 of the New Civil Code provides P171,088.46 and the receipt issued by the BB Construction and
that "unless there is proof to the contrary, it is presumed that a Steel Fabricator to private respondent for P35,000.00
person driving a motor vehicle has been negligent, if at the time representing cost for carpentry works, masonry, welding, and
of mishap, he was violating any traffic regulation." By his own electrical works. Respondents failed to present Regal to testify
admission, petitioner Suelto violated the Land Transportation on his estimation. In its five-page decision, the trial court
and Traffic Code when he suddenly swerved the bus to the right, awarded P150,000.00 as actual damages to private respondent
thereby causing damage to the property of private respondent. but failed to state the factual basis for such award. Indeed, the
trial court merely declared in the decretal portion of its decision
that the "sum of P150,000.00 as reasonable compensation
sustained by plaintiff for her damaged apartment." The appellate
court, for its part, failed to explain how it arrived at the amount of
P100,000.00 in its three-page decision. Thus, the appellate court
merely declared:
With respect to the civil liability of the appellants, they contend
that there was no urgent necessity to completely demolish the
apartment in question considering the nature of the damages
sustained as a result of the accident. Consequently, appellants
continue, the award of P150,000.00 as compensation sustained
by the plaintiff-appellee for her damaged apartment is an
unconscionable amount.
The damaged portions of the apartment in question are not
disputed.
specific facts that could afford a basis for measuring whatever
compensatory or actual damages are borne.28
The Court further declared that "where goods are destroyed by
the wrongful act of defendant, the plaintiff is entitled to their
value at the time of the destruction, that is, normally, the sum of
money which he would have to pay in the market for identical or
essentially similar goods, plus in a proper case, damages for the
loss of the use during the period before replacement.29
While claimants bare testimonial assertions in support of their
claims for damages should not be discarded altogether,
however, the same should be admitted with extreme caution.
Their testimonies should be viewed in light of claimants self-
interest, hence, should not be taken as gospel truth. Such
assertion should be buttressed by independent evidence. In the
language of the Court:

Considering the aforesaid damages which are the direct result of For this reason, Del Rosarios claim that private respondent
the accident, the reasonable, and adequate compensation due is incurred losses in the total amount of P6,438,048.00 should be
hereby fixed at P100,000.00.25 admitted with extreme caution considering that, because it was a
bare assertion, it should be supported by independent evidence.
Under Article 2199 of the New Civil Code, actual damages Moreover, because he was the owner of private respondent
include all the natural and probable consequences of the act or corporation whatever testimony he would give with regard to the
omission complained of, classified as one for the loss of what a value of the lost vessel, its equipment and cargoes should be
person already possesses (dao emergente) and the other, for viewed in the light of his self-interest therein. We agree with the
the failure to receive, as a benefit, that which would have Court of Appeals that his testimony as to the equipment installed
pertained to him (lucro cesante). As expostulated by the Court in and the cargoes loaded on the vessel should be given credence
PNOC Shipping and Transport Corporation v. Court of considering his familiarity thereto. However, we do not subscribe
Appeals:26 to the conclusion that his valuation of such equipment, cargo,
and the vessel itself should be accepted as gospel truth. We
Under Article 2199 of the Civil Code, actual or compensatory must, therefore, examine the documentary evidence presented
damages are those awarded in satisfaction of, or in recompense to support Del Rosarios claim as regards the amount of
for, loss or injury sustained. They proceed from a sense of losses.30
natural justice and are designed to repair the wrong that has
been done, to compensate for the injury inflicted and not to An estimate of the damage cost will not suffice:
impose a penalty. In actions based on torts or quasi-delicts,
actual damages include all the natural and probable Private respondents failed to adduce adequate and competent
consequences of the act or omission complained of. There are proof of the pecuniary loss they actually incurred. It is not
two kinds of actual or compensatory damages: one is the loss of enough that the damage be capable of proof but must be
what a person already possesses (dao emergente), and the actually proved with a reasonable degree of certainty, pointing
other is the failure to receive as a benefit that which would have
out specific facts that afford a basis for measuring whatever
pertained to him (lucro cesante).27 compensatory damages are borne. Private respondents merely
sustained an estimated amount needed for the repair of the roof
The burden of proof is on the party who would be defeated if no of their subject building. What is more, whether the necessary
evidence would be presented on either side. The burden is to repairs were caused only by petitioners alleged negligence in
establish ones case by a preponderance of evidence which the maintenance of its school building, or included the ordinary
means that the evidence, as a whole, adduced by one side, is wear and tear of the house itself, is an essential question that
superior to that of the other. Actual damages are not presumed. remains indeterminable.31
The claimant must prove the actual amount of loss with a
reasonable degree of certainty premised upon competent proof We note, however, that petitioners adduced evidence that, in
and on the best evidence obtainable. Specific facts that could their view, the cost of the damage to the terrace of private
afford a basis for measuring whatever compensatory or actual respondent would amount to P55,000.00.32 Accordingly, private
damages are borne must be pointed out. Actual damages respondent is entitled to P55,000.00 actual damages.
cannot be anchored on mere surmises, speculations or
conjectures. As the Court declared: We also agree with petitioner Sueltos contention that the trial
court erred in sentencing him to suffer a straight penalty of one
As stated at the outset, to enable an injured party to recover (1) year. This is so because under the third paragraph of Article
actual or compensatory damages, he is required to prove the 365 of the Revised Penal Code, the offender must be sentenced
actual amount of loss with reasonable degree of certainty to pay a fine when the execution of the act shall have only
premised upon competent proof and on the best evidence resulted in damage to property. The said provision reads in full:
available. The burden of proof is on the party who would be
defeated if no evidence would be presented on either side. He ART. 365. Imprudence and negligence. Any person who, by
must establish his case by a preponderance of evidence which reckless imprudence, shall commit any act which, had it been
means that the evidence, as a whole, adduced by one side is intentional, would constitute a grave felony, shall suffer the
superior to that of the other. In other words, damages cannot be penalty of arresto mayor in its maximum period, to prision
presumed and courts, in making an award, must point out correccional in its medium period; if it would have constituted a
less grave felony, the penalty of arresto mayor in its minimum
and medium periods shall be imposed; if it would have Res Ipsa Loquitor
constituted a light felony, the penalty of arresto menor in its G.R. No. L-12986 March 31, 1966
maximum period shall be imposed.
THE SPOUSES BERNABE AFRICA and SOLEDAD C.
Any person who, by simple imprudence or negligence, shall AFRICA, and the HEIRS OF DOMINGA ONG, petitioners-
commit an act which would, otherwise, constitute a grave felony, appellants,
shall suffer the penalty of arresto mayor in its medium and vs.
maximum periods; if it would have constituted a less serious CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT
felony, the penalty of arresto mayor in its minimum period shall OF APPEALS, respondents-appellees.
be imposed.
Ross, Selph, Carrascoso and Janda for the respondents.
When the execution of the act covered by this article shall have Bernabe Africa, etc. for the petitioners.
only resulted in damage to the property of another, the offender
shall be punished by a fine ranging from an amount equal to the MAKALINTAL., J.:
value of said damages to three times such value, but which shall
in no case be less than 25 pesos. This case is before us on a petition for review of the decision of
the Court of Appeals, which affirmed that of the Court of First
A fine not exceeding two hundred pesos and censure shall be Instance of Manila dismissing petitioners' second amended
imposed upon any person who, by simple imprudence or complaint against respondents.
negligence, shall cause some wrong which, if done maliciously,
would have constituted a light felony. The action is for damages under Articles 1902 and 1903 of the
old Civil Code. It appears that in the afternoon of March 18, 1948
In the imposition of these penalties, the courts shall exercise a fire broke out at the Caltex service station at the corner of
their sound discretion, without regard to the rules prescribed in Antipolo street and Rizal Avenue, Manila. It started while
Article 64 (Emphasis supplied). gasoline was being hosed from a tank truck into the
underground storage, right at the opening of the receiving tank
In the present case, the only damage caused by petitioner where the nozzle of the hose was inserted. The fire spread to
Sueltos act was to the terrace of private respondents and burned several neighboring houses, including the personal
apartment, costing P55,000.00. Consequently, petitioners properties and effects inside them. Their owners, among them
contention that the CA erred in awarding P100,000.00 by way of petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo
actual damages to private respondent is correct. We agree that Boquiren, the first as alleged owner of the station and the
private respondent is entitled to exemplary damages, and find second as its agent in charge of operation. Negligence on the
that the award given by the trial court, as affirmed by the CA, is part of both of them was attributed as the cause of the fire.
reasonable. Considering the attendant circumstances, we rule
that private respondent Valdellon is entitled to only P20,000.00 The trial court and the Court of Appeals found that petitioners
by way of exemplary damages. failed to prove negligence and that respondents had exercised
due care in the premises and with respect to the supervision of
IN LIGHT OF ALL THE FOREGOING, the petition is their employees.
PARTIALLY GRANTED. The joint decision of the Regional Trial
Court of Quezon City is AFFIRMED WITH THE MODIFICATION The first question before Us refers to the admissibility of certain
that petitioner Suelto is sentenced to pay a fine of P55,000.00 reports on the fire prepared by the Manila Police and Fire
with subsidiary imprisonment in case of insolvency. Petitioners Departments and by a certain Captain Tinio of the Armed Forces
are ORDERED to pay to Erlinda V. Valdellon, jointly and of the Philippines. Portions of the first two reports are as follows:
severally, the total amount of P55,000.00 by way of actual
damages, and P20,000.00 by way of exemplary damages. 1. Police Department report:

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

2. The Fire Department report:

In connection with their allegation that the premises was (sic)

subleased for the installation of a coca-cola and cigarette stand,
the complainants furnished this Office a copy of a photograph
taken during the fire and which is submitted herewith. it appears
in this picture that there are in the premises a coca-cola cooler
and a rack which according to information gathered in the
neighborhood contained cigarettes and matches, installed sources thereof are not even identified. Others are attributed to
between the gasoline pumps and the underground tanks. Leopoldo Medina, referred to as an employee at the gas station
were the fire occurred; to Leandro Flores, driver of the tank truck
The report of Captain Tinio reproduced information given by a from which gasoline was being transferred at the time to the
certain Benito Morales regarding the history of the gasoline underground tank of the station; and to respondent Mateo
station and what the chief of the fire department had told him on Boquiren, who could not, according to Exhibit V-Africa, give any
the same subject. reason as to the origin of the fire. To qualify their statements as
"official information" acquired by the officers who prepared the
The foregoing reports were ruled out as "double hearsay" by the reports, the persons who made the statements not only must
Court of Appeals and hence inadmissible. This ruling is now have personal knowledge of the facts stated but must have the
assigned as error. It is contended: first, that said reports were duty to give such statements for record.1
admitted by the trial court without objection on the part of
respondents; secondly, that with respect to the police report The reports in question do not constitute an exception to the
(Exhibit V-Africa) which appears signed by a Detective Zapanta hearsay rule; the facts stated therein were not acquired by the
allegedly "for Salvador Capacillo," the latter was presented as reporting officers through official information, not having been
witness but respondents waived their right to cross-examine him given by the informants pursuant to any duty to do so.
although they had the opportunity to do so; and thirdly, that in
any event the said reports are admissible as an exception to the The next question is whether or not, without proof as to the
hearsay rule under section 35 of Rule 123, now Rule 130. cause and origin of the fire, the doctrine of res ipsa loquitur
should apply so as to presume negligence on the part of
The first contention is not borne out by the record. The transcript appellees. Both the trial court and the appellate court refused to
of the hearing of September 17, 1953 (pp. 167-170) shows that apply the doctrine in the instant case on the grounds that "as to
the reports in question, when offered as evidence, were objected (its) applicability ... in the Philippines, there seems to he nothing
to by counsel for each of respondents on the ground that they definite," and that while the rules do not prohibit its adoption in
were hearsay and that they were "irrelevant, immaterial and appropriate cases, "in the case at bar, however, we find no
impertinent." Indeed, in the court's resolution only Exhibits J, K, practical use for such doctrine." The question deserves more
K-5 and X-6 were admitted without objection; the admission of than such summary dismissal. The doctrine has actually been
the others, including the disputed ones, carried no such applied in this jurisdiction, in the case of Espiritu vs. Philippine
explanation. Power and Development Co. (CA-G.R. No. 3240-R, September
20, 1949), wherein the decision of the Court of Appeals was
On the second point, although Detective Capacillo did take the penned by Mr. Justice J.B.L. Reyes now a member of the
witness stand, he was not examined and he did not testify as to Supreme Court.
the facts mentioned in his alleged report (signed by Detective
Zapanta). All he said was that he was one of those who The facts of that case are stated in the decision as follows:
investigated "the location of the fire and, if possible, gather
witnesses as to the occurrence, and that he brought the report In the afternoon of May 5, 1946, while the plaintiff-appellee and
with him. There was nothing, therefore, on which he need be other companions were loading grass between the municipalities
cross-examined; and the contents of the report, as to which he of Bay and Calauan, in the province of Laguna, with clear
did not testify, did not thereby become competent evidence. And weather and without any wind blowing, an electric transmission
even if he had testified, his testimony would still have been wire, installed and maintained by the defendant Philippine Power
objectionable as far as information gathered by him from third and Development Co., Inc. alongside the road, suddenly parted,
persons was concerned. and one of the broken ends hit the head of the plaintiff as he was
about to board the truck. As a result, plaintiff received the full
Petitioners maintain, however, that the reports in themselves, shock of 4,400 volts carried by the wire and was knocked
that is, without further testimonial evidence on their contents, fall unconscious to the ground. The electric charge coursed through
within the scope of section 35, Rule 123, which provides that his body and caused extensive and serious multiple burns from
"entries in official records made in the performance of his duty skull to legs, leaving the bone exposed in some parts and
by a public officer of the Philippines, or by a person in the causing intense pain and wounds that were not completely
performance of a duty specially enjoined by law, are prima facie healed when the case was tried on June 18, 1947, over one year
evidence of the facts therein stated." after the mishap.

There are three requisites for admissibility under the rule just The defendant therein disclaimed liability on the ground that the
mentioned: (a) that the entry was made by a public officer, or by plaintiff had failed to show any specific act of negligence, but the
another person specially enjoined by law to do so; (b) that it was appellate court overruled the defense under the doctrine of res
made by the public officer in the performance of his duties, or by ipsa loquitur. The court said:
such other person in the performance of a duty specially
enjoined by law; and (c) that the public officer or other personThe first point is directed against the sufficiency of plaintiff's
had sufficient knowledge of the facts by him stated, which must evidence to place appellant on its defense. While it is the rule, as
have been acquired by him personally or through official contended by the appellant, that in case of noncontractual
information (Moran, Comments on the Rules of Court, Vol. 3 negligence, or culpa aquiliana, the burden of proof is on the
[1957] p. 398). plaintiff to establish that the proximate cause of his injury was
the negligence of the defendant, it is also a recognized principal
Of the three requisites just stated, only the last need be that "where the thing which caused injury, without fault of the
considered here. Obviously the material facts recited in the injured person, is under the exclusive control of the defendant
reports as to the cause and circumstances of the fire were not and the injury is such as in the ordinary course of things does
within the personal knowledge of the officers who conducted the not occur if he having such control use proper care, it affords
investigation. Was knowledge of such facts, however, acquired reasonable evidence, in the absence of the explanation, that the
by them through official information? As to some facts the injury arose from defendant's want of care."

And the burden of evidence is shifted to him to establish that he
has observed due care and diligence. (San Juan Light & Transit
Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known
by the name of res ipsa loquitur (the transaction speaks for
itself), and is peculiarly applicable to the case at bar, where it is
unquestioned that the plaintiff had every right to be on the
highway, and the electric wire was under the sole control of
defendant company. In the ordinary course of events, electric
wires do not part suddenly in fair weather and injure people,
unless they are subjected to unusual strain and stress or there
are defects in their installation, maintenance and supervision;
just as barrels do not ordinarily roll out of the warehouse
windows to injure passersby, unless some one was negligent.
(Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the
leading case that established that rule). Consequently, in the
absence of contributory negligence (which is admittedly not
present), the fact that the wire snapped suffices to raise a
reasonable presumption of negligence in its installation, care
and maintenance. Thereafter, as observed by Chief Baron
Pollock, "if there are any facts inconsistent with negligence, it is
for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not
lay down doctrines binding on the Supreme Court, but we do not
consider this a reason for not applying the particular doctrine of
res ipsa loquitur in the case at bar. Gasoline is a highly
combustible material, in the storage and sale of which extreme
care must be taken. On the other hand, fire is not considered a
fortuitous event, as it arises almost invariably from some act of
man. A case strikingly similar to the one before Us is Jones vs.
Shell Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon
which in the year 1934 was leased to the Shell Petroleum
Corporation for a gasoline filling station. On October 8, 1934,
during the term of the lease, while gasoline was being
transferred from the tank wagon, also operated by the Shell
Petroleum Corporation, to the underground tank of the station, a
fire started with resulting damages to the building owned by
Jones. Alleging that the damages to his building amounted to
$516.95, Jones sued the Shell Petroleum Corporation for the
recovery of that amount. The judge of the district court, after
hearing the testimony, concluded that plaintiff was entitled to a
recovery and rendered judgment in his favor for $427.82. The
Court of Appeals for the First Circuit reversed this judgment, on
the ground the testimony failed to show with reasonable
certainty any negligence on the part of the Shell Petroleum
Corporation or any of its agents or employees. Plaintiff applied to
this Court for a Writ of Review which was granted, and the case
is now before us for decision.1wph1.t neighborhood where a great number of people mill around t
In resolving the issue of negligence, the Supreme Court of
Louisiana held:
Plaintiff's petition contains two distinct charges of negligence
one relating to the cause of the fire and the other relating to the
spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's
building by the fire, no witnesses were placed on the stand by
the defendant.
Taking up plaintiff's charge of negligence relating to the cause of neighborhood are only 2-1/2 meters high at most and cannot
the fire, we find it established by the record that the filling station avoid the flames from leaping over it in case of fire.
and the tank truck were under the control of the defendant and
operated by its agents or employees. We further find from the
uncontradicted testimony of plaintiff's witnesses that fire started
in the underground tank attached to the filling station while it was
being filled from the tank truck and while both the tank and the
truck were in charge of and being operated by the agents or
employees of the defendant, extended to the hose and tank
truck, and was communicated from the burning hose, tank truck,
and escaping gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance
of defendant's failure to explain the cause of the fire or to show
its lack of knowledge of the cause, plaintiff has evoked the
doctrine of res ipsa loquitur. There are many cases in which the
doctrine may be successfully invoked and this, we think, is one
of them.
Where the thing which caused the injury complained of is shown
to be under the management of defendant or his servants and
the accident is such as in the ordinary course of things does not
happen if those who have its management or control use proper
care, it affords reasonable evidence, in absence of explanation
by defendant, that the accident arose from want of care. (45 C.J.
#768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely
approved and adopted by the courts of last resort. Some of the
cases in this jurisdiction in which the doctrine has been applied
are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25
So. 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35
So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v.
Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v. Page,
115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with
equal force here. The gasoline station, with all its appliances,
equipment and employees, was under the control of appellees.
A fire occurred therein and spread to and burned the
neighboring houses. The persons who knew or could have
known how the fire started were appellees and their employees,
but they gave no explanation thereof whatsoever. It is a fair and
reasonable inference that the incident happened because of
want of care.
In the report submitted by Captain Leoncio Mariano of the
Manila Police Department (Exh. X-1 Africa) the following
appears:
Investigation of the basic complaint disclosed that the Caltex
Gasoline Station complained of occupies a lot approximately 10
m x 10 m at the southwest corner of Rizal Avenue and Antipolo.
The location is within a very busy business district near the
Obrero Market, a railroad crossing and very thickly populated
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette
cannot be excluded and this constitute a secondary hazard to its
operation which in turn endangers the entire neighborhood to
conflagration.
Furthermore, aside from precautions already taken by its
operator the concrete walls south and west adjoining the
Records show that there have been two cases of fire which cooperates with the independent cause in the resulting injury."
caused not only material damages but desperation and also (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd
panic in the neighborhood. 442.)

Although the soft drinks stand had been eliminated, this gasoline The next issue is whether Caltex should be held liable for the
service station is also used by its operator as a garage and damages caused to appellants. This issue depends on whether
repair shop for his fleet of taxicabs numbering ten or more, Boquiren was an independent contractor, as held by the Court of
adding another risk to the possible outbreak of fire at this already Appeals, or an agent of Caltex. This question, in the light of the
small but crowded gasoline station. facts not controverted, is one of law and hence may be passed
upon by this Court. These facts are: (1) Boquiren made an
The foregoing report, having been submitted by a police officer admission that he was an agent of Caltex; (2) at the time of the
in the performance of his duties on the basis of his own personal fire Caltex owned the gasoline station and all the equipment
observation of the facts reported, may properly be considered as therein; (3) Caltex exercised control over Boquiren in the
an exception to the hearsay rule. These facts, descriptive of the management of the state; (4) the delivery truck used in
location and objective circumstances surrounding the operation delivering gasoline to the station had the name of CALTEX
of the gasoline station in question, strengthen the presumption of painted on it; and (5) the license to store gasoline at the station
negligence under the doctrine of res ipsa loquitur, since on their was in the name of Caltex, which paid the license fees. (Exhibit
face they called for more stringent measures of caution than T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa;
those which would satisfy the standard of due diligence under Exhibit Y-Africa).
ordinary circumstances. There is no more eloquent
demonstration of this than the statement of Leandro Flores In Boquiren's amended answer to the second amended
before the police investigator. Flores was the driver of the complaint, he denied that he directed one of his drivers to
gasoline tank wagon who, alone and without assistance, was remove gasoline from the truck into the tank and alleged that the
transferring the contents thereof into the underground storage "alleged driver, if one there was, was not in his employ, the
when the fire broke out. He said: "Before loading the driver being an employee of the Caltex (Phil.) Inc. and/or the
underground tank there were no people, but while the loading owners of the gasoline station." It is true that Boquiren later on
was going on, there were people who went to drink coca-cola (at amended his answer, and that among the changes was one to
the coca-cola stand) which is about a meter from the hole the effect that he was not acting as agent of Caltex. But then
leading to the underground tank." He added that when the tank again, in his motion to dismiss appellants' second amended
was almost filled he went to the tank truck to close the valve, complaint the ground alleged was that it stated no cause of
and while he had his back turned to the "manhole" he, heard action since under the allegations thereof he was merely acting
someone shout "fire." as agent of Caltex, such that he could not have incurred
personal liability. A motion to dismiss on this ground is deemed
Even then the fire possibly would not have spread to the to be an admission of the facts alleged in the complaint.
neighboring houses were it not for another negligent omission on
the part of defendants, namely, their failure to provide a concrete Caltex admits that it owned the gasoline station as well as the
wall high enough to prevent the flames from leaping over it. As it equipment therein, but claims that the business conducted at the
was the concrete wall was only 2-1/2 meters high, and beyond service station in question was owned and operated by
that height it consisted merely of galvanized iron sheets, which Boquiren. But Caltex did not present any contract with Boquiren
would predictably crumple and melt when subjected to intense that would reveal the nature of their relationship at the time of
heat. Defendants' negligence, therefore, was not only with the fire. There must have been one in existence at that time.
respect to the cause of the fire but also with respect to the Instead, what was presented was a license agreement
spread thereof to the neighboring houses. manifestly tailored for purposes of this case, since it was entered
into shortly before the expiration of the one-year period it was
There is an admission on the part of Boquiren in his amended intended to operate. This so-called license agreement (Exhibit 5-
answer to the second amended complaint that "the fire was Caltex) was executed on November 29, 1948, but made
caused through the acts of a stranger who, without authority, or effective as of January 1, 1948 so as to cover the date of the
permission of answering defendant, passed through the gasoline fire, namely, March 18, 1948. This retroactivity provision is quite
station and negligently threw a lighted match in the premises." significant, and gives rise to the conclusion that it was designed
No evidence on this point was adduced, but assuming the precisely to free Caltex from any responsibility with respect to
allegation to be true certainly any unfavorable inference from the fire, as shown by the clause that Caltex "shall not be liable
the admission may be taken against Boquiren it does not for any injury to person or property while in the property herein
extenuate his negligence. A decision of the Supreme Court of licensed, it being understood and agreed that LICENSEE
Texas, upon facts analogous to those of the present case, states (Boquiren) is not an employee, representative or agent of
the rule which we find acceptable here. "It is the rule that those LICENSOR (Caltex)."
who distribute a dangerous article or agent, owe a degree of
protection to the public proportionate to and commensurate with But even if the license agreement were to govern, Boquiren can
a danger involved ... we think it is the generally accepted rule as hardly be considered an independent contractor. Under that
applied to torts that 'if the effects of the actor's negligent conduct agreement Boquiren would pay Caltex the purely nominal sum of
actively and continuously operate to bring about harm to P1.00 for the use of the premises and all the equipment therein.
another, the fact that the active and substantially simultaneous He could sell only Caltex Products. Maintenance of the station
operation of the effects of a third person's innocent, tortious or and its equipment was subject to the approval, in other words
criminal act is also a substantial factor in bringing about the control, of Caltex. Boquiren could not assign or transfer his rights
harm, does not protect the actor from liability.' (Restatement of as licensee without the consent of Caltex. The license
the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, agreement was supposed to be from January 1, 1948 to
"The intention of an unforeseen and unexpected cause, is not December 31, 1948, and thereafter until terminated by Caltex
sufficient to relieve a wrongdoer from consequences of upon two days prior written notice. Caltex could at any time
negligence, if such negligence directly and proximately cancel and terminate the agreement in case Boquiren ceased to
sell Caltex products, or did not conduct the business with due worth P4,000.00. We agree that the court erred, since it is of
diligence, in the judgment of Caltex. Termination of the contract common knowledge that the assessment for taxation purposes
was therefore a right granted only to Caltex but not to Boquiren. is not an accurate gauge of fair market value, and in this case
These provisions of the contract show the extent of the control of should not prevail over positive evidence of such value. The
Caltex over Boquiren. The control was such that the latter was heirs of Ong are therefore entitled to P10,000.00.
virtually an employee of the former.
Wherefore, the decision appealed from is reversed and
Taking into consideration the fact that the operator owed his respondents-appellees are held liable solidarily to appellants,
position to the company and the latter could remove him or and ordered to pay them the aforesaid sum of P9,005.80 and
terminate his services at will; that the service station belonged to P10,000.00, respectively, with interest from the filing of the
the company and bore its tradename and the operator sold only complaint, and costs.
the products of the company; that the equipment used by the
operator belonged to the company and were just loaned to the
operator and the company took charge of their repair and
maintenance; that an employee of the company supervised the
operator and conducted periodic inspection of the company's
gasoline and service station; that the price of the products sold
by the operator was fixed by the company and not by the
operator; and that the receipts signed by the operator indicated
that he was a mere agent, the finding of the Court of Appeals G.R. No. L-29264 August 29, 1969
that the operator was an agent of the company and not an
independent contractor should not be disturbed. BARBARA RODRIGUEZ, petitioner,
vs.
To determine the nature of a contract courts do not have or are HON. COURT OF APPEALS (Second Division, composed of
not bound to rely upon the name or title given it by the JUSTICES JUAN P. ENRIQUEZ, HERMOGENES
contracting parties, should thereby a controversy as to what they CONCEPCION, JR. and EDILBERTO SORIANO), ATANACIO
really had intended to enter into, but the way the contracting VALENZUELA, MAXIMINA VICTORIO, LIBERATA SANTOS,
parties do or perform their respective obligations stipulated or NIEVES CRUZ, substituted by her heirs, ARSENIO, JAYME,
agreed upon may be shown and inquired into, and should such ANDRES, NELO and AMANDA, all surnamed NERY, and
performance conflict with the name or title given the contract by CARMEN and ARSENIA, both surnamed MENDOZA,
the parties, the former must prevail over the latter. (Shell respondents.
Company of the Philippines, Ltd. vs. Firemens' Insurance
Company of Newark, New Jersey, 100 Phil. 757). Fortunato de Leon for petitioner.
Sycip, Salazar, Luna, Manalo and Feliciano for respondent
The written contract was apparently drawn for the purpose of Atanacio Valenzuela.
creating the apparent relationship of employer and independent San Juan, Africa, Gonzales and San Agustin for respondent
contractor, and of avoiding liability for the negligence of the Nieves Cruz.
employees about the station; but the company was not satisfied
to allow such relationship to exist. The evidence shows that it CASTRO, J.:
immediately assumed control, and proceeded to direct the
method by which the work contracted for should be performed. For a clear understanding of the issues posed by the present
By reserving the right to terminate the contract at will, it retained petition for mandamus and certiorari with preliminary injunction,
the means of compelling submission to its orders. Having we hereunder quote the statement of the case and the findings
elected to assume control and to direct the means and methods of fact made by the Court of Appeals in its decision dated
by which the work has to be performed, it must be held liable for October 4, 1967 in CA-G.R. 35084-R, as well as the dispositive
the negligence of those performing service under its direction. portion of the said decision:
We think the evidence was sufficient to sustain the verdict of the
jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183). On December 31, 1958, in Paraaque, Rizal, by virtue of a
document denominated "Kasunduan" written in the vernacular
Caltex further argues that the gasoline stored in the station and ratified before Notary Public Lazaro C. Ison of that locality,
belonged to Boquiren. But no cash invoices were presented to Nieves Cruz, now deceased, authorized the spouses Atanacio
show that Boquiren had bought said gasoline from Caltex. Valenzuela, and Maximina Victorio and Liberate Santos to sell a
Neither was there a sales contract to prove the same. certain parcel of land of about 44,634 square meters belonging
to her and situated in Sitio Matatdo, Barrio San Dionisio,
As found by the trial court the Africas sustained a loss of Paraaque, Rizal, the identity of which is not now in dispute.
P9,005.80, after deducting the amount of P2,000.00 collected by Among, the anent conditions of this authority were that the price
them on the insurance of the house. The deduction is now payable to Nieves Cruz for the land would be P1.60 per square
challenged as erroneous on the ground that Article 2207 of the meter and any overprice would pertain to the agents; that Nieves
New Civil Code, which provides for the subrogation of the Cruz would receive from said agents, by way of advance
insurer to the rights of the insured, was not yet in effect when the payment on account of the purchase price to be paid by
loss took place. However, regardless of the silence of the law on whomsoever may buy the land, the sum of P10,000.00 upon the
this point at that time, the amount that should be recovered be execution of the agreement aforesaid, and another P10,000.00
measured by the damages actually suffered, otherwise the on January 5, 1959; that the balance on the total purchase price
principle prohibiting unjust enrichment would be violated. With would be payable to Nieves Cruz upon the issuance of the
respect to the claim of the heirs of Ong P7,500.00 was adjudged Torrens title over the property, the obtention of which was
by the lower court on the basis of the assessed value of the undertaken by the agents who also were bound to advance the
property destroyed, namely, P1,500.00, disregarding the expense therefor in the sum of P4,000.00 which would be
testimony of one of the Ong children that said property was deductible from the last amount due on the purchase price; and
that should the agent find no buyer by the time that Torrens title
is issued, Nieves Cruz reserved the right to look for a buyer Forthwith, on September 16, 1961, Nieves Cruz, through
herself although all sums already received from the agents counsel, gave notice to Atanacio Valenzuela, Maximina Victorio
would be returned to them without interest. and Liberata Santos of her decision to rescind the original
agreement heretofore adverted to, enclosing with said notice
As confirmed by Nieves Cruz in a "recibo", Exhibit 2, bearing the Bank of America check for P48,338.60, representing sums
date "... ng Enero ng 1959," the stipulated "advance payment advanced by the latter which were tendered to be returned.
(paunang bayad)" of P20,000.00 was duly made to her. Contrary Atanacio Valenzuela, Maximina Victorio and Liberata Santos,
to the agreement that the balance on the purchase price would through counsel, balked at the attempt at rescission, denying
be paid upon the issuance of the Torrens title over the land non-compliance with their undertaking inasmuch as, per
(September 9, 1960), Nieves Cruz and her children, however, agreement, the balance on the purchase price for the land was
collected from the agents, either thru Maximina Victorio or thru not due until after the 1962 harvest. They, accordingly, returned
Salud G. de Leon, daughter of Liberate Santos, various sums of Nieves Cruz' check.
money during the period from July 3, 1959 up to September 3,
1961, all of which were duly receipted for by Nieves Cruz and/or Thus rebuffed, plaintiff Nieves Cruz hailed defendants Atanacio
her children and in which receipts it is expressly stated that said Valenzuela, Maximina Victorio and Liberate Santos before the
amounts were "bilang karagdagan sa ipinagbili naming lupa sa Rizal Court in the instant action for rescission of the
kanila (additional payments for the land we sold to them)", "Kasunduan" heretofore adverted to, the cancellation of the
Exhibits 12, 12-a to 12-z-1. These totalled P27,198.60 which annotation on the title to the land respecting defendant's right
with the P20,000.00 previously paid amounted to P47,198.60. thereto, and for damages and attorney's fees. In their return to
the complaint, defendants traversed the material averments
Meanwhile, proceedings to place the land under the operation of thereof, contending principally that the agreement sought to be
the Torrens system were initiated. In due season, the rescinded had since been novated by a subsequent agreement
registration court finding a registrable title in the name of the whereunder they were to buy the property directly. They also
applicants, Emilio Cruz and Nieves Cruz, but that impleaded Barbara Lomboa Rodriguez on account of the sale by
the plaintiff to her of the subject property and interposed a
"... the applicant Nieves Cruz has likewise sold her one-half (1/2) counterclaim against both plaintiff and Rodriguez for the
undivided share to the spouses Atanacio Valenzuela and annulment of the sale of the land to the latter, as well as the
Maxima (Maximina) Victorio and to Liberata Santos from whom transfer certificate of title issued in her favor consequent thereto
she had received partial payments thereof in the sum of and the reconveyance of the land in their favor, and also for
P22,000.00;" (Exhibit 4-a). damages and attorney's fees.

decreed, on July 15, 1960, the registration of the land in the Pending the proceedings below, plaintiff Nieves Cruz died and
names of the applicants aforesaid was, accordingly, substituted as such by her surviving children,
to wit: Arsenio, Nelo, Jaime, Andres and Amanda, all surnamed
"Subject ... to the rights of the spouses Atanacio Valenzuela and Nery, and Carmen and Armenia both surnamed Mendoza.
Maximina Victorio and to Liberata Santos over the one-half
share of Nieves Cruz of the parcel of land for which the latter In due season, the trial court finding for plaintiff Nieves Cruz
was paid P22,000.00 as partial payment thereof." (Exhibit 4). and her buyer, Barbara Lombos Rodriguez, and against
defendants rendered judgment thus
The judgment aforesaid having become final, the corresponding
Original Certificate of Title No. 2488 of the Registry of Deeds of "IN VIEW OF ALL THE FOREGOING, judgment is hereby
Rizal was, on September 9, 1960, duly entered and issued to the rendered (1) Ordering the cancellation at the back of Transfer
applicants aforesaid, subject, amongst others, to the limitation Certificate of Title No. 91135 of the Register of Deeds of Rizal,
heretofore stated. stating that the land covered thereby was sold to the defendants;
(2) Ordering the defendants to pay to the plaintiff, jointly and
Eventually, pursuant to a partition between Nieves Cruz and her severally the sum of P67,564.00 as actual damages and
brother, Emilio Cruz, by virtue of which the entire land was P5,000.00 by way of attorney's fees; (3) Dismissing the
subdivided into two lots of 48,260 square meters each, Original defendants counterclaim; and (4) Ordering the defendants to pay
Transfer of Title No. 2488 was cancelled and superseded by two the costs of this suit jointly and severally."
new transfer certificates respectively covering the two sub-
divided lots, that which pertained to Nieves Cruz, Lot A (LRC) x x x xxx xxx
Psd-13106, being covered by Transfer Certificate of Title No.
80110 issued on October 3, 1960. Said title carried over the We find no obstacle to appellants' purchase of the land in the
annotation heretofore mentioned respecting the rights of prohibition against an agent buying the property of his principal
Atanacio Valenzuela and Maximina Victorio and Liberata Santos entrusted to him for sale. With the agreement of Nieves Cruz to
over the portion covered thereby. (Exhibits 6 and 6-a). sell the land directly to said appellants, her agents originally, it
cannot seriously be contended that the purchase of the land by
Then, on September 15, 1961, Nieves Cruz sold the property in appellants was, without the express consent of the principal
question to Barbara Lombos Rodriguez, her "balae" because the Nieves Cruz. Accordingly, that purchase is beyond the coverage
latter's son was married to her daughter, for the sum of of the prohibition.
P77,216.00 (Exhibit J). In consequence, Transfer Certificate of
Title No. 80110 in the name of Nieves Cruz was cancelled and, By and large, we are satisfied from a meticulous assay of the
in lieu thereof, Transfer Certificate of Title No. 91135 was issued evidence at bar that the contract of sale over the land
in the name of Barbara Lombos Rodriguez (Exhibit I) which subsequently made by Nieves Cruz in favor of appellants was
likewise carried over the annotation respecting the rights of duly and satisfactorily proved. No showing having been made by
Atanacio Valenzuela, Maximina Victorio and Liberata Santos appellees to warrant the rescission of that contract, the attempt
over the property covered thereby. of such rescission is legally untenable and necessarily futile. The
specific performance of that contract is under the circumstances, On July 20, 1968, Rodriguez alone filed the present petition for
legally compellable. mandamus and certiorari. She prays for the issuance of a writ of
preliminary injunction to restrain the respondents from enforcing
Considering that the rights of appellants, as such purchasers of the decision of the Court of Appeals in CA-G.R. 35084-R and
the portion corresponding to Nieves Cruz, is a matter of official from entering into any negotiation or transaction or otherwise
record in the latter's certificate of title over the land the exercising acts of ownership over the parcel of land covered by
annotation of which was authorized by the decision of the transfer certificate of title 91135 issued by the Register of Deeds
registration court and which annotation was duly carried over in of Rizal. She also prays that preliminary injunction issue to
the subsequent titles issued therefor, including that issued in the restrain the Register of Deeds of Rizal from registering any
name of appellee Rodriguez said appellee must be documents affecting the subject parcel of land. No injunction,
conclusively presumed to have been aware, as indeed she was, however, was issued by us.
of the prior rights acquired by appellants over the said portion.
Said appellee's acquisition of the land from Nieves Cruz remains The petition in the present case, L-29264, while again assailing
subject, and must yield, to the superior rights of appellants. the findings of fact and conclusions of law made by the
Appellee Rodriguez cannot seek refuge behind the protection respondent Court, adds two new grounds. The first is the
afforded by the Land Registration Act to purchasers in good faith allegation that the land involved in CA-G.R. 35084-R has a value
and for value. Aware as she was of the existence of the in excess of P200,000. The petitioner complains that the Court
annotated prior rights of appellants, she cannot now be heard to of Appeals should have certified the appeal to us, pursuant to
claim a right better than that of her grantor, Nieves Cruz. Her section 3 of Rule 50 in relation to section 17(5) of the Judiciary
obligation to reconvey the land to the appellants is thus Act of 1948, 1 as she had asked the said Court to do in her
indubitable. supplemental motion of June 14, 1968. The second ground is
the claim that the Court of Appeals gravely abused its discretion
xxx xxx xxx in denying her May 14, 1968 motion for new trial, based on
alleged newly discovered evidence.
WHEREFORE, the judgment appealed from is hereby
REVERSED in toto, and, in lieu thereof, another is hereby In their answer, Atanacio Valenzuela, Maximina Victorio and
rendered: Liberata Santos allege that the findings of fact made by the
Court of Appeals in its decision of October 4, 1967 are
(1) Setting aside and annulling the deed of sale, Exhibit J, substantiated by the record and the conclusions of law are
executed by plaintiff in favor of Barbara Lombos Rodriguez; supported by applicable laws and jurisprudence, and, moreover,
that these findings are no longer open to review inasmuch as the
(2) Declaring defendant-appellee Barbara Lombos Rodriguez said decision has become final and executory, the period of
divested of title over the property covered by TCT No. 91135 of appeal provided in Rule 45 having expired. Atanacio Valenzuela,
the Register of Deeds of Rizal and title thereto vested in et al. also maintain that the land in litigation had a value of less
defendants-appellants upon payment of the latter to appellee than P200,000, according to the records of the case, when their
Rodriguez of the sum of P28,877.40, representing the balance of appeal from the decision of the Court of First Instance of Rizal in
the agreed purchase price due on the property minus civil case 6901 was perfected; that the petitioner's motion for
P13,000.00 awarded under paragraph (4) within 90 days after new trial in the Court of Appeals was filed out of time; and that
this decision shall have become final, and ordering the Register the petitioner is estopped from questioning the jurisdiction of the
of Deeds of Rizal to cancel TCT No. 91135 and issue in lieu Court of Appeals in the matter of the value of the land in
thereof a new certificate of title in favor of appellants, upon controversy. Two grounds for the defense of estoppel are
payment of corresponding fees; offered by Atanacio Valenzuela, et al. One is that the petitioner
speculated in obtaining a favorable judgment in the Court of
(3) Ordering plaintiffs and defendant Barbara Lombos Rodriguez Appeals by submitting herself to the jurisdiction of the said Court
to deliver to the defendants-appellants possession of the and she cannot now therefore be allowed to attack its jurisdiction
property aforementioned; and when the judgment turned out to be unfavorable. The other is
that the petitioner's laches made possible the sale in good faith
(4) Ordering appellees jointly and severally to pay to defendants- by Atanacio Valenzuela, et al., of the land in litigation to Emilio
appellants the sum of P5,000.00 as temperate damages, and Isidro Ramos, in whose names the land is at present
P3,000.00 as moral damages and P5,000.00 as attorney's fees registered under transfer certificate of title 229135 issued on
plus costs. These amounts shall be deducted from the September 25, 1968 by the Register of Deeds of Rizal.
P28,877.40 appellants are required to pay to Rodriguez under
paragraph (2) hereof. The heirs of Nieves Cruz filed an answer unqualifiedly admitting
the basic allegations of the petition, except as to the value of the
This case is before us for the second time. In L-28462, the heirs land, as to which they are non-committal.
of Nieves Cruz and the present petitioner (Barbara Lombos
Rodriguez) filed a joint petition for certiorari as an original It is our considered view that the petitioner's claim of grave
action under Rule 65 and, simultaneously, as an appeal under abuse by the respondent Court in denying her motion for new
Rule 45. As the former, it sought redress against the refuse of trial is devoid of merit. It is not disputed that, on the assumption
the respondent Court of Appeals to consider a motion for that the respondent Court had jurisdiction over the appeal, the
reconsideration filed beyond the reglementary period. As the petitioner had already lost her right to appeal from the decision
latter, it sought a review of the respondent Court's findings of of October 4, 1967 when the petition in L-28462 was filed in
fact and conclusions of law. On January 3, 1968 we denied the January 1968. It logically follows that the case had passed the
joint petition; the joint petition was thereafter amended, and this stage for new trial on newly discovered evidence when the
amended petition we likewise denied on January 26, 1968; on petitioner filed her motion for new trial on May 14, 1968.
February 20, 1968 we denied the motion for reconsideration filed
solely by Rodriguez. Two issues remain, to wit, (1) the value of the land in
controversy; and (2) estoppel.
 value that would oust the respondent Court of jurisdiction. The
At the time appeal was taken to the Court of Appeals. section fact remains that the petitioner had allowed an unreasonable
17(5) of the Judiciary Act of 1948, as amended, provided: period of time to lapse before she raised the question of value
and jurisdiction, and only after and because the respondent
The Supreme Court shall have exclusive jurisdiction to review, Court had decided the case against her. The doctrine of
revise, reverse modify or affirm on appeal, certiorari or writ of estoppel by laches bars her from now questioning the jurisdiction
error, as the law or rules of court may provide, final judgments of the Court of Appeals.
and decrees of inferior courts as herein provided, in
The learned disquisition of Mr. Justice Arsenio P. Dizon,
xxx xxx xxx speaking for this Court in Serafin Tijam, et al. vs. Magdaleno
Sibonghanoy, et al. (L-21450, April 15, 1968), explained, in
(5) All civil cases in which the value in controversy exceeds two unequivocal terms, the reasons why, in a case like the present, a
hundred thousand pesos, exclusive of interests and costs or in losing party cannot be permitted to belatedly raise the issue of
which the title or possession of real estate exceeding in value jurisdiction.
the sum of two hundred thousand pesos to be ascertained by
the oath of a party to the cause or by other competent evidence, A party may be estopped or barred from raising a question in
is involved or brought in question. The Supreme Court shall different ways and for different reasons. Thus we speak of
likewise have exclusive jurisdiction over all appeals in civil estoppel in pais, of estoppel by deed or by record, and of
cases, even though the value in controversy, exclusive of estoppel by laches.
interests and costs, is two hundred thousand pesos or less,
when the evidence involved in said cases is the same as the Laches, in a general sense, is failure or neglect, for an
evidence submitted in an appealed civil case within the exclusive unreasonable and unexplained length of time, to do that which,
jurisdiction of the Supreme Court as provided herein. by exercising due diligence, could or should have been done
earlier; it is negligence or omission to assert a right within a
The petitioner would have us believe that, other than a realtor's reasonable time, warranting a presumption that the party entitled
sworn statement dated June 14, 1968, which was filed with the to assert it either has abandoned it or declined to assert it.
respondent Court together with her supplemental motion, there
is nothing in the records that would indicate the value of the The doctrine of laches or of "stale demands" is based upon
litigated parcel. We disagree. The "Kasunduan" (annex A to the grounds of public policy which requires, for the peace of society,
petition) dated December 31, 1958 executed by and between the discouragement of stale claims and, unlike the statute of
Nieves Cruz and Atanacio Valenzuela, et al. fixed the value of limitation is not a mere question of time but is principally a
the land (of an area of 44,634 square meters) at P1.60 per question of the inequity or unfairness of permitting a right or
square meter. The decision (annex B) of the Court of First claim to be enforced or asserted.
Instance of Rizal dated August 12, 1964 assessed the value of
the land at P3.00 per square meter. The decision (annex D) It has been held that a party cannot invoke the jurisdiction of a
dated October 4, 1967 of the respondent Court of Appeals court to secure affirmative relief against his opponent and, after
pointed out that the consideration stated in the deed of sale of obtaining or failing to obtain such relief, repudiate or question
the land executed by Nieves Cruz in favor of Rodriguez, the that same jurisdiction (Dean vs. Dean, 136 Or. 694, 86 A. L. R.
petitioner herein, is P77,216. Moreover, until June 14, 1968, no 79). In the case just cited, by way of explaining the rule, it was
party to the cause questioned the valuation of P3.00 per square further said that the question whether the court had jurisdiction
meter made by the trial court. The records, therefore, either of the subject matter of the action or of the parties was not
overwhelmingly refute the petitioner's allegation. They also important in such cases because the party is barred from such
prove that the value of the entire parcel of land had been conduct not because the judgment or order of the court is valid
impliedly admitted by the parties as being below P200,000. and conclusive as an adjudication, but for the reason that such a
practice cannot be tolerated obviously for reasons of public
Granting arguendo, however, that the value of the land in policy.
controversy is in excess of P200,000, to set aside at this stage
all proceedings had before the Court of Appeals in CA-G.R. Furthermore, it has also been held that after voluntarily
35084-R, and before this Court in L-28462, would violate all submitting a cause and encountering an adverse decision on the
norms of justice and equity and contravene public policy. The merits, it is too late for the loser to question the jurisdiction or
appeal from the decision of the Court of First Instance of Rizal power of the court (Pease vs. Rathbun-Jones, etc., 243 U.S.
was pending before the respondent Court during the period from 273, 61 L. Ed. 715, 37 S. Ct. 283; St. Louis, etc. vs. McBride,
1964 until October 4, 1967, when on the latter date it was 141 U.S. 127, 35 L. Ed. 659). And in Littleton vs. Burgess, 16
decided in favor of the appellants and against the petitioner Wyo 58, the Court said that it is not right for a party who has
herein and the heirs of Nieves Cruz. Yet, the appellees therein affirmed and invoked the jurisdiction of a court in a particular
did not raise the issue of jurisdiction. The joint petition in L- matter to secure an affirmative relief, to afterwards deny that
28462 afforded the petitioner herein the opportunity to question same jurisdiction to escape a penalty.
the jurisdiction of the respondent Court. Again, the value of the
land in controversy, was not questioned by the petitioners, not Upon this same principle is what We said in the three cases
even in their amended joint petition. It was not until June 14, mentioned in the resolution of the Court of Appeals of May 20,
1968 that the petitioner herein filed with the respondent Court a 1963 (supra) to the effect that we frown upon the "undesirable
supplemental motion wherein she raised for the first time the practice" of a party submitting his case for decision and then
issue of value and questioned the validity of the final decision of accepting the judgment, only if favorable, and attacking it for lack
the respondent Court on the jurisdictional ground that the real of jurisdiction, when adverse as well as in Pindagan etc. vs.
estate involved has a value in excess of P200,000. That the Dans, et al., G.R. L-14591, September 26, 1962; Montelibano, et
petitioner's present counsel became her counsel only in May, al. vs. Bacolod-Murcia Milling Co., Inc., G.R. L-15092; Young
1968 provides no excuse for the petitioner's failure to exercise Men Labor Union, etc. vs. The Court of Industrial Relations, et
due diligence for over three years to discover that the land has a al., G.R. No.
L-20307, Feb. 26, 1965; and Mejia vs. Lucas, 100 Phil. p. 277.
We do not here rule that where the pleadings or other
documents in the records of a case state a value of a real estate
in controversy, a party to the cause may not show that the true
value thereof is more or is less than that stated in the records.
Section 17(5) of the Judiciary Act of 1948 precisely allows a
party to submit a sworn statement of such higher or lower value.
This is not to say, of course, that the court is bound by a party's
sworn statement, for where more than one party submit
materially differing statements of value, or where a party's sworn
statement conflicts with other competent evidence, the true
value is to be determined by the trial court as an issue of fact
before it.
The time when the issue of the value of a real estate in
controversy is to be resolved is prior to, or simultaneously with,
the approval of the record on appeal and appeal bond, for it is
upon the perfection of the appeal that the appellate court
acquires jurisdiction over the case (Rule 41, section 9). It is at
this time that a party to the cause, be he the intended appellant
or the intended appellee, must raise the issue of value before
the trial court, for said court to allow appeal involving a question
of fact either to this Court or to the Court of Appeals, depending
on its finding on the value of the realty. Failure to raise this issue
before the trial court amounts to a submission of the issue solely
on the basis of the pleadings and evidence a quo and is
equivalent to a waiver of the right to present the statement under
oath or to adduce the other competent evidence referred to in
section 17(b) of the Judiciary Act of 1948.
A contrary rule would be disastrous. For one thing, to allow a
party to present proof of value before an appellate court would
be to convert the said court to a trial court. For another thing, the
value of real estate may change between the perfection of an
appeal and the receipt of the record or the payment of the
appellate court docket fee; hence, it is best, for stability, to have
the value determined at the precise instant when the trial court
must decide to which appellate court the appeal should be made
and not at some uncertain time thereafter. Worse yet, to permit a
party to prove before the Court of Appeals or before us, after a
decision on the merits has been rendered, that a real estate in
controversy exceeds, or does not exceed P200,000 in value,
would be to encourage speculation by litigants; for, a losing party
can be expected to raise the issue of value of the realty to show
that it is in excess of P200,000 if the unfavorable judgment is
rendered by the Court of Appeals, or to show that it does not
exceed P200,000 if the unfavorable judgment is rendered by this
Court, in an attempt to litigate the merits of the case all over
again. 2
In the case at bar, the records as of the perfection of the
appeal on August 12, 1964 show that the litigated real estate
had a value not in excess of P200,000. Conformably with the
Judiciary Act of 1948, therefore, the appeal from the decision of
the Court of First Instance of Rizal in civil case 6901 was within
the jurisdiction of the Court of Appeals.
Other issues, both of fact and of law, are raised in the pleadings.
Considering our conclusion that the respondent Court had
jurisdiction over the appeal, it is not necessary to discuss, much
less resolve, any of those other issues. However, because the
petitioner and the heirs of Nieves Cruz have hammered on the
twin issues of the existence of an oral contract of sale and of the
efficacy of an oral novatory contract of sale, a brief discussion of
these issues would not be amiss.
The agency agreement of December 31, 1958 is not impugned
by any of the parties. Nieves Cruz, however, asserted that the
agency remained in force until she rescinded it on September
16, 1961 by notice to that effect to Atanacio Valenzuela, et al.,
tendering with the said notice the return, in check, of the sum of
P48,338.60 which she had received from Atanacio Valenzuela,
et al. The defendants, upon the other hand, contend that the
agency agreement was novated by a contract of sale in their
favor and that the balance of the purchase price was not due
until after the 1962 harvest. Rodriguez, when impleaded by
Atanacio Valenzuela, et al., denied that she was a buyer in bad
faith from Nieves Cruz.
The parties and the lower courts are agreed that Nieves Cruz
had received P20,000 from Atanacio Valenzuela, et al., by
January 5, 1959 and that the payment of this total sum was in
accordance with the agency agreement. The parties and the
lower courts, however, are at variance on the basis or reason for
the subsequent payments. The petitioner herein, the heirs of
Nieves Cruz and the Court of First Instance of Rizal take the
position that the payments after January 5, 1959 were received
by Nieves Cruz as partial or installment payments of the
purchase price on the representations of Atanacio Valenzuela, et
al., that they had a buyer for the property from whom these
payments came, all pursuant to the agency agreement. The
respondents Atanacio Valenzuela, et al., on the other hand,
assert that those amounts were paid by them, as disclosed
buyers, to Nieves Cruz and her children, pursuant to a novatory
verbal contract of sale entered into with Nieves Cruz,
subsequent to the agency agreement and prior to the issuance
of the decree of registration of July 15, 1960.
It is thus clear that the decisive issues are (a) whether or not
Nieves Cruz did agree to sell to Atanacio Valenzuela, et al., the
litigated parcel of land sometime after January 5, 1959, and (b)
whether or not the said agreement is enforceable or can be
proved under the law. The fact that Atanacio Valenzuela, et al.
were agents of Nieves Cruz under the agency agreement of
December 31, 1958 is not material, for if it is true that Nieves
Cruz did agree to sell to her agents the real estate subject of the
agency, her consent took the transaction out of the prohibition
contained in article 1491(2) of the Civil Code. Neither are articles
1874 and 1878(5) and (12) of the Civil Code relevant, for they
refer to sales made by an agent for a principal and not to sales
made by the owner personally to another, whether that other be
acting personally or through a representative.
Was there a novatory oral contract to sell entered into by Nieves
in favor of Atanacio Valenzuela, et al.? In resolving this question,
the respondent Court pointed to significant facts and
circumstances sustaining an affirmative answer.
Cited by the Court of Appeals is the testimony of Andres Nery, a
successor-in-interest of Nieves Cruz and a substitute plaintiff
upon Nieves Cruz' death, to the effect that after they had gone to
the defendants several times, they were told that the buyer was
Salud de Leon. This witness also said, according to the
transcript cited by the respondent Court, that they were paid little
by little and had been paid a grand total of P48,000. The
respondent Court likewise adverted to the receipts (exhibits L-12
to L-22, exhibit L-24, exhibit L-26, and exhibits 12, 12-a to 12-z-
1) signed by Nieves Cruz and/or her children and concluded that
on the faces of these receipts it is clear that the amounts therein
stated were in payment by Atanacio Valenzuela, et al. of the
land which the recipients had sold to them ("ipinagbile naming
lupa sa kanila"). Of incalculable significance is the notation in the
original certificate of title and in the transfer certificate of title in
the name of Nieves Cruz which, in unambiguous language,
recorded Nieves Cruz' sale of her interest in the land to Atanacio necessarily, can be held individually liable for restitution only to
Valenzuela, et al. If that notation were inaccurate or false, the extent that they inherited from her.
Nieves Cruz would not have remained unprotesting for over a
year after the entry of the decree of registration in July, 1960, Nevertheless, inasmuch as rescission of the contract between
nor would she and her children have received 13 installment Nieves Cruz and the petitioner herein was decreed by the
payments totalling P19,963 during the period from September 9, respondent Court, the latter should be entitled to restitution as a
1960 to September 3, 1961. matter of law. It is of no moment that herein petitioner did not file
any cross-claim for restitution against the plaintiff, for her answer
Salud de Leon, it should be borne in mind, is the husband of was directed to the defendants' claim which was in the nature of
Rogaciano F. de Leon and the daughter of the defendant a third-party complaint. She was neither a co-defendant nor a
Liberata Santos. It should likewise be remembered that, as co-third-party defendant with Nieves Cruz; nor were Nieves Cruz
remarked by the trial court, Salud de Leon testified that it was and the herein petitioner opposing parties a quo, for they joined
she who had the oral agreement with Nieves Cruz for the in maintaining the validity of their contract. Section 4 of Rule 9,
purchase by Atanacio Valenzuela, et al. of the litigated property therefore, has no application to the petitioner's right to
and, as found by the respondent Court, Salud de Leon was the restitution.
representative of Atanacio Valenzuela, et al., not of Nieves Cruz.
We declare, consequently, that the estate of Nieves Cruz is
We conclude, therefore, that there is substantial evidence in the liable to Barbara Lombos Rodriguez for the return to the latter of
record sustaining the finding of the respondent Court that the the sum of P77,216, less the amount which Atanacio
parties to the agency agreement subsequently entered into a Valenzuela, et al. had deposited with the trial court in
new and different contract by which the landowner, Nieves Cruz, accordance with the decision of respondent Court. We cannot
verbally agreed to sell her interest in the litigated real estate to order the heirs of Nieves Cruz to make the refund. As we
Atanacio Valenzuela, et al. observed above, these heirs are liable for restitution only to the
extent of their individual inheritance from Nieves Cruz. Other
A legion of receipts there are of payments of the purchase price actions or proceedings have to be commenced to determine the
signed by Nieves Cruz. True, these receipts do not state all the liability accruing to each of the heirs of Nieves Cruz.
basic elements of a contract of sale, for they do not expressly
identify the object nor fix a price or the manner of fixing the price. ACCORDINGLY, the present petition for mandamus and
The parties, however, are agreed at least the plaintiff has not certiorari is denied, at petitioner's cost.
questioned the defendants' claim to this effect that the object
of the sale referred to in the receipts is Nieves Cruz' share in the
land she co-owned with her brother Emilio and that the price
therefor is P1.60 per square meter. At all events, by failing to
object to the presentation of oral evidence to prove the sale and
by accepting from the defendants a total of P27,198.60 after
January 5, 1959, the plaintiff thereby ratified the oral contract,
conformably with article 1405 of the Civil Code, and removed the
partly executed agreement from the operation of the Statute of
Frauds. And, finally, the sale was established and recognized in
the land registration proceedings wherein the land court, in its
decision, categorically stated:

[T]he applicant Nieves Cruz has likewise sold her one-half ()

undivided share to the spouses Atanacio Valenzuela and
Maximina Victorio and Liberata Santos from whom she had
received partial payment thereof in the sum of P22,000.00.

The pertinent certificates of title bear the annotation of the

aforesaid right of Atanacio Valenzuela, et al. The final decision
of the land court to the effect that Nieves Cruz had sold her
undivided share to Atanacio Valenzuela, et al., and had received
a partial payment of P22,000 is now beyond judicial review,
and, because a land registration case is a proceeding in rem,
binds even Rodriguez.

Rodriguez nevertheless insist that despite the rescission by the

Court of Appeals of her purchase from Nieves Cruz, the said
respondent Court did not order Nieves Cruz to return the
P77,216 which she had received from her. While mutual
constitution follows rescission of a contract (article 1385, Civil
Code), the respondent Court should not be blamed for omitting
to order Nieves Cruz to restore what she had received from the
petitioner on account of the rescinded contract of sale. In the first
place, in the pleadings filed before the trial court, Rodriguez
made no claim for restitution against Nieves Cruz or her heirs. In
the second place, Nieves Cruz died in the course of the
proceedings below and was substituted by her heirs who,
FGU INSURANCE CORPORATION, petitioner, vs. G.P. Art. 2185. Unless there is proof to the contrary, it is presumed
SARMIENTO TRUCKING CORPORATION and LAMBERT M. that a person driving a motor vehicle has been negligent if at the
EROLES, respondents. time of the mishap, he was violating any traffic regulation.
DECISION
VITUG, J.: Evidence for the plaintiff shows no proof that defendant was
violating any traffic regulation. Hence, the presumption of
G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver negligence is not obtaining.
on 18 June 1994 thirty (30) units of Condura S.D. white
refrigerators aboard one of its Isuzu truck, driven by Lambert Considering that plaintiff failed to adduce evidence that
Eroles, from the plant site of Concepcion Industries, Inc., along defendant is a common carrier and defendants driver was the
South Superhighway in Alabang, Metro Manila, to the Central one negligent, defendant cannot be made liable for the damages
Luzon Appliances in Dagupan City. While the truck was of the subject cargoes.[2]
traversing the north diversion road along McArthur highway in
Barangay Anupol, Bamban, Tarlac, it collided with an The subsequent motion for reconsideration having been
unidentified truck, causing it to fall into a deep canal, resulting indenied,[3] plaintiff interposed an appeal to the Court of Appeals,
damage to the cargoes. contending that the trial court had erred (a) in holding that the
appellee corporation was not a common carrier defined under
FGU Insurance Corporation (FGU), an insurer of the shipment, the law and existing jurisprudence; and (b) in dismissing the
paid to Concepcion Industries, Inc., the value of the covered complaint on a demurrer to evidence.
cargoes in the sum of P204,450.00. FGU, in turn, being the
subrogee of the rights and interests of Concepcion Industries, The Court of Appeals rejected the appeal of petitioner and ruled
Inc., sought reimbursement of the amount it had paid to the latter in favor of GPS. The appellate court, in its decision of 10 June
from GPS. Since the trucking company failed to heed the claim, 1999, [4] discoursed, among other things, that -
FGU filed a complaint for damages and breach of contract of
carriage against GPS and its driver Lambert Eroles with the "x x x in order for the presumption of negligence provided for
Regional Trial Court, Branch 66, of Makati City. In its answer, under the law governing common carrier (Article 1735, Civil
respondents asserted that GPS was the exclusive hauler only of Code) to arise, the appellant must first prove that the appellee is
Concepcion Industries, Inc., since 1988, and it was not so a common carrier. Should the appellant fail to prove that the
engaged in business as a common carrier. Respondents further appellee is a common carrier, the presumption would not arise;
claimed that the cause of damage was purely accidental. consequently, the appellant would have to prove that the carrier
was negligent.
The issues having thus been joined, FGU presented its
evidence, establishing the extent of damage to the cargoes and "x x x x x x x x x
the amount it had paid to the assured. GPS, instead of
submitting its evidence, filed with leave of court a motion to "Because it is the appellant who insists that the appellees can
dismiss the complaint by way of demurrer to evidence on the still be considered as a common carrier, despite its `limited
ground that petitioner had failed to prove that it was a common clientele, (assuming it was really a common carrier), it follows
carrier. that it (appellant) has the burden of proving the same. It (plaintiff-
appellant) `must establish his case by a preponderance of
The trial court, in its order of 30 April 1996,[1] granted the motion evidence, which means that the evidence as a whole adduced
to dismiss, explaining thusly: by one side is superior to that of the other. (Summa Insurance
Corporation vs. Court of Appeals, 243 SCRA 175). This,
Under Section 1 of Rule 131 of the Rules of Court, it is provided unfortunately, the appellant failed to do -- hence, the dismissal of
that Each party must prove his own affirmative allegation, xxx. the plaintiffs complaint by the trial court is justified.

In the instant case, plaintiff did not present any single evidence
that would prove that defendant is a common carrier.
xxxxxxxxx
Accordingly, the application of the law on common carriers is not
warranted and the presumption of fault or negligence on the part
of a common carrier in case of loss, damage or deterioration of
goods during transport under 1735 of the Civil Code is not
availing.
Thus, the laws governing the contract between the owner of the
cargo to whom the plaintiff was subrogated and the owner of the
vehicle which transports the cargo are the laws on obligation and
contract of the Civil Code as well as the law on quasi delicts.
"x x x x x x x x x
"Based on the foregoing disquisitions and considering the
circumstances that the appellee trucking corporation has been
`its exclusive contractor, hauler since 1970, defendant has no
choice but to comply with the directive of its principal, the
inevitable conclusion is that the appellee is a private carrier.
"x x x x x x x x x
"x x x the lower court correctly ruled that 'the application of the
law on common carriers is not warranted and the presumption of
fault or negligence on the part of a common carrier in case of
loss, damage or deterioration of good[s] during transport under
[article] 1735 of the Civil Code is not availing.' x x x.

Under the law on obligation and contract, negligence or fault is "Finally, We advert to the long established rule that conclusions
not presumed. The law on quasi delict provides for some and findings of fact of a trial court are entitled to great weight on
presumption of negligence but only upon the attendance of appeal and should not be disturbed unless for strong and valid
some circumstances. Thus, Article 2185 provides: reasons."[5]

Petitioner's motion for reconsideration was likewise denied;[6]

hence, the instant petition,[7] raising the following issues:
 case of common carriers, that of extraordinary diligence) or of
I the attendance of fortuitous event, to excuse him from his
ensuing liability.
WHETHER RESPONDENT GPS MAY BE CONSIDERED AS A
COMMON CARRIER AS DEFINED UNDER THE LAW AND Respondent trucking corporation recognizes the existence of a
EXISTING JURISPRUDENCE. contract of carriage between it and petitioners assured, and
admits that the cargoes it has assumed to deliver have been lost
II or damaged while in its custody. In such a situation, a default on,
or failure of compliance with, the obligation in this case, the
WHETHER RESPONDENT GPS, EITHER AS A COMMON delivery of the goods in its custody to the place of destination -
CARRIER OR A PRIVATE CARRIER, MAY BE PRESUMED TO gives rise to a presumption of lack of care and corresponding
HAVE BEEN NEGLIGENT WHEN THE GOODS IT liability on the part of the contractual obligor the burden being on
UNDERTOOK TO TRANSPORT SAFELY WERE him to establish otherwise. GPS has failed to do so.
SUBSEQUENTLY DAMAGED WHILE IN ITS PROTECTIVE
CUSTODY AND POSSESSION. Respondent driver, on the other hand, without concrete proof of
his negligence or fault, may not himself be ordered to pay
III petitioner. The driver, not being a party to the contract of
carriage between petitioners principal and defendant, may not
WHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS be held liable under the agreement. A contract can only bind the
APPLICABLE IN THE INSTANT CASE. parties who have entered into it or their successors who have
assumed their personality or their juridical position.[17]
On the first issue, the Court finds the conclusion of the trial court Consonantly with the axiom res inter alios acta aliis neque nocet
and the Court of Appeals to be amply justified. GPS, being an prodest, such contract can neither favor nor prejudice a third
exclusive contractor and hauler of Concepcion Industries, Inc., person. Petitioners civil action against the driver can only be
rendering or offering its services to no other individual or entity, based on culpa aquiliana, which, unlike culpa contractual, would
cannot be considered a common carrier. Common carriers are require the claimant for damages to prove negligence or fault on
persons, corporations, firms or associations engaged in the the part of the defendant.[18]
business of carrying or transporting passengers or goods or
both, by land, water, or air, for hire or compensation, offering A word in passing. Res ipsa loquitur, a doctrine being invoked by
their services to the public,[8] whether to the public in general or petitioner, holds a defendant liable where the thing which caused
to a limited clientele in particular, but never on an exclusive the injury complained of is shown to be under the latters
basis.[9] The true test of a common carrier is the carriage of management and the accident is such that, in the ordinary
passengers or goods, providing space for those who opt to avail course of things, cannot be expected to happen if those who
themselves of its transportation service for a fee.[10] Given have its management or control use proper care. It affords
accepted standards, GPS scarcely falls within the term common reasonable evidence, in the absence of explanation by the
carrier. defendant, that the accident arose from want of care.[19] It is not
a rule of substantive law and, as such, it does not create an
The above conclusion nothwithstanding, GPS cannot escape independent ground of liability. Instead, it is regarded as a mode
from liability. of proof, or a mere procedural convenience since it furnishes a
substitute for, and relieves the plaintiff of, the burden of
In culpa contractual, upon which the action of petitioner rests as producing specific proof of negligence. The maxim simply places
being the subrogee of Concepcion Industries, Inc., the mere on the defendant the burden of going forward with the proof.[20]
proof of the existence of the contract and the failure of its Resort to the doctrine, however, may be allowed only when (a)
compliance justify, prima facie, a corresponding right of the event is of a kind which does not ordinarily occur in the
relief.[11] The law, recognizing the obligatory force of absence of negligence; (b) other responsible causes, including
contracts,[12] will not permit a party to be set free from liability the conduct of the plaintiff and third persons, are sufficiently
for any kind of misperformance of the contractual undertaking or eliminated by the evidence; and (c) the indicated negligence is
a contravention of the tenor thereof.[13] A breach upon the within the scope of the defendant's duty to the plaintiff.[21] Thus,
contract confers upon the injured party a valid cause for it is not applicable when an unexplained accident may be
recovering that which may have been lost or suffered. The attributable to one of several causes, for some of which the
remedy serves to preserve the interests of the promisee that defendant could not be responsible.[22]
may include his expectation interest, which is his interest in
having the benefit of his bargain by being put in as good a Res ipsa loquitur generally finds relevance whether or not a
position as he would have been in had the contract been contractual relationship exists between the plaintiff and the
performed, or his reliance interest, which is his interest in being defendant, for the inference of negligence arises from the
reimbursed for loss caused by reliance on the contract by being circumstances and nature of the occurrence and not from the
put in as good a position as he would have been in had the nature of the relation of the parties.[23] Nevertheless, the
contract not been made; or his restitution interest, which is his requirement that responsible causes other than those due to
interest in having restored to him any benefit that he has defendants conduct must first be eliminated, for the doctrine to
conferred on the other party.[14] Indeed, agreements can apply, should be understood as being confined only to cases of
accomplish little, either for their makers or for society, unless pure (non-contractual) tort since obviously the presumption of
they are made the basis for action.[15] The effect of every negligence in culpa contractual, as previously so pointed out,
infraction is to create a new duty, that is, to make recompense to immediately attaches by a failure of the covenant or its tenor. In
the one who has been injured by the failure of another to the case of the truck driver, whose liability in a civil action is
observe his contractual obligation[16] unless he can show predicated on culpa acquiliana, while he admittedly can be said
extenuating circumstances, like proof of his exercise of due to have been in control and management of the vehicle which
diligence (normally that of the diligence of a good father of a figured in the accident, it is not equally shown, however, that the
family or, exceptionally by stipulation or by law such as in the accident could have been exclusively due to his negligence, a
matter that can allow, forthwith, res ipsa loquitur to work against PERLA COMPANIA DE SEGUROS, G.R. No. 147746
him. INC. and BIENVENIDO S. PASCUAL,
Petitioners, Present :
If a demurrer to evidence is granted but on appeal the order of PANGANIBAN, J., Chairman,
dismissal is reversed, the movant shall be deemed to have SANDOVAL-GUTIERREZ,
waived the right to present evidence.[24] Thus, respondent - versus - CORONA,
corporation may no longer offer proof to establish that it has CARPIO MORALES and
exercised due care in transporting the cargoes of the assured so GARCIA, JJ.
as to still warrant a remand of the case to the trial court. SPS. GAUDENCIO SARANGAYA III
and PRIMITIVA B. SARANGAYA,
WHEREFORE, the order, dated 30 April 1996, of the Regional Respondents. Promulgated :
Trial Court, Branch 66, of Makati City, and the decision, dated 10
June 1999, of the Court of Appeals, are AFFIRMED only insofar October 25, 2005
as respondent Lambert M. Eroles is concerned, but said
assailed order of the trial court and decision of the appellate x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
court are REVERSED as regards G.P. Sarmiento Trucking
Corporation which, instead, is hereby ordered to pay FGU
Insurance Corporation the value of the damaged and lost DECISION
cargoes in the amount of P204,450.00. No costs.

SO ORDERED. CORONA, J.:

This is an appeal by certiorari under Rule 45 of the 1997 Rules

of Civil Procedure seeking to annul the decisions of the Court of
Appeals (CA) dated June 29, 2000 and March 31, 2001,
respectively, which affirmed the decision of the Regional Trial
Court (RTC), Branch 21 of Santiago, Isabela.

In 1986, respondent spouses Gaudencio Sarangaya III and

Primitiva Sarangaya erected a semi-concrete, semi-narra, one-
storey commercial building fronting the provincial road of
Santiago, Isabela. The building was known as Super A Building
and was subdivided into three doors, each of which was leased
out. The two-storey residence of the Sarangayas was behind the
second and third doors of the building. On the left side of the
commercial building stood the office of the Matsushita Electric
Philippine Corporation (Matsushita).

In 1988, petitioner Perla Compania de Seguros, Inc. (petitioner-

corporation), through its branch manager and co-petitioner
Bienvenido Pascual, entered into a contract of lease of the first
door of the Super A Building, abutting the office of Matsushita.
Petitioner-corporation renovated its rented space and divided it
into two. The left side was converted into an office while the right
was used by Pascual as a garage for a 1981 model 4-door Ford
Cortina, a company-provided vehicle he used in covering the
different towns within his area of supervision.

On July 7, 1988, Pascual left for San Fernando, Pampanga but

did not bring the car with him. Three days later, he returned to
Santiago and, after checking his appointments the next day,
decided to warm up the car. When he pulled up the handbrake
and switched on the ignition key, the engine made an odd sound
and did not start. Thinking it was just the gasoline percolating
into the engine, he again stepped on the accelerator and started
the car. This revved the engine but petitioner again heard an
unusual sound. He then saw a small flame coming out of the
engine. Startled, he turned it off, alighted from the vehicle and
started to push it out of the garage when suddenly, fire spewed
out of its rear compartment and engulfed the whole garage.
Pascual was trapped inside and suffered burns on his face, legs
and arms.

Meanwhile, respondents were busy watching television when

they heard two loud explosions. The smell of gasoline
permeated the air and, in no time, fire spread inside their house,
destroying all their belongings, furniture and appliances.

The city fire marshall conducted an investigation and thereafter
submitted a report to the provincial fire marshall. He concluded
that the fire was accidental. The report also disclosed that
petitioner-corporation had no fire permit as required by law.
Based on the same report, a criminal complaint for Reckless
Imprudence Resulting to (sic) Damage in (sic) Property[1] was
filed against petitioner Pascual. On the other hand, petitioner-
corporation was asked to pay the amount of P7,992,350,
inclusive of the value of the commercial building. At the
prosecutors office, petitioner Pascual moved for the withdrawal
of the complaint, which was granted.
the car caused the fire. The trial court instead declared that both
petitioners failed to adduce sufficient evidence to prove that they
employed the necessary care and diligence in the upkeep of the
car.[5] Contrary to the claims of petitioner-corporation, the trial
court also found that it failed to employ the diligence of a good
father of a family, as required by law, in the selection and
supervision of Pascual.
With respect to the amount of damages, the trial court awarded
to respondents no more than their claim for actual damages
covering the cost of the 2-storey residential building and the
commercial building, including their personal properties. It
explained:

Respondents later on filed a civil complaint based on quasi-delict According to the plaintiff Gaudencio Sarangaya III, he made a
against petitioners for a sum of money and damages, alleging list of what was lost. His list includes the commercial building
that Pascual acted with gross negligence while petitioner- that was burned which he valued at P2,070,000.00. The
corporation lacked the required diligence in the selection and defendants take exception to the value given by the plaintiff and
supervision of Pascual as its employee. They prayed for for this purpose they submitted the tax declaration of the building
payment of the following damages: which states that the market value is P183,770.00. The Court
takes judicial notice that the valuation appearing on the tax
1. P2,070,000.00 - representing the value of declaration of property is always lower [than] the correct value
the 2-storey residential building and the 3-door apartment; thereof. Considering that the building that was burned was a
two-storey residential house with a commercial building annex
2. P5,922,350.00 - representing the value of with a total floor area of 241 square meters as stated in the tax
the jewelries, appliances, [furniture], fixtures and cash; declaration, mostly concrete mixed with narra and other lumber
materials, the value given by the plaintiffs of P2,070,000.00 is
3. P8,300.00 a month for [lost rental] income reasonable and credible and it shall be awarded to the plaintiffs.
from July 1995 until such time that the premises is restored to its
former condition or payment for its value, whichever comes first; The other items listed are assorted [furniture] and fixtures
totaling P307,000.00 assorted appliances worth P358,350.00;
4. P2,000,000.00 for moral damages; two filing cabinets worth P7,000.00 and clothing and other
personal effects costing P350,000.00, household utensils
5. P1,000,000.00 for exemplary damages, costing P15,000.00. The Court finds them reasonable and
and credible considering the social and financial stature of the
plaintiffs who are businessmen. There could be no question that
6. Attorneys fees equivalent to 15% of the they were able to acquire and own quite a lot of home
total amount to be awarded to the plaintiffs.[2] furnishings and personal belongings. The costing however is
During the trial, respondents presented witnesses who testified high considering that these belongings were already used for
that a few days before the incident, Pascual was seen buying quite some time so a 20% depreciation should be equitably
gasoline in a container from a nearby gas station. He then deducted from the cost of acquisition submitted by plaintiffs.
placed the container in the rear compartment of the car. Thus, the total amount recoverable would be P1,037,350.00 less
20% or a total of P829,880.00. The P5,000.00 representing
In his answer, Pascual insisted that the fire was purely an foodstock can also be ordered paid to the plaintiffs. x x x.[6]
accident, a caso fortuito, hence, he was not liable for damages.
He also denied putting a container of gasoline in the cars rear On appeal to the Court of Appeals, the appellate court again
compartment. For its part, petitioner-corporation refused liability ruled in favor of respondents but modified the amount of
for the accident on the ground that it exercised due diligence of a damages awarded by the trial court. It held:
good father of a family in the selection and supervision of
Pascual as its branch manager. x x x the Decision of the Court a quo is AFFIRMED, with the
modification that the Appellants are hereby ordered to pay the
After the trial, the court a quo ruled in favor of respondents. The Appellees, jointly and severally, the total amount of P600,000.00
decretal portion of the decision read: by way of nominal damages under Articles 2222 and 2223 of the
New Civil Code, with interest thereon, at the rate of 6% per
WHEREFORE, in the light of the foregoing considerations annum from the date of the Decision of this Court.[7]
judgment is hereby rendered ORDERING the defendants,
Bienvenido Pascual and Perla Compania de Seguros, Inc. to
pay jointly and solidarily to the plaintiffs spouses Gaudencio and
Primitiva Sarangaya the total sum of Two Million Nine Hundred The appellate court was in accord with the trial courts findings
Four Thousand Eight Hundred and Eighty Pesos that the doctrine of res ipsa loquitur was correctly applied in
([P]2,904,880.00) as actual damages with legal interest thereon determining the liability of Pascual and that petitioner-
from December 12, 1995 until fully paid.[3] (emphasis supplied) corporation, as the employer, was vicariously liable to
respondents. Nonetheless, for respondents failure to
substantiate their actual loss, the appellate court granted
The court a quo declared that, although the respondents failed to nominal damages of P600,000 to them.
prove the precise cause of the fire that engulfed the garage,
Pascual was nevertheless negligent based on the doctrine of res Petitioners and respondents filed their respective motions for
ipsa loquitur.[4] It did not, however, categorically rule that the reconsideration.
gasoline container allegedly placed in the rear compartment of
In their MR, petitioners contested the findings of fact of the
appellate court. They denied any liability whatsoever to
respondents but this was rejected by the CA for lack of merit.
Thus, the present appeal.
Respondents, on the other hand, argued in their MR that the
award of nominal damages was erroneous. They prayed that, in
lieu of the award of nominal damages, the case should instead
be remanded to the trial court for reception of additional
evidence on their claim for actual damages. The CA granted
respondents MR. Hence they did not appeal the CAs decision to
us. According to the CA:
Anent Plaintiffs-Appellees plea that, in lieu of the Courts award
of nominal damages, the case be remanded to the Court a quo,
in the interest of justice, to enable them to adduce evidence to
prove their claim for actual damages, we find the same
meritorious.
Accordingly, the Decision of the Court is hereby amended to
read as follows:
IN THE LIGHT OF ALL THE FOREGOING, the Decision of the
Court a quo appealed from is AFFIRMED. The award of nominal
damages is set aside. Let the records be remanded to the Court
a quo for the reception of additional evidence by the Plaintiffs-
Appellees and the Defendants-Appellants anent Plaintiffs-
Appellees claim for actual damages.[8] (emphasis supplied)
Via this petition, petitioners ascribe the following errors to the
appellate court:
(a) THE COURT OF APPEALS ERRED IN APPLYING THE
DOCTRINE OF [RES IPSA LOQUITUR] IN THE PRESENT
CASE;
(b) THE COURT OF APPEALS ERRED WHEN IT FOUND
PERLA NEGLIGENT IN THE SUPERVISION OF PASCUAL,
AND CONSEQUENTLY, VICARIOUSLY LIABLE FOR THE
FIRE BECAUSE PERLA FAILED TO ADDUCE EVIDENCE OF
SUPERVISION OF EMPLOYEES CARE AND UPKEEP OF
COMPANY VEHICLES REQUIRED BY THE SUPREME
COURT ON TRANSPORTATION COMPANIES; AND
(c) THE COURT OF APPEALS ERRED WHEN IT ORDERED
THE REMAND OF THE CASE TO RTC ISABELA FOR
RECEPTION OF ADDITIONAL EVIDENCE BY THE
SARANGAYA SPOUSES ON THEIR CLAIM FOR ACTUAL
DAMAGES.[9]
Res ipsa loquitur is a Latin phrase which literally means the thing
or the transaction speaks for itself.[10] It relates to the fact of an
injury that sets out an inference to the cause thereof or
establishes the plaintiffs prima facie case.[11] The doctrine rests
on inference and not on presumption.[12] The facts of the
occurrence warrant the supposition of negligence and they
furnish circumstantial evidence of negligence when direct
evidence is lacking.[13]
The doctrine is based on the theory that the defendant either
knows the cause of the accident or has the best opportunity of
ascertaining it and the plaintiff, having no knowledge thereof, is
compelled to allege negligence in general terms.[14] In such
instance, the plaintiff relies on proof of the happening of the
accident alone to establish negligence.[15]
The doctrine provides a means by which a plaintiff can pin
liability on a defendant who, if innocent, should be able to
explain the care he exercised to prevent the incident complained
of. Thus, it is the defendants responsibility to show that there
was no negligence on his part.[16]
To sustain the allegation of negligence based on the doctrine of
res ipsa loquitur, the following requisites must concur:
1) the accident is of a kind which does not
ordinarily occur unless someone is negligent;
2) the cause of the injury was under the
exclusive control of the person in charge and
3) the injury suffered must not have been due
to any voluntary action or contribution on the part of the person
injured.[17]
Under the first requisite, the occurrence must be one that does
not ordinarily occur unless there is negligence. Ordinary refers to
the usual course of events.[18] Flames spewing out of a car
engine, when it is switched on, is obviously not a normal event.
Neither does an explosion usually occur when a car engine is
revved. Hence, in this case, without any direct evidence as to
the cause of the accident, the doctrine of res ipsa loquitur comes
into play and, from it, we draw the inference that based on the
evidence at hand, someone was in fact negligent and
responsible for the accident.
The test to determine the existence of negligence in a particular
case may be stated as follows: did the defendant in committing
the alleged negligent act, use reasonable care and caution
which an ordinarily prudent person in the same situation would
have employed?[19] If not, then he is guilty of negligence.
Here, the fact that Pascual, as the caretaker of the car, failed to
submit any proof that he had it periodically checked (as its year-
model and condition required) revealed his negligence. A
prudent man should have known that a 14-year-old car,
constantly used in provincial trips, was definitely prone to
damage and other defects. For failing to prove care and
diligence in the maintenance of the vehicle, the necessary
inference was that Pascual had been negligent in the upkeep of
the car.
Pascual attempted to exculpate himself from liability by insisting
that the incident was a caso fortuito. We disagree.
The exempting circumstance of caso fortuito may be availed
only when: (a) the cause of the unforeseen and unexpected
occurrence was independent of the human will; (b) it was
impossible to foresee the event which constituted the caso
fortuito or, if it could be foreseen, it was impossible to avoid; (c)
the occurrence must be such as to render it impossible to
perform an obligation in a normal manner and (d) the person
tasked to perform the obligation must not have participated in
any course of conduct that aggravated the accident.[20]
In fine, human agency must be entirely excluded as the
proximate cause or contributory cause of the injury or loss.[21] In
a vehicular accident, for example, a mechanical defect will not
release the defendant from liability if it is shown that the accident
could have been prevented had he properly maintained and
taken good care of the vehicle.[22]
The circumstances on record do not support the defense of
Pascual. Clearly, there was no caso fortuito because of his want
of care and prudence in maintaining the car.
Under the second requisite, the instrumentality or agency that
triggered the occurrence must be one that falls under the
exclusive control of the person in charge thereof. In this case,
the car where the fire originated was under the control of
Pascual. Being its caretaker, he alone had the responsibility to
maintain it and ensure its proper functioning. No other person,
not even the respondents, was charged with that obligation
except him.
Where the circumstances which caused the accident are shown
to have been under the management or control of a certain
person and, in the normal course of events, the incident would
not have happened had that person used proper care, the
inference is that it occurred because of lack of such care.[23]
The burden of evidence is thus shifted to defendant to establish
that he observed all that was necessary to prevent the accident
from happening. In this aspect, Pascual utterly failed.
Under the third requisite, there is nothing in the records to show
that respondents contributed to the incident. They had no access
to the car and had no responsibility regarding its maintenance
even if it was parked in a building they owned.
On the second assigned error, we find no reason to reverse the
decision of the Court of Appeals. The relationship between the
two petitioners was based on the principle of pater familias
according to which the employer becomes liable to the party
aggrieved by its employee if he fails to prove due diligence of a
good father of a family in the selection and supervision of his
employees.[24] The burden of proof that such diligence was
observed devolves on the employer who formulated the rules
and procedures for the selection and hiring of his employees.
In the selection of prospective employees, employers are
required to examine them as to their qualifications, experience
and service records.[25] While the petitioner-corporation does
not appear to have erred in considering Pascual for his position,
its lack of supervision over him made it jointly and solidarily
liable for the fire.
In the supervision of employees, the employer must formulate
standard operating procedures, monitor their implementation
and impose disciplinary measures for the breach thereof.[26] To
fend off vicarious liability, employers must submit concrete proof,
including documentary evidence, that they complied with
everything that was incumbent on them.[27] Here, petitioner-
corporations evidence hardly included any rule or regulation that
Pascual should have observed in performing his functions. It
also did not have any guidelines for the maintenance and
upkeep of company property like the vehicle that caught fire.
Petitioner-corporation did not require periodic reports on or
inventories of its properties either. Based on these
circumstances, petitioner-corporation clearly did not exert effort
to be apprised of the condition of Pascuals car or its
serviceability.
Petitioner-corporations argument that the liability attached to
employers only applies in cases involving the supervision of
employees in the transportation business is incorrect. Article
2180 of the Civil Code states that employers shall be liable for
the damage caused by their employees. The liability is imposed
on all those who by their industry, profession or other enterprise
have other persons in their service or supervision.[28] Nowhere
does it state that the liability is limited to employers in the
transportation business.
WHEREFORE, the petition is hereby DENIED and the
decision[29] of the Court of Appeals affirmed in toto.
Costs against petitioners.
SO ORDERED.
Respondent Superior
G.R. No. L-22533 February 9, 1967
PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners,
vs.
PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES
BONIFACIO, respondents.
Placido B. Ramos and Renato L. Ramos for petitioners.
Trinidad & Borromeo for respondents.
BENGZON, J.P., J.:
On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola
Bottling Co. of the P.I.1 and Andres Bonifacio in the Court of
First Instance of Manila as a consequence of a collision, on May
10, 1958, involving the car of Placido Ramos and a tractor-truck
and trailer of PEPESI-COLA. Said car was at the time of the
collision driven by Augusto Ramos, son and co-plaintiff of
Placido. PEPSI-COLA's tractor-truck was then driven by its
driver and co-defendant Andres Bonifacio.
After trial the Court of First Instance rendered judgment on April
15, 1961, finding Bonifacio negligent and declaring that PEPSI-
COLA had not sufficiently proved its having exercised the due
diligence of a good father of a family to prevent the damage.
PEPSI-COLA and Bonifacio, solidarily, were ordered to pay the
plaintiffs P2,638.50 actual damages; P2,000.00 moral damages;
P2,000.00 as exemplary damages; and, P1,000.00 attorney's
fees, with costs.
Not satisfied with this decision, the defendants appellee to the
Court of Appeals.
Said Court, on January 15, 1964, affirmed the trial court's
judgment insofar as it found defendant Bonifacio negligent, but
modified it by absolving defendant PEPSI-COLA from liability,
finding that, contrary to the plaintiffs' contention, PEPSI-COLA
sufficiently proved due diligence in the selection of its driver
Bonifacio.
Plaintiffs thereupon appealed to Us through this petition for
review of the Court of Appeals' decision. And appellants would
argue before this Court that defendant PEPSI-COLA's evidence
failed to show that it had exercised due diligence in the selection
of its driver in question.
Said point, as stated, was resolved by the Court of Appeals in
PEPSI-COLA's favor, thus:
The uncontradicted testimony of Juan T. Anasco, personnel
manager of defendant company, was to the effect that defendant
driver was first hired as a member of the bottle crop in the
production department; that when he was hired as a driver, 'we
had size [sic] him by looking into his background, asking him to
submit clearances, previous experience, physical examination
and later on, he was sent to the pool house to take the usual
driver's examination, consisting of: First, theoretical examination
and second, the practical driving examination, all of which he
had undergone, and that the defendant company was a member
of the Safety Council. In view hereof, we are of the sense that
defendant company had exercised the diligence of a good father
of a family in the choice or selection of defendant driver'. In the
case of Campo vs. Camarote No. L-9147 (1956), 53 O.G. 2794,
cited in appellee's brief, our Supreme Court had occasion to put
it down as a rule that "In order that the defendant may be
considered as having exercised all the diligence of a good father
of a family, he should not have been satisfied with the mere
possession of a professional driver's license; he should have
carefully examined the applicant for employment as to his
qualifications, his experiences and record of service." Defendant
Company has taken all these steps.2
Appellants herein seek to assail the foregoing portion of the
decision under review by taking issue with the testimony of
Anasco upon which the findings of due diligence aforestated are
rested. Thus, it is now contended that Aasco being PEPSI-
COLA's employee, is a biased and interested witness; and that
his testimony is not believable.
It is rather clear, therefore, that appellants would raise herein an
issue of fact and credibility, something as to which this Court has
consistently respected the findings of the Court of Appeals, with
some few exceptions, which do not obtain herein.3
Stated differently, Aascos credibility is not for this Court now to
re-examine. And said witness having been found credible by the
Court of Appeals, his testimony, as accepted by said Court,
cannot at this stage be assailed. As We said in Co Tao vs. Court
of Appeals, L-9194, April 25, 1957, assignments of error
involving the credibility of witnesses and which in effect dispute
the findings of fact of the Court of Appeals, cannot be reviewed
in these proceedings. For a question to be one of law it must
involve no examination of the probative value of the evidence
presented by the litigants or any of them. 4 And the distinction is
well-known: There is a question of law in a given case when the
doubt or difference arises as to what the law is on a certain state
of facts; there is a question of fact when the doubt or difference
arises as to the truth or the falsehood of alleged facts.5
xxx xxx xxx
The responsibility treated of in this Article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
And construing a similar provision of the old Civil Code, this
Court said in Bahia vs. Litonjua, 30 Phil. 624, 627:
From this article two things are apparent: (1) That 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 the
selection, or both; and (2) that the presumption is juris tantum
and not juris et de jure, and consequently may be rebutted. It
follows necessarily that if the employer shows to the satisfaction
of the court that in selection and 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.
As pointed out, what appellants here contend as not duly proved
by PEPSI-COLA is only due diligence in the selection of its
driver. And, parenthetically, it is not surprising that appellants
thus confine their arguments to this aspect of due diligence,
since the record as even appellants' brief (pp. 13-17) reflects
in quoting in part the testimony of PEPSI-COLA's witness
would show sufficient evidence to establish due diligence in the
supervision by PEPSI-COLA of its drivers, including Bonifacio.
Appellants' other assignment of errors are likewise outside the
purview of this Court's reviewing power. Thus, the question of
whether PEPSI- COLA violated the Revised Motor Vehicle Law
and rules and regulations related thereto, not having been raised
and argued in the Court of Appeals, cannot be ventilated herein
for the first time. 6 And the matter of whether or not PEPSI-
COLA did acts to ratify the negligent act of its driver is a factual
issue not proper herein.
Wherefore, the decision of the Court of Appeals is hereby
affirmed, with costs against appellants. So ordered.

From all this it follows that for the purposes of this appeal, it
must be taken as established that, as testified to by Aasco,
PEPSI-COLA did in fact carefully examine the driver-applicant
Bonifacio as to his qualifications, experiences and record of
service, taking all steps mentioned by the Court of Appeals in its
decision already quoted.1wph1.t
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal,
Zaldivar, Sanchez and Castro, JJ., concur.
RESOLUTION ON MOTION FOR RECONSIDERATION
May 16, 1967

Such being the case, there can be no doubt that PEPSI-COLA
exercised the required due diligence in the selection of its driver.
As ruled by this Court in Campo vs. Camarote 53 O.G. 2794,
2797: "In order that the defendant may be considered as having
exercised all diligence of a good father of a family, he should not
be satisfied with the mere possession of a professional driver's
license; he should have carefully examined the applicant for
employment as to his qualifications, his experience and record of
service."
It should perhaps be stated that in the instant case no question
is raised as to due diligence in the supervision by PEPSI-COLA
of its driver. Article 2180 of the Civil Code provides inter alia:
... The owners and managers of an establishment or enterprise
are likewise responsible for damages caused by their employees
in the service of the branches in which the latter are employed or
on the occasion of their functions.
BENGZON, J.P., J.:
Petitioners seek a reconsideration1 of Our decision2 in the
instant case affirming in toto the challenged decision of the Court
of Appeals absolving respondent PEPSI-COLA from liability. In
Our decision, We refrained from passing on the merits of the
question whether PEPSI-COLA, in operating the tractor-truck
and trailer, violated the Rev. Motor Vehicle Law3 and the rules
and regulations related thereto, for the procedural reason that it
did not appear to have been raised before the Court of Appeals.
It now appears, however, that said question was raised in a
motion to reconsider filed with the Court of Appeals which
resolved the same against petitioners. Due consideration of the
matter on its merits, convinces Us that the decision of the Court
of Appeals should still be affirmed in toto.
Petitioners impute to PEPSI-COLA the violation of subpars. 1
and 4(d), par. (a), Sec. 27 of M.V.O. Administrative Order No. 1,
dated Sept. 1, 1951, in that at the time of the collision, the trailer-
truck, which had a total weight of 30,000 kgms., was (a) being
driven at a speed of about 30 k.p.h. or beyond the 15 k.p.h. limit
set and (b) was not equipped with a rear-vision mirror nor
provided with a helper for the driver.
The cited provisions read: xxx
since there was an express finding that the truck-trailer was 3
SECTION 27. Registration, operation, and inspection of truck- meters wide. However, Sec. 9 (d) of the same law, as amended,
trailer combinations, semi-trailers, and tractors. providing that
(a) No trailer or semi-trailer having a gross weight of more than
2,000 kilograms and is not equipped with effective brakes on at
least two opposite wheels of the rear axle and are so controlled
that the brakes will act in unison with or preceding the effective
action of the brakes of the tractor-truck shall be registered for
operation on public highways of the Philippines; provided, that
the trialers without brakes may be registered from year to year
for operation under the following conditions:
1. No such trailer shall be operated at any time at a speed in
excess of 15 kilometers per hour in conjunction with a tractor-
truck, the actual gross weight of which is less than twice the
weight of the trailer.
xxx xxx xxx
4(d) Tractor-trucks shall be either equipped with rear-vision
mirror to enable the driver to see vehicles approaching mirror the
rear or shall carry a helper who shall be so stationed on the truck
or trailer that he will constantly have a view of the rear. He shall
be provided with means of effectively signalling to the driver to
give way to overtaking vehicles.
4(e) No truck and trailer combination shall be operated at a
speed greater than 30 kilometers per hour.
It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers
only to trailers or semi-trailers having a gross weight of more
than 2,000 kgms., AND which are "not equipped with effective
brakes on at least two opposite wheels, of the rear axle and are
so controlled that the brakes will act in unison with or preceding
the effective action of the brakes of the tractor-truck..." This is
the condition set in the proviso in par. (a), supra, wherein
"trailers without [such] brakes may be registered from year to
year for operation ..." i.e., they should not "be operated at any
time at a speed in excess of 15 kilometers per hour in
conjunction with a tractor-truck ...". But there was no finding by
the Court of Appeals that the truck-trailer here did not have such
brakes. In the absence of such fact, it is subpar. 4(e), supra, that
will apply. And petitioners admit that the truck-trailer was being
driven at about 30 k.p.h.
It is a fact that driver Bonifacio was not accompanied by a helper
on the night of the collision since he was found to be driving
alone. However, there is no finding that the tractor-truck did not
have a rear-vision mirror. To be sure, the records disclose that
Pat. Rodolfo Pahate, the traffic policeman who went to the
collision scene, testified that he saw the tractor-truck there but
he does not remember if it had any rear vision mirror.4 This
cannot prove lack of rear-vision mirror. And the cited provision
subpar. 4(d) is complied if either of the two alternatives,
i.e., having a rear-vision mirror or a helper, is present. Stated
otherwise, said provision is violated only where there is a
positive finding that the tractor-truck did not have both rear-
vision mirror and a
helper for the driver.
Petitioners also charge PEPSI-COLA with having violated par.
(b) of Sec. 8-A of the Rev. Motor Vehicle Law, providing that:
No motor vehicle operating as a single unit shall exceed the
following dimensions:
Overall width ................ 2.5 meters.
xxx xxx
SEC. 9. Special permits, fees for.-The chief of the Motor
Vehicles Office with the approval of the Secretary of Public
Works and Communications shall establish regulations and a
tariff of additional fees under which special permits may be
issued in the discretion of the Chief of the Motor Vehicles Office
or his deputies, for each of the following special cases, and
without such special permit, no such motor vehicles shall be
operated on the public highways.
xxx xxx xxx
(d) For registration or use of a motor vehicle exceeding the limit
of permissible dimensions specified in subsections (b) and (c) of
section eight-A hereof. (Emphasis supplied)
xxx xxx xxx
expressly allows the registration, or use of motor vehicles
exceeding the limits of permissible dimensions specified in
subsec. (b) of Sec. 8-A. So, to conclude that there was a
violation of law which undisputably constitutes negligence, at
the very least it is not enough that the width of the tractor-
truck exceed the limit in Sec. 8-A; in addition, it must also appear
that there was no special permit granted under Sec. 9.
Unfortunately for petitioners, that vital factual link is missing.
There was no proof much less any finding to that effect. And it
was incumbent upon petitioners-appellants to have proved lack
of such permit since the tractor-truck and the trailer were
registered.5 Compliance with law and regularity in the
performance of official duty in this case, the issuance of
proper registration papers are presumed6 and prevail over
mere surmises. Having charged a violation of law, the onus of
substantiating the same fell upon petitioners-appellants. Hence,
the conclusion that there was a violation of the law lacks factual
basis.
Petitioners would also have Us abandon the Bahia ruling.7 In its
stead, We are urged to apply the Anglo-American doctrine of
respondent superior. We cannot however, abandon the Bahia
ruling without going against the explicit mandate of the law. A
motor vehicle owner is not an absolute insurer against all
damages caused by its driver. Article 2180 of our Civil Code is
very explicit that the owner's responsibility shall cease once it
proves that it has observed the diligence of a good father of a
family to prevent damage. The Bahia case merely clarified what
that diligence consists of, namely, diligence in the selection and
supervision of the driver-employee.
Neither could We apply the respondent superior principle. Under
Article 2180 of the Civil Code, the basis of an employer's liability
is his own negligence, not that of his employees. The former is
made responsible for failing to properly and diligently select and
supervise his erring employees. We do not and have never
followed the respondent superior rule.8 So, the American rulings
cited by petitioners, based as they are on said doctrine, are not
authoritative here.
In view of the foregoing, the motion for reconsideration is hereby
denied.
 Soon after leaving the Hospital Mrs. Villegas began to suffer
Negligence of professionals abdominal pains and complained of being feverish. She also
[G.R. No. 118231. July 5, 1996] gradually lost her appetite, so she consulted Dr. Batiquin at the
latter's polyclinic who prescribed for her certain medicines . . .
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, which she had been taking up to December, 1988.
petitioners, vs. COURT OF APPEALS, SPOUSES QUEDO D.
ACOGIDO and FLOTILDE G. VILLEGAS, respondents. In the meantime, Mrs. Villegas was given a Medical Certificate
DECISION by Dr. Batiquin on October 31, 1988 . . . certifying to her physical
fitness to return to her work on November 7, 1988. So, on the
DAVIDE, JR., J.: second week of November, 1988 Mrs. Villegas returned to her
work at the Rural Bank of Ayungon, Negros Oriental.
Throughout history, patients have consigned their fates and lives
to the skill of their doctors. For a breach of this trust, men have The abdominal pains and fever kept on recurring and bothered
been quick to demand retribution. Some 4,000 years ago, the Mrs. Villegas no end and despite the medications administered
Code of Hammurabi[1] then already provided: "If a physician by Dr. Batiquin. When the pains become unbearable and she
make a deep incision upon a man with his bronze lancet and was rapidly losing weight she consulted Dr. Ma. Salud Kho at
cause the man's death, or operate on the eye socket of a man the Holy Child's Hospital in Dumaguete City on January 20,
with his bronze lancet and destroy the man's eyes, they shall cut 1989.
off his hand."[2] Subsequently, Hippocrates[3] wrote what was to
become part of the healer's oath: "I will follow that method of The evidence of Plaintiffs show that when Dr. Ma. Salud Kho
treatment which according to my ability and judgment, I consider examined Mrs. Villegas at the Holy Child's Hospital on January
for the benefit of my patients, and abstain from whatever is 20, 1989 she found Mrs. Villegas to be feverish, pale and was
deleterious and mischievous . . . . While I continue to keep this breathing fast. Upon examination she felt an abdominal mass
oath unviolated may it be granted me to enjoy life and practice one finger below the umbilicus which she suspected to be either
the art, respected by all men at all times but should I trespass a tumor of the uterus or an ovarian cyst, either of which could be
and violate this oath, may the reverse be my lot." At present, the cancerous. She had an x-ray taken of Mrs. Villegas' chest,
primary objective of the medical profession is the preservation of abdomen and kidney. She also took blood tests of Plaintiff. A
life and maintenance of the health of the people.[4] blood count showed that Mrs. Villegas had [an] infection inside
her abdominal cavity. The result of all those examinations
Needless to say then, when a physician strays from his sacred impelled Dr. Kho to suggest that Mrs. Villegas submit to another
duty and endangers instead the life of his patient, he must be surgery to which the latter agreed.
made to answer therefor. Although society today cannot and will
not tolerate the punishment meted out by the ancients, neither When Dr. Kho opened the abdomen of Mrs. Villegas she found
will it and this Court, as this case would show, let the act go whitish-yellow discharge inside, an ovarian cyst on each of the
uncondemned. 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
The petitioners appeal from the decision[5] of the Court of uterus embedded on [sic] the ovarian cyst, 2 inches by 3/4 inch
Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which in size. This piece of rubber material which Dr. Kho described as
reversed the decision[6] of 21 December 1990 of Branch 30 of a "foreign body" looked like a piece of a "rubber glove" . . . and
the Regional Trial Court (RTC) of Negros Oriental in Civil Case which is [sic] also "rubber-drain like . . . . It could have been a
No. 9492. torn section of a surgeon's gloves or could have come from
other sources. And this foreign body was the cause of the
The facts, as found by the trial court, are as follows: infection of the ovaries and consequently of all the discomfort
suffered by Mrs. Villegas after her delivery on September 21,
Dr. Batiquin was a Resident Physician at the Negros Oriental 1988.[7]
Provincial Hospital, Dumaguete City from January 9, 1978 to
September 1989. Between 1987 and September, 1989 she was The piece of rubber allegedly found near private respondent
also the Actg. Head of the Department of Obstetrics and Flotilde Villegas' uterus was not presented in court, and although
Gynecology at the said Hospital. Dr. Ma. Salud Kho testified that she sent it to a pathologist in
Cebu City for examination,[8] it was not mentioned in the
Mrs. Villegas is a married woman who submitted to Dr. Batiquin pathologist's Surgical Pathology Report.[9]
for prenatal care as the latter's private patient sometime before
September 21, 1988. Aside from Dr. Kho's testimony, the evidence which mentioned
the piece of rubber are a Medical Certificate,[10] a Progress
In the morning of September 21, 1988 Dr. Batiquin, with the Record,[11] an Anesthesia Record,[12] a Nurse's Record,[13]
assistance of Dr. Doris Teresita Sy who was also a Resident and a Physician's Discharge Summary.[14] The trial court,
Physician at the same Hospital, C.I. and O.R. Nurse Arlene however, regarded these documentary evidence as mere
Diones and some student nurses performed a simple cesarean hearsay, "there being no showing that the person or persons
section on Mrs. Villegas at the Negros Oriental Provincial who prepared them are deceased or unable to testify on the
Hospital and after 45 minutes Mrs. Villegas delivered her first facts therein stated . . . . Except for the Medical Certificate
child, Rachel Acogido, at about 11:45 that morning. Thereafter, (Exhibit "F"), all the above documents were allegedly prepared
Plaintiff remained confined at the Hospital until September 27, by persons other than Dr. Kho, and she merely affixed her
1988 during which period of confinement she was regularly signature on some of them to express her agreement thereto . . .
visited by Dr. Batiquin. On September 28, 1988, Mrs. Villegas ."[15] The trial court also refused to give weight to Dr. Kho's
checked out of the Hospital . . . and on the same day she paid testimony regarding the subject piece of rubber as Dr. Kho "may
Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 not have had first-hand knowledge" thereof,[16] as could be
as "professional fee" . . . . gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a is hereby entered ordering defendants-appellees to pay
foreign body that goes with the tissues but unluckily I don't know plaintiffs-appellants the amounts of P17,000.00 as and for actual
where the rubber was.[17] damages; P100,000.00 as and for moral damages; P20,000.00
as and for exemplary damages; and P25,000.00 as and for
The trial court deemed vital Dr. Victoria Batiquin's testimony that attorney's fees plus the cost of litigation.
when she confronted Dr. Kho regarding the piece of rubber, "Dr.
Kho answered that there was rubber indeed but that she threw it SO ORDERED.[21]
away."[18] This statement, the trial court noted, was never
denied nor disputed by Dr. Kho, leading it to conclude: From the above judgment, the petitioners appealed to this Court
claiming that the appellate court; (1) committed grave abuse of
There are now two different versions on the whereabouts of that discretion by resorting to findings of fact not supported by the
offending "rubber" (1) that it was sent to the Pathologist in Cebu evidence on record, and (2) exceeded its discretion, amounting
as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it to lack or excess of jurisdiction, when it gave credence to
away as told by her to Defendant. The failure of the Plaintiffs to testimonies punctured with contradictions and falsities.
reconcile these two different versions serve only to weaken their
claim against Defendant Batiquin.[19] The private respondents commented that the petition raised only
questions of fact, which were not proper for review by this Court.
All told, the trial court held in favor of the petitioners herein.
While the rule is that only questions of law may be raised in a
The Court of Appeals reviewed the entirety of Dr. Kho's petition for review on certiorari, there are exceptions, among
testimony and, even without admitting the private respondents' which are when the factual findings of the trial court and the
documentary evidence, deemed Dr. Kho's positive testimony to appellate court conflict, when the appealed decision is clearly
definitely establish that a piece of rubber was found near private contradicted by the evidence on record, or when the appellate
respondent Villegas' uterus. Thus, the Court of Appeals reversed court misapprehended the facts.[22]
the decision of the trial court, holding:
After deciphering the cryptic petition, we find that the focal point
4. The fault or negligence of appellee Dr. Batiquin is established of the instant appeal is the appreciation of Dr. Kho's testimony.
by preponderance of evidence. The trial court itself had narrated The petitioners contend that the Court of Appeals
what happened to appellant Flotilde after the cesarean operation misappreciated the following portion of Dr. Kho's testimony:
made by appellee doctor . . . . After the second operation,
appellant Flotilde became well and healthy. Appellant Flotilde's Q What is the purpose of the examination?
troubles were caused by the infection due to the "rubber" that
was left inside her abdomen. Both appellants testified that after A Just in case, I was just thinking at the back of my mind, just in
the operation made by appellee doctor, they did not go to any case this would turn out to be a medico-legal case, I have heard
other doctor until they finally decided to see another doctor in somebody that [sic] says [sic] there is [sic] a foreign body that
January, 1989 when she was not getting any better under the goes with the tissues but unluckily I don't know where the rubber
care of appellee Dr. Batiquin . . . . Appellee Dr. Batiquin admitted was. It was not in the Lab, it was not in Cebu.[23] (Italics
on the witness stand that she alone decided when to close the supplied)
operating area; that she examined the portion she operated on
before closing the same . . . . Had she exercised due diligence, The petitioners prefer the trial court's interpretation of the above
appellee Dr. Batiquin would have found the rubber and removed testimony, i.e., that Dr. Kho's knowledge of the piece of rubber
it before closing the operating area.[20] was based on hearsay. The Court of Appeals, on the other hand,
concluded that the underscored phrase was taken out of context
The appellate court then ruled: by the trial court. According to the Court of Appeals, the trial
court should have likewise considered the other portions of Dr.
Appellants' evidence show[s] that they paid a total of P17,000.00 Kho's testimony, especially the following:
[deposit of P7,100.00 (Exh. G-1-A) plus hospital and medical
expenses together with doctor's fees in the total amount Q So you did actually conduct the operation on her?
P9,900.00 (Exhs. G and G-2)] for the second operation that
saved her life. A Yes, I did.

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
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 as Black'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.
LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L.
PASCASIO, RAUL R. ARNAU, ABELARDO L. APORTADERA
JR., Honorable CONDRADO M. VASQUEZ, all of the Office
of the Ombudsman; JESUS F. GUERRERO, PORFIRIO
MACARAEG, and GREGORIO A. ARIZALA, all of the Office
of the City Prosecutor, Manila, respondents.
DECISION
ROMERO, J.:
May this Court review the findings of the Office of the
Ombudsman? The general rule has been enunciated in Ocampo
v. Ombudsman [1] which states:
In the exercise of its investigative power, this Court has
consistently held that courts will not interfere with the discretion
of the fiscal or the Ombudsman to determine the specificity and
adequacy of the averments of the offense charged. He may
dismiss the complaint forthwith if he finds it to be insufficient in
form and substance or if he otherwise finds no ground to
continue with the inquiry; or he may proceed with the
investigation of the complaint if, in his view, it is in due and
proper form.
Does the instant case warrant a departure from the foregoing
general rule? When a patient dies soon after surgery under
circumstances which indicate that the attending surgeon and
anaesthesiologist may have been guilty of negligence but upon
their being charged, a series of nine prosecutors toss the
responsibility of conducting a preliminary investigation to each
other with contradictory recommendations, ping-pong style,
perhaps the distraught widow is not to be blamed if she finally
decides to accuse the City Prosecutors at the end of the line for
partiality under the Anti-Graft and Corrupt Practices Act. Nor
may she be entirely faulted for finally filing a petition before this
Court against the Ombudsman for grave abuse of discretion in
dismissing her complaint against said City Prosecutors on the
ground of lack of evidence. Much as we sympathize with the
bereaved widow, however, this Court is of the opinion that the
general rule still finds application in instant case. In other words,
the respondent Ombudsman did not commit grave abuse of
discretion in deciding against filing the necessary information
against public respondents of the Office of the City Prosecutor.
The following facts are borne out by the records.
Florencio V. Rueda, husband of petitioner Leonila Garcia-
Rueda, underwent surgical operation at the UST hospital for the
removal of a stone blocking his ureter. He was attended by Dr.
Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda
Balatbat-Reyes was the anaesthesiologist. Six hours after the
surgery, however, Florencio died of complications of unknown
cause, according to officials of the UST Hospital.[2]
Not satisfied with the findings of the hospital, petitioner
requested the National Bureau of Investigation (NBI) to conduct
an autopsy on her husbands body. Consequently, the NBI ruled
that Florencios death was due to lack of care by the attending
physician in administering anaesthesia. Pursuant to its findings,
the NBI recommended that Dr. Domingo Antonio and Dr. Erlinda
Balatbat-Reyes be charged for Homicide through Reckless
Imprudence before the Office of the City Prosecutor.
During the preliminary investigation, what transpired was a
confounding series of events which we shall try to disentangle.
The case was initially assigned to Prosecutor Antonio M. Israel,
who had to inhibit himself because he was related to the counsel
of one of the doctors. As a result, the case was re-raffled to
Prosecutor Norberto G. Leono who was, however, disqualified
on motion of the petitioner since he disregarded prevailing laws
and jurisprudence regarding preliminary investigation. The case
was then referred to Prosecutor Ramon O. Carisma, who issued
a resolution recommending that only Dr. Reyes be held
criminally liable and that the complaint against Dr. Antonio be
dismissed.
The case took another perplexing turn when Assistant City
Prosecutor Josefina Santos Sioson, in the interest of justice and
peace of mind of the parties, recommended that the case be re-
raffled on the ground that Prosecutor Carisma was partial to the
petitioner. Thus, the case was transferred to Prosecutor Leoncia
R. Dimagiba, where a volte face occurred again with the
endorsement that the complaint against Dr. Reyes be dismissed
and instead, a corresponding information be filed against Dr.
Antonio. Petitioner filed a motion for reconsideration, questioning
the findings of Prosecutor Dimagiba.
Pending the resolution of petitioners motion for reconsideration
regarding Prosecutor Dimagibas resolution, the investigative
pingpong continued when the case was again assigned to
another prosecutor, Eudoxia T. Gualberto, who recommended
that Dr. Reyes be included in the criminal information of
Homicide through Reckless Imprudence. While the
recommendation of Prosecutor Gualberto was pending, the case
was transferred to Senior State Prosecutor Gregorio A. Arizala,
who resolved to exonerate Dr. Reyes from any wrongdoing, a
resolution which was approved by both City Prosecutor Porfirio
G. Macaraeg and City Prosecutor Jesus F. Guerrero.
Aggrieved, petitioner filed graft charges specifically for violation
of Section 3(e) of Republic Act No. 3019 [3] against Prosecutors
Guerrero, Macaraeg, and Arizala for manifest partiality in favor
of Dr. Reyes before the Office of the Ombudsman. However, on
July 11, 1994, the Ombudsman issued the assailed resolution
dismissing the complaint for lack of evidence.
In fine, petitioner assails the exercise of the discretionary power
of the Ombudsman to review the recommendations of the
government prosecutors and to approve and disapprove the
same. Petitioner faults the Ombudsman for, allegedly in grave
abuse of discretion, refusing to find that there exists probable
cause to hold public respondent City Prosecutors liable for
violation of Section 3(e) of R.A. No. 3019.
Preliminarily, the powers and functions of the Ombudsman have
generally been categorized into the following: investigatory
powers, prosecutory power, public assistance function, authority
to inquire and obtain information, and function to adopt, institute
and implement preventive measures. [4]
As protector of the people, the Office of the Ombudsman has the
power, function and duty to act promptly on complaints filed in
any form or manner against public officials and to investigate
any act or omission of any public official when such act or
omission appears to be illegal, unjust, improper or inefficient. [5]
While the Ombudsman has the full discretion to determine
whether or not a criminal case should be filed, this Court is not
precluded from reviewing the Ombudsmans action when there is
an abuse of discretion, in which case Rule 65 of the Rules of
Court may exceptionally be invoked pursuant to Section I, Article
VIII of the 1987 Constitution. [6] In order to successfully pursue such a claim, a patient must
prove that a health care provider, in most cases a physician,
In this regard, grave abuse of discretion has been defined as either failed to do something which a reasonably prudent health
where a power is exercised in an arbitrary or despotic manner by care provider would have done, or that he or she did something
reason of passion or personal hostility so patent and gross as to that a reasonably prudent provider would not have done; and
that that failure or action caused injury to the patient.[12]
amount to evasion of positive duty or virtual refusal to perform a
duty enjoined by, or in contemplation of law. [7]
From a procedural standpoint, it is certainly odd why the
successive transfers from one prosecutor to another were not
sufficiently explained in the Resolution of the Ombudsman.
Being the proper investigating authority with respect to
misfeasance, non-feasance and malfeasance of public officials,
the Ombudsman should have been more vigilant and assiduous
in determining the reasons behind the buckpassing to ensure
that no irregularity took place.
Whether such transfers were due to any outside pressure or
ulterior motive is a matter of evidence. One would have
expected the Ombudsman, however, to inquire into what could
hardly qualify as standard operating procedure, given the
surrounding circumstances of the case.
While it is true that a preliminary investigation is essentially
inquisitorial, and is often the only means to discover who may be
charged with a crime, its function is merely to determine the
existence of probable cause. [8] Probable cause has been
defined as the existence of such fact and circumstances as
would excite the belief, in a reasonable mind, acting on the facts
within the knowledge of the prosecution, that the person charged
was guilty of the crime for which he was prosecuted.[9]
Probable cause is a reasonable ground of presumption that a
matter is, or may be, well founded, such a state of facts in the
mind of the prosecutor as would lead a person of ordinary
caution and prudence to believe, or entertain an honest or strong
suspicion, that a thing is so. The term does not mean actual and
positive cause nor does it import absolute certainty. It is merely
based on opinion and reasonable belief. Thus, a finding of
probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is
believed that the act or omission complained of constitutes the
offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge.[10]
In the instant case, no less than the NBI pronounced after
conducting an autopsy that there was indeed negligence on the
part of the attending physicians in administering the
anaesthesia. [11] The fact of want of competence or diligence is
evidentiary in nature, the veracity of which can best be passed
upon after a full-blown trial for it is virtually impossible to
ascertain the merits of a medical negligence case without
extensive investigation, research, evaluation and consultations
with medical experts. Clearly, the City Prosecutors are not in a
competent position to pass judgment on such a technical matter,
especially when there are conflicting evidence and findings. The
bases of a partys accusation and defenses are better ventilated
at the trial proper than at the preliminary investigation.
A word on medical malpractice or negligence cases.
In its simplest terms, the type of lawsuit which has been called
medical malpractice or, more appropriately, medical negligence,
is that type of claim which a victim has available to him or her to
redress a wrong committed by a medical professional which has
caused bodily harm.

Hence, there are four elements involved in medical negligence
cases: duty, breach, injury and proximate causation.
Evidently, when the victim employed the services of Dr. Antonio
and Dr. Reyes, a physician-patient relationship was created. In
accepting the case, Dr. Antonio and Dr. Reyes in effect
represented that, having the needed training and skill possessed
by physicians and surgeons practicing in the same field, they will
employ such training, care and skill in the treatment of their
patients.[13] They have a duty to use at least the same level of
care that any other reasonably competent doctor would use to
treat a condition under the same circumstances. The breach of
these professional duties of skill and care, or their improper
performance, by a physician surgeon whereby the patient is
injured in body or in health, constitutes actionable
malpractice.[14] Consequently, in the event that any injury
results to the patient from want of due care or skill during the
operation, the surgeons may be held answerable in damages for
negligence.[15]
Moreover, in malpractice or negligence cases involving the
administration of anaesthesia, the necessity of expert testimony
and the availability of the charge of res ipsa loquitur to the
plaintiff, have been applied in actions against anaesthesiologists
to hold the defendant liable for the death or injury of a patient
under excessive or improper anaesthesia.[16] Essentially, it
requires two-pronged evidence: evidence as to the recognized
standards of the medical community in the particular kind of
case, and a showing that the physician in question negligently
departed from this standard in his treatment.[17]
Another element in medical negligence cases is causation which
is divided into two inquiries: whether the doctors actions in fact
caused the harm to the patient and whether these were the
proximate cause of the patients injury.[18] Indeed here, a causal
connection is discernible from the occurrence of the victims
death after the negligent act of the anaesthesiologist in
administering the anesthesia, a fact which, if confirmed, should
warrant the filing of the appropriate criminal case. To be sure,
the allegation of negligence is not entirely baseless. Moreover,
the NBI deduced that the attending surgeons did not conduct the
necessary interview of the patient prior to the operation. It
appears that the cause of the death of the victim could have
been averted had the proper drug been applied to cope with the
symptoms of malignant hyperthermia. Also, we cannot ignore
the fact that an antidote was readily available to counteract
whatever deleterious effect the anaesthesia might produce. [19]
Why these precautionary measures were disregarded must be
sufficiently explained.
The City Prosecutors were charged with violating Section 3(e) of
the Anti-Graft and Corrupt Practices Act which requires the
following facts:
1. The accused is a public officer discharging administrative or
official functions or private persons charged in conspiracy with
them;
2. The public officer committed the prohibited act during the
performance of his official duty or in relation to his public
position;
3. The public officer acted with manifest partiality, evident bad
faith or gross, inexcusable negligence; and
4. His action caused undue injury to the Government or any
private party, or gave any party any unwarranted benefit,
advantage or preference to such parties. [20]
Why did the complainant, petitioner in instant case, elect to
charge respondents under the above law?
While a party who feels himself aggrieved is at liberty to choose
the appropriate weapon from the armory, it is with no little
surprise that this Court views the choice made by the
complainant widow.
To our mind, the better and more logical remedy under the
circumstances would have been to appeal the resolution of the
City Prosecutors dismissing the criminal complaint to the
Secretary of Justice under the Department of Justices Order No.
223, [21] otherwise known as the 1993 Revised Rules on
Appeals From Resolutions In Preliminary
Investigations/Reinvestigations, as amended by Department
Order No. 359, Section 1 of which provides:
Section 1. What May Be Appealed. - Only resolutions of the
Chief State Prosecutor/Regional State Prosecutor/Provincial or
City Prosecutor dismissing a criminal complaint may be the
subject of an appeal to the Secretary of Justice except as
otherwise provided in Section 4 hereof.
What action may the Secretary of Justice take on the appeal?
Section 9 of Order No. 223 states: The Secretary of Justice may
reverse, affirm or modify the appealed resolution. On the other
hand, He may motu proprio or on motion of the appellee, dismiss
outright the appeal on specified grounds. [22]
In exercising his discretion under the circumstances, the
Ombudsman acted within his power and authority in dismissing
the complaint against the Prosecutors and this Court will not
interfere with the same.
WHEREFORE, in view of the foregoing, the instant petition is
DISMISSED, without prejudice to the filing of an appeal by the
petitioner with the Secretary of Justice assailing the dismissal of
her criminal complaint by the respondent City Prosecutors. No
costs.
SO ORDERED
G.R. No. 142625 December 19, 2006
ROGELIO P. NOGALES, for himself and on behalf of the
minors, ROGER ANTHONY, ANGELICA, NANCY, and
MICHAEL CHRISTOPHER, all surnamed NOGALES,
petitioners,
vs.
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA, DR.
ELY VILLAFLOR, DR. ROSA UY, DR. JOEL ENRIQUEZ, DR.
PERPETUA LACSON, DR. NOE ESPINOLA, and NURSE J.
DUMLAO, respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 6 February 1998 Decision2
and 21 March 2000 Resolution3 of the Court of Appeals in CA-
G.R. CV No. 45641. The Court of Appeals affirmed in toto the 22
November 1993 Decision4 of the Regional Trial Court of Manila,
Branch 33, finding Dr. Oscar Estrada solely liable for damages
for the death of his patient, Corazon Nogales, while absolving
the remaining respondents of any liability. The Court of Appeals
denied petitioners' motion for reconsideration.
The Facts
Pregnant with her fourth child, Corazon Nogales ("Corazon"),
who was then 37 years old, was under the exclusive prenatal
care of Dr. Oscar Estrada ("Dr. Estrada") beginning on her fourth
month of pregnancy or as early as December 1975. While
Corazon was on her last trimester of pregnancy, Dr. Estrada
noted an increase in her blood pressure and development of leg
edema5 indicating preeclampsia,6 which is a dangerous
complication of pregnancy.7
Around midnight of 25 May 1976, Corazon started to experience
mild labor pains prompting Corazon and Rogelio Nogales
("Spouses Nogales") to see Dr. Estrada at his home. After
examining Corazon, Dr. Estrada advised her immediate
admission to the Capitol Medical Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30 a.m. at the
CMC after the staff nurse noted the written admission request8
of Dr. Estrada. Upon Corazon's admission at the CMC, Rogelio
Nogales ("Rogelio") executed and signed the "Consent on
Admission and Agreement"9 and "Admission Agreement."10
Corazon was then brought to the labor room of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of
CMC, conducted an internal examination of Corazon. Dr. Uy
then called up Dr. Estrada to notify him of her findings.
Based on the Doctor's Order Sheet,11 around 3:00 a.m., Dr.
Estrada ordered for 10 mg. of valium to be administered
immediately by intramuscular injection. Dr. Estrada later ordered
the start of intravenous administration of syntocinon admixed
with dextrose, 5%, in lactated Ringers' solution, at the rate of
eight to ten micro-drops per minute.
According to the Nurse's Observation Notes,12 Dr. Joel After more than 11 years of trial, the trial court rendered
Enriquez ("Dr. Enriquez"), an anesthesiologist at CMC, was judgment on 22 November 1993 finding Dr. Estrada solely liable
notified at 4:15 a.m. of Corazon's admission. Subsequently, for damages. The trial court ruled as follows:
when asked if he needed the services of an anesthesiologist, Dr.
Estrada refused. Despite Dr. Estrada's refusal, Dr. Enriquez
stayed to observe Corazon's condition.
At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of
the CMC. At 6:10 a.m., Corazon's bag of water ruptured
spontaneously. At 6:12 a.m., Corazon's cervix was fully dilated.
At 6:13 a.m., Corazon started to experience convulsions.
At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of
magnesium sulfate. However, Dr. Ely Villaflor ("Dr. Villaflor"),
who was assisting Dr. Estrada, administered only 2.5 grams of
magnesium sulfate.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low
forceps to extract Corazon's baby. In the process, a 1.0 x 2.5
cm. piece of cervical tissue was allegedly torn. The baby came
out in an apnic, cyanotic, weak and injured condition.
Consequently, the baby had to be intubated and resuscitated by
Dr. Enriquez and Dr. Payumo.
At 6:27 a.m., Corazon began to manifest moderate vaginal
bleeding which rapidly became profuse. Corazon's blood
pressure dropped from 130/80 to 60/40 within five minutes.
There was continuous profuse vaginal bleeding. The assisting
nurse administered hemacel through a gauge 19 needle as a
side drip to the ongoing intravenous injection of dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing and cross
matching with bottled blood. It took approximately 30 minutes for
the CMC laboratory, headed by Dr. Perpetua Lacson ("Dr.
Lacson"), to comply with Dr. Estrada's order and deliver the
blood.
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the
Obstetrics-Gynecology Department of the CMC, was apprised of
Corazon's condition by telephone. Upon being informed that
Corazon was bleeding profusely, Dr. Espinola ordered
immediate hysterectomy. Rogelio was made to sign a "Consent
to Operation."13
Due to the inclement weather then, Dr. Espinola, who was
fetched from his residence by an ambulance, arrived at the CMC
about an hour later or at 9:00 a.m. He examined the patient and
ordered some resuscitative measures to be administered.
Despite Dr. Espinola's efforts, Corazon died at 9:15 a.m. The
cause of death was "hemorrhage, post partum."14
On 14 May 1980, petitioners filed a complaint for damages15
with the Regional Trial Court16 of Manila against CMC, Dr.
Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr.
Espinola, and a certain Nurse J. Dumlao for the death of
Corazon. Petitioners mainly contended that defendant
physicians and CMC personnel were negligent in the treatment
and management of Corazon's condition. Petitioners charged
CMC with negligence in the selection and supervision of
defendant physicians and hospital staff.
For failing to file their answer to the complaint despite service of
summons, the trial court declared Dr. Estrada, Dr. Enriquez, and
Nurse Dumlao in default.17 CMC, Dr. Villaflor, Dr. Uy, Dr.
Espinola, and Dr. Lacson filed their respective answers denying
and opposing the allegations in the complaint. Subsequently,
trial ensued.
The victim was under his pre-natal care, apparently, his fault
began from his incorrect and inadequate management and lack
of treatment of the pre-eclamptic condition of his patient. It is not
disputed that he misapplied the forceps in causing the delivery
because it resulted in a large cervical tear which had caused the
profuse bleeding which he also failed to control with the
application of inadequate injection of magnesium sulfate by his
assistant Dra. Ely Villaflor. Dr. Estrada even failed to notice the
erroneous administration by nurse Dumlao of hemacel by way of
side drip, instead of direct intravenous injection, and his failure to
consult a senior obstetrician at an early stage of the problem.
On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel
Enriquez, Dr. Lacson, Dr. Espinola, nurse J. Dumlao and CMC,
the Court finds no legal justification to find them civilly liable.
On the part of Dra. Ely Villaflor, she was only taking orders from
Dr. Estrada, the principal physician of Corazon Nogales. She
can only make suggestions in the manner the patient maybe
treated but she cannot impose her will as to do so would be to
substitute her good judgment to that of Dr. Estrada. If she failed
to correctly diagnose the true cause of the bleeding which in this
case appears to be a cervical laceration, it cannot be safely
concluded by the Court that Dra. Villaflor had the correct
diagnosis and she failed to inform Dr. Estrada. No evidence was
introduced to show that indeed Dra. Villaflor had discovered that
there was laceration at the cervical area of the patient's internal
organ.
On the part of nurse Dumlao, there is no showing that when she
administered the hemacel as a side drip, she did it on her own. If
the correct procedure was directly thru the veins, it could only be
because this was what was probably the orders of Dr. Estrada.
While the evidence of the plaintiffs shows that Dr. Noe Espinola,
who was the Chief of the Department of Obstetrics and
Gynecology who attended to the patient Mrs. Nogales, it was
only at 9:00 a.m. That he was able to reach the hospital because
of typhoon Didang (Exhibit 2). While he was able to give
prescription in the manner Corazon Nogales may be treated, the
prescription was based on the information given to him by phone
and he acted on the basis of facts as presented to him, believing
in good faith that such is the correct remedy. He was not with Dr.
Estrada when the patient was brought to the hospital at 2:30
o'clock a.m. So, whatever errors that Dr. Estrada committed on
the patient before 9:00 o'clock a.m. are certainly the errors of Dr.
Estrada and cannot be the mistake of Dr. Noe Espinola. His
failure to come to the hospital on time was due to fortuitous
event.
On the part of Dr. Joel Enriquez, while he was present in the
delivery room, it is not incumbent upon him to call the attention
of Dr. Estrada, Dra. Villaflor and also of Nurse Dumlao on the
alleged errors committed by them. Besides, as anesthesiologist,
he has no authority to control the actuations of Dr. Estrada and
Dra. Villaflor. For the Court to assume that there were errors
being committed in the presence of Dr. Enriquez would be to
dwell on conjectures and speculations.
On the civil liability of Dr. Perpetua Lacson, [s]he is a
hematologist and in-charge of the blood bank of the CMC. The
Court cannot accept the theory of the plaintiffs that there was
delay in delivering the blood needed by the patient. It was
testified, that in order that this blood will be made available, a
laboratory test has to be conducted to determine the type of
blood, cross matching and other matters consistent with medical
science so, the lapse of 30 minutes maybe considered a
reasonable time to do all of these things, and not a delay as the
plaintiffs would want the Court to believe.
Admittedly, Dra. Rosa Uy is a resident physician of the Capitol
Medical Center. She was sued because of her alleged failure to
notice the incompetence and negligence of Dr. Estrada.
However, there is no evidence to support such theory. No
evidence was adduced to show that Dra. Rosa Uy as a resident
physician of Capitol Medical Center, had knowledge of the
mismanagement of the patient Corazon Nogales, and that
notwithstanding such knowledge, she tolerated the same to
happen.
In the pre-trial order, plaintiffs and CMC agreed that defendant
CMC did not have any hand or participation in the selection or
hiring of Dr. Estrada or his assistant Dra. Ely Villaflor as
attending physician[s] of the deceased. In other words, the two
(2) doctors were not employees of the hospital and therefore the
hospital did not have control over their professional conduct.
When Mrs. Nogales was brought to the hospital, it was an
emergency case and defendant CMC had no choice but to admit
her. Such being the case, there is therefore no legal ground to
apply the provisions of Article 2176 and 2180 of the New Civil
Code referring to the vicarious liability of an employer for the
negligence of its employees. If ever in this case there is fault or
negligence in the treatment of the deceased on the part of the
attending physicians who were employed by the family of the
deceased, such civil liability should be borne by the attending
physicians under the principle of "respondeat superior".
WHEREFORE, premises considered, judgment is hereby
rendered finding defendant Dr. Estrada of Number 13 Pitimini St.
San Francisco del Monte, Quezon City civilly liable to pay
plaintiffs: 1) By way of actual damages in the amount of
P105,000.00; 2) By way of moral damages in the amount of
P700,000.00; 3) Attorney's fees in the amount of P100,000.00
and to pay the costs of suit.
For failure of the plaintiffs to adduce evidence to support its [sic]
allegations against the other defendants, the complaint is hereby
ordered dismissed. While the Court looks with disfavor the filing
of the present complaint against the other defendants by the
herein plaintiffs, as in a way it has caused them personal
inconvenience and slight damage on their name and reputation,
the Court cannot accepts [sic] however, the theory of the
remaining defendants that plaintiffs were motivated in bad faith
in the filing of this complaint. For this reason defendants'
counterclaims are hereby ordered dismissed.
SO ORDERED.18
Petitioners appealed the trial court's decision. Petitioners
claimed that aside from Dr. Estrada, the remaining respondents
should be held equally liable for negligence. Petitioners pointed
out the extent of each respondent's alleged liability.
On 6 February 1998, the Court of Appeals affirmed the decision
of the trial court.19 Petitioners filed a motion for reconsideration
which the Court of Appeals denied in its Resolution of 21 March
2000.20
Hence, this petition.
Meanwhile, petitioners filed a Manifestation dated 12 April
200221 stating that respondents Dr. Estrada, Dr. Enriquez, Dr.
Villaflor, and Nurse Dumlao "need no longer be notified of the
petition because they are absolutely not involved in the issue
raised before the [Court], regarding the liability of [CMC]."22
Petitioners stressed that the subject matter of this petition is the
liability of CMC for the negligence of Dr. Estrada.23
The Court issued a Resolution dated 9 September 200224
dispensing with the requirement to submit the correct and
present addresses of respondents Dr. Estrada, Dr. Enriquez, Dr.
Villaflor, and Nurse Dumlao. The Court stated that with the filing
of petitioners' Manifestation, it should be understood that they
are claiming only against respondents CMC, Dr. Espinola, Dr.
Lacson, and Dr. Uy who have filed their respective comments.
Petitioners are foregoing further claims against respondents Dr.
Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao.
The Court noted that Dr. Estrada did not appeal the decision of
the Court of Appeals affirming the decision of the Regional Trial
Court. Accordingly, the decision of the Court of Appeals,
affirming the trial court's judgment, is already final as against Dr.
Oscar Estrada.
Petitioners filed a motion for reconsideration25 of the Court's 9
September 2002 Resolution claiming that Dr. Enriquez, Dr.
Villaflor and Nurse Dumlao were notified of the petition at their
counsels' last known addresses. Petitioners reiterated their
imputation of negligence on these respondents. The Court
denied petitioners' Motion for Reconsideration in its 18 February
2004 Resolution.26
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of Appeals upheld
the trial court's ruling. The Court of Appeals rejected petitioners'
view that the doctrine in Darling v. Charleston Community
Memorial Hospital27 applies to this case. According to the Court
of Appeals, the present case differs from the Darling case since
Dr. Estrada is an independent contractor-physician whereas the
Darling case involved a physician and a nurse who were
employees of the hospital.
Citing other American cases, the Court of Appeals further held
that the mere fact that a hospital permitted a physician to
practice medicine and use its facilities is not sufficient to render
the hospital liable for the physician's negligence.28 A hospital is
not responsible for the negligence of a physician who is an
independent contractor.29
The Court of Appeals found the cases of Davidson v. Conole30
and Campbell v. Emma Laing Stevens Hospital31 applicable to
this case. Quoting Campbell, the Court of Appeals stated that
where there is no proof that defendant physician was an
employee of defendant hospital or that defendant hospital had
reason to know that any acts of malpractice would take place,
defendant hospital could not be held liable for its failure to
intervene in the relationship of physician-patient between
defendant physician and plaintiff.
On the liability of the other respondents, the Court of Appeals
applied the "borrowed servant" doctrine considering that Dr.
Estrada was an independent contractor who was merely
exercising hospital privileges. This doctrine provides that once
the surgeon enters the operating room and takes charge of the
proceedings, the acts or omissions of operating room personnel,
and any negligence associated with such acts or omissions, are
imputable to the surgeon.32 While the assisting physicians and
nurses may be employed by the hospital, or engaged by the
patient, they normally become the temporary servants or agents
of the surgeon in charge while the operation is in progress, and
liability may be imposed upon the surgeon for their negligent
acts under the doctrine of respondeat superior.33
The Court of Appeals concluded that since Rogelio engaged Dr.
Estrada as the attending physician of his wife, any liability for
malpractice must be Dr. Estrada's sole responsibility.
While it found the amount of damages fair and reasonable, the
Court of Appeals held that no interest could be imposed on
unliquidated claims or damages.
The Issue
Basically, the issue in this case is whether CMC is vicariously
liable for the negligence of Dr. Estrada. The resolution of this
issue rests, on the other hand, on the ascertainment of the
relationship between Dr. Estrada and CMC. The Court also
believes that a determination of the extent of liability of the other
respondents is inevitable to finally and completely dispose of the
present controversy.
The Ruling of the Court
The petition is partly meritorious.
On the Liability of CMC
Dr. Estrada's negligence in handling the treatment and
management of Corazon's condition which ultimately resulted in
Corazon's death is no longer in issue. Dr. Estrada did not appeal
the decision of the Court of Appeals which affirmed the ruling of
the trial court finding Dr. Estrada solely liable for damages.
Accordingly, the finding of the trial court on Dr. Estrada's
negligence is already final.
Petitioners maintain that CMC is vicariously liable for Dr.
Estrada's negligence based on Article 2180 in relation to Article
2176 of the Civil Code. These provisions pertinently state:
Art. 2180. The obligation imposed by article 2176 is demandable
not only for one's own acts or omissions, but also for those of
persons for whom one is responsible.
xxxx
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in
any business or industry.
xxxx
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
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.
Similarly, in the United States, a hospital which is the employer,
master, or principal of a physician employee, servant, or agent,
may be held liable for the physician's negligence under the
doctrine of respondeat superior.34
In the present case, petitioners maintain that CMC, in allowing
Dr. Estrada to practice and admit patients at CMC, should be
liable for Dr. Estrada's malpractice. Rogelio claims that he knew
Dr. Estrada as an accredited physician of CMC, though he
discovered later that Dr. Estrada was not a salaried employee of
the CMC.35 Rogelio further claims that he was dealing with
CMC, whose primary concern was the treatment and
management of his wife's condition. Dr. Estrada just happened
to be the specific person he talked to representing CMC.36
Moreover, the fact that CMC made Rogelio sign a Consent on
Admission and Admission Agreement37 and a Consent to
Operation printed on the letterhead of CMC indicates that CMC
considered Dr. Estrada as a member of its medical staff.
On the other hand, CMC disclaims liability by asserting that Dr.
Estrada was a mere visiting physician and that it admitted
Corazon because her physical condition then was classified an
emergency obstetrics case.38
The basis for holding an employer solidarily responsible for the
negligence of its employee is found in Article 2180 of the Civil
Code which considers a person accountable not only for his own
acts but also for those of others based on the former's
responsibility under a relationship of patria potestas. x x x40
(Emphasis supplied)
While the Court in Ramos did not expound on the control test,
such test essentially determines whether an employment
relationship exists between a physician and a hospital based on
the exercise of control over the physician as to details.
Specifically, the employer (or the hospital) must have the right to
control both the means and the details of the process by which
the employee (or the physician) is to accomplish his task.41

CMC alleges that Dr. Estrada is an independent contractor "for After a thorough examination of the voluminous records of this
whose actuations CMC would be a total stranger." CMC case, the Court finds no single evidence pointing to CMC's
maintains that it had no control or supervision over Dr. Estrada exercise of control over Dr. Estrada's treatment and
in the exercise of his medical profession. management of Corazon's condition. It is undisputed that
throughout Corazon's pregnancy, she was under the exclusive
The Court had the occasion to determine the relationship prenatal care of Dr. Estrada. At the time of Corazon's admission
between a hospital and a consultant or visiting physician and the at CMC and during her delivery, it was Dr. Estrada, assisted by
liability of such hospital for that physician's negligence in Ramos Dr. Villaflor, who attended to Corazon. There was no showing
v. Court of Appeals,39 to wit: that CMC had a part in diagnosing Corazon's condition. While
Dr. Estrada enjoyed staff privileges at CMC, such fact alone did
In the first place, hospitals exercise significant control in the not make him an employee of CMC.42 CMC merely allowed Dr.
hiring and firing of consultants and in the conduct of their work Estrada to use its facilities43 when Corazon was about to give
within the hospital premises. Doctors who apply for "consultant" birth, which CMC considered an emergency. Considering these
slots, visiting or attending, are required to submit proof of circumstances, Dr. Estrada is not an employee of CMC, but an
completion of residency, their educational qualifications; independent contractor.
generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and The question now is whether CMC is automatically exempt from
references. These requirements are carefully scrutinized by liability considering that Dr. Estrada is an independent
members of the hospital administration or by a review committee contractor-physician.
set up by the hospital who either accept or reject the application.
This is particularly true with respondent hospital. In general, a hospital is not liable for the negligence of an
independent contractor-physician. There is, however, an
After a physician is accepted, either as a visiting or attending exception to this principle. The hospital may be liable if the
consultant, he is normally required to attend clinico-pathological physician is the "ostensible" agent of the hospital.44 This
conferences, conduct bedside rounds for clerks, interns and exception is also known as the "doctrine of apparent
residents, moderate grand rounds and patient audits and authority."45 In Gilbert v. Sycamore Municipal Hospital,46 the
perform other tasks and responsibilities, for the privilege of being Illinois Supreme Court explained the doctrine of apparent
able to maintain a clinic in the hospital, and/or for the privilege of authority in this wise:
admitting patients into the hospital. In addition to these, the
physician's performance as a specialist is generally evaluated by [U]nder the doctrine of apparent authority a hospital can be held
a peer review committee on the basis of mortality and morbidity vicariously liable for the negligent acts of a physician providing
statistics, and feedback from patients, nurses, interns and care at the hospital, regardless of whether the physician is an
residents. A consultant remiss in his duties, or a consultant who independent contractor, unless the patient knows, or should
regularly falls short of the minimum standards acceptable to the have known, that the physician is an independent contractor.
hospital or its peer review committee, is normally politely The elements of the action have been set out as follows:
terminated.
"For a hospital to be liable under the doctrine of apparent
In other words, private hospitals, hire, fire and exercise real authority, a plaintiff must show that: (1) the hospital, or its agent,
control over their attending and visiting "consultant" staff. While acted in a manner that would lead a reasonable person to
"consultants" are not, technically employees, a point which conclude that the individual who was alleged to be negligent was
respondent hospital asserts in denying all responsibility for the an employee or agent of the hospital; (2) where the acts of the
patient's condition, the control exercised, the hiring, and the right agent create the appearance of authority, the plaintiff must also
to terminate consultants all fulfill the important hallmarks of an prove that the hospital had knowledge of and acquiesced in
employer-employee relationship, with the exception of the them; and (3) the plaintiff acted in reliance upon the conduct of
payment of wages. In assessing whether such a relationship in the hospital or its agent, consistent with ordinary care and
fact exists, the control test is determining. Accordingly, on the prudence."
basis of the foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employer- The element of "holding out" on the part of the hospital does not
employee relationship in effect exists between hospitals and require an express representation by the hospital that the person
their attending and visiting physicians. This being the case, the alleged to be negligent is an employee. Rather, the element is
question now arises as to whether or not respondent hospital is satisfied if the hospital holds itself out as a provider of
solidarily liable with respondent doctors for petitioner's condition.
emergency room care without informing the patient that the care discharge and hold free the Physician, the Capitol Medical
is provided by independent contractors. Center and/or its staff, from any and all claims of whatever kind
of nature, arising from directly or indirectly, or by reason of said
The element of justifiable reliance on the part of the plaintiff is cure, treatment, or retreatment, or emergency measures or
satisfied if the plaintiff relies upon the hospital to provide intervention of said physician, the Capitol Medical Center and/or
complete emergency room care, rather than upon a specific its staff.
physician.
x x x x51 (Emphasis supplied)
The doctrine of apparent authority essentially involves two
factors to determine the liability of an independent-contractor While the Consent to Operation pertinently reads, thus:
physician.
I, ROGELIO NOGALES, x x x, of my own volition and free will,
The first factor focuses on the hospital's manifestations and is do consent and submit said CORAZON NOGALES to
sometimes described as an inquiry whether the hospital acted in Hysterectomy, by the Surgical Staff and Anesthesiologists of
a manner which would lead a reasonable person to conclude Capitol Medical Center and/or whatever succeeding operations,
that the individual who was alleged to be negligent was an treatment, or emergency measures as may be necessary and
employee or agent of the hospital.47 In this regard, the hospital most expedient; and, that I will not hold liable or responsible and
need not make express representations to the patient that the hereby waive and forever discharge and hold free the Surgeon,
treating physician is an employee of the hospital; rather a his assistants, anesthesiologists, the Capitol Medical Center
representation may be general and implied.48 and/or its staff, from any and all claims of whatever kind of
nature, arising from directly or indirectly, or by reason of said
The doctrine of apparent authority is a species of the doctrine of operation or operations, treatment, or emergency measures, or
estoppel. Article 1431 of the Civil Code provides that "[t]hrough intervention of the Surgeon, his assistants, anesthesiologists,
estoppel, an admission or representation is rendered conclusive the Capitol Medical Center and/or its staff.52 (Emphasis
upon the person making it, and cannot be denied or disproved supplied)
as against the person relying thereon." Estoppel rests on this
rule: "Whenever a party has, by his own declaration, act, or Without any indication in these consent forms that Dr. Estrada
omission, intentionally and deliberately led another to believe a was an independent contractor-physician, the Spouses Nogales
particular thing true, and to act upon such belief, he cannot, in could not have known that Dr. Estrada was an independent
any litigation arising out of such declaration, act or omission, be contractor. Significantly, no one from CMC informed the
permitted to falsify it."49 Spouses Nogales that Dr. Estrada was an independent
contractor. On the contrary, Dr. Atencio, who was then a
In the instant case, CMC impliedly held out Dr. Estrada as a member of CMC Board of Directors, testified that Dr. Estrada
member of its medical staff. Through CMC's acts, CMC clothed was part of CMC's surgical staff.53
Dr. Estrada with apparent authority thereby leading the Spouses
Nogales to believe that Dr. Estrada was an employee or agent of Third, Dr. Estrada's referral of Corazon's profuse vaginal
CMC. CMC cannot now repudiate such authority. bleeding to Dr. Espinola, who was then the Head of the
Obstetrics and Gynecology Department of CMC, gave the
First, CMC granted staff privileges to Dr. Estrada. CMC impression that Dr. Estrada as a member of CMC's medical staff
extended its medical staff and facilities to Dr. Estrada. Upon Dr. was collaborating with other CMC-employed specialists in
Estrada's request for Corazon's admission, CMC, through its treating Corazon.
personnel, readily accommodated Corazon and updated Dr.
Estrada of her condition. The second factor focuses on the patient's reliance. It is
sometimes characterized as an inquiry on whether the plaintiff
Second, CMC made Rogelio sign consent forms printed on CMC acted in reliance upon the conduct of the hospital or its agent,
letterhead. Prior to Corazon's admission and supposed consistent with ordinary care and prudence.54
hysterectomy, CMC asked Rogelio to sign release forms, the
contents of which reinforced Rogelio's belief that Dr. Estrada The records show that the Spouses Nogales relied upon a
was a member of CMC's medical staff.50 The Consent on perceived employment relationship with CMC in accepting Dr.
Admission and Agreement explicitly provides: Estrada's services. Rogelio testified that he and his wife
specifically chose Dr. Estrada to handle Corazon's delivery not
KNOW ALL MEN BY THESE PRESENTS: only because of their friend's recommendation, but more
importantly because of Dr. Estrada's "connection with a
I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del reputable hospital, the [CMC]."55 In other words, Dr. Estrada's
Pilar St., Malate Mla., being the relationship with CMC played a significant role in the Spouses
father/mother/brother/sister/spouse/relative/ guardian/or person Nogales' decision in accepting Dr. Estrada's services as the
in custody of Ma. Corazon, and representing his/her family, of obstetrician-gynecologist for Corazon's delivery. Moreover, as
my own volition and free will, do consent and submit said Ma. earlier stated, there is no showing that before and during
Corazon to Dr. Oscar Estrada (hereinafter referred to as Corazon's confinement at CMC, the Spouses Nogales knew or
Physician) for cure, treatment, retreatment, or emergency should have known that Dr. Estrada was not an employee of
measures, that the Physician, personally or by and through the CMC.
Capitol Medical Center and/or its staff, may use, adapt, or
employ such means, forms or methods of cure, treatment, Further, the Spouses Nogales looked to CMC to provide the best
retreatment, or emergency measures as he may see best and medical care and support services for Corazon's delivery. The
most expedient; that Ma. Corazon and I will comply with any and Court notes that prior to Corazon's fourth pregnancy, she used
all rules, regulations, directions, and instructions of the to give birth inside a clinic. Considering Corazon's age then, the
Physician, the Capitol Medical Center and/or its staff; and, that I Spouses Nogales decided to have their fourth child delivered at
will not hold liable or responsible and hereby waive and forever CMC, which Rogelio regarded one of the best hospitals at the
time.56 This is precisely because the Spouses Nogales feared
that Corazon might experience complications during her delivery
which would be better addressed and treated in a modern and
big hospital such as CMC. Moreover, Rogelio's consent in
Corazon's hysterectomy to be performed by a different
physician, namely Dr. Espinola, is a clear indication of Rogelio's
confidence in CMC's surgical staff.
CMC's defense that all it did was "to extend to [Corazon] its
facilities" is untenable. The Court cannot close its eyes to the
reality that hospitals, such as CMC, are in the business of
treatment. In this regard, the Court agrees with the observation
made by the Court of Appeals of North Carolina in Diggs v.
Novant Health, Inc.,57 to wit:
"The conception that the hospital does not undertake to treat the
patient, does not undertake to act through its doctors and
nurses, but undertakes instead simply to procure them to act
upon their own responsibility, no longer reflects the fact. Present
day hospitals, as their manner of operation plainly demonstrates,
do far more than furnish facilities for treatment. They regularly
employ on a salary basis a large staff of physicians, nurses and
internes [sic], as well as administrative and manual workers, and
they charge patients for medical care and treatment, collecting
for such services, if necessary, by legal action. Certainly, the
person who avails himself of 'hospital facilities' expects that the
hospital will attempt to cure him, not that its nurses or other
employees will act on their own responsibility." x x x (Emphasis
supplied)
Likewise unconvincing is CMC's argument that petitioners are
estopped from claiming damages based on the Consent on
Admission and Consent to Operation. Both release forms consist
of two parts. The first part gave CMC permission to administer to
Corazon any form of recognized medical treatment which the
CMC medical staff deemed advisable. The second part of the
documents, which may properly be described as the releasing
part, releases CMC and its employees "from any and all claims"
arising from or by reason of the treatment and operation.
The documents do not expressly release CMC from liability for
injury to Corazon due to negligence during her treatment or
operation. Neither do the consent forms expressly exempt CMC
from liability for Corazon's death due to negligence during such
treatment or operation. Such release forms, being in the nature
of contracts of adhesion, are construed strictly against hospitals.
Besides, a blanket release in favor of hospitals "from any and all
claims," which includes claims due to bad faith or gross
negligence, would be contrary to public policy and thus void.
Even simple negligence is not subject to blanket release in favor
of establishments like hospitals but may only mitigate liability
depending on the circumstances.58 When a person needing
urgent medical attention rushes to a hospital, he cannot bargain
on equal footing with the hospital on the terms of admission and
operation. Such a person is literally at the mercy of the hospital.
There can be no clearer example of a contract of adhesion than
one arising from such a dire situation. Thus, the release forms of
CMC cannot relieve CMC from liability for the negligent medical
treatment of Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9 September 200259
Resolution that the filing of petitioners' Manifestation confined
petitioners' claim only against CMC, Dr. Espinola, Dr. Lacson,
and Dr. Uy, who have filed their comments, the Court deems it
proper to resolve the individual liability of the remaining
respondents to put an end finally to this more than two-decade
old controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to diagnose the
cause of Corazon's bleeding and to suggest the correct remedy
to Dr. Estrada.60 Petitioners assert that it was Dr. Villaflor's duty
to correct the error of Nurse Dumlao in the administration of
hemacel.
The Court is not persuaded. Dr. Villaflor admitted administering
a lower dosage of magnesium sulfate. However, this was after
informing Dr. Estrada that Corazon was no longer in convulsion
and that her blood pressure went down to a dangerous level.61
At that moment, Dr. Estrada instructed Dr. Villaflor to reduce the
dosage of magnesium sulfate from 10 to 2.5 grams. Since
petitioners did not dispute Dr. Villaflor's allegation, Dr. Villaflor's
defense remains uncontroverted. Dr. Villaflor's act of
administering a lower dosage of magnesium sulfate was not out
of her own volition or was in contravention of Dr. Estrada's order.
b) Dr. Rosa Uy
Dr. Rosa Uy's alleged negligence consisted of her failure (1) to
call the attention of Dr. Estrada on the incorrect dosage of
magnesium sulfate administered by Dr. Villaflor; (2) to take
corrective measures; and (3) to correct Nurse Dumlao's wrong
method of hemacel administration.
The Court believes Dr. Uy's claim that as a second year resident
physician then at CMC, she was merely authorized to take the
clinical history and physical examination of Corazon.62
However, that routine internal examination did not ipso facto
make Dr. Uy liable for the errors committed by Dr. Estrada.
Further, petitioners' imputation of negligence rests on their
baseless assumption that Dr. Uy was present at the delivery
room. Nothing shows that Dr. Uy participated in delivering
Corazon's baby. Further, it is unexpected from Dr. Uy, a mere
resident physician at that time, to call the attention of a more
experienced specialist, if ever she was present at the delivery
room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not calling the
attention of Dr. Estrada, Dr. Villaflor, and Nurse Dumlao about
their errors.63 Petitioners insist that Dr. Enriquez should have
taken, or at least suggested, corrective measures to rectify such
errors.
The Court is not convinced. Dr. Enriquez is an anesthesiologist
whose field of expertise is definitely not obstetrics and
gynecology. As such, Dr. Enriquez was not expected to correct
Dr. Estrada's errors. Besides, there was no evidence of Dr.
Enriquez's knowledge of any error committed by Dr. Estrada and
his failure to act upon such observation.
d) Dr. Perpetua Lacson
Petitioners fault Dr. Perpetua Lacson for her purported delay in
the delivery of blood Corazon needed.64 Petitioners claim that
Dr. Lacson was remiss in her duty of supervising the blood bank
staff.
As found by the trial court, there was no unreasonable delay in
the delivery of blood from the time of the request until the
transfusion to Corazon. Dr. Lacson competently explained the
procedure before blood could be given to the patient.65 Taking
into account the bleeding time, clotting time and cross-matching,
Dr. Lacson stated that it would take approximately 45-60
minutes before blood could be ready for transfusion.66 Further,
no evidence exists that Dr. Lacson neglected her duties as head
of the blood bank.
e) Dr. Noe Espinola
Petitioners argue that Dr. Espinola should not have ordered
immediate hysterectomy without determining the underlying
cause of Corazon's bleeding. Dr. Espinola should have first
considered the possibility of cervical injury, and advised a
thorough examination of the cervix, instead of believing outright
Dr. Estrada's diagnosis that the cause of bleeding was uterine
atony.
Dr. Espinola's order to do hysterectomy which was based on the
information he received by phone is not negligence. The Court
agrees with the trial court's observation that Dr. Espinola, upon
hearing such information about Corazon's condition, believed in
good faith that hysterectomy was the correct remedy. At any
rate, the hysterectomy did not push through because upon Dr.
Espinola's arrival, it was already too late. At the time, Corazon
was practically dead.
f) Nurse J. Dumlao
In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals,
Fourth Circuit, held that to recover, a patient complaining of
injuries allegedly resulting when the nurse negligently injected
medicine to him intravenously instead of intramuscularly had to
show that (1) an intravenous injection constituted a lack of
reasonable and ordinary care; (2) the nurse injected medicine
intravenously; and (3) such injection was the proximate cause of
his injury.
In the present case, there is no evidence of Nurse Dumlao's
alleged failure to follow Dr. Estrada's specific instructions. Even
assuming Nurse Dumlao defied Dr. Estrada's order, there is no
showing that side-drip administration of hemacel proximately
caused Corazon's death. No evidence linking Corazon's death
and the alleged wrongful hemacel administration was
introduced. Therefore, there is no basis to hold Nurse Dumlao
liable for negligence.
On the Award of Interest on Damages
The award of interest on damages is proper and allowed under
Article 2211 of the Civil Code, which states that in crimes and
quasi-delicts, interest as a part of the damages may, in a proper
case, be adjudicated in the discretion of the court.68
WHEREFORE, the Court PARTLY GRANTS the petition. The
Court finds respondent Capitol Medical Center vicariously liable
for the negligence of Dr. Oscar Estrada. The amounts of
P105,000 as actual damages and P700,000 as moral damages
should each earn legal interest at the rate of six percent (6%)
per annum computed from the date of the judgment of the trial
court. The Court affirms the rest of the Decision dated 6
February 1998 and Resolution dated 21 March 2000 of the Court
of Appeals in CA-G.R. CV No. 45641.
SO ORDERED..
G.R. No. 126297 January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467 January 31, 2007
NATIVIDAD (Substituted by her children MARCELINO AGANA
III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS
AGANA, and RAYMUND AGANA) and ENRIQUE AGANA,
Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590 January 31, 2007
MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankinds most important
and delicate endeavors, must assume the grave responsibility of
pursuing it with appropriate care. The care and service
dispensed through this high trust, however technical, complex
and esoteric its character may be, must meet standards of
responsibility commensurate with the undertaking to preserve
and protect the health, and indeed, the very lives of those placed
in the hospitals keeping.1
Assailed in these three consolidated petitions for review on
certiorari is the Court of Appeals Decision2 dated September 6,
1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198
affirming with modification the Decision3 dated March 17, 1993
of the Regional Trial Court (RTC), Branch 96, Quezon City in
Civil Case No. Q-43322 and nullifying its Order dated September
21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical
City General Hospital (Medical City Hospital) because of
difficulty of bowel movement and bloody anal discharge. After a
series of medical examinations, Dr. Miguel Ampil, petitioner in
G.R. No. 127590, diagnosed her to be suffering from "cancer of
the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of
the Medical City Hospital, performed an anterior resection
surgery on Natividad. He found that the malignancy in her
sigmoid area had spread on her left ovary, necessitating the
removal of certain portions of it. Thus, Dr. Ampil obtained the
consent of Natividads husband, Enrique Agana, to permit Dr.
Juan Fuentes, respondent in G.R. No. 126467, to perform
hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil
took over, completed the operation and closed the incision.
However, the operation appeared to be flawed. In the
corresponding Record of Operation dated April 11, 1984, the
attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail
continue for closure."
WHEREFORE, judgment is hereby rendered for the plaintiffs
ordering the defendants PROFESSIONAL SERVICES, INC.,
DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the
plaintiffs, jointly and severally, except in respect of the award for
exemplary damages and the interest thereon which are the
liabilities of defendants Dr. Ampil and Dr. Fuentes only, as
follows:

On April 24, 1984, Natividad was released from the hospital. Her
hospital and medical bills, including the doctors fees, amounted
to P60,000.00.
After a couple of days, Natividad complained of excruciating pain
in her anal region. She consulted both Dr. Ampil and Dr. Fuentes
about it. They told her that the pain was the natural
consequence of the surgery. Dr. Ampil then recommended that
she consult an oncologist to examine the cancerous nodes
which were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went
to the United States to seek further treatment. After four months
of consultations and laboratory examinations, Natividad was told 2. As moral damages, the sum of P2,000,000.00;
she was free of cancer. Hence, she was advised to return to the
Philippines.
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of
US$19,900.00 at the rate of P21.60-US$1.00, as reimbursement
of actual expenses incurred in the United States of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their
physician daughter;
c. The total sum of P45,802.50, representing the cost of
hospitalization at Polymedic Hospital, medical fees, and cost of
the saline solution;
3. As exemplary damages, the sum of P300,000.00;

On August 31, 1984, Natividad flew back to the Philippines, still
suffering from pains. Two weeks thereafter, her daughter found
a piece of gauze protruding from her vagina. Upon being
informed about it, Dr. Ampil proceeded to her house where he
managed to extract by hand a piece of gauze measuring 1.5
inches in width. He then assured her that the pains would soon
vanish.
4. As attorneys fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3
hereinabove, from date of filing of the complaint until full
payment; and
6. Costs of suit.

Dr. Ampils assurance did not come true. Instead, the pains
intensified, prompting Natividad to seek treatment at the
Polymedic General Hospital. While confined there, Dr. Ramon
Gutierrez detected the presence of another foreign object in her
vagina -- a foul-smelling gauze measuring 1.5 inches in width
which badly infected her vaginal vault. A recto-vaginal fistula had
formed in her reproductive organs which forced stool to excrete
through the vagina. Another surgical operation was needed to
remedy the damage. Thus, in October 1984, Natividad
underwent another surgery.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal
to the Court of Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a
motion for a partial execution of its Decision, which was granted
in an Order dated May 11, 1993. Thereafter, the sheriff levied
upon certain properties of Dr. Ampil and sold them for
P451,275.00 and delivered the amount to the Aganas.

On November 12, 1984, Natividad and her husband filed with
the RTC, Branch 96, Quezon City a complaint for damages
against the Professional Services, Inc. (PSI), owner of the
Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as
Civil Case No. Q-43322. They alleged that the latter are liable for
negligence for leaving two pieces of gauze inside Natividads
body and malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional
Regulation Commission (PRC) an administrative complaint for
gross negligence and malpractice against Dr. Ampil and Dr.
Fuentes, docketed as Administrative Case No. 1690. The PRC
Board of Medicine heard the case only with respect to Dr.
Fuentes because it failed to acquire jurisdiction over Dr. Ampil
who was then in the United States.
Following their receipt of the money, the Aganas entered into an
agreement with PSI and Dr. Fuentes to indefinitely suspend any
further execution of the RTC Decision. However, not long
thereafter, the Aganas again filed a motion for an alias writ of
execution against the properties of PSI and Dr. Fuentes. On
September 21, 1993, the RTC granted the motion and issued
the corresponding writ, prompting Dr. Fuentes to file with the
Court of Appeals a petition for certiorari and prohibition, with
prayer for preliminary injunction, docketed as CA-G.R. SP No.
32198. During its pendency, the Court of Appeals issued a
Resolution5 dated October 29, 1993 granting Dr. Fuentes
prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated
with CA-G.R. CV No. 42062.

On February 16, 1986, pending the outcome of the above cases, Meanwhile, on January 23, 1995, the PRC Board of Medicine
Natividad died and was duly substituted by her above-named rendered its Decision6 in Administrative Case No. 1690
children (the Aganas). dismissing the case against Dr. Fuentes. The Board held that
the prosecution failed to show that Dr. Fuentes was the one who
On March 17, 1993, the RTC rendered its Decision in favor of left the two pieces of gauze inside Natividads body; and that he
the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for concealed such fact from Natividad.
negligence and malpractice, the decretal part of which reads:
On September 6, 1996, the Court of Appeals rendered its
Decision jointly disposing of CA-G.R. CV No. 42062 and CA-
G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against
defendant-appellant Dr. Juan Fuentes is hereby DISMISSED,
and with the pronouncement that defendant-appellant Dr. Miguel
Ampil is liable to reimburse defendant-appellant Professional
Services, Inc., whatever amount the latter will pay or had paid to
the plaintiffs-appellees, the decision appealed from is hereby
AFFIRMED and the instant appeal DISMISSED.
Concomitant with the above, the petition for certiorari and
prohibition filed by herein defendant-appellant Dr. Juan Fuentes
in CA-G.R. SP No. 32198 is hereby GRANTED and the
challenged order of the respondent judge dated September 21,
1993, as well as the alias writ of execution issued pursuant
thereto are hereby NULLIFIED and SET ASIDE. The bond
posted by the petitioner in connection with the writ of preliminary
injunction issued by this Court on November 29, 1993 is hereby
cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and
Professional Services, Inc.
Dr. Ampil, in an attempt to absolve himself, gears the Courts
attention to other possible causes of Natividads detriment. He
argues that the Court should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in Natividads body
after performing hysterectomy; second, the attending nurses
erred in counting the gauzes; and third, the American doctors
were the ones who placed the gauzes in Natividads body.
Dr. Ampils arguments are purely conjectural and without basis.
Records show that he did not present any evidence to prove that
the American doctors were the ones who put or left the gauzes
in Natividads body. Neither did he submit evidence to rebut the
correctness of the record of operation, particularly the number of
gauzes used. As to the alleged negligence of Dr. Fuentes, we
are mindful that Dr. Ampil examined his (Dr. Fuentes) work and
found it in order.
The glaring truth is that all the major circumstances, taken
together, as specified by the Court of Appeals, directly point to
Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes as
sponges to control the bleeding of the patient during the surgical
operation.

SO ORDERED. Second, immediately after the operation, the nurses who

assisted in the surgery noted in their report that the sponge
Only Dr. Ampil filed a motion for reconsideration, but it was count (was) lacking 2; that such anomaly was announced to
denied in a Resolution7 dated December 19, 1996. surgeon and that a search was done but to no avail prompting
Dr. Ampil to continue for closure x x x.
Hence, the instant consolidated petitions.
Third, after the operation, two (2) gauzes were extracted from
In G.R. No. 126297, PSI alleged in its petition that the Court of the same spot of the body of Mrs. Agana where the surgery was
Appeals erred in holding that: (1) it is estopped from raising the performed.
defense that Dr. Ampil is not its employee; (2) it is solidarily
liable with Dr. Ampil; and (3) it is not entitled to its counterclaim An operation requiring the placing of sponges in the incision is
against the Aganas. PSI contends that Dr. Ampil is not its not complete until the sponges are properly removed, and it is
employee, but a mere consultant or independent contractor. As settled that the leaving of sponges or other foreign substances in
such, he alone should answer for his negligence. the wound after the incision has been closed is at least prima
facie negligence by the operating surgeon.8 To put it simply,
In G.R. No. 126467, the Aganas maintain that the Court of such act is considered so inconsistent with due care as to raise
Appeals erred in finding that Dr. Fuentes is not guilty of an inference of negligence. There are even legions of authorities
negligence or medical malpractice, invoking the doctrine of res to the effect that such act is negligence per se.9
ipsa loquitur. They contend that the pieces of gauze are prima
facie proofs that the operating surgeons have been negligent. Of course, the Court is not blind to the reality that there are times
when danger to a patients life precludes a surgeon from further
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of searching missing sponges or foreign objects left in the body.
Appeals erred in finding him liable for negligence and But this does not leave him free from any obligation. Even if it
malpractice sans evidence that he left the two pieces of gauze in has been shown that a surgeon was required by the urgent
Natividads vagina. He pointed to other probable causes, such necessities of the case to leave a sponge in his patients
as: (1) it was Dr. Fuentes who used gauzes in performing the abdomen, because of the dangers attendant upon delay, still, it
hysterectomy; (2) the attending nurses failure to properly count is his legal duty to so inform his patient within a reasonable time
the gauzes used during surgery; and (3) the medical intervention thereafter by advising her of what he had been compelled to do.
of the American doctors who examined Natividad in the United This is in order that she might seek relief from the effects of the
States of America. foreign object left in her body as her condition might permit. The
ruling in Smith v. Zeagler10 is explicit, thus:
For our resolution are these three vital issues: first, whether the
Court of Appeals erred in holding Dr. Ampil liable for negligence The removal of all sponges used is part of a surgical operation,
and malpractice; second, whether the Court of Appeals erred in and when a physician or surgeon fails to remove a sponge he
absolving Dr. Fuentes of any liability; and third, whether PSI may has placed in his patients body that should be removed as part
be held solidarily liable for the negligence of Dr. Ampil. of the operation, he thereby leaves his operation uncompleted
and creates a new condition which imposes upon him the legal
I - G.R. No. 127590 duty of calling the new condition to his patients attention, and
endeavoring with the means he has at hand to minimize and
Whether the Court of Appeals Erred in Holding Dr. Ampil avoid untoward results likely to ensue therefrom.

Liable for Negligence and Malpractice. Here, Dr. Ampil did not inform Natividad about the missing two
pieces of gauze. Worse, he even misled her that the pain she
was experiencing was the ordinary consequence of her
operation. Had he been more candid, Natividad could have
taken the immediate and appropriate medical remedy to remove
the gauzes from her body. To our mind, what was initially an act
of negligence by Dr. Ampil has ripened into a deliberate wrongful
act of deceiving his patient.
the "control and management of the thing which caused the
injury."15
We find the element of "control and management of the thing
which caused the injury" to be wanting. Hence, the doctrine of
res ipsa loquitur will not lie.

This is a clear case of medical malpractice or more
appropriately, medical negligence. To successfully pursue this
kind of case, a patient must only prove that a health care
provider either failed to do something which a reasonably
prudent health care provider would have done, or that he did
something that a reasonably prudent provider would not have
done; and that failure or action caused injury to the patient.11
Simply put, the elements are duty, breach, injury and proximate
causation. Dr, Ampil, as the lead surgeon, had the duty to
remove all foreign objects, such as gauzes, from Natividads
body before closure of the incision. When he failed to do so, it
was his duty to inform Natividad about it. Dr. Ampil breached
both duties. Such breach caused injury to Natividad,
necessitating her further examination by American doctors and
another surgery. That Dr. Ampils negligence is the proximate
cause12 of Natividads injury could be traced from his act of
closing the incision despite the information given by the
attending nurses that two pieces of gauze were still missing.
That they were later on extracted from Natividads vagina
established the causal link between Dr. Ampils negligence and
the injury. And what further aggravated such injury was his
deliberate concealment of the missing gauzes from the
knowledge of Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
It was duly established that Dr. Ampil was the lead surgeon
during the operation of Natividad. He requested the assistance
of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil)
found that the malignancy in her sigmoid area had spread to her
left ovary. Dr. Fuentes performed the surgery and thereafter
reported and showed his work to Dr. Ampil. The latter examined
it and finding everything to be in order, allowed Dr. Fuentes to
leave the operating room. Dr. Ampil then resumed operating on
Natividad. He was about to finish the procedure when the
attending nurses informed him that two pieces of gauze were
missing. A "diligent search" was conducted, but the misplaced
gauzes were not found. Dr. Ampil then directed that the incision
be closed. During this entire period, Dr. Fuentes was no longer
in the operating room and had, in fact, left the hospital.
Under the "Captain of the Ship" rule, the operating surgeon is
the person in complete charge of the surgery room and all
personnel connected with the operation. Their duty is to obey his
orders.16 As stated before, Dr. Ampil was the lead surgeon. In
other words, he was the "Captain of the Ship." That he
discharged such role is evident from his following conduct: (1)
calling Dr. Fuentes to perform a hysterectomy; (2) examining the
work of Dr. Fuentes and finding it in order; (3) granting Dr.
Fuentes permission to leave; and (4) ordering the closure of the
incision. To our mind, it was this act of ordering the closure of
the incision notwithstanding that two pieces of gauze remained
unaccounted for, that caused injury to Natividads body. Clearly,
the control and management of the thing which caused the injury
was in the hands of Dr. Ampil, not Dr. Fuentes.

The Aganas assailed the dismissal by the trial court of the case
against Dr. Fuentes on the ground that it is contrary to the
doctrine of res ipsa loquitur. According to them, the fact that the
two pieces of gauze were left inside Natividads body is a prima
facie evidence of Dr. Fuentes negligence.
We are not convinced.
In this jurisdiction, res ipsa loquitur is not a rule of substantive
law, hence, does not per se create or constitute an independent
or separate ground of liability, being a mere evidentiary rule.17
In other words, mere invocation and application of the doctrine
does not dispense with the requirement of proof of negligence.
Here, the negligence was proven to have been committed by Dr.
Ampil and not by Dr. Fuentes.

Literally, res ipsa loquitur means "the thing speaks for itself." It is III - G.R. No. 126297
the rule that the fact of the occurrence of an injury, taken with
the surrounding circumstances, may permit an inference or raise Whether PSI Is Liable for the Negligence of Dr. Ampil
a presumption of negligence, or make out a plaintiffs prima facie
case, and present a question of fact for defendant to meet with The third issue necessitates a glimpse at the historical
an explanation.13 Stated differently, where the thing which development of hospitals and the resulting theories concerning
caused the injury, without the fault of the injured, is under the their liability for the negligence of physicians.
exclusive control of the defendant and the injury is such that it
should not have occurred if he, having such control used proper Until the mid-nineteenth century, hospitals were generally
care, it affords reasonable evidence, in the absence of charitable institutions, providing medical services to the lowest
explanation that the injury arose from the defendants want of classes of society, without regard for a patients ability to pay.18
care, and the burden of proof is shifted to him to establish that Those who could afford medical treatment were usually treated
he has observed due care and diligence.14 at home by their doctors.19 However, the days of house calls
and philanthropic health care are over. The modern health care
From the foregoing statements of the rule, the requisites for the industry continues to distance itself from its charitable past and
applicability of the doctrine of res ipsa loquitur are: (1) the has experienced a significant conversion from a not-for-profit
occurrence of an injury; (2) the thing which caused the injury health care to for-profit hospital businesses. Consequently,
was under the control and management of the defendant; (3) the significant changes in health law have accompanied the
occurrence was such that in the ordinary course of things, would business-related changes in the hospital industry. One important
not have happened if those who had control or management legal change is an increase in hospital liability for medical
used proper care; and (4) the absence of explanation by the malpractice. Many courts now allow claims for hospital vicarious
defendant. Of the foregoing requisites, the most instrumental is liability under the theories of respondeat superior, apparent
authority, ostensible authority, or agency by estoppel. 20
 to realize that modern hospitals are increasingly taking active
In this jurisdiction, the statute governing liability for negligent role in supplying and regulating medical care to patients. No
acts is Article 2176 of the Civil Code, which reads: longer were a hospitals functions limited to furnishing room,
food, facilities for treatment and operation, and attendants for its
Art. 2176. Whoever by act or omission causes damage to patients. Thus, in Bing v. Thunig,27 the New York Court of
another, there being fault or negligence, is obliged to pay for the Appeals deviated from the Schloendorff doctrine, noting that
damage done. Such fault or negligence, if there is no pre- modern hospitals actually do far more than provide facilities for
existing contractual relation between the parties, is called a treatment. Rather, they regularly employ, on a salaried basis, a
quasi-delict and is governed by the provisions of this Chapter. large staff of physicians, interns, nurses, administrative and
manual workers. They charge patients for medical care and
A derivative of this provision is Article 2180, the rule governing treatment, even collecting for such services through legal action,
vicarious liability under the doctrine of respondeat superior, thus: if necessary. The court then concluded that there is no reason to
exempt hospitals from the universal rule of respondeat superior.
ART. 2180. The obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions, but also In our shores, the nature of the relationship between the hospital
for those of persons for whom one is responsible. and the physicians is rendered inconsequential in view of our
categorical pronouncement in Ramos v. Court of Appeals28 that
x x x x x x for purposes of apportioning responsibility in medical negligence
The owners and managers of an establishment or enterprise are cases, an employer-employee relationship in effect exists
likewise responsible for damages caused by their employees in between hospitals and their attending and visiting physicians.
the service of the branches in which the latter are employed or This Court held:
on the occasion of their functions.
"We now discuss the responsibility of the hospital in this
Employers shall be liable for the damages caused by their particular incident. The unique practice (among private hospitals)
employees and household helpers acting within the scope of of filling up specialist staff with attending and visiting
their assigned tasks even though the former are not engaged in "consultants," who are allegedly not hospital employees,
any business or industry. presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is more
x x x x x x apparent than real.
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the In the first place, hospitals exercise significant control in the
diligence of a good father of a family to prevent damage. hiring and firing of consultants and in the conduct of their work
within the hospital premises. Doctors who apply for consultant
A prominent civilist commented that professionals engaged by slots, visiting or attending, are required to submit proof of
an employer, such as physicians, dentists, and pharmacists, are completion of residency, their educational qualifications,
not "employees" under this article because the manner in which generally, evidence of accreditation by the appropriate board
they perform their work is not within the control of the latter (diplomate), evidence of fellowship in most cases, and
(employer). In other words, professionals are considered references. These requirements are carefully scrutinized by
personally liable for the fault or negligence they commit in the members of the hospital administration or by a review committee
discharge of their duties, and their employer cannot be held set up by the hospital who either accept or reject the application.
liable for such fault or negligence. In the context of the present x x x.
case, "a hospital cannot be held liable for the fault or negligence
of a physician or surgeon in the treatment or operation of After a physician is accepted, either as a visiting or attending
patients."21 consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and
The foregoing view is grounded on the traditional notion that the residents, moderate grand rounds and patient audits and
professional status and the very nature of the physicians calling perform other tasks and responsibilities, for the privilege of being
preclude him from being classed as an agent or employee of a able to maintain a clinic in the hospital, and/or for the privilege of
hospital, whenever he acts in a professional capacity.22 It has admitting patients into the hospital. In addition to these, the
been said that medical practice strictly involves highly developed physicians performance as a specialist is generally evaluated by
and specialized knowledge,23 such that physicians are generally a peer review committee on the basis of mortality and morbidity
free to exercise their own skill and judgment in rendering statistics, and feedback from patients, nurses, interns and
medical services sans interference.24 Hence, when a doctor residents. A consultant remiss in his duties, or a consultant who
practices medicine in a hospital setting, the hospital and its regularly falls short of the minimum standards acceptable to the
employees are deemed to subserve him in his ministrations to hospital or its peer review committee, is normally politely
the patient and his actions are of his own responsibility.25 terminated.

The case of Schloendorff v. Society of New York Hospital26 was
then considered an authority for this view. The "Schloendorff
doctrine" regards a physician, even if employed by a hospital, as
an independent contractor because of the skill he exercises and
the lack of control exerted over his work. Under this doctrine,
hospitals are exempt from the application of the respondeat
superior principle for fault or negligence committed by physicians
in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened
with the significant developments in medical care. Courts came
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting consultant staff. While
consultants are not, technically employees, x x x, the control
exercised, the hiring, and the right to terminate consultants all
fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In
assessing whether such a relationship in fact exists, the control
test is determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect
exists between hospitals and their attending and visiting being one of them, accepted the services on the reasonable
physicians. " belief that such were being rendered by the hospital or its
employees, agents, or servants. The trial court correctly pointed
But the Ramos pronouncement is not our only basis in out:
sustaining PSIs liability. Its liability is also anchored upon the
agency principle of apparent authority or agency by estoppel and x x x regardless of the education and status in life of the patient,
the doctrine of corporate negligence which have gained he ought not be burdened with the defense of absence of
acceptance in the determination of a hospitals liability for employer-employee relationship between the hospital and the
negligent acts of health professionals. The present case serves independent physician whose name and competence are
as a perfect platform to test the applicability of these doctrines, certainly certified to the general public by the hospitals act of
thus, enriching our jurisprudence. listing him and his specialty in its lobby directory, as in the case
herein. The high costs of todays medical and health care should
Apparent authority, or what is sometimes referred to as the at least exact on the hospital greater, if not broader, legal
"holding responsibility for the conduct of treatment and surgery within its
facility by its accredited physician or surgeon, regardless of
out" theory, or doctrine of ostensible agency or agency by whether he is independent or employed."33
estoppel,29 has its origin from the law of agency. It imposes
liability, not as the result of the reality of a contractual The wisdom of the foregoing ratiocination is easy to discern.
relationship, but rather because of the actions of a principal or Corporate entities, like PSI, are capable of acting only through
an employer in somehow misleading the public into believing other individuals, such as physicians. If these accredited
that the relationship or the authority exists.30 The concept is physicians do their job well, the hospital succeeds in its mission
essentially one of estoppel and has been explained in this of offering quality medical services and thus profits financially.
manner: Logically, where negligence mars the quality of its services, the
hospital should not be allowed to escape liability for the acts of
"The principal is bound by the acts of his agent with the apparent its ostensible agents.
authority which he knowingly permits the agent to assume, or
which he holds the agent out to the public as possessing. The We now proceed to the doctrine of corporate negligence or
question in every case is whether the principal has by his corporate responsibility.
voluntary act placed the agent in such a situation that a person
of ordinary prudence, conversant with business usages and the One allegation in the complaint in Civil Case No. Q-43332 for
nature of the particular business, is justified in presuming that negligence and malpractice is that PSI as owner, operator and
such agent has authority to perform the particular act in manager of Medical City Hospital, "did not perform the
question.31 necessary supervision nor exercise diligent efforts in the
supervision of Drs. Ampil and Fuentes and its nursing staff,
The applicability of apparent authority in the field of hospital resident doctors, and medical interns who assisted Drs. Ampil
liability was upheld long time ago in Irving v. Doctor Hospital of and Fuentes in the performance of their duties as surgeons."34
Lake Worth, Inc.32 There, it was explicitly stated that "there Premised on the doctrine of corporate negligence, the trial court
does not appear to be any rational basis for excluding the held that PSI is directly liable for such breach of duty.
concept of apparent authority from the field of hospital liability."
Thus, in cases where it can be shown that a hospital, by its We agree with the trial court.
actions, has held out a particular physician as its agent and/or
employee and that a patient has accepted treatment from that Recent years have seen the doctrine of corporate negligence as
physician in the reasonable belief that it is being rendered in the judicial answer to the problem of allocating hospitals liability
behalf of the hospital, then the hospital will be liable for the for the negligent acts of health practitioners, absent facts to
physicians negligence. support the application of respondeat superior or apparent
authority. Its formulation proceeds from the judiciarys
Our jurisdiction recognizes the concept of an agency by acknowledgment that in these modern times, the duty of
implication or estoppel. Article 1869 of the Civil Code reads: providing quality medical service is no longer the sole
prerogative and responsibility of the physician. The modern
ART. 1869. Agency may be express, or implied from the acts of hospitals have changed structure. Hospitals now tend to
the principal, from his silence or lack of action, or his failure to organize a highly professional medical staff whose competence
repudiate the agency, knowing that another person is acting on and performance need to be monitored by the hospitals
his behalf without authority. commensurate with their inherent responsibility to provide quality
medical care.35
In this case, PSI publicly displays in the lobby of the Medical City
Hospital the names and specializations of the physicians The doctrine has its genesis in Darling v. Charleston Community
associated or accredited by it, including those of Dr. Ampil and Hospital.36 There, the Supreme Court of Illinois held that "the
Dr. Fuentes. We concur with the Court of Appeals conclusion jury could have found a hospital negligent, inter alia, in failing to
that it "is now estopped from passing all the blame to the have a sufficient number of trained nurses attending the patient;
physicians whose names it proudly paraded in the public failing to require a consultation with or examination by members
directory leading the public to believe that it vouched for their of the hospital staff; and failing to review the treatment rendered
skill and competence." Indeed, PSIs act is tantamount to to the patient." On the basis of Darling, other jurisdictions held
holding out to the public that Medical City Hospital, through its that a hospitals corporate negligence extends to permitting a
accredited physicians, offers quality health care services. By physician known to be incompetent to practice at the hospital.37
accrediting Dr. Ampil and Dr. Fuentes and publicly advertising With the passage of time, more duties were expected from
their qualifications, the hospital created the impression that they hospitals, among them: (1) the use of reasonable care in the
were its agents, authorized to perform medical or surgical maintenance of safe and adequate facilities and equipment; (2)
services for its patients. As expected, these patients, Natividad the selection and retention of competent physicians; (3) the
overseeing or supervision of all persons who practice medicine
within its walls; and (4) the formulation, adoption and
enforcement of adequate rules and policies that ensure quality
care for its patients.38 Thus, in Tucson Medical Center, Inc. v.
Misevich,39 it was held that a hospital, following the doctrine of
corporate responsibility, has the duty to see that it meets the
standards of responsibilities for the care of patients. Such duty
includes the proper supervision of the members of its medical
staff. And in Bost v. Riley,40 the court concluded that a patient
who enters a hospital does so with the reasonable expectation
that it will attempt to cure him. The hospital accordingly has the
duty to make a reasonable effort to monitor and oversee the
treatment prescribed and administered by the physicians
practicing in its premises.
In the present case, it was duly established that PSI operates regarding the quality of medical care furnished to patients within
the Medical City Hospital for the purpose and under the concept its walls and it must meet the standards of responsibility
of providing comprehensive medical services to the public. commensurate with this undertaking. Beeck v. Tucson General
Accordingly, it has the duty to exercise reasonable care to Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court
protect from harm all patients admitted into its facility for medical has confirmed the rulings of the Court of Appeals that a hospital
treatment. Unfortunately, PSI failed to perform such duty. The has the duty of supervising the competence of the doctors on its
findings of the trial court are convincing, thus:
x x x PSIs liability is traceable to its failure to conduct an
investigation of the matter reported in the nota bene of the count
nurse. Such failure established PSIs part in the dark conspiracy
of silence and concealment about the gauzes. Ethical
considerations, if not also legal, dictated the holding of an
immediate inquiry into the events, if not for the benefit of the
patient to whom the duty is primarily owed, then in the interest of
arriving at the truth. The Court cannot accept that the medical
and the healing professions, through their members like
defendant surgeons, and their institutions like PSIs hospital
facility, can callously turn their backs on and disregard even a
mere probability of mistake or negligence by refusing or failing to
investigate a report of such seriousness as the one in
Natividads case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on
Natividad with the assistance of the Medical City Hospitals staff,
composed of resident doctors, nurses, and interns. As such, it is
reasonable to conclude that PSI, as the operator of the hospital,
has actual or constructive knowledge of the procedures carried
out, particularly the report of the attending nurses that the two
pieces of gauze were missing. In Fridena v. Evans,41 it was held
that a corporation is bound by the knowledge acquired by or
notice given to its agents or officers within the scope of their
authority and in reference to a matter to which their authority
extends. This means that the knowledge of any of the staff of
Medical City Hospital constitutes knowledge of PSI. Now, the
failure of PSI, despite the attending nurses report, to investigate
and inform Natividad regarding the missing gauzes amounts to
callous negligence. Not only did PSI breach its duties to oversee
or supervise all persons who practice medicine within its walls, it
also failed to take an active step in fixing the negligence
committed. This renders PSI, not only vicariously liable for the
negligence of Dr. Ampil under Article 2180 of the Civil Code, but
also directly liable for its own negligence under Article 2176. In
Fridena, the Supreme Court of Arizona held:
x x x In recent years, however, the duty of care owed to the
patient by the hospital has expanded. The emerging trend is to
hold the hospital responsible where the hospital has failed to
monitor and review medical services being provided within its
walls. See Kahn Hospital Malpractice Prevention, 27 De Paul .
Rev. 23 (1977).
Among the cases indicative of the emerging trend is Purcell v.
Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell,
the hospital argued that it could not be held liable for the
malpractice of a medical practitioner because he was an
independent contractor within the hospital. The Court of Appeals
pointed out that the hospital had created a professional staff
whose competence and performance was to be monitored and
reviewed by the governing body of the hospital, and the court
held that a hospital would be negligent where it had knowledge
or reason to believe that a doctor using the facilities was
employing a method of treatment or care which fell below the
recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of
Appeals held that a hospital has certain inherent responsibilities
staff. x x x.
x x x x x x
In the amended complaint, the plaintiffs did plead that the
operation was performed at the hospital with its knowledge, aid,
and assistance, and that the negligence of the defendants was
the proximate cause of the patients injuries. We find that such
general allegations of negligence, along with the evidence
produced at the trial of this case, are sufficient to support the
hospitals liability based on the theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily liable with
Dr. Ampil for damages, let it be emphasized that PSI, apart from
a general denial of its responsibility, failed to adduce evidence
showing that it exercised the diligence of a good father of a
family in the accreditation and supervision of the latter. In
neglecting to offer such proof, PSI failed to discharge its burden
under the last paragraph of Article 2180 cited earlier, and,
therefore, must be adjudged solidarily liable with Dr. Ampil.
Moreover, as we have discussed, PSI is also directly liable to the
Aganas.
One final word. Once a physician undertakes the treatment and
care of a patient, the law imposes on him certain obligations. In
order to escape liability, he must possess that reasonable
degree of learning, skill and experience required by his
profession. At the same time, he must apply reasonable care
and diligence in the exercise of his skill and the application of his
knowledge, and exert his best judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the
challenged Decision of the Court of Appeals in CA-G.R. CV No.
42062 and CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.
Negligence of attorneys
ROBERT DEL MAR, petitioner, vs. COURT OF APPEALS and
NORMA EBERSOLE DEL MAR, respondents.
DECISION
PANGANIBAN, J.:
The Court of Appeals cannot be faulted with reversible error,
much less grave abuse of discretion, for dismissing a petition
because petitioners brief was not filed on time. Indeed, in so
doing, the appellate court is merely abiding by the Rules of
Court.
The Case
Before us is a Petition for Certiorari and Mandamus under Rule
65 of the Rules of Court, praying for the setting aside of the
January 13, 1999[1] and the April 26, 1999[2] Resolutions of the
Court of Appeals (CA) in CA-GR CV No. 58804. The first
Resolution is worded as follows:
Upon consideration of the motion to dismiss appeal filed by
plaintiff-appellee and the Judicial Records Divisions Report that
no appellant[]s brief has been filed as of December 9, 1998, the
appeal is hereby ordered DISMISSED pursuant to Section 1 (e),
Rule 50, 1997 Rules of Civil Procedure.[3]
5. After the peaceful and continuous possession by petitioner of
the subject properties for more than twenty-two (22) years, a
complaint for reconveyance was filed by x x x private respondent
against x x x petitioner on May 15, 1997, alleging, inter-alia, that
x x x petitioner obtained the aforementioned Certificates of Title
through fraud and deceit. Private respondent claimed that x x x
said properties were left by her under the administration of
petitioner, who allegedly transferred the ownership of x x x said
realty in his name by causing the issuance of Certificates of Title
in his name without her knowledge and consent. However,
records show that before she left for the United States, private
respondent executed the corresponding Deeds of Absolute Sale
in favor of petitioner. This case, entitled Norma Ebersole del Mar
represented by Gerald del Mar vs. Roberto del Mar and the
Register of Deeds, Province of Isabela was filed before the
Regional Trial Court of Santiago City, Branch 35 and docketed
as Civil Case No. 2373.
6. In his Answer, x x x petitioner claimed that x x x private
respondent and her co-owner, Florence Ebersole Finch, sold x x
x said properties to him before the former left for the United
States. Moreover, the properties were transferred for good,
sufficient and valuable consideration, hence the sale was lawful
and valid.

The second Resolution denied petitioners Motion for 7. During the pre-trial conference, neither x x x petitioner nor his
Reconsideration/Petition for Relief & Motion to Admit Appellants counsel, Atty. Federico Abuan, appeared, by reason of which the
Brief.[4] trial court issued an order declaring petitioner as in default. The
non-appearance was due to the failure of Atty. Abuan, Jr. to
The Facts inform petitioners attorney-in-fact, Angelita Austria, of the
scheduled hearing. Said petitioner filed a motion for
In his Memorandum, Petitioner Robert del Mar alleges as reconsideration but the same was denied, and x x x private
follows: respondent was allowed to adduce her evidence ex-parte. On
the same day that x x x said motion was denied, the trial court
1. The private respondent, Norma Ebersole Del Mar, and her rendered its October 21, 1997 [D]ecision in favor of x x x private
sister, Florence Ebersole Finch, inherited three (3) parcels of respondent and against x x x petitioner, the dispositive portion of
land covered by TCT Nos. T-58397, T-58398 and T-58402, which reads:
situated in Mabini, Santiago City, with a total area of 29,736
square meters, more or less. On December 6, 1974, Florence WHEREFORE, judgment is rendered against [petitioner] and in
Ebersole Finch, a resident of New York, USA, executed a favor of [private respondent], as follows:
general power of attorney naming and constituting private
respondent as her attorney-in-fact with regard to the subject 1. Ordering the Register of Deeds of Ilagan, Isabela to cancel
property. Titles Nos. T-82257; T-82261, T-82260, T-82263, T-82264, T-
234664, T-116117 and T-822659;
2. On January 29, 1975, private respondent, acting for herself
and as attorney-in-fact of Florence Ebersole Finch, executed 2. Ordering Robert E. del Mar to reconvey the ownership of
Deeds of Absolute Sale in favor of petitioner covering the three properties to [private respondent] and in case of failure on the
aforementioned parcels of land. The private respondent is the part of [petitioner], the Register of Deeds is directed to execute
mother of herein petitioner. the necessary deed of reconveyance in favor of [private
respondent];
3. On March 25, 1976, Florence Ebersole Finch executed a
Deed of Confirmation in New York, USA, confirming and ratifying 3. Enjoining permanently [petitioner] or any person acting for and
all the acts and deeds executed by Norma Ebersole del Mar, in in [his] behalf from committing or doing any act of disposition or
conveying properties to Robert E. del Mar, as appearing in alienation of the properties;
Document Nos. 1780, Page 57, Book No. 14, Series of 1975;
1781, Page 58, Book No. 14, Series of 1975; and 1782, Page 4. Ordering [petitioner] to pay the amount of FIVE HUNDRED
58, Book No. 14, Series of 1975, of the Notarial Registry of THOUSAND (P500,000.00) as moral damages to [private
Paulo Pascua, a notary public for and in the Province of Isabela, respondent];
Philippines. This document was authenticated by Wenceslao
J.O. Quirolgico, Vice-Consul of the Philippine Consulate Office in 5. Ordering [petitioner] to pay the amount of TWO HUNDRED
New York, USA. FIFTY THOUSAND PESOS ([P]250,000.00) as attorneys fees.

4. After x x x said parcels of land were sub-divided into several 6. Cost of the suit.[5]
lots, x x x petitioner obtained the following Certificates of Title in
his name: TCT Nos. T-32251, T-82257, T-282260, and T-82263, On the other hand, private respondent counters with the
all on April 18, 1975; T-116117 on January 11, 1979; T-17549 following allegations in her Memorandum:
on March 16, 1979; and T-13664 on October 15, 1981.
The parcels of land covered by the land titles that are sought to
be nullified x x x are all owned by [private] respondent NORMA
EBERSOLE DEL MAR by way of inheritance from her lawful
[ascendants]. The original titles were all issued in her name and
favor.
When a judgment or final order is rendered by any court in a
case, and a party thereto, by fraud, accident, or excusable
negligence, has been prevented from taking an appeal, he may
file a petition in such court and in the same case praying that the
appeal be given due course.

In the early 1970s [private] respondent x x x together with her In the present case, the appellant was not prevented from taking
two children, GERALD and FLORENCE went to the United an appeal as in fact, notice of appeal was timely filed by the
States with the intent of obtaining domicile there[i]n and leaving appellant on 11 November 1997 from the challenged decision.
behind the other son x x x petitioner x x x, and entrusting [to] his The instant motion/petition, though denominated as such will be
[administration] x x x their properties. properly treated simply as a motion for reconsideration [of] the
order of dismissal.
In 1974, [private respondent] came back to the Philippines and
stayed up until 1978 and thereafter went back to the US. During From the allegations in the subject motion for reconsideration,
her stay, the properties were intact. this Court finds no cogent reason to disturb the dismissal of the
appellant. The appellants brief became due [i]n October 1998.
Sometime in 1996, [private respondent] discovered that the The movant claims ignorance of the fact that counsel failed to
properties were already in the name of [petitioner]. [Private file the appellants brief. There being no showing that counsels
respondent] protested because she never had done any act of failure to file the appellants brief was due to gross negligence,
transfer of the properties in favor of [petitioner], because her the rule that negligence of counsel is binding upon the client
intent was to have these properties to be eventually x x x divided must be applied. Besides, it appears from the records that herein
into THREE (3) equal parts for her THREE (3) children x x x. appellant, as party-defendant in the proceedings below, was
The transfer was [without] the knowledge of [private respondent]. declared in default for his and counsels non-appearance during
It was fraudulent and unlawful x x x. the pre-trial conference. Having lost the opportunity to present
evidence in view of the default order, the appellant, through his
Private respondent also claims that petitioner had been duly attorney-in-fact, should have shown more vigor in protecting his
served summons, but neither he nor his counsel appeared for statutory right of appeal. He should have jealously guarded this
pretrial. Hence, petitioner was declared in default. While he did opportunity, knowing that this could well be his last chance to
receive the Order of Default, he never bothered to have it lifted. protect his rights. The interest of justice so conveniently invoked
So, trial proceeded and evidence ex parte for private respondent by the appellant now will be better served if this dispute will be
was received by the trial court.[6] put to an end for failure of the appellant to observe the degree of
vigilance needed to protect his remedies in law.[11]
Petitioner filed a Notice of Appeal. On January 7, 1998, Noel T.
Tomas, legal researcher and officer in charge of the Regional Hence, this Petition.[12]
Trial Court (RTC) of Santiago City (Branch 35), forwarded to the
CA the records of Civil Case No. 35-2373.[7] Buenaventura B. The Issues
Miguel, chief of the Judicial Records Division of the appellate
court, thereafter wrote a letter[8] dated August 13, 1998, Petitioner, in his Memorandum,[13] raises the following issues:
addressed to Atty. Federico Abuan Jr., counsel for petitioner,
stating the following: Who between the petitioner and the private respondent has a
better right to the properties in question.
Pursuant to the resolution en banc of the Supreme Court, dated
February 23, 1984, you are hereby required to file with this court Whether or not the Respondent Court of Appeals committed
SEVEN (7) printed copies of the brief, or SEVEN (7) eleven grave abuse of di[s]cretion in ruling in favor of private
inches in leng[th] by eight and a half inches in width - commonly respondent.
known letter size[,] written double space, copies of said brief
together with the proof of service of TWO (2) printed typewritten For reasons that will be evident later on, the issues will be
or mimeographed copies hereof upon the appellee. The decision tackled in reverse order.
of Trial Court shall be appended to the brief.[9]
The Courts Ruling
On December 8, 1998, Atty. Amado C. Vallejo Jr., counsel for
private respondent, moved to dismiss[10] the appeal on the The Petition has no merit.
ground that petitioner had failed to file the required brief within
the reglementary period. First Issue:
Effect of Failure to File a Brief
Ruling of the Court of Appeals
Petitioner argues that the CA gravely abused its discretion in
As already stated, the CA granted the Motion to Dismiss via the dismissing his appeal for his mere failure to file his Brief within
first assailed Resolution. the reglementary period.

As regards petitioners Motion for Reconsideration/Petition for
Relief & Motion to Admit Appellants Brief, the appellate courts
denial is justified by the following reasons:
Clearly, the subject motion/petition can not be in the nature of a
Petition for Relief for Denial of Appeal under Rule 38 of the
Rules of Court. Section 2 of Rule 38 provides that -
We disagree. Rule 50, Section 1(e) of the Revised Rules of
Court, expressly authorizes the CA to dismiss an appeal for,
inter alia, failure of appellant to serve and file the required
number of copies of his brief or memorandum within the time
provided by these Rules.
Certiorari as a special civil action can be availed of when the
following requisites concur: (a) a tribunal, board or officer
exercising judicial functions has acted without or in excess of Assuming arguendo that this Petition is granted and the CA is
jurisdiction or with grave abuse of discretion amounting to lack or required to pass upon the RTCs judgment, how can the CA give
in excess of jurisdiction; and (b) there is no appeal or plain, any probative value to the above documents, when they were
speedy and adequate remedy in the ordinary course of law for not presented before the trial court? Be it remembered that
annulling or modifying the proceeding.[14] petitioner had been declared in default, and that he did not even
ask for the lifting of the Default Order. Hence, the grant of the
Petitioner claims that Atty. Abuans failure to file the required Petition will be not only legally unsound, but also practically
pleading constituted fraud against him, and that his absence useless. It will just clog the CAs docket.
from the country while the appeal was pending constituted a
mistake that was excusable. Finally, after the CA denied his Motion for Reconsideration,
petitioner allowed the reglementary period for filing an appeal to
We disagree. It is well-settled that the negligence of counsel lapse, opting instead to file this Petition for Certiorari. Well-
binds the client.[15] Exceptions to this rule arise when (1) such settled is the rule that certiorari is not a substitute for a lost
negligence is so gross, palpable, reckless and inexcusable that appeal.[20] Even if for this reason alone, the Petition should not
the client is deprived of the due process of law; and (2) the be given due course.
application of such due process results in the outright
deprivation of ones property through a technicality.[16] WHEREFORE, the Petition is DISMISSED. Costs against
petitioner.
The negligence of Atty. Abuan does not fall under these
exceptions. His negligence in this case was his inexcusable SO ORDERED.
failure to file the required appellants Brief, thus causing the
dismissal of the appeal of petitioner. But the latter was not
without fault. He was aware of Atty. Abuans failure to appear at
the pretrial conference, a failure that had placed him in default.
Because petitioner was in default, private respondents evidence
was received ex parte by the RTC. No wonder, the trial court
decided against him. Yet, he retained Atty. Abuans services for
the appeal. One is bound by the decisions of ones counsel
regarding the conduct of the case, especially where the former
does not complain against the manner in which the latter
handled the case.[17]

In effect, petitioner consented to the shabby and negligent

treatment of his case by his counsel. Hence, he should not
complain now of the negligence or fraud done to him by his
lawyer. A partys counsel cannot be blamed for negligence, if the
party was likewise guilty of the same.[18] Clients should suffer
the consequences of the negligence, mistake or lack of
competence of the counsel whom they themselves hired, and
whom they had full authority to fire at any time and replace with
another.[19]

Petitioner cannot be said to have been denied due process,

because he was afforded the opportunity to be heard. In fact, he
filed an Answer to private respondents Complaint. That he did
not present evidence in his favor was the effect of his being in
default and his continued failure to move that such status be
lifted. His claim that he was abroad is unavailing.

We cannot attribute grave abuse of discretion to the Court of

Appeals which merely followed Rule 50 in dismissing the appeal.

Second Issue:
Petitioners Defenses

Petitioner avers that he has in his favor the following valid and
meritorious defenses: (1) valid purchase of the disputed lots, (2)
acquisitive prescription, and (3) prescription and laches barring
private respondents action. He proposes to prove these
arguments with the following documents: (1) an alleged Deed of
Sale dated January 29, 1975 purportedly signed by private
respondent on her own behalf and as the agent of her sister
Florence; (2) a Confirmation of Sale allegedly signed by
Florence; and (3) an alleged Certificate of Authentication of the
confirmation issued by a Philippine vice consul in New York,
USA.

Proximate Cause
G.R. No. L-10126 October 22, 1957
SALUD VILLANUEVA VDA. DE BATACLAN and the minors
NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO
BATACLAN, represented by their Natural guardian, SALUD
VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for
plaintiffs-appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the
Medina Transportation, operated by its owner defendant
Mariano Medina under a certificate of public convenience, left
the town of Amadeo, Cavite, on its way to Pasay City, driven by
its regular chauffeur, Conrado Saylon. There were about
eighteen passengers, including the driver and conductor. Among
the passengers were Juan Bataclan, seated beside and to the
right of the driver, Felipe Lara, sated to the right of Bataclan,
another passenger apparently from the Visayan Islands whom
the witnesses just called Visaya, apparently not knowing his
name, seated in the left side of the driver, and a woman named
Natalia Villanueva, seated just behind the four last mentioned. At
about 2:00 o'clock that same morning, while the bus was running
within the jurisdiction of Imus, Cavite, one of the front tires burst
and the vehicle began to zig-zag until it fell into a canal or ditch
on the right side of the road and turned turtle. Some of the
passengers managed to leave the bus the best way they could,
others had to be helped or pulled out, while the three
passengers seated beside the driver, named Bataclan, Lara and
the Visayan and the woman behind them named Natalia
Villanueva, could not get out of the overturned bus. Some of the
passengers, after they had clambered up to the road, heard
groans and moans from inside the bus, particularly, shouts for
help from Bataclan and Lara, who said they could not get out of
the bus. There is nothing in the evidence to show whether or not
the passengers already free from the wreck, including the driver
and the conductor, made any attempt to pull out or extricate and
rescue the four passengers trapped inside the vehicle, but calls
or shouts for help were made to the houses in the neighborhood.
After half an hour, came about ten men, one of them carrying a
lighted torch made of bamboo with a wick on one end, evidently
fueled with petroleum. These men presumably approach the
overturned bus, and almost immediately, a fierce fire started,
burning and all but consuming the bus, including the four
passengers trapped inside it. It would appear that as the bus
overturned, gasoline began to leak and escape from the
gasoline tank on the side of the chassis, spreading over and
permeating the body of the bus and the ground under and
around it, and that the lighted torch brought by one of the men
who answered the call for help set it on fire.
That same day, the charred bodies of the four deemed
passengers inside the bus were removed and duly identified that
of Juan Bataclan. By reason of his death, his widow, Salud
Villanueva, in her name and in behalf of her five minor children,
brought the present suit to recover from Mariano Medina
compensatory, moral, and exemplary damages and attorney's
fees in the total amount of P87,150. After trial, the Court of First
Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as
attorney's fee, plus P100, the value of the merchandise being
carried by Bataclan to Pasay City for sale and which was lost in
the fire. The plaintiffs and the defendants appealed the decision
to the Court of Appeals, but the latter endorsed the appeal to us
because of the value involved in the claim in the complaint.
Our new Civil Code amply provides for the responsibility of
common carrier to its passengers and their goods. For purposes
of reference, we are reproducing the pertinent codal provisions:
ART. 1733. Common carriers, from the nature of their business
and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to
all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1745, Nos. 5, 6,
and 7, while the extra ordinary diligence for the safety of the
passengers is further set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers
safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with a due regard for
all the circumstances.
ART. 1756. In case of death of or injuries to passengers,
common carriers are presumed to have been at fault or to have
acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755
ART. 1759. Common carriers are liable for the death of or
injuries to passengers through the negligence or willful acts of
the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the
order of the common carriers.
This liability of the common carriers does not cease upon proof
that they exercised all the diligence of a good father of a family
in the selection and supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered
by a passenger on account of the willful acts or negligence of
other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father
of a family could have prevented or stopped the act or omission.
We agree with the trial court that the case involves a breach of
contract of transportation for hire, the Medina Transportation
having undertaken to carry Bataclan safely to his destination,
Pasay City. We also agree with the trial court that there was
negligence on the part of the defendant, through his agent, the
driver Saylon. There is evidence to show that at the time of the
blow out, the bus was speeding, as testified to by one of the
passengers, and as shown by the fact that according to the
testimony of the witnesses, including that of the defense, from
the point where one of the front tires burst up to the canal where
the bus overturned after zig-zaging, there was a distance of
about 150 meters. The chauffeur, after the blow-out, must have
applied the brakes in order to stop the bus, but because of the
velocity at which the bus must have been running, its momentum
carried it over a distance of 150 meters before it fell into the
canal and turned turtle.
There is no question that under the circumstances, the
defendant carrier is liable. The only question is to what degree.
The trial court was of the opinion that the proximate cause of the
death of Bataclan was not the overturning of the bus, but rather,
the fire that burned the bus, including himself and his co-
passengers who were unable to leave it; that at the time the fire
started, Bataclan, though he must have suffered physical compensatory, moral, and other damages. We also believe that
injuries, perhaps serious, was still alive, and so damages were plaintiffs are entitled to attorney's fees, and assessing the legal
awarded, not for his death, but for the physical injuries suffered services rendered by plaintiffs' attorneys not only in the trial
by him. We disagree. A satisfactory definition of proximate cause court, but also in the course of the appeal, and not losing sight of
is found in Volume 38, pages 695-696 of American the able briefs prepared by them, the attorney's fees may well be
jurisprudence, cited by plaintiffs-appellants in their brief. It is as fixed at EIGHT HUNDRED (P800) PESOS for the loss of
follows: merchandise carried by the deceased in the bus, is adequate
and will not be disturbed.
. . . 'that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, There is one phase of this case which disturbs if it does not
and without which the result would not have occurred.' And more shock us. According to the evidence, one of the passengers
comprehensively, 'the proximate legal cause is that acting first who, because of the injuries suffered by her, was hospitalized,
and producing the injury, either immediately or by setting other and while in the hospital, she was visited by the defendant
events in motion, all constituting a natural and continuous chain Mariano Medina, and in the course of his visit, she overheard
of events, each having a close causal connection with its him speaking to one of his bus inspectors, telling said inspector
immediate predecessor, the final event in the chain immediately to have the tires of the bus changed immediately because they
effecting the injury as a natural and probable result of the cause were already old, and that as a matter of fact, he had been
which first acted, under such circumstances that the person telling the driver to change the said tires, but that the driver did
responsible for the first event should, as an ordinary prudent and not follow his instructions. If this be true, it goes to prove that the
intelligent person, have reasonable ground to expect at the driver had not been diligent and had not taken the necessary
moment of his act or default that an injury to some person might precautions to insure the safety of his passengers. Had he
probably result therefrom. changed the tires, specially those in front, with new ones, as he
had been instructed to do, probably, despite his speeding, as we
It may be that ordinarily, when a passenger bus overturns, and have already stated, the blow out would not have occurred. All in
pins down a passenger, merely causing him physical injuries, if all, there is reason to believe that the driver operated and drove
through some event, unexpected and extraordinary, the his vehicle negligently, resulting in the death of four of his
overturned bus is set on fire, say, by lightning, or if some passengers, physical injuries to others, and the complete loss
highwaymen after looting the vehicle sets it on fire, and the and destruction of their goods, and yet the criminal case against
passenger is burned to death, one might still contend that the him, on motion of the fiscal and with his consent, was
proximate cause of his death was the fire and not the provisionally dismissed, because according to the fiscal, the
overturning of the vehicle. But in the present case under the witnesses on whose testimony he was banking to support the
circumstances obtaining in the same, we do not hesitate to hold complaint, either failed or appear or were reluctant to testify. But
that the proximate cause was the overturning of the bus, this for the record of the case before us shows the several witnesses,
the reason that when the vehicle turned not only on its side but passengers, in that bus, willingly and unhesitatingly testified in
completely on its back, the leaking of the gasoline from the tank court to the effect of the said driver was negligent. In the public
was not unnatural or unexpected; that the coming of the men interest the prosecution of said erring driver should be pursued,
with a lighted torch was in response to the call for help, made this, not only as a matter of justice, but for the promotion of the
not only by the passengers, but most probably, by the driver and safety of passengers on public utility buses. Let a copy of this
the conductor themselves, and that because it was dark (about decision be furnished the Department of Justice and the
2:30 in the morning), the rescuers had to carry a light with them, Provincial Fiscal of Cavite.
and coming as they did from a rural area where lanterns and
flashlights were not available; and what was more natural than In view of the foregoing, with the modification that the damages
that said rescuers should innocently approach the vehicle to awarded by the trial court are increased from ONE THOUSAND
extend the aid and effect the rescue requested from them. In (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and
other words, the coming of the men with a torch was to be from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800)
expected and was a natural sequence of the overturning of the PESOS, for the death of Bataclan and for the attorney's fees,
bus, the trapping of some of its passengers and the call for respectively, the decision appealed is from hereby affirmed, with
outside help. What is more, the burning of the bus can also in costs.
part be attributed to the negligence of the carrier, through is
driver and its conductor. According to the witness, the driver and
the conductor were on the road walking back and forth. They, or
at least, the driver should and must have known that in the
position in which the overturned bus was, gasoline could and
must have leaked from the gasoline tank and soaked the area in
and around the bus, this aside from the fact that gasoline when
spilled, specially over a large area, can be smelt and directed
even from a distance, and yet neither the driver nor the
conductor would appear to have cautioned or taken steps to
warn the rescuers not to bring the lighted torch too near the bus.
Said negligence on the part of the agents of the carrier come
under the codal provisions above-reproduced, particularly,
Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled,

considering the earning capacity of the deceased, as well as the
other elements entering into a damage award, we are satisfied
that the amount of SIX THOUSAND (P6,000) PESOS would
constitute satisfactory compensation, this to include
G.R. No. L-65295 March 10, 1987 (3) To pay the plaintiff jointly and severally the sum of P
10,000. as moral damages for the unexpected and sudden
PHOENIX CONSTRUCTION, INC. and ARMANDO U. withdrawal of plaintiff from his lifetime career as a marketing
CARBONEL, petitioners, man; mental anguish, wounded feeling, serious anxiety, social
vs. humiliation, besmirched reputation, feeling of economic
THE INTERMEDIATE APPELLATE COURT and LEONARDO insecurity, and the untold sorrows and frustration in life
DIONISIO, respondents. experienced by plaintiff and his family since the accident in
controversy up to the present time;

FELICIANO, J: (4) To pay plaintiff jointly and severally the sum of P

10,000.00 as damages for the wanton disregard of defendants to
In the early morning of 15 November 1975 at about 1:30 a.m. settle amicably this case with the plaintiff before the filing of this
private respondent Leonardo Dionisio was on his way home case in court for a smaller amount.
he lived in 1214-B Zamora Street, Bangkal, Makati from a
cocktails-and-dinner meeting with his boss, the general manager (5) To pay the plaintiff jointly and severally the sum of P
of a marketing corporation. During the cocktails phase of the 4,500.00 due as and for attorney's fees; and
evening, Dionisio had taken "a shot or two" of liquor. Dionisio
was driving his Volkswagen car and had just crossed the (6) The cost of suit. (Emphasis supplied)
intersection of General Lacuna and General Santos Streets at
Bangkal, Makati, not far from his home, and was proceeding Phoenix and Carbonel appealed to the Intermediate Appellate
down General Lacuna Street, when his car headlights (in his Court. That court in CA-G.R. No. 65476 affirmed the decision of
allegation) suddenly failed. He switched his headlights on the trial court but modified the award of damages to the following
"bright" and thereupon he saw a Ford dump truck looming some extent:
2-1/2 meters away from his car. The dump truck, owned by and
registered in the name of petitioner Phoenix Construction Inc. 1. The award of P15,000.00 as compensatory damages
("Phoenix"), was parked on the right hand side of General was reduced to P6,460.71, the latter being the only amount that
Lacuna Street (i.e., on the right hand side of a person facing in the appellate court found the plaintiff to have proved as actually
the same direction toward which Dionisio's car was proceeding), sustained by him;
facing the oncoming traffic. The dump truck was parked askew
(not parallel to the street curb) in such a manner as to stick out 2. The award of P150,000.00 as loss of expected income
onto the street, partly blocking the way of oncoming traffic. There was reduced to P100,000.00, basically because Dionisio had
were no lights nor any so-called "early warning" reflector devices voluntarily resigned his job such that, in the opinion of the
set anywhere near the dump truck, front or rear. The dump truck appellate court, his loss of income "was not solely attributable to
had earlier that evening been driven home by petitioner the accident in question;" and
Armando U. Carbonel, its regular driver, with the permission of
his employer Phoenix, in view of work scheduled to be carried 3. The award of P100,000.00 as moral damages was held
out early the following morning, Dionisio claimed that he tried to by the appellate court as excessive and unconscionable and
avoid a collision by swerving his car to the left but it was too late hence reduced to P50,000.00.
and his car smashed into the dump truck. As a result of the
collision, Dionisio suffered some physical injuries including some The award of P10,000.00 as exemplary damages and P4,500.00
permanent facial scars, a "nervous breakdown" and loss of two as attorney's fees and costs remained untouched.
gold bridge dentures.
This decision of the Intermediate Appellate Court is now before
Dionisio commenced an action for damages in the Court of First us on a petition for review.
Instance of Pampanga basically claiming that the legal and
proximate cause of his injuries was the negligent manner in Both the trial court and the appellate court had made fairly
which Carbonel had parked the dump truck entrusted to him by explicit findings of fact relating to the manner in which the dump
his employer Phoenix. Phoenix and Carbonel, on the other hand, truck was parked along General Lacuna Street on the basis of
countered that the proximate cause of Dionisio's injuries was his which both courts drew the inference that there was negligence
own recklessness in driving fast at the time of the accident, while on the part of Carbonel, the dump truck driver, and that this
under the influence of liquor, without his headlights on and negligence was the proximate cause of the accident and
without a curfew pass. Phoenix also sought to establish that it Dionisio's injuries. We note, however, that both courts failed to
had exercised due rare in the selection and supervision of the pass upon the defense raised by Carbonel and Phoenix that the
dump truck driver. true legal and proximate cause of the accident was not the way
in which the dump truck had been parked but rather the reckless
The trial court rendered judgment in favor of Dionisio and way in which Dionisio had driven his car that night when he
against Phoenix and Carbonel and ordered the latter: smashed into the dump truck. The Intermediate Appellate Court
in its questioned decision casually conceded that Dionisio was
(1) To pay plaintiff jointly and severally the sum of P "in some way, negligent" but apparently failed to see the
15,000.00 for hospital bills and the replacement of the lost relevance of Dionisio's negligence and made no further mention
dentures of plaintiff; of it. We have examined the record both before the trial court
and the Intermediate Appellate Court and we find that both
(2) To pay plaintiff jointly and severally the sum of P parties had placed into the record sufficient evidence on the
1,50,000.-00 as loss of expected income for plaintiff brought basis of which the trial court and the appellate court could have
about the accident in controversy and which is the result of the and should have made findings of fact relating to the alleged
negligence of the defendants; reckless manner in which Dionisio drove his car that night. The
petitioners Phoenix and Carbonel contend that if there was
negligence in the manner in which the dump truck was parked,
that negligence was merely a "passive and static condition" and Private respondent Dionisio asserts that Patrolman Cuyno's
that private respondent Dionisio's recklessness constituted an testimony was hearsay and did not fag within any of the
intervening, efficient cause determinative of the accident and the recognized exceptions to the hearsay rule since the facts he
injuries he sustained. The need to administer substantial justice testified to were not acquired by him through official information
as between the parties in this case, without having to remand it and had not been given by the informants pursuant to any duty
back to the trial court after eleven years, compels us to address to do so. Private respondent's objection fails to take account of
directly the contention put forward by the petitioners and to the fact that the testimony of Patrolman Cuyno is admissible not
examine for ourselves the record pertaining to Dionisio's alleged under the official records exception to the hearsay rule 4 but
negligence which must bear upon the liability, or extent of rather as part of the res gestae. 5 Testimonial evidence under
liability, of Phoenix and Carbonel. this exception to the hearsay rule consists of excited utterances
made on the occasion of an occurrence or event sufficiently
There are four factual issues that need to be looked into: (a) startling in nature so as to render inoperative the normal
whether or not private respondent Dionisio had a curfew pass reflective thought processes of the observer and hence made as
valid and effective for that eventful night; (b) whether Dionisio a spontaneous reaction to the occurrence or event, and not the
was driving fast or speeding just before the collision with the result of reflective thought. 6
dump truck; (c) whether Dionisio had purposely turned off his
car's headlights before contact with the dump truck or whether We think that an automobile speeding down a street and
those headlights accidentally malfunctioned moments before the suddenly smashing into a stationary object in the dead of night is
collision; and (d) whether Dionisio was intoxicated at the time of a sufficiently startling event as to evoke spontaneous, rather
the accident. than reflective, reactions from observers who happened to be
around at that time. The testimony of Patrolman Cuyno was
As to the first issue relating to the curfew pass, it is clear that no therefore admissible as part of the res gestae and should have
curfew pass was found on the person of Dionisio immediately been considered by the trial court. Clearly, substantial weight
after the accident nor was any found in his car. Phoenix's should have been ascribed to such testimony, even though it did
evidence here consisted of the testimony of Patrolman Cuyno not, as it could not, have purported to describe quantitatively the
who had taken Dionisio, unconscious, to the Makati Medical precise velocity at winch Dionisio was travelling just before
Center for emergency treatment immediately after the accident. impact with the Phoenix dump truck.
At the Makati Medical Center, a nurse took off Dionisio's clothes
and examined them along with the contents of pockets together A third related issue is whether Dionisio purposely turned off his
with Patrolman Cuyno. 1 Private respondent Dionisio was not headlights, or whether his headlights accidentally malfunctioned,
able to produce any curfew pass during the trial. Instead, he just moments before the accident. The Intermediate Appellate
offered the explanation that his family may have misplaced his Court expressly found that the headlights of Dionisio's car went
curfew pass. He also offered a certification (dated two years off as he crossed the intersection but was non-committal as to
after the accident) issued by one Major Benjamin N. Libarnes of why they did so. It is the petitioners' contention that Dionisio
the Zone Integrated Police Intelligence Unit of Camp Olivas, San purposely shut off his headlights even before he reached the
Fernando, Pampanga, which was said to have authority to issue intersection so as not to be detected by the police in the police
curfew passes for Pampanga and Metro Manila. This precinct which he (being a resident in the area) knew was not far
certification was to the effect that private respondent Dionisio away from the intersection. We believe that the petitioners'
had a valid curfew pass. This certification did not, however, theory is a more credible explanation than that offered by private
specify any pass serial number or date or period of effectivity of respondent Dionisio i.e., that he had his headlights on but
the supposed curfew pass. We find that private respondent that, at the crucial moment, these had in some mysterious if
Dionisio was unable to prove possession of a valid curfew pass convenient way malfunctioned and gone off, although he
during the night of the accident and that the preponderance of succeeded in switching his lights on again at "bright" split
evidence shows that he did not have such a pass during that seconds before contact with the dump truck.
night. The relevance of possession or non-possession of a
curfew pass that night lies in the light it tends to shed on the A fourth and final issue relates to whether Dionisio was
other related issues: whether Dionisio was speeding home and intoxicated at the time of the accident. The evidence here
whether he had indeed purposely put out his headlights before consisted of the testimony of Patrolman Cuyno to the effect that
the accident, in order to avoid detection and possibly arrest by private respondent Dionisio smelled of liquor at the time he was
the police in the nearby police station for travelling after the taken from his smashed car and brought to the Makati Medical
onset of curfew without a valid curfew pass. Center in an unconscious condition. 7 This testimony has to be
taken in conjunction with the admission of Dionisio that he had
On the second issue whether or not Dionisio was speeding taken "a shot or two" of liquor before dinner with his boss that
home that night both the trial court and the appellate court night. We do not believe that this evidence is sufficient to show
were completely silent. that Dionisio was so heavily under the influence of liquor as to
constitute his driving a motor vehicle per se an act of reckless
The defendants in the trial court introduced the testimony of imprudence. 8 There simply is not enough evidence to show
Patrolman Cuyno who was at the scene of the accident almost how much liquor he had in fact taken and the effects of that upon
immediately after it occurred, the police station where he was his physical faculties or upon his judgment or mental alertness.
based being barely 200 meters away. Patrolman Cuyno testified We are also aware that "one shot or two" of hard liquor may
that people who had gathered at the scene of the accident told affect different people differently.
him that Dionisio's car was "moving fast" and did not have its
headlights on. 2 Dionisio, on the other hand, claimed that he was The conclusion we draw from the factual circumstances outlined
travelling at a moderate speed at 30 kilometers per hour and had above is that private respondent Dionisio was negligent the night
just crossed the intersection of General Santos and General of the accident. He was hurrying home that night and driving
Lacuna Streets and had started to accelerate when his faster than he should have been. Worse, he extinguished his
headlights failed just before the collision took place. 3 headlights at or near the intersection of General Lacuna and
General Santos Streets and thus did not see the dump truck that
was parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the
Intermediate Appellate Court that the legal and proximate cause
of the accident and of Dionisio's injuries was the wrongful or
negligent manner in which the dump truck was parked in other
words, the negligence of petitioner Carbonel. That there was a
reasonable relationship between petitioner Carbonel's
negligence on the one hand and the accident and respondent's
injuries on the other hand, is quite clear. Put in a slightly different
manner, the collision of Dionisio's car with the dump truck was a
natural and foreseeable consequence of the truck driver's
negligence.
The petitioners, however, urge that the truck driver's negligence
was merely a "passive and static condition" and that private
respondent Dionisio's negligence was an "efficient intervening
cause and that consequently Dionisio's negligence must be
regarded as the legal and proximate cause of the accident rather
than the earlier negligence of Carbonel. We note that the
petitioners' arguments are drawn from a reading of some of the
older cases in various jurisdictions in the United States but we
are unable to persuade ourselves that these arguments have
any validity for our jurisdiction. We note, firstly, that even in the
United States, the distinctions between "cause" and "condition"
which the 'petitioners would have us adopt have already been
"almost entirely discredited." Professors and Keeton make this
quite clear:
Cause and condition. Many courts have sought to distinguish
between the active "cause" of the harm and the existing
"conditions" upon which that cause operated. If the defendant
has created only a passive static condition which made the
damage possible, the defendant is said not to be liable. But so
far as the fact of causation is concerned, in the sense of
necessary antecedents which have played an important part in
producing the result it is quite impossible to distinguish between
active forces and passive situations, particularly since, as is
invariably the case, the latter are the result of other active forces
which have gone before. The defendant who spills gasoline
about the premises creates a "condition," but the act may be
culpable because of the danger of fire. When a spark ignites the
gasoline, the condition has done quite as much to bring about
the fire as the spark; and since that is the very risk which the
defendant has created, the defendant will not escape
responsibility. Even the lapse of a considerable time during
which the "condition" remains static will not necessarily affect
liability; one who digs a trench in the highway may still be liable
to another who fans into it a month afterward. "Cause" and
"condition" still find occasional mention in the decisions; but the
distinction is now almost entirely discredited. So far as it has any
validity at all, it must refer to the type of case where the forces
set in operation by the defendant have come to rest in a position
of apparent safety, and some new force intervenes. But even in
such cases, it is not the distinction between "cause" and
"condition" which is important but the nature of the risk and the
character of the intervening cause. 9
We believe, secondly, that the truck driver's negligence far from
being a "passive and static condition" was rather an
indispensable and efficient cause. The collision between the
dump truck and the private respondent's car would in an
probability not have occurred had the dump truck not been
parked askew without any warning lights or reflector devices.
The improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down General
Lacuna Street and for having so created this risk, the truck driver
must be held responsible. In our view, Dionisio's negligence,
although later in point of time than the truck driver's negligence
and therefore closer to the accident, was not an efficient
intervening or independent cause. What the Petitioners describe
as an "intervening cause" was no more than a foreseeable
consequent manner which the truck driver had parked the dump
truck. In other words, the petitioner truck driver owed a duty to
private respondent Dionisio and others similarly situated not to
impose upon them the very risk the truck driver had created.
Dionisio's negligence was not of an independent and
overpowering nature as to cut, as it were, the chain of causation
in fact between the improper parking of the dump truck and the
accident, nor to sever the juris vinculum of liability. It is helpful to
quote once more from Professor and Keeton:
Foreseeable Intervening Causes. If the intervening cause is one
which in ordinary human experience is reasonably to be
anticipated or one which the defendant has reason to anticipate
under the particular circumstances, the defendant may be
negligence among other reasons, because of failure to guard
against it; or the defendant may be negligent only for that
reason. Thus one who sets a fire may be required to foresee that
an ordinary, usual and customary wind arising later wig spread it
beyond the defendant's own property, and therefore to take
precautions to prevent that event. The person who leaves the
combustible or explosive material exposed in a public place may
foresee the risk of fire from some independent source. ... In all of
these cases there is an intervening cause combining with the
defendant's conduct to produce the result and in each case the
defendant's negligence consists in failure to protect the plaintiff
against that very risk.
Obviously the defendant cannot be relieved from liability by the
fact that the risk or a substantial and important part of the risk, to
which the defendant has subjected the plaintiff has indeed come
to pass. Foreseeable intervening forces are within the scope
original risk, and hence of the defendant's negligence. The
courts are quite generally agreed that intervening causes which
fall fairly in this category will not supersede the defendant's
responsibility.
Thus it has been held that a defendant will be required to
anticipate the usual weather of the vicinity, including all ordinary
forces of nature such as usual wind or rain, or snow or frost or
fog or even lightning; that one who leaves an obstruction on the
road or a railroad track should foresee that a vehicle or a train
will run into it; ...
The risk created by the defendant may include the intervention
of the foreseeable negligence of others. ... [The standard of
reasonable conduct may require the defendant to protect the
plaintiff against 'that occasional negligence which is one of the
ordinary incidents of human life, and therefore to be anticipated.'
Thus, a defendant who blocks the sidewalk and forces the
plaintiff to walk in a street where the plaintiff will be exposed to
the risks of heavy traffic becomes liable when the plaintiff is run
down by a car, even though the car is negligently driven; and
one who parks an automobile on the highway without lights at
night is not relieved of responsibility when another negligently
drives into it. --- 10
We hold that private respondent Dionisio's negligence was "only
contributory," that the "immediate and proximate cause" of the
injury remained the truck driver's "lack of due care" and that
consequently respondent Dionisio may recover damages though
such damages are subject to mitigation by the courts (Article
2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last
clear chance" doctrine. The theory here of petitioners is that
while the petitioner truck driver was negligent, private
respondent Dionisio had the "last clear chance" of avoiding the
accident and hence his injuries, and that Dionisio having failed to
take that "last clear chance" must bear his own injuries alone.
The last clear chance doctrine of the common law was imported
into our jurisdiction by Picart vs. Smith 11 but it is a matter for
debate whether, or to what extent, it has found its way into the
Civil Code of the Philippines. The historical function of that
doctrine in the common law was to mitigate the harshness of
another common law doctrine or rule that of contributory
negligence. 12 The common law rule of contributory negligence
prevented any recovery at all by a plaintiff who was also
negligent, even if the plaintiff's negligence was relatively minor
as compared with the wrongful act or omission of the defendant.
13 The common law notion of last clear chance permitted courts
to grant recovery to a plaintiff who had also been negligent
provided that the defendant had the last clear chance to avoid
the casualty and failed to do so. 14 Accordingly, it is difficult to
see what role, if any, the common law last clear chance doctrine
has to play in a jurisdiction where the common law concept of
contributory negligence as an absolute bar to recovery by the
plaintiff, has itself been rejected, as it has been in Article 2179 of
the Civil Code of the Philippines. 15
Turning to the award of damages and taking into account the
comparative negligence of private respondent Dionisio on one
hand and petitioners Carbonel and Phoenix upon the other
hand, 17 we believe that the demands of substantial justice are
satisfied by allocating most of the damages on a 20-80 ratio.
Thus, 20% of the damages awarded by the respondent appellate
court, except the award of P10,000.00 as exemplary damages
and P4,500.00 as attorney's fees and costs, shall be borne by
private respondent Dionisio; only the balance of 80% needs to
be paid by petitioners Carbonel and Phoenix who shall be
solidarity liable therefor to the former. The award of exemplary
damages and attorney's fees and costs shall be borne
exclusively by the petitioners. Phoenix is of course entitled to
reimbursement from Carbonel. 18 We see no sufficient reason
for disturbing the reduced award of damages made by the
respondent appellate court.
WHEREFORE, the decision of the respondent appellate court is
modified by reducing the aggregate amount of compensatory
damages, loss of expected income and moral damages private
respondent Dionisio is entitled to by 20% of such amount. Costs
against the petitioners.
SO ORDERED.

Is there perhaps a general concept of "last clear chance" that

may be extracted from its common law matrix and utilized as a
general rule in negligence cases in a civil law jurisdiction like
ours? We do not believe so. Under Article 2179, the task of a
court, in technical terms, is to determine whose negligence
the plaintiff's or the defendant's was the legal or proximate
cause of the injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners seem to
imply by the use of terms like "last" or "intervening" or
"immediate." The relative location in the continuum of time of the
plaintiff's and the defendant's negligent acts or omissions, is only
one of the relevant factors that may be taken into account. Of
more fundamental importance are the nature of the negligent act
or omission of each party and the character and gravity of the
risks created by such act or omission for the rest of the
community. The petitioners urge that the truck driver (and
therefore his employer) should be absolved from responsibility
for his own prior negligence because the unfortunate plaintiff
failed to act with that increased diligence which had become
necessary to avoid the peril precisely created by the truck
driver's own wrongful act or omission. To accept this proposition
is to come too close to wiping out the fundamental principle of
law that a man must respond for the forseeable consequences
of his own negligent act or omission. Our law on quasi-delicts
seeks to reduce the risks and burdens of living in society and to
allocate them among the members of society. To accept the
petitioners' pro-position must tend to weaken the very bonds of
society.

Petitioner Carbonel's proven negligence creates a presumption

of negligence on the part of his employer Phoenix 16 in
supervising its employees properly and adequately. The
respondent appellate court in effect found, correctly in our
opinion, that Phoenix was not able to overcome this presumption
of negligence. The circumstance that Phoenix had allowed its
truck driver to bring the dump truck to his home whenever there
was work to be done early the following morning, when coupled
with the failure to show any effort on the part of Phoenix to
supervise the manner in which the dump truck is parked when
away from company premises, is an affirmative showing of culpa
in vigilando on the part of Phoenix.
LAMBERT S. RAMOS, G.R. No. 184905
Petitioner,
Present:
Ynares-Santiago, J. (Chairperson),
- versus - Chico-Nazario,
Velasco, Jr.,
Nachura, and
Peralta, JJ.
C.O.L. REALTY CORPORATION,
Respondent. Promulgated:
August 28, 2009
x -----------------------------------------------------------------------------------
----- x
DECISION
YNARES-SANTIAGO, J.:
The issue for resolution is whether petitioner can be held
solidarily liable with his driver, Rodel Ilustrisimo, to pay
respondent C.O.L. Realty the amount of P51,994.80 as actual
damages suffered in a vehicular collision.
The facts, as found by the appellate court, are as follows:
On or about 10:40 oclock in the morning of 8 March 2004, along
Katipunan (Avenue), corner Rajah Matanda (Street), Quezon
City, a vehicular accident took place between a Toyota Altis
Sedan bearing Plate Number XDN 210, owned by petitioner
C.O.L. Realty Corporation, and driven by Aquilino Larin
(Aquilino), and a Ford Expedition, owned by x x x Lambert
Ramos (Ramos) and driven by Rodel Ilustrisimo (Rodel), with
Plate Number LSR 917. A passenger of the sedan, one Estela
Maliwat (Estela) sustained injuries. She was immediately rushed
to the hospital for treatment.
(C.O.L. Realty) averred that its driver, Aquilino, was slowly
driving the Toyota Altis car at a speed of five to ten kilometers
per hour along Rajah Matanda Street and has just crossed the
center lane of Katipunan Avenue when (Ramos) Ford Espedition
violently rammed against the cars right rear door and fender.
With the force of the impact, the sedan turned 180 degrees
towards the direction where it came from.
Upon investigation, the Office of the City Prosecutor of Quezon
City found probable cause to indict Rodel, the driver of the Ford
Expedition, for Reckless Imprudence Resulting in Damage to
Property. In the meantime, petitioner demanded from
respondent reimbursement for the expenses incurred in the
repair of its car and the hospitalization of Estela in the aggregate
amount of P103,989.60. The demand fell on deaf ears prompting
(C.O.L. Realty) to file a Complaint for Damages based on quasi-
delict before the Metropolitan Trial Court of Metro Manila
(MeTC), Quezon City, docketed as Civil Case No. 33277, and
subsequently raffled to Branch 42.
As could well be expected, (Ramos) denied liability for damages
insisting that it was the negligence of Aquilino, (C.O.L. Realtys)
driver, which was the proximate cause of the accident. (Ramos)
maintained that the sedan car crossed Katipunan Avenue from
Rajah Matanda Street despite the concrete barriers placed
thereon prohibiting vehicles to pass through the intersection.
(Ramos) further claimed that he was not in the vehicle when the
mishap occurred. He asserted that he exercised the diligence of
a good father of a family in the selection and supervision of his
driver, Rodel.
Weighing the respective evidence of the parties, the MeTC
rendered the Decision dated 1 March 2006 exculpating (Ramos)
from liability, thus:
WHEREFORE, the instant case is DISMISSED for lack of merit.
The Counterclaims of the defendant are likewise DISMISSED for
lack of sufficient factual and legal basis.
SO ORDERED.
The aforesaid judgment did not sit well with (C.O.L. Realty) so
that he (sic) appealed the same before the RTC of Quezon City,
raffled to Branch 215, which rendered the assailed Decision
dated 5 September 2006, affirming the MeTCs Decision. (C.O.L.
Realtys) Motion for Reconsideration met the same fate as it was
denied by the RTC in its Order dated 5 June 2007.[1]
C.O.L. Realty appealed to the Court of Appeals which affirmed
the view that Aquilino was negligent in crossing Katipunan
Avenue from Rajah Matanda Street since, as per Certification of
the Metropolitan Manila Development Authority (MMDA) dated
November 30, 2004, such act is specifically prohibited. Thus:
This is to certify that as per records found and available in this
office the crossing of vehicles at Katipunan Avenue from Rajah
Matanda Street to Blue Ridge Subdivision, Quezon City has (sic)
not allowed since January 2004 up to the present in view of the
ongoing road construction at the area.[2] (Emphasis supplied)
Barricades were precisely placed along the intersection of
Katipunan Avenue and Rajah Matanda Street in order to prevent
motorists from crossing Katipunan Avenue. Nonetheless,
Aquilino crossed Katipunan Avenue through certain portions of
the barricade which were broken, thus violating the MMDA
rule.[3]
However, the Court of Appeals likewise noted that at the time of
the collision, Ramos vehicle was moving at high speed in a busy
area that was then the subject of an ongoing construction (the
Katipunan Avenue-Boni Serrano Avenue underpass), then
smashed into the rear door and fender of the passengers side of
Aquilinos car, sending it spinning in a 180-degree turn.[4] It
therefore found the driver Rodel guilty of contributory negligence
for driving the Ford Expedition at high speed along a busy
intersection.
Thus, on May 28, 2008, the appellate court rendered the
assailed Decision,[5] the dispositive portion of which reads, as
follows:
WHEREFORE, the Decision dated 5 September 2006 of the
Regional Trial Court of Quezon City, Branch 215 is hereby
MODIFIED in that respondent Lambert Ramos is held solidarily
liable with Rodel Ilustrisimo to pay petitioner C.O.L. Realty
Corporation the amount of P51,994.80 as actual damages.
Petitioner C.O.L. Realty Corporations claim for exemplary
damages, attorneys fees and cost of suit are DISMISSED for
lack of merit.
SO ORDERED.
Petitioner filed a Motion for Reconsideration but it was denied.
Hence, the instant petition, which raises the following sole issue:
THE COURT OF APPEALS DECISION IS CONTRARY TO LAW
AND JURISPRUDENCE, AND THE EVIDENCE TO SUPPORT
AND JUSTIFY THE SAME IS INSUFFICIENT.
We resolve to GRANT the petition.
in the selection and supervision of his employee, he or she
exercises the care and diligence of a good father of a family.
Employers must submit concrete proof, including documentary
evidence, that they complied with everything that was incumbent
on them.

There is no doubt in the appellate courts mind that Aquilinos (Ramos) feebly attempts to escape vicarious liability by averring
violation of the MMDA prohibition against crossing Katipunan that Rodel was highly recommended when he applied for the
Avenue from Rajah Matanda Street was the proximate cause of position of family driver by the Social Service Committee of his
the accident. Respondent does not dispute this; in its Comment parish. A certain Ramon Gomez, a member of the churchs
to the instant petition, it even conceded that petitioner was guilty livelihood program, testified that a background investigation
of mere contributory negligence.[6] would have to be made before an applicant is recommended to
the parishioners for employment. (Ramos) supposedly tested
Thus, the Court of Appeals acknowledged that: Rodels driving skills before accepting him for the job. Rodel has
been his driver since 2001, and except for the mishap in 2004,
The Certification dated 30 November 2004 of the Metropolitan he has not been involved in any road accident.
Manila Development Authority (MMDA) evidently disproved
(C.O.L. Realtys) barefaced assertion that its driver, Aquilino, was Regrettably, (Ramos) evidence which consisted mainly of
not to be blamed for the accident testimonial evidence remained unsubstantiated and are thus,
barren of significant weight. There is nothing on the records
TO WHOM IT MAY CONCERN: which would support (Ramos) bare allegation of Rodels 10-year
unblemished driving record. He failed to present convincing
This is to certify that as per records found and available in this proof that he went to the extent of verifying Rodels qualifications,
office the crossing of vehicles at Katipunan Avenue from Rajah safety record, and driving history.
Matanda Street to Blue Ridge Subdivision, Quezon City has (sic)
not allowed since January 2004 up to the present in view of the So too, (Ramos) did not bother to refute (C.O.L. Realtys) stance
ongoing road construction at the area. that his driver was texting with his cellphone while running at a
high speed and that the latter did not slow down albeit he knew
This certification is issued upon request of the interested parties that Katipunan Avenue was then undergoing repairs and that the
for whatever legal purpose it may serve. road was barricaded with barriers. The presumption juris tantum
that there was negligence in the selection of driver remains
(C.O.L. Realty) admitted that there were barricades along the unrebutted. As the employer of Rodel, (Ramos) is solidarily
intersection of Katipunan Avenue and Rajah Matanda Street. liable for the quasi-delict committed by the former.
The barricades were placed thereon to caution drivers not to
pass through the intersecting roads. This prohibition stands even Certainly, in the selection of prospective employees, employers
if, as (C.O.L. Realty) claimed, the barriers were broken at that are required to examine them as to their qualifications,
point creating a small gap through which any vehicle could pass. experience and service records. In the supervision of
What is clear to Us is that Aquilino recklessly ignored these employees, the employer must formulate standard operating
barricades and drove through it. Without doubt, his negligence is procedures, monitor their implementation and impose
established by the fact that he violated a traffic regulation. This disciplinary measures for the breach thereof. These, (Ramos)
finds support in Article 2185 of the Civil Code failed to do.[8]

Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time
of the mishap, he was violating any traffic regulation.
Accordingly, there ought to be no question on (C.O.L. Realtys)
negligence which resulted in the vehicular mishap.[7]
However, it also declared Ramos liable vicariously for Rodels
contributory negligence in driving the Ford Expedition at high
speed along a busy intersection. On this score, the appellate
court made the following pronouncement:
As a professional driver, Rodel should have known that driving
his vehicle at a high speed in a major thoroughfare which was
then subject of an on-going construction was a perilous act. He
had no regard to (sic) the safety of other vehicles on the road.
Because of the impact of the collision, (Aquilinos) sedan made a
180-degree turn as (Ramos) Ford Expedition careened and
smashed into its rear door and fender. We cannot exculpate
Rodel from liability.
Having thus settled the contributory negligence of Rodel, this
created a presumption of negligence on the part of his employer,
(Ramos). For the employer to avoid the solidary liability for a tort
committed by his employee, an employer must rebut the
presumption by presenting adequate and convincing proof that
Petitioner disagrees, arguing that since Aquilinos willful
disregard of the MMDA prohibition was the sole proximate cause
of the accident, then respondent alone should suffer the
consequences of the accident and the damages it incurred. He
argues:
20. It becomes apparent therefore that the only time a plaintiff,
the respondent herein, can recover damages is if its negligence
was only contributory, and such contributory negligence was the
proximate cause of the accident. It has been clearly established
in this case, however, that respondents negligence was not
merely contributory, but the sole proximate cause of the
accident.
xxxx
22. As culled from the foregoing, respondent was the sole
proximate cause of the accident. Respondents vehicle should
not have been in that position since crossing the said
intersection was prohibited. Were it not for the obvious
negligence of respondents driver in crossing the intersection that
was prohibited, the accident would not have happened. The
crossing of respondents vehicle in a prohibited intersection
unquestionably produced the injury, and without which the
accident would not have occurred. On the other hand, petitioners
driver had the right to be where he was at the time of the
mishap. As correctly concluded by the RTC, the petitioners
driver could not be expected to slacken his speed while
travelling along said intersection since nobody, in his right mind,
would do the same. Assuming, however, that petitioners driver
was indeed guilty of any contributory negligence, such was not
the proximate cause of the accident considering that again, if
respondents driver did not cross the prohibited intersection, no
accident would have happened. No imputation of any lack of
care on Ilustrisimos could thus be concluded. It is obvious then
that petitioners driver was not guilty of any negligence that would
make petitioner vicariously liable for damages.
23. As the sole proximate cause of the accident was
respondents own driver, respondent cannot claim damages from
petitioner.[9]
If Aquilino heeded the MMDA prohibition against crossing
Katipunan Avenue from Rajah Matanda, the accident would not
have happened. This specific untoward event is exactly what the
MMDA prohibition was intended for. Thus, a prudent and
intelligent person who resides within the vicinity where the
accident occurred, Aquilino had reasonable ground to expect
that the accident would be a natural and probable result if he
crossed Katipunan Avenue since such crossing is considered
dangerous on account of the busy nature of the thoroughfare
and the ongoing construction of the Katipunan-Boni Avenue
underpass. It was manifest error for the Court of Appeals to have
overlooked the principle embodied in Article 2179 of the Civil
Code, that when the plaintiffs own negligence was the
immediate and proximate cause of his injury, he cannot recover
damages.

Hence, we find it unnecessary to delve into the issue of Rodels

On the other hand, respondent in its Comment merely reiterated contributory negligence, since it cannot overcome or defeat
the appellate courts findings and pronouncements, conceding Aquilinos recklessness which is the immediate and proximate
that petitioner is guilty of mere contributory negligence, and cause of the accident. Rodels contributory negligence has
insisted on his vicarious liability as Rodels employer under relevance only in the event that Ramos seeks to recover from
Article 2184 of the Civil Code. respondent whatever damages or injuries he may have suffered
as a result; it will have the effect of mitigating the award of
Articles 2179 and 2185 of the Civil Code on quasi-delicts apply damages in his favor. In other words, an assertion of
in this case, viz: contributory negligence in this case would benefit only the
petitioner; it could not eliminate respondents liability for Aquilinos
Article 2179. When the plaintiffs own negligence was the negligence which is the proximate result of the accident.
immediate and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the WHEREFORE, the petition is GRANTED. The Decision of the
immediate and proximate cause of the injury being the Court of Appeals dated May 28, 2008 in CA-G.R. SP No. 99614
defendants lack of due care, the plaintiff may recover damages, and its Resolution of October 13, 2008 are hereby REVERSED
but the courts shall mitigate the damages to be awarded. and SET ASIDE. The Decision of the Regional Trial Court of
Quezon City, Branch 215 dated September 5, 2006 dismissing
Article 2185. Unless there is proof to the contrary, it is presumed for lack of merit respondents complaint for damages is hereby
that a person driving a motor vehicle has been negligent if at the REINSTATED.
time of the mishap, he was violating any traffic regulation.
SO ORDERED.
If the master is injured by the negligence of a third person and
by the concurring contributory negligence of his own servant or
agent, the latters negligence is imputed to his superior and will
defeat the superiors action against the third person, assuming of
course that the contributory negligence was the proximate cause
of the injury of which complaint is made.[10]

Applying the foregoing principles of law to the instant case,

Aquilinos act of crossing Katipunan Avenue via Rajah Matanda
constitutes negligence because it was prohibited by law.
Moreover, it was the proximate cause of the accident, and thus
precludes any recovery for any damages suffered by respondent
from the accident. G.R. No. 90204 May 11, 1990

Proximate cause is defined as that cause, which, in natural and MANUEL BELARMINO, petitioner,
continuous sequence, unbroken by any efficient intervening vs.
cause, produces the injury, and without which the result would EMPLOYEES' COMPENSATION COMMISSION and
not have occurred. And more comprehensively, the proximate GOVERNMENT SERVICE INSURANCE SYSTEM,
legal cause is that acting first and producing the injury, either respondents.
immediately or by setting other events in motion, all constituting
a natural and continuous chain of events, each having a close
causal connection with its immediate predecessor, the final GRIO-AQUINO, J.:
event in the chain immediately effecting the injury as a natural
and probable result of the cause which first acted, under such This seven-year-old case involves a claim for benefits for the
circumstances that the person responsible for the first event death of a lady school teacher which the public respondents
should, as an ordinary prudent and intelligent person, have disallowed on the ground that the cause of death was not work-
reasonable ground to expect at the moment of his act or default connected.
that an injury to some person might probably result
therefrom.[11] Before her death on February 19, 1982, petitioner's wife, Oania
Belarmino, was a classroom teacher of the Department of
Education, Culture and Sports assigned at the Buracan
Elementary School in Dimasalang, Masbate (p. 13, Rollo). She Sec. 1. Grounds (a) For the injury and the resulting disability
had been a classroom teacher since October 18, 1971, or for or death to be compensable, the injury must be the result of an
eleven (11) years. Her husband, the petitioner, is also a public employment accident satisfying all of the following conditions:
school teacher.
(1) The employee must have been injured at the place
On January 14, 1982, at nine o'clock in the morning, while where his work requires him to be;
performing her duties as a classroom teacher, Mrs. Belarmino
who was in her 8th month of pregnancy, accidentally slipped and (2) The employee must have been performing his official
fell on the classroom floor. Moments later, she complained of functions; and
abdominal pain and stomach cramps. For several days, she
continued to suffer from recurrent abdominal pain and a feeling (3) If the injury is sustained elsewhere, the employee must
of heaviness in her stomach, but, heedless of the advice of her have been executing an order for the employer.
female co-teachers to take a leave of absence, she continued to
report to the school because there was much work to do. On (b) For the sickness and the resulting disability or death to
January 25, 1982, eleven (11) days after her accident, she went be compensable, the sickness must be the result of an
into labor and prematurely delivered a baby girl at home (p. 8, occupational disease listed under Annex "A" of these Rules with
Rollo). the conditions set therein satisfied; otherwise, proof must be
shown that the risk of contracting the disease is increased by the
Her abdominal pains persisted even after the delivery, working conditions.
accompanied by high fever and headache. She was brought to
the Alino Hospital in Dimasalang, Masbate on February 11, (c) Only injury or sickness that occurred on or after
1982. Dr. Alfonso Alino found that she was suffering from January 1, 1975 and the resulting disability or death shall be
septicemia post partum due to infected lacerations of the vagina. compensable under these Rules.
She was discharged from the hospital after five (5) days on
February 16, 1982, apparently recovered but she died three (3) The illness, septicemia post partum which resulted in the death
days later. The cause of death was septicemia post partum. She of Oania Belarmino, is admittedly not listed as an occupational
was 33 years old, survived by her husband and four (4) children, disease in her particular line of work as a classroom teacher.
the oldest of whom was 11 years old and the youngest, her However, as pointed out in the petition, her death from that
newborn infant (p. 9, Rollo). ailment is compensable because an employment accident and
the conditions of her employment contributed to its development.
On April 21, 1983, a claim for death benefits was filed by her The condition of the classroom floor caused Mrs. Belarmino to
husband. On February 14, 1984, it was denied by the slip and fall and suffer injury as a result. The fall precipitated the
Government Service Insurance System (GSIS) which held that onset of recurrent abdominal pains which culminated in the
'septicemia post partum the cause of death, is not an premature termination of her pregnancy with tragic
occupational disease, and neither was there any showing that consequences to her. Her fall on the classroom floor brought
aforesaid ailment was contracted by reason of her employment. . about her premature delivery which caused the development of
. . The alleged accident mentioned could not have precipitated post partum septicemia which resulted in death. Her fall
the death of the wife but rather the result of the infection of her therefore was the proximate or responsible cause that set in
lacerated wounds as a result of her delivery at home" (p. 14 motion an unbroken chain of events, leading to her demise.
Rollo).
. . . what is termed in American cases the proximate cause, not
On appeal to the Employees Compensation Commission, the implying however, as might be inferred from the word itself, the
latter issued Resolution No. 3913 dated July 8, 1988 holding: nearest in point of time or relation, but rather, [is] the efficient
cause, which may be the most remote of an operative chain. It
We agree with the decision of the system, hence we dismiss this must be that which sets the others in motion and is to be
appeal. Postpartum septicemia is an acute infectious disease of distinguished from a mere preexisting condition upon which the
the puerperium resulting from the entrance into the blood of effective cause operates, and must have been adequate to
bacteria usually streptococci and their toxins which cause produce the resultant damage without the intervention of an
dissolution of the blood, degenerative changes in the organs and independent cause. (Atlantic Gulf vs. Insular Government, 10
the symptoms of intoxication. The cause of this condition in the Phil. 166,171.)
instant case was the infected vaginal lacerations resulting from
the decedent's delivery of her child which took place at home. The proximate legal cause is that acting first and producing the
The alleged accident in school could not have been the cause of injury, either immediately or by setting other events in motion, all
septicemia, which in this case is clearly caused by factors not constituting a natural and continuous chain of events, each
inherent in employment or in the working conditions of the having a close causal connection with its immediate predecessor
deceased. (pp. 14-15, Rollo.) the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under
Hence, this petition for review. such circumstances that the person responsible for the first
event should, as an ordinarily prudent and intelligent person,
After a careful consideration of the petition and the annexes have reasonable ground to expect at the moment of his act or
thereof, as well as the comments of the public respondents, we default that an injury to some person might probably result
are persuaded that the public respondents' peremptory denial of therefrom. (Bataclan v. Medina, 102 Phil. 181.)
the petitioner's claim constitutes a grave abuse of discretion.
Thus in Enriquez v. WCC, 93 SCRA 366, 372, this Court ruled:
Rule III, Section 1 of the Amended Rules on Employees'
Compensation enumerates the grounds for compensability of . . . Verily, the right to compensation extends to disability due to
injury resulting in disability or death of an employee, as follows: disease supervening upon and proximately and naturally
resulting from a compensable injury (82 Am. Jur. 132). Where
the primary injury is shown to have arisen in the course of until it is fully paid, plus attorney's fees equivalent to ten (10%)
employment, every natural consequence that flows from the percent of the award, and costs of suit.
injury likewise arises out of the employment, unless it is the
result of an independent intervening cause attributable to SO ORDERED.
complainants own negligence or misconduct ( I Larson
Workmen's Compensation Law 3-279 [1972]). Simply stated, all
the medical consequences and sequels that flow from the
primary injury are compensable. (Ibid.)

Mrs. Belarmino's fall was the primary injury that arose in the
course of her employment as a classroom teacher, hence, all the G.R. No. 92087 May 8, 1992
medical consequences flowing from it: her recurrent abdominal
pains, the premature delivery of her baby, her septicemia post SOFIA FERNANDO, in her behalf and as the legal guardian
partum and death, are compensable. of her minor children, namely: ALBERTO & ROBERTO, all
surnamed FERNANDO, ANITA GARCIA, NICOLAS
There is no merit in the public respondents' argument that the LIAGOSO, ROSALIA BERTULANO, in her behalf and as the
cause of the decedent's post partum septicemia "was the legal guardian of her minor children, namely: EDUARDO,
infected vaginal lacerations resulting from the decedent's ROLANDO, DANIEL, AND JOCELYN, all surnamed
delivery of her child at home" for the incident in school could not BERTULANO, PRIMITIVA FAJARDO in her behalf and as
have caused septicemia post partum, . . . the necessary legal guardian of her minor children, namely: GILBERT,
precautions to avoid infection during or after labor were (not) GLEN, JOCELYN AND JOSELITO, all surnamed FAJARDO,
taken" (p. 29, Rollo). and EMETERIA LIAGOSO, in her behalf and as guardian ad
litem, of her minor grandchildren, namely: NOEL, WILLIAM,
The argument is unconvincing. It overlooks the fact that GENEVIEVE and GERRY, all surnamed LIAGOSO,
septicemia post partum is a disease of childbirth, and premature petitioners,
childbirth would not have occurred if she did not accidentally fall vs.
in the classroom. THE HONORABLE COURT OF APPEALS AND CITY OF
DAVAO, respondents.
It is true that if she had delivered her baby under sterile
conditions in a hospital operating room instead of in the unsterile
environment of her humble home, and if she had been attended MEDIALDEA, J.:
by specially trained doctors and nurses, she probably would not
have suffered lacerations of the vagina and she probably would This is a petition for review on certiorari praying that the
not have contracted the fatal infection. Furthermore, if she had amended decision of the Court of Appeals dated January 11,
remained longer than five (5) days in the hospital to complete 1990 in CA-G.R. No. C.V. 04846, entitled "Sofia Fernando, etc.,
the treatment of the infection, she probably would not have died. et al. v. The City of Davao," be reversed and that its original
But who is to blame for her inability to afford a hospital delivery decision dated January 31, 1986 be reinstated subject to the
and the services of trained doctors and nurses? The court may modification sought by the petitioners in their motion for partial
take judicial notice of the meager salaries that the Government reconsideration dated March 6, 1986.
pays its public school teachers. Forced to live on the margin of
poverty, they are unable to afford expensive hospital care, nor The antecedent facts are briefly narrated by the trial court, as
the services of trained doctors and nurses when they or follows:
members of their families are in. Penury compelled the
deceased to scrimp by delivering her baby at home instead of in From the evidence presented we see the following facts: On
a hospital. November 7, 1975, Bibiano Morta, market master of the Agdao
Public Market filed a requisition request with the Chief of
The Government is not entirely blameless for her death for it is Property of the City Treasurer's Office for the re-emptying of the
not entirely blameless for her poverty. Government has yet to septic tank in Agdao. An invitation to bid was issued to Aurelio
perform its declared policy "to free the people from poverty, Bertulano, Lito Catarsa, Feliciano Bascon, Federico Bolo and
provide adequate social services, extend to them a decent Antonio Suer, Jr. Bascon won the bid. On November 26, 1975
standard of living, and improve the quality of life for all (Sec. 7, Bascon was notified and he signed the purchase order.
Art. II, 1973 Constitution and Sec. 9, Art. II, 1987 Constitution). However, before such date, specifically on November 22, 1975,
Social justice for the lowly and underpaid public school teachers bidder Bertulano with four other companions namely Joselito
will only be an empty shibboleth until Government adopts Garcia, William Liagoso, Alberto Fernando and Jose Fajardo, Jr.
measures to ameliorate their economic condition and provides were found dead inside the septic tank. The bodies were
them with adequate medical care or the means to afford it. removed by a fireman. One body, that of Joselito Garcia, was
"Compassion for the poor is an imperative of every humane taken out by his uncle, Danilo Garcia and taken to the Regional
society" (PLDT v. Bucay and NLRC, 164 SCRA 671, 673). By Hospital but he expired there. The City Engineer's office
their denial of the petitioner's claim for benefits arising from the investigated the case and learned that the five victims entered
death of his wife, the public respondents ignored this imperative the septic tank without clearance from it nor with the knowledge
of Government, and thereby committed a grave abuse of and consent of the market master. In fact, the septic tank was
discretion. found to be almost empty and the victims were presumed to be
the ones who did the re-emptying. Dr. Juan Abear of the City
WHEREFORE, the petition for certiorari is granted. The Health Office autopsied the bodies and in his reports, put the
respondents Employees Compensation Commission and the cause of death of all five victims as "asphyxia" caused by the
Government Service Insurance System are ordered to pay death diminution of oxygen supply in the body working below normal
benefits to the petitioner and/or the dependents of the late Oania conditions. The lungs of the five victims burst, swelled in
Belarmino, with legal rate of interest from the filing of the claim hemmorrhagic areas and this was due to their intake of toxic
gas, which, in this case, was sulfide gas produced from the
waste matter inside the septic tank. (p. 177, Records)
On August 28, 1984, the trial court rendered a decision, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING, this case is hereby
DISMISSED without pronouncement as to costs.
SO ORDERED. (Records, p. 181)
From the said decision, the petitioners appealed to the then
Intermediate Appellate Court (now Court of Appeals). On
January 3, 1986, the appellate court issued a decision, the
dispositive portion of which reads:
The death compensation is fixed at P30,000.00 in accordance
with the rulings of the Supreme Court starting with People vs. De
la Fuente, Nos. L-63251-52, December 29, 1983, 126 SCRA
518 reiterated in the recent case of People vs. Nepomuceno,
No. L-41412, May 27, 1985. Attorney's fees in the amount of
P10,000.00 for the handling of the case for the 5 victims is also
awarded.
No pronouncement as to costs.
SO ORDERED. (Rollo, pp. 33-34)
Both parties filed their separate motions for reconsideration. On
January 11, 1990, the Court of Appeals rendered an Amended
Decision, the dispositive portion of which reads:

WHEREFORE, in view of the facts fully established and in the
liberal interpretation of what the Constitution and the law
intended to protect the plight of the poor and the needy, the
ignorant and the
indigent more entitled to social justice for having, in the
unforgettable words of Magsaysay, "less in life," We hereby
reverse and set aside the appealed judgment and render
another one:
1. Ordering the defendant to pay to the plaintiffs Dionisio
Fernando, Sofia Fernando and her minor children the following
sums of money:
WHEREFORE, finding merit in the motion for reconsideration of
the defendant-appellee Davao City, the same is hereby
GRANTED. The decision of this Court dated January 31, 1986 is
reversed and set aside and another one is hereby rendered
dismissing the case. No pronouncement as to costs.
SO ORDERED. (Rollo, p. 25)
Hence, this petition raising the following issues for resolution:
1. Is the respondent Davao City guilty of negligence in the
case at bar?

a) Compensatory damages for his death 2. If so, is such negligence the immediate and proximate
P30,000.00 cause of deaths of the victims hereof? (p. 72, Rollo)

b) Moral damages P20,000.00 Negligence has been defined as the failure to observe for the
protection of the interests of another person that degree of care,
2. Ordering the defendant to pay to the plaintiffs David precaution, and vigilance which the circumstances justly
Garcia and Anita Garcia the following sums of money: demand, whereby such other person suffers injury (Corliss v.
Manila Railroad Company, L-21291, March 28, 1969, 27 SCRA
a) Compensatory damages for his death 674, 680). Under the law, a person who by his omission causes
P30,000.00 damage to another, there being negligence, is obliged to pay for
the damage done (Article 2176, New Civil Code). As to what
b) Moral damages P20,000.00 would constitute a negligent act in a given situation, the case of
Picart v. Smith (37 Phil. 809, 813) provides Us the answer, to
3. Ordering the defendant to pay to the plaintiff Rosalia wit:
Bertulano (sic) and her minor children the following sums of
money The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in
a) Compensatory damages for his death doing the alleged negligent act use that reasonable care and
P30,000.00 caution which an ordinarily prudent person would have used in
the same situation? If not, then he is guilty of negligence. The
b) Moral damages P20,000.00 law here in effect adopts the standard supposed to be supplied
by the imaginary conduct of the discreet pater familias of the
4. Ordering the defendant to pay to the plaintiff Primitiva Roman law. The existence of negligence in a given case is not
Fajardo and her minor children the following sums of money: determined by reference to the personal judgment of the actor in
the situation before him. The law considers what would be
a) Compensatory damages for his death reckless, blameworthy, or negligent in the man of ordinary
P30,000.00 intelligence and prudence and determines liability by that.

b) Moral damages P20,000.00 The question as to what would constitute the conduct of a
prudent man in a given situation must of course be always
5. Ordering the defendant to pay to the plaintiffs Norma determined in the light of human experience and in view of the
Liagoso, Nicolas Liagoso and Emeteria Liagoso and her minor facts involved in the particular case. Abstract speculation cannot
grandchildren the following sums of money: here be of much value but this much can be profitably said:
Reasonable men govern their conduct by the circumstances
a) Compensatory damages for his death which are before them or known to them. They are not, and are
P30,000.00 not supposed to be, omniscient of the future. Hence they can be
expected to take care only when there is something before them
b) Moral damages P20,000.00 to suggest or warn of danger. Could a prudent man, in the case
under consideration, foresee harm as a result of the course
actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of
harm, followed by the ignoring of the suggestion born of this
provision, is always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for determining
the existence of negligence in a given case is this: Conduct is
said to be negligent when a prudent man in the position of the
tortfeasor would have foreseen that an effect harmful to another
was sufficiently probable warrant his foregoing the conduct or
guarding against its consequences. (emphasis supplied)
To be entitled to damages for an injury resulting from the
negligence of another, a claimant must establish the relation
between the omission and the damage. He must prove under
Article 2179 of the New Civil Code that the defendant's
negligence was the immediate and proximate cause of his injury.
Proximate cause has been defined as that cause, which, in
natural and continuous sequence unbroken by any efficient
intervening cause, produces the injury, and without which the
result would not have occurred (Vda. de Bataclan, et al. v.
Medina, 102 Phil. 181, 186). Proof of such relation of cause and
effect is not an arduous one if the claimant did not in any way
contribute to the negligence of the defendant. However, where
the resulting injury was the product of the negligence of both
parties, there exists a difficulty to discern which acts shall be
considered the proximate cause of the accident. In Taylor v.
Manila Electric Railroad and Light Co. (16 Phil. 8, 29-30), this
Court set a guideline for a judicious assessment of the situation:
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 produced the event giving occasion for
damages that 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. (emphasis Ours)
Applying all these established doctrines in the case at bar and
after a careful scrutiny of the records, We find no compelling
reason to grant the petition. We affirm.
Petitioners fault the city government of Davao for failing to clean
a septic tank for the period of 19 years resulting in an
accumulation of hydrogen sulfide gas which killed the laborers.
They contend that such failure was compounded by the fact that
there was no warning sign of the existing danger and no efforts
exerted by the public respondent to neutralize or render
harmless the effects of the toxic gas. They submit that the public
respondent's gross negligence was the proximate cause of the
fatal incident.
We do not subscribe to this view. While it may be true that the Q
public respondent has been remiss in its duty to re-empty the (public toilet)?
septic tank annually, such negligence was not a continuing one.
Upon learning from the report of the market master about the
need to clean the septic tank of the public toilet in Agdao Public
Market, the public respondent immediately responded by issuing
invitations to bid for such service. Thereafter, it awarded the bid
to the lowest bidder, Mr. Feliciano Bascon (TSN, May 24, 1983,
pp. 22-25). The public respondent, therefore, lost no time in
taking up remedial measures to meet the situation. It is likewise
an undisputed fact that despite the public respondent's failure to
re-empty the septic tank since 1956, people in the market have
been using the public toilet for their personal necessities but
have remained unscathed. The testimonies of Messrs. Danilo
Garcia and David Secoja (plaintiffs'-petitioners' witnesses) on
this point are relevant, to wit:
Atty. Mojica, counsel for defendant Davao City:
xxx xxx xxx
The place where you live is right along the Agdao creek, is that
correct?
DANILO GARCIA:
A Yes, sir.
Q And to be able to go to the market place, where you
claim you have a stall,, you have to pass on the septic tank?
A Yes, sir.
Q Day in and day out, you pass on top of the septic tank?
A Yes, sir.
Q Is it not a fact that everybody living along the creek
passes on top of this septic tank as they go out from the place
and return to their place of residence, is that correct?
And this septic tank, rather the whole of the septic tank, is
covered by lead . . .?
A Yes, sir. there is cover.
Q And there were three (3) of these lead covering the
septic tank?
A Yes, sir.
Q And this has always been closed?
A Yes, sir. (TSN, November 26, 1979, pp. 21-23,
emphasis supplied)
ATTY. JOVER, counsel for the plaintiffs:
Q You said you are residing at Davao City, is it not?
DAVID SEJOYA:
A Yes, sir.
Q How long have you been a resident of Agdao?
A Since 1953.
Q Where specifically in Agdao are you residing?
A At the Public Market.
Q Which part of the Agdao Public Market is your house
located?
A Inside the market in front of the fish section.
Q Do you know where the Agdao septic tank is located?
A Yes, sir.
Q How far is that septic tank located from your house?
A Around thirty (30) meters.
Have you ever had a chance to use that septic tank
A Yes, sir.
Q How many times, if you could remember?
A Many times, maybe more than 1,000 times.
Q Prior to November 22, 1975, have you ever used that
septic tank (public toilet)?
A Yes, sir.
Q How many times have you gone to that septic tank
(public toilet) prior to that date, November 22, 1975?
A Almost 1,000 times. (TSN, February 9, 1983, pp. 1-2)
The absence of any accident was due to the public respondent's
compliance with the sanitary and plumbing specifications in
constructing the toilet and the septic tank (TSN, November 4,
1983, p. 51). Hence, the toxic gas from the waste matter could
not have leaked out because the septic tank was air-tight (TSN,
ibid, p. 49). The only indication that the septic tank in the case at
bar was full and needed emptying was when water came out
from it (TSN, September 13, 1983, p. 41). Yet, even when the
septic tank was full, there was no report of any casualty of gas
poisoning despite the presence of people living near it or
passing on top of it or using the public toilet for their personal
necessities.
Petitioners made a lot of fuss over the lack of any ventilation
pipe in the toilet to emphasize the negligence of the city
government and presented witnesses to attest on this lack.
However, this strategy backfired on their faces. Their witnesses
were not expert witnesses. On the other hand, Engineer
Demetrio Alindada of the city government testified and
demonstrated by drawings how the safety requirements like
emission of gases in the construction of both toilet and septic
tank have been complied with. He stated that the ventilation pipe
need not be constructed outside the building as it could also be
embodied in the hollow blocks as is usually done in residential
buildings (TSN, November 4, 1983, pp. 50-51). The petitioners
submitted no competent evidence to corroborate their oral
testimonies or rebut the testimony given by Engr. Alindada.
We also do not agree with the petitioner's submission that
warning signs of noxious gas should have been put up in the
toilet in addition to the signs of "MEN" and "WOMEN" already in
place in that area. Toilets and septic tanks are not nuisances per
se as defined in Article 694 of the New Civil Code which would
necessitate warning signs for the protection of the public. While
the construction of these public facilities demands utmost
compliance with safety and sanitary requirements, the putting up
of warning signs is not one of those requirements. The testimony
of Engr. Alindada on this matter is elucidative:
ATTY. ALBAY:
Q Mr. Witness, you mentioned the several aspects of the
approval of the building permit which include the plans of an
architect, senitary engineer and electrical plans. All of these still
pass your approval as building official, is that correct?
DEMETRIO ALINDADA:
A Yes.
Q So there is the sanitary plan submitted to and will not
be approved by you unless the same is in conformance with the
provisions of the building code or sanitary requirements?
A Yes, for private building constructions.
Q How about public buildings?
A For public buildings, they are exempted for payment of
building permits but still they have to have a building permit.
Q But just the same, including the sanitary plans, it
require your approval?
A Yes, it requires also.
Q Therefore, under the National Building Code, you are
empowered not to approve sanitary plans if they are not in
conformity with the sanitary requirements?
A Yes.
Q Now, in private or public buildings, do you see any
warning signs in the vicinity of septic tanks?
A There is no warning sign.
Q In residential buildings do you see any warning sign?
A There is none.
ATTY. AMPIG:
We submit that the matter is irrelevant and immaterial, Your
Honor.
ATTY. ALBAY:
But that is in consonance with their cross-examination, your
Honor.
COURT:
Anyway it is already answered.
ATTY. ALBAY:
Q These warning signs, are these required under the
preparation of the plans?
A It is not required.
Q I will just reiterate, Mr. Witness. In residences, for
example like the residence of Atty. Ampig or the residence of the
honorable Judge, would you say that the same principle of the
septic tank, from the water closet to the vault, is being followed?
A Yes.
ATTY. ALBAY:
That will be all, Your Honor. (TSN, December 6, 1983, pp. 62-
63)
In view of this factual milieu, it would appear that an accident
such as toxic gas leakage from the septic tank is unlikely to
happen unless one removes its covers. The accident in the case
at bar occurred because the victims on their own and without
authority from the public respondent opened the septic tank.
Considering the nature of the task of emptying a septic tank
especially one which has not been cleaned for years, an
ordinarily prudent person should undoubtedly be aware of the
attendant risks. The victims are no exception; more so with Mr.
Bertulano, an old hand in this kind of service, who is presumed
to know the hazards of the job. His failure, therefore, and that of
his men to take precautionary measures for their safety was the
proximate cause of the accident. In Culion Ice, Fish and Elect.
Co., v. Phil. Motors Corporation (55 Phil. 129, 133), We held that
when a person holds himself out as being competent to do
things requiring professional skill, he will be held liable for ACCORDINGLY, the amended decision of the Court of Appeals
negligence if he fails to exhibit the care and skill of one ordinarily dated January 11, 1990 is AFFIRMED. No costs.
skilled in the particular work which he attempts to do (emphasis
Ours). The fatal accident in this case would not have happened SO ORDERED.
but for the victims' negligence. Thus, the appellate court was
correct to observe that:

. . . Could the victims have died if they did not open the septic
tank which they were not in the first place authorized to open?
Who between the passive object (septic tank) and the active
subject (the victims herein) who, having no authority therefore,
arrogated unto themselves, the task of opening the septic tank
which caused their own deaths should be responsible for such
deaths. How could the septic tank which has been in existence
since the 1950's be the proximate cause of an accident that
occurred only on November 22, 1975? The stubborn fact
remains that since 1956 up to occurrence of the accident in 1975
no injury nor death was caused by the septic tank. The only
reasonable conclusion that could be drawn from the above is G.R. No. L-40570 January 30, 1976
that the victims' death was caused by their own negligence in
opening the septic tank. . . . (Rollo, p. 23) TEODORO C. UMALI, petitioner,
vs.
Petitioners further contend that the failure of the market master HON. ANGEL BACANI, in his capacity as Presiding Judge of
to supervise the area where the septic tank is located is a Branch IX of the Court of First Instance of Pangasinan and
reflection of the negligence of the public respondent. FIDEL H. SAYNES, respondents.

We do not think so. The market master knew that work on the
septic tank was still forthcoming. It must be remembered that the
bidding had just been conducted. Although the winning bidder
was already known, the award to him was still to be made by the
Committee on Awards. Upon the other hand, the accident which
befell the victims who are not in any way connected with the
winning bidder happened before the award could be given.
Considering that the case was yet no award to commence work
on the septic tank, the duty of the market master or his security
guards to supervise the work could not have started (TSN,
September 13, 1983, p. 40). Also, the victims could not have
been seen working in the area because the septic tank was
hidden by a garbage storage which is more or less ten (10)
meters away from the comfort room itself (TSN, ibid, pp. 38-39).
The surreptitious way in which the victims did their job without
clearance from the market master or any of the security guards
goes against their good faith. Even their relatives or family
members did not know of their plan to clean the septic tank.
Julia M. Armas for petitioner.
Antonio de los Reyes for private respondent.
ESGUERRA, J.:
Petition for certiorari to review the decision of the Court of First
Instance of Pangasinan Branch IX, in Civil Case No. U2412,
entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C.
Umali, defendant-appellant", which found the death by
electrocution of Manuel Saynes, a boy of 3 years and 8 months,
as "due to the fault or negligence of the defendant (Umali) as
owner and manager of the Alcala Electric Plant", although the
liability of defendant is mitigated by the contributory negligence
of the parents of the boy "in not providing for the proper and
delegate supervision and control over their son The dispositive
part of the decision reads as follows:

Finally, petitioners' insistence on the applicability of Article 24 of

Wherefore, the Court hereby renders judgment in favor of the
the New Civil Code cannot be sustained. Said law states: plaintiff by ordering the defendant to pay to the plaintiff the sum
of Five Thousand Pesos (P5,000.00) for the death of his son,
Art. 24. In all contractual, property or other relations, when one Manuel Saynes; the sum of One Thousand Two Hundred Pesos
of the parties is at a disadvantage on account of his moral (P1,200.00) for actual expenses for and in connection with the
dependence, ignorance, indigence, mental weakness, tender burial of said deceased child, and the further sum of Three
age or other handicap, the courts must be vigilant for his Thousand Pesos (P3,000.00) for moral damages and Five
protection. Hundred (P500.00) Pesos as reasonable attorney's fee, or a
total of Nine Thousand Seven Hundred (P9,700.00) Pesos, and
We approve of the appellate court's ruling that "(w)hile one of the to pay the costs of this suit. It Is So Ordered.
victims was invited to bid for said project, he did not win the bid,
therefore, there is a total absence of contractual relations Undisputed facts appearing of record are:
between the victims and the City Government of Davao City that
could give rise to any contractual obligation, much less, any On May 14, 1972, a storm with strong rain hit the Municipality of
liability on the part of Davao City." (Rollo, p. 24) The accident Alcala Pangasinan, which started from 2:00 o'clock in the
was indeed tragic and We empathize with the petitioners. afternoon and lasted up to about midnight of the same day.
However, the herein circumstances lead Us to no other During the storm, the banana plants standing on an elevated
conclusion than that the proximate and immediate cause of the ground along the barrio road in San Pedro Ili of said municipality
death of the victims was due to their own negligence. and near the transmission line of the Alcala Electric Plant were
Consequently, the petitioners cannot demand damages from the blown down and fell on the electric wire. As a result, the live
public respondent. electric wire was cut, one end of which was left hanging on the
electric post and the other fell to the ground under the fallen
banana plants.

On the following morning, at about 9:00 o'clock barrio captain
Luciano Bueno of San Pedro Iii who was passing by saw the
broken electric wire and so he warned the people in the place
not to go near the wire for they might get hurt. He also saw
Cipriano Baldomero, a laborer of the Alcala Electric Plant near
the place and notified him right then and there of the broken line
and asked him to fix it, but the latter told the barrio captain that
he could not do it but that he was going to look for the lineman to
fix it.
Sometime after the barrio captain and Cipriano Baldomero had
left the place, a small boy of 3 years and 8 months old by the
name of Manuel P. Saynes, whose house is just on the opposite
side of the road, went to the place where the broken line wire
was and got in contact with it. The boy was electrocuted and he
subsequently died. It was only after the electrocution of Manuel
Saynes that the broken wire was fixed at about 10:00 o'clock on
the same morning by the lineman of the electric plant.
Petitioner claims that he could not be liable under the concept of
quasi-delict or tort as owner and manager of the Alcala Electric
Plant because the proximate cause of the boy's death
electrocution could not be due to any negligence on his part, but
rather to a fortuitous event-the storm that caused the banana
plants to fall and cut the electric line-pointing out the absence of
negligence on the part of his employee Cipriano Baldomero who
tried to have the line repaired and the presence of negligence of
the parents of the child in allowing him to leave his house during
that time.
A careful examination of the record convinces Us that a series of
negligence on the part of defendants' employees in the Alcala
Electric Plant resulted in the death of the victim by electrocution.
First, by the very evidence of the defendant, there were big and
tall banana plants at the place of the incident standing on an
elevated ground which were about 30 feet high and which were
higher than the electric post supporting the electric line, and yet
the employees of the defendant who, with ordinary foresight,
could have easily seen that even in case of moderate winds the
electric line would be endangered by banana plants being blown
down, did not even take the necessary precaution to eliminate
that source of danger to the electric line. Second, even after the
employees of the Alcala Electric Plant were already aware of the
possible damage the storm of May 14, 1972, could have caused
their electric lines, thus becoming a possible threat to life and
property, they did not cut off from the plant the flow of electricity
along the lines, an act they could have easily done pending
inspection of the wires to see if they had been cut. Third,
employee Cipriano Baldomero was negligent on the morning of
the incident because even if he was already made aware of the
live cut wire, he did not have the foresight to realize that the
same posed a danger to life and property, and that he should
have taken the necessary precaution to prevent anybody from
approaching the live wire; instead Baldomero left the premises
because what was foremost in his mind was the repair of the
line, obviously forgetting that if left unattended to it could
endanger life and property.
On defendants' argument that the proximate cause of the
victim's death could be attributed to the parents' negligence in
allowing a child of tender age to go out of the house alone, We
could readily see that because of the aforementioned series of
negligence on the part of defendants' employees resulting in a
live wire lying on the premises without any visible warning of its
lethal character, anybody, even a responsible grown up or not
necessarily an innocent child, could have met the same fate that
befell the victim. It may be true, as the lower Court found out,
that the contributory negligence of the victim's parents in not
properly taking care of the child, which enabled him to leave the
house alone on the morning of the incident and go to a nearby
place cut wire was very near the house (where victim was living)
where the fatal fallen wire electrocuted him, might mitigate
respondent's liability, but we cannot agree with petitioner's
theory that the parents' negligence constituted the proximate
cause of the victim's death because the real proximate cause
was the fallen live wire which posed a threat to life and property
on that morning due to the series of negligence adverted to
above committed by defendants' employees and which could
have killed any other person who might by accident get into
contact with it. Stated otherwise, even if the child was allowed to
leave the house unattended due to the parents' negligence, he
would not have died that morning where it not for the cut live
wire he accidentally touched.
Art. 2179 of the Civil Code provides that if the negligence of the
plaintiff (parents of the victim in this case) was only contributory,
the immediate and proximate cause of the injury being the
defendants' lack of due care, the plaintiff may recover damages,
but the courts shall mitigate the damages to be awarded. This
law may be availed of by the petitioner but does not exempt him
from liability. Petitioner's liability for injury caused by his
employees negligence is well defined in par. 4, of Article 2180 of
the Civil Code, which states:
The owner and manager of an establishment or enterprise are
likewise responsible for damages caused by their employees in
the service of the branches in which the latter are employed or
on tile occasion of their functions.
The negligence of the employee is presumed to be the
negligence of the employer because the employer is supposed
to exercise supervision over the work of the employees. This
liability of the employer is primary and direct (Standard Vacuum
Oil Co. vs. Tan and Court of Appeals, 107 Phil. 109). In fact the
proper defense for the employer to raise so that he may escape
liability is to prove that he exercised, the diligence of the good
father of the family to prevent damage not only in the selection of
his employees but also in adequately supervising them over their
work. This defense was not adequately proven as found by the
trial Court, and We do not find any sufficient reason to deviate
from its finding.
Notwithstanding diligent efforts, we fail to fired any reversible
error committed by the trial Court in this case, either in its
appreciation of the evidence on questions of facts or on the
interpretation and application of laws government quasi-delicts
and liabilities emanating therefrom. The inevitable conclusion is
that no error amounting to grave abuse of discretion was
committed and the decision must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27,
1974 is affirmed.
Costs against petitioner.
SO ORDERED.
Intervening cause inspected the track after the typhoon or had any proper system
G.R. No. 1719 January 23, 1907 of inspection.

M. H., RAKES, plaintiff-appellee, In order to charge the defendant with negligence, it was
vs. necessary to show a breach of duty on its part in failing either to
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant- properly secure the load on iron to vehicles transporting it, or to
appellant. skillfully build the tramway or to maintain it in proper condition, or
to vigilantly inspect and repair the roadway as soon as the
A. D. Gibbs for appellant. depression in it became visible. It is upon the failure of the
F. G. Waite, & Thimas Kepner for appellee. defendant to repair the weakened track, after notice of its
condition, that the judge below based his judgment.
TRACEY, J.:
This case presents many important matters for our decision, and
This is an action for damages. The plaintiff, one of a gang of first among them is the standard of duty which we shall establish
eight negro laborers in the employment of the defendant, was at in our jurisprudence on the part of employees toward
work transporting iron rails from a barge in the harbor to the employees.
company's yard near the malecon in Manila. Plaintiff claims that
but one hand car was used in this work. The defendant has The lack or the harshness of legal rules on this subject has led
proved that there were two immediately following one another, many countries to enact designed to put these relations on a fair
upon which were piled lengthwise seven rails, each weighing basis in the form of compensation or liability laws or the
560 pounds, so that the ends of the rails lay upon two institution of insurance. In the absence of special legislation we
crosspieces or sills secured to the cars, but without side pieces find no difficulty in so applying the general principles of our law
or guards to prevent them from slipping off. According to the as to work out a just result.
testimony of the plaintiff, the men were either in the rear of the
car or at its sides. According to that defendant, some of them Article 1092 of the Civil Code provides:
were also in front, hauling by a rope. At a certain spot at or near
the water's edge the track sagged, the tie broke, the car either Civil obligations, arising from crimes or misdemeanors, shall be
canted or upset, the rails slid off and caught the plaintiff, governed by the provisions of the Penal Code.
breaking his leg, which was afterwards amputated at about the
knee. And article 568 of the latter code provides:

This first point for the plaintiff to establish was that the accident
happened through the negligence of the defendant. The detailed
description by the defendant's witnesses of the construction and
quality of the track proves that if was up to the general stranded
of tramways of that character, the foundation consisting on land
of blocks or crosspieces of wood, by 8 inches thick and from 8 to
10 feet long laid, on the surface of the ground, upon which at a
right angle rested stringers of the same thickness, but from 24 to
30 feet in length. On the across the stringers the parallel with the
blocks were the ties to which the tracks were fastened. After the
road reached the water's edge, the blocks or crosspieces were
replaced with pilling, capped by timbers extending from one side
to the other. The tracks were each about 2 feet wide and the two
inside rails of the parallel tracks about 18 inches apart. It was
admitted that there were no side pieces or guards on the car;
that where no ends of the rails of the track met each other and
also where the stringers joined, there were no fish plates. the
defendant has not effectually overcome the plaintiff's proof that
the joints between the rails were immediately above the joints
between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the
tie, which was the immediate occasion of the accident, is not
clear in the evidence, but is found by the trial court and is
admitted in the briefs and in the argument to have been the
dislodging of the crosspiece or piling under the stringer by the
water of the bay raised by a recent typhoon. The superintendent
of the company attributed it to the giving way of the block laid in
the sand. No effort was made to repair the injury at the time of
the occurrence. According to plaintiffs witnesses, a depression
of the track, varying from one half inch to one inch and a half,
was therafter apparent to the eye, and a fellow workman of the
plaintiff swears that the day before the accident he called the
attention of McKenna, the foreman, to it and asked by simply
straightening out the crosspiece, resetting the block under the
stringer and renewing the tie, but otherwise leaving the very
same timbers as before. It has not proven that the company
He who shall execute through reckless negligence an act that if
done with malice would constitute a grave crime, shall be
punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence,
without committing any infraction of regulations, shall cause an
injury which, had malice intervened, would have constituted a
crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and
employers for the faults of their servants and representatives is
declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the action,
that the necessary conclusion from these collated laws is that
the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made
primarily liable and his employer held only subsidiarily to him.
According to this theory the plaintiff should have procured the
arrest of the representative of the company accountable for not
repairing the tract, and on his prosecution a suitable fine should
have been imposed, payable primarily by him and secondarily by
his employer.
This reasoning misconceived the plan of the Spanish codes
upon this subject. Article 1093 of the Civil Code makes
obligations arising from faults or negligence not punished by the
law, subject to the provisions of Chapter 11 of Title XVI. Section
1902 of that chapter reads:
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.
SEC. 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 the damages caused by their employees in the
service of the branches in which the latter may be employed or
in the performance 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 damages.
As an answer to the argument urged in this particular action it
may be sufficient to point out that nowhere in our general
statutes is the employer penalized for failure to provide or
maintain safe appliances for his workmen. His obligation
therefore is one "not punished by the law " and falls under civil
rather than criminal jurisprudence. But the answer may be a
broader one. We should be reluctant, under any conditions, to
adopt a forced construction of these scientific codes, such as is
proposed by the defendant, that would rob some of these
articles of effect, would shut out litigants their will from the civil
courts, would make the assertion of their rights dependent upon
the selection for prosecution of the proper criminal offender, and
render recovery doubtful by reason of the strict rules of proof
prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but
clear light is thrown upon their meaning by the provisions of the
Law of Criminal Procedure of Spain (Ley de Enjuiciamiento
Criminal), which, though n ever in actual force in these Islands,
was formerly given a suppletory or explanatory effect. Under
article 111 of this law, both classes of action, civil and criminal,
might be prosecuted jointly or separately, but while the penal
action was pending the civil was suspended. According to article
112, the penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the party injured
or been expressly reserved by him for civil proceedings for the
future. If the civil action alone was prosecuted, arising out of a
crime that could be enforced by only on private complaint, the
penal action thereunder should be extinguished. These
provisions are in harmony with those of articles 23 and 133 of
our Penal Code on the same subject.
An examination of this topic might be carried much further, but
the citations of these articles suffices to show that the civil
liability was not intended to be merged in the criminal nor even
to be suspended thereby, except as expressly provided by law.
Where an individual is civilly liable for a negligent act or
omission, it is not required that the inured party should seek out
a third person criminally liable whose prosecution must be a
condition precedent to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an
employer may be regarded as subsidiary in respect of criminal
actions against his employees only while they are process of
prosecution, or in so far as they determinate the existence of the
criminal act from which liability arises, and his obligation under
the civil law and its enforcement in the civil courts is not barred
thereby unless by election of the injured person. Inasmuch as no
criminal in question, the provisions of the Penal Code can not
affect this action. This construction renders it unnecessary to
finally determine here whether this subsidiary civil liability in
penal actions survived the laws that fully regulated it or has been
abrogated by the American civil and criminal procedure now in
force in the Philippines.
The difficulty in construing the articles of the code above cited in
this case appears from the briefs before us to have arisen from
the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the
comprehensive definition of offenses in articles 568 and 590 of
the Penal Code. It has been shown that the liability of an
employer arising out of his relation to his employee who is the
offender is not to be regarded as derived from negligence
punished by the law, within the meaning of articles 1092 and
1093. More than this, however, it can not be said to fall within
the class of acts unpunished by the law, the consequences of
which are regulated by articles 1902 and 1903 of the Civil Code.
The acts to which these articles are applicable are understood to
be those and growing out of preexisting duties of the parties to
one another. But were relations already formed give rise to
duties, whether springing from contract or quasi contract, then
breaches of those duties are subject to articles 1101, 1103, and
1104, of the same code. A typical application of the distinction
may be found in the consequences of a railway accident due to
defective machinery supplied by the employer. His liability to his
employee would arise out of the contract of employment, that to
the passengers out of the contract for passage. while that to that
injured bystander would originate in the negligent act itself. This
distinction is thus clearly set forth by Manresa in his commentary
on article 1093.
We are with reference to such obligations, that culpa, or
negligence, may be understood in two difference senses; either
as culpa, substantive and independent, which on account of its
origin arises in an obligation between two persons not formerly
bound by any other obligation; or as an incident in the
performance of an obligation; or as already existed, which can
not be presumed to exist without the other, and which increases
the liability arising from the already exiting obligation.
Of these two species of culpa the first one mentioned, existing
by itself, may be also considered as a real source of an
independent obligation, and, as chapter 2, title 16 of this book of
the code is devoted to it, it is logical to presume that the
reference contained in article 1093 is limited thereto and that it
does not extend to those provisions relating to the other species
of culpa (negligence), the nature of which we will discuss later.
(Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that
these two species of negligence may be somewhat inexactly
described as contractual and extra-contractual, the letter being
the culpa aquiliana of the Roman law and not entailing so strict
an obligation as the former. This terminology is unreservedly
accepted by Sanchez-Roman (Derecho Civil, fourth section,
Chapter XI, Article II, No. 12), and the principle stated is
supported be decisions of the supreme court of Spain, among
them those of November 20, 1896 (80 Jurisprudencia Civil, No.
151), and June 27, 1894 (75 Jurisprudencia Civil, No. 182). The
contract is one for hire and not one of mandate. (March 10,
1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working
Men's Accident Law of January 30, 1900, throws uncertain light
on the relation between master and workman. Moved by the
quick industrial development of their people, the courts of France
early applied to the subject the principles common to the law of
both countries, which are lucidly discussed by the leading
French commentators.
The original French theory, resting the responsibility of owners of
industrial enterprises upon articles 1382, 1383, and 1384 of the
Code Napoleon, corresponding in scope to articles 1902 and
1903 of the Spanish Code, soon yielded to the principle that the
true basis is the contractual obligation of the employer and
employee. (See 18 Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in
contracts for employment led to the discovery of a third basis for
liability in an article of he French Code making the possessor of
any object answerable for damage done by it while in his charge.
Our law having no counterpart of this article, applicable to every
kind of object, we need consider neither the theory growing out
of it nor that of "professional risk" more recently imposed by
express legislation, but rather adopting the interpretation of our
Civil Code above given, find a rule for this case in the
contractual obligation. This contractual obligation, implied from
the relation and perhaps so inherent in its nature to be invariable
by the parties, binds the employer to provide safe appliances for
the use of the employee, thus closely corresponding to English
and American Law. On these principles it was the duty of the
defendant to build and to maintain its track in reasonably sound
condition, so as to protect its workingmen from unnecessary
danger. It is plain that in one respect or the other it failed in its
duty, otherwise the accident could not have occurred;
consequently the negligence of the defendant is established.
Another contention of the defense is that the injury resulted to
the plaintiff as a risk incident to his employment and, as such,
one assumed by him. It is evident that this can not be the case if
the occurrence was due to the failure to repair the track or to
duly inspect, it for the employee is not presumed to have
stipulated that the employer might neglect his legal duty. Nor
may it be excused upon the ground that the negligence leading
to the accident was that of a fellow-servant of the injured man. It
is not apparent to us that the intervention of a third person can
relieve the defendant from the performance of its duty nor
impose upon the plaintiff the consequences of an act or
omission not his own. Sua cuique culpa nocet. This doctrine,
known as "the fellow-servant, rule," we are not disposed to
introduce into our jurisprudence. Adopted in England by Lord
Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby,
1) in 1837, it has since been effectually abrogated by "the
Employers' Liability Acts" and the "Compensation Law." The
American States which applied it appear to be gradually getting
rid of it; for instance, the New York State legislature of 1906 did
away with it in respect to railroad companies, and had in hand a
scheme for its total abolition. It has never found place in the civil
law of continental Europe. (Dalloz, vol. 39, 1858, Title
Responsibilite, 630, and vol. 15, 1895, same title, 804. Also
more recent instances in Fuzier-Herman, Title Responsibilite
Civile, 710.)
The French Cour de Cassation clearly laid down the contrary
principle in its judgment of June 28, 1841, in the case of
Reygasse, and has since adhered to it.
The most controverted question in the case is that of the
negligence of the plaintiff, contributing to the accident, to what
extent it existed in fact and what legal effect is to be given it. In
two particulars is he charged with carelessness:
First. That having noticed the depression in the track he
continued his work; and
Second. That he walked on the ends of the ties at the side of the
car instead of along the boards, either before or behind it.
As to the first point, the depression in the track night indicate
either a serious or a rival difficulty. There is nothing in the
evidence to show that the plaintiff did or could see the displaced
timber underneath the sleeper. The claim that he must have
done so is a conclusion drawn from what is assumed to have
been a probable condition of things not before us, rather than a
fair inference from the testimony. While the method of
construction may have been known to the men who had helped
build the road, it was otherwise with the plaintiff who had worked
at this job less than two days. A man may easily walk along a
railway without perceiving a displacement of the underlying
timbers. The foreman testified that he knew the state of the track
on the day of the accident and that it was then in good condition,
and one Danridge, a witness for the defendant, working on the
same job, swore that he never noticed the depression in the
track and never saw any bad place in it. The sagging of the track
this plaintiff did perceive, but that was reported in his hearing to
the foreman who neither promised nor refused to repair it. His
lack of caution in continuing at his work after noticing the slight
depression of the rail was not of so gross a nature as to
constitute negligence, barring his recovery under the severe
American rule. On this point we accept the conclusion of the trial
judge who found as facts that "the plaintiff did not know the
cause of the one rail being lower than then other" and "it does
not appear in this case that the plaintiff knew before the accident
occurred that the stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would,
nevertheless, be binding upon us, because not "plainly and
manifestly against the weight of evidence," as those words of
section 497, paragraph 3 of the Code of Civil Procedure were
interpreted by the Supreme Court of the United States in the De
la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the
plaintiff, the judgment below is not so specific. While the judge
remarks that the evidence does not justify the finding that the car
was pulled by means of a rope attached to the front end or to the
rails upon it, and further that the circumstances in evidence
make it clear that the persons necessary to operate the car
could not walk upon the plank between the rails and that,
therefore, it was necessary for the employees moving it to get
hold upon it as best they could, there is no specific finding upon
the instruction given by the defendant to its employees to walk
only upon the planks, nor upon the necessity of the plaintiff
putting himself upon the ties at the side in order to get hold upon
the car. Therefore the findings of the judge below leave the
conduct of the plaintiff in walking along the side of the loaded
car, upon the open ties, over the depressed track, free to our
inquiry.
While the plaintiff and his witnesses swear that not only were
they not forbidden to proceed in this way, but were expressly
directed by the foreman to do so, both the officers of the
company and three of the workmen testify that there was a
general prohibition frequently made known to all the gang
against walking by the side of the car, and the foreman swears
that he repeated the prohibition before the starting of this
particular load. On this contradiction of proof we think that the
preponderance is in favor of the defendant's contention to the
extent of the general order being made known to the workmen. If
so, the disobedience of the plaintiff in placing himself in danger
contributed in some degree to the injury as a proximate,
although not as its primary cause. This conclusion presents
sharply the question, What effect is to be given such an act of
contributory negligence? Does it defeat a recovery, according to
the American rule, or is it to be taken only in reduction of
damages?
While a few of the American States have adopted to a greater or
less extent the doctrine of comparative negligence, allowing a
recovery by a plaintiff whose own act contributed to his injury,
provided his negligence was slight as compared with that of the
defendant, and some others have accepted the theory of
proportional damages, reducing the award to a plaintiff in
proportion to his responsibility for the accident, yet the
overwhelming weight of adjudication establishes the principle in
American jurisprudence that any negligence, however slight, on
the part of the person injured which is one of the causes
proximately contributing to his injury, bars his recovery. (English
and American Encyclopedia of law, Titles "Comparative
Negligence" and Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at
page 429) the Supreme Court of the United States thus
authoritatively states the present rule of law:
Although the defendant's' negligence may have been the
primary cause of the injury complained of, yet an action for such
injury can not be maintained if the proximate and immediate
cause of the injury can be traced to the want of ordinary care
and caution in the person injured; subject to this qualification,
which has grown up in recent years (having been first
enunciated in Davies vs. Mann, 10 M. & W., 546) that the
contributory negligence of the party injured will not defeat the
action if it be shown that the defendant might, by the exercise of
reasonable care and prudence, have avoided the consequences
of the injured party's negligence.
There are may cases in the supreme court of Spain in which the
defendant was exonerated, but when analyzed they prove to
have been decided either upon the point that he was not
negligent or that the negligence of the plaintiff was the
immediate cause of the casualty or that the accident was due to
casus fortuitus. Of the first class in the decision of January 26,
1887 (38 Jurisprudencia Criminal, No. 70), in which a railway
employee, standing on a car, was thrown therefrom and killed by
the shock following the backing up of the engine. It was held that
the management of the train and engine being in conformity with
proper rules of the company, showed no fault on its part.
Of the second class are the decision of the 15th of January, the
19th of February, and the 7th of March, 1902, stated in
Alcubilla's Index of that year; and of the third class the decision
of the 4th of June, 1888 (64 Jurisprudencia Civil, No. 1), in which
the breaking down of plaintiff's dam by the logs of the defendant
impelled against it by the Tajo River, was held due to a freshet
as a fortuitous cause.
The decision of the 7th of March, 1902, on which stress has
been laid, rested on two bases, one, that the defendant was not
negligent, because expressly relieved by royal order from the
common obligation imposed by the police law of maintaining a
guard at the road crossing; the other, because the act of the
deceased in driving over level ground with unobstructed view in
front of a train running at speed, with the engine whistle blowing
was the determining cause of the accident. It is plain that the
train was doing nothing but what it had a right to do and that the
only fault lay with the injured man. His negligence was not
contributory, it was sole, and was of such an efficient nature that
without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it
seems plain that the plaintiff sustaining damages was not free
from contributory negligence; for instance, the decision of the
14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in
which the owner of a building was held liable for not furnishing
protection to workmen engaged in hanging out flags, when the
latter must have perceived beforehand the danger attending the
work.
None of those cases define the effect to be given the negligence
of a plaintiff which contributed to his injury as one 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.
In France in the case of Marquant, August 20, 1879, the cour de
cassation held that the carelessness of the victim did not civilly
relieve the person without whose fault the accident could not
have happened, but that the contributory negligence of the
injured man had the effect only of reducing the damages. The
same principle was applied in the case of Recullet, November
10, 1888. and that of Laugier of the 11th of November, 1896.
(Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like
tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364,
and vol. 15, 1895, Title Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the
most part the French Civil Law, now embodied in a code
following the Code Napoleon, a practice in accord with that of
France is laid down in many cases collected in the annotations
to article 1053 of the code edited by Beauchamps, 1904. One of
these is Luttrell vs. Trottier, reported in La Revue de
Jurisprudence, volume 6, page 90, in which the court of Kings
bench, otherwise known as the court of appeals, the highest
authority in the Dominion of Canada on points of French law,
held that contributory negligence did not exonerate the
defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other
similar cases in the provincial courts have been overruled by
appellate tribunals made up of common law judges drawn from
other provinces, who have preferred to impose uniformally
throughout the Dominion the English theory of contributory
negligence. Such decisions throw no light upon the doctrines of
the civil law. Elsewhere we find this practice embodied in
legislation; for instance, section 2 of article 2398 of the Code of
Portugal reads as follows:
If in the case of damage there was fault or negligence on the
part of the person injured or in the part of some one else, the
indemnification shall be reduced in the first case, and in the
second case it shall be appropriated in proportion to such fault or
negligence as provided in paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim
who is partly changeable with the accident shall stand his
damages in proportion to his fault, but when that proportion is
incapable of ascertainment, he shall share the liability equally
with the person principally responsible. The principle of
proportional damages appears to be also adopted in article 51 of
the Swiss Code. Even in the United States in admirality
jurisdictions, whose principles are derived from the civil law,
common fault in cases of collision have been disposed of not on
the ground of contradictor negligence, but on that of equal loss,
the fault of the one part being offset against that of the other.
(Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally
divided, a decree is entered in favor of the vessel sustaining the
greater loss against the other for the excess of her damages
over one-half of the aggregate sum. (The Manitoba, 122 U. S.,
97)
Exceptional practice appears to prevail in maritime law in other
jurisdictions. The Spanish Code of Commerce, article 827,
makes each vessel for its own damage when both are the fault;
this provision restricted to a single class of the maritime
accidents, falls for short of a recognition of the principle of
contributory negligence as understood in American Law, with
which, indeed, it has little in common. This is a plain from other
articles of the same code; for instance, article 829, referring to
articles 826, 827, and 828, which provides: "In the cases above
mentioned the civil action of the owner against the person liable
for the damage is reserved, as well as the criminal liability which
may appear."
The rule of the common law, a hard and fast one, not adjustable
with respects of the faults of the parties, appears to have grown
out the original method of trial by jury, which rendered difficult a
nice balancing of responsibilities and which demanded an
inflexible standard as a safeguard against too ready symphaty
for the injured. It was assumed that an exact measure of several
concurring faults was unattainable.
The reason why, in cases of mutual concurring negligence,
neither party can maintain an action against the other, is, not the
wrong of the one is set off against the wrong of the other; it that
the law can not measure how much of the damage suffered is
attributable to the plaintiff's own fault. If he were allowed to
recover, it might be that he would obtain from the other party G.R. No. L-4977
compensation for hiss own misconduct. (Heil vs. Glanding, 42
Penn. St. Rep., 493, 499.)
The parties being mutually in fault, there can be no appointment THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY,
of damages. The law has no scales to determine in such cases defendant-appellant.
whose wrongdoing weighed most in the compound that
occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565, W. H. Lawrence, for appellant.
469.)
Experience with jury trials in negligence cases has brought
American courts to review to relax the vigor of the rule by freely
exercising the power of setting aside verdicts deemed
excessive, through the device of granting new trials, unless
reduced damages are stipulated for, amounting to a partial
revision of damages by the courts. It appears to us that the
control by the court of the subject matter may be secured on a
moral logical basis and its judgment adjusted with greater nicety
to the merits of the litigants through the practice of offsetting
their respective responsibilities. In the civil law system the
desirable end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain
or in other countries under the stress and counter stress of novel
schemers of legislation, we find the theory of damages laid down
in the judgment the most consistent with the history and the
principals of our law in these Islands and with its logical
development.
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 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 under
review was the displacement of the crosspiece or the failure to
replace it. this produced the event giving occasion for damages
that is, the shinking 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 thorough his act of omission of duty, the
last 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.
Accepting, though with some hesitation, the judgment of the trial
court, fixing the damage incurred by the plaintiff at 5,000 pesos,
the equivalent of 2,500 dollars, United States money, we deduct
therefrom 2,500 pesos, the amount fairly attributable to his
negligence, and direct judgment to be entered in favor of the
plaintiff for the resulting sum of 2,500 pesos, with cost of both
instances, and ten days hereafter let the case be remanded to
the court below for proper action. So ordered.
March 22, 1910
DAVID TAYLOR, plaintiff-appellee,
vs.
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.
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.

Similar criticisms of the opinion in the case of Railroad Company In Townsend vs. Wathen (9 East, 277, 281) it was held that if a
vs. Stout were indulged in by the courts in Connecticut and man dangerous traps, baited with flesh, in his own ground, so
Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 near to a highway, or to the premises of another, that dogs
Mass., 349). And the doctrine has been questioned in passing along the highway, or kept in his neighbors premises,
Wisconsin, Pennsylvania, New Hampshire, and perhaps in other would probably be attracted by their instinct into the traps, and in
States. consequence of such act his neighbor's dogs be so attracted
and thereby injured, an action on the case would lie. "What
On the other hand, many if not most of the courts of last resort in difference," said Lord Ellenborough, C.J., "is there in reason
the United States, citing and approving the doctrine laid down in between drawing the animal into the trap by means of his instinct
England in the leading case of Lynch vs. Nurding (1 Q. B., 29, which he can not resist, and putting him there by manual force?"
35, 36), lay down the rule in these cases in accord with that What difference, in reason we may observe in this case, is there
announced in the Railroad Company vs. Stout (supra), and the between an express license to the children of this village to visit
Supreme Court of the United States, in a unanimous opinion the defendant's coal mine, in the vicinity of its slack pile, and an
delivered by Justice Harlan in the case of Union Pacific Railway implied license, resulting from the habit of the defendant to
Co. vs. McDonal and reconsidered the doctrine laid down in permit them, without objection or warning, to do so at will, for
Railroad Co. vs. Stout, and after an exhaustive and critical purposes of curiosity or pleasure? Referring it the case of
analysis and review of many of the adjudged cases, both English Townsend vs. Wathen, Judge Thompson, in his work on the Law
and American, formally declared that it adhered "to the principles of Negligence, volume 1, page 305, note, well says: "It would be
announced in the case of Railroad Co. vs. Stout." 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
In the case of Union Pacific Railway Co. vs. MacDonald (supra) neighbor's dog attracted by his natural instinct, might run into it
the facts were as follows: The plaintiff, a boy 12 years of age, and be killed, and which would exempt him from liability for the
out of curiosity and for his own pleasure, entered upon and consequence of leaving exposed and unguarded on his land a
visited the defendant's premises, without defendant's express dangerous machine, so that his neighbor's child attracted to it
permission or invitation, and while there, was by accident injured and tempted to intermeddle with it by instincts equally strong,
by falling into a burning slack pile of whose existence he had no might thereby be killed or maimed for life."
 care of their parents or guardians, so as to prevent their entering
Chief Justice Cooley, voicing the opinion of the supreme court of on the premises of others is of sufficient weight to put in doubt.
Michigan, in the case of Powers vs. Harlow (53 Mich., 507), said In this jurisdiction as well as in the United States all private
that (p. 515): 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
Children, wherever they go, must be expected to act upon the community (see U. S. vs. Toribio,1 No. 5060, decided
childlike instincts and impulses; and others who are chargeable January 26, 1910), and except as to infants of very tender years
with a duty of care and caution toward them must calculate upon it would be absurd and unreasonable in a community organized
this, and take precautions accordingly. If they leave exposed to as is that in which we lived to hold that parents or guardian are
the observation of children anything which would be tempting to guilty of negligence or imprudence in every case wherein they
them, and which they in their immature judgment might naturally permit growing boys and girls to leave the parental roof
suppose they were at liberty to handle or play with, they should unattended, even if in the event of accident to the child the
expect that liberty to be taken. 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
And the same eminent jurist in his treatise or torts, alluding to point which we neither discuss nor decide.
the doctrine of implied invitation to visit the premises of another,
says: But while we hold that the entry of the plaintiff upon defendant's
property without defendant's express invitation or permission
In the case of young children, and other persons not fully sui would not have relieved defendant from responsibility for injuries
juris, an implied license might sometimes arise when it would not incurred there by plaintiff, without other fault on his part, if such
on behalf of others. Thus leaving a tempting thing for children to injury were attributable to the negligence of the defendant, we
play with exposed, where they would be likely to gather for that are of opinion that under all the circumstances of this case the
purpose, may be equivalent to an invitation to them to make use negligence of the defendant in leaving the caps exposed on its
of it; and, perhaps, if one were to throw away upon his premises, premises was not the proximate cause of the injury received by
near the common way, things tempting to children, the same the plaintiff, which therefore was not, properly speaking,
implication should arise. (Chap. 10, p. 303.) "attributable to the negligence of the defendant," and, on the
other hand, we are satisfied that plaintiffs action in cutting open
The reasoning which led the Supreme Court of the United States the detonating cap and putting match to its contents was the
to its conclusion in the cases of Railroad Co. vs. Stout (supra) proximate cause of the explosion and of the resultant injuries
and Union Pacific Railroad Co. vs. McDonald (supra) is not less inflicted upon the plaintiff, and that the defendant, therefore is
cogent and convincing in this jurisdiction than in that wherein not civilly responsible for the injuries thus incurred.
those cases originated. Children here are actuated by similar
childish instincts and impulses. Drawn by curiosity and impelled Plaintiff contends, upon the authority of the Turntable and
by the restless spirit of youth, boys here as well as there will Torpedo cases, that because of plaintiff's youth the intervention
usually be found whenever the public is permitted to congregate. of his action between the negligent act of the defendant in
The movement of machinery, and indeed anything which leaving the caps exposed on its premises and the explosion
arouses the attention of the young and inquiring mind, will draw which resulted in his injury should not be held to have
them to the neighborhood as inevitably as does the magnet draw contributed in any wise to the accident; and it is because we can
the iron which comes within the range of its magnetic influence. not agree with this proposition, although we accept the doctrine
The owners of premises, therefore, whereon things attractive to of the Turntable and Torpedo cases, that we have thought
children are exposed, or upon which the public are expressly or proper to discuss and to consider that doctrine at length in this
impliedly permitted to enter or upon which the owner knows or decision. As was said in case of Railroad Co. vs. Stout (supra),
ought to know children are likely to roam about for pastime and "While it is the general rule in regard to an adult that to entitle
in play, " must calculate upon this, and take precautions him to recover damages for an injury resulting from the fault or
accordingly." In such cases the owner of the premises can not negligence of another he must himself have been free from fault,
be heard to say that because the child has entered upon his such is not the rule in regard to an infant of tender years. The
premises without his express permission he is a trespasser to care and caution required of a child is according to his maturity
whom the owner owes no duty or obligation whatever. The and capacity only, and this is to be determined in each case by
owner's failure to take reasonable precautions to prevent the the circumstances of the case." As we think we have shown,
child from entering his premises at a place where he knows or under the reasoning on which rests the doctrine of the Turntable
ought to know that children are accustomed to roam about of to and Torpedo cases, no fault which would relieve defendant of
which their childish instincts and impulses are likely to attract responsibility for injuries resulting from its negligence can be
them is at least equivalent to an implied license to enter, and attributed to the plaintiff, a well-grown boy of 15 years of age,
where the child does enter under such conditions the owner's because of his entry upon defendant's uninclosed premises
failure to take reasonable precautions to guard the child against without express permission or invitation' but it is wholly different
injury from unknown or unseen dangers, placed upon such question whether such youth can be said to have been free from
premises by the owner, is clearly a breach of duty, responsible, if fault when he willfully and deliberately cut open the detonating
the child is actually injured, without other fault on its part than cap, and placed a match to the contents, knowing, as he
that it had entered on the premises of a stranger without his undoubtedly did, that his action would result in an explosion. On
express invitation or permission. To hold otherwise would be this point, which must be determined by "the particular
expose all the children in the community to unknown perils and circumstances of this case," the doctrine laid down in the
unnecessary danger at the whim of the owners or occupants of Turntable and Torpedo cases lends us no direct aid, although it
land upon which they might naturally and reasonably be is worthy of observation that in all of the "Torpedo" and
expected to enter. analogous cases which our attention has been directed, the
record discloses that the plaintiffs, in whose favor judgments
This conclusion is founded on reason, justice, and necessity, have been affirmed, were of such tender years that they were
and neither is contention that a man has a right to do what will held not to have the capacity to understand the nature or
with his own property or that children should be kept under the 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.
G.R. No. L-29745 June 4, 1973
MERCEDES M. TEAGUE, petitioner,
vs.
ELENA FERNANDEZ, et al., respondent.
Jose W. Diokno for petitioner.
Jose G. Gatchalian for respondents.
MAKALINTAL, J.:
The facts are stated in the decision of the Court of Appeals as
follows:
The Realistic Institute, admittedly owned and operated by
defendant-appellee Mercedes M. Teague was a vocational
school for hair and beauty culture situated on the second floor of
the Gil-Armi Building, a two-storey, semi-concrete edifice (Exhs.
"C", "C-1" to "C-5" and "4") located at the corner of Quezon
Boulevard and Soler Street, Quiapo, Manila. The said second
floor was unpartitioned, had a total area of about 400 square
meters, and although it had only one stairway, of about 1.50
meters in width, it had eight windows, each of which was
provided with two fire-escape ladders (Exh. "4"), and the
presence of each of said fire-exits was indicated on the wall
(Exh. "5").
At about four o'clock in the afternoon of October 24, 1955, a fire
broke out in a store for surplus materials located about ten
meters away from the institute. Soler Street lay between that
store and the institute. Upon seeing the fire, some of the
students in the Realistic Institute shouted 'Fire! Fire!' and
thereafter, a panic ensued. Four instructresses and six assistant
instructress of the Institute were present and they, together with
the registrar, tried to calm down the students, who numbered
about 180 at the time, telling them not to be afraid because the
Gil-Armi Building would not get burned as it is made of concrete,
and that the fire was anyway, across the street. They told the
students not to rush out but just to go down the stairway two by
two, or to use the fire-escapes. Mrs. Justitia Prieto, one of the
instructresses, took to the microphone so as to convey to the
students the above admonitions more effectively, and she even
slapped three students in order to quiet them down. Miss Frino
Meliton, the registrar, whose desk was near the stairway, stood
up and tried with outstretched arms to stop the students from
rushing and pushing their way to the stairs. The panic, however,
could not be subdued and the students, with the exception of the
few who made use of fire-escapes kept on rushing and pushing
their way through the stairs, thereby causing stampede therein.
Indeed, no part of the Gil-Armi Building caught fire. But, after the
panic was over, four students, including Lourdes Fernandez, a
sister of plaintiffs-appellants, were found dead and several
others injured on account of the stampede.
xxx xxx xxx
The injuries sustained by Lourdes Fernandez consisted of
lacerations in both eyes and on the upper lip, contused
abrasions in different parts of the body, internal hemorrhage and
fractures in the second and third right ribs. The cause of death,
according to the autopsy report, was "Shock due to traumatic
fractures of the ribs with perinephric hematoma and lacerations
of the conjunctiva of both eyes."
The deceased's five brothers and sisters filed an action for
damages against Mercedes M. Teague as owner and operator
of Realistic Institute. The Court of First Instance of Manila found
for the defendant and dismissed the case. The plaintiffs
thereupon appealed to the Court of Appeals, which by a divided
vote of 3 to 2 (a special division of five members having been
constituted) rendered a judgment of reversal and sentenced the
defendant to pay damages to the plaintiffs in the sum of
P11,000.00, plus interest at the legal rate from the date the
complaint was filed.
The case came up to this Court on a petition for review filed by
the defendant below.
The decision of the appellate court declared that the defendant,
hereinafter to be referred to as the petitioner, was negligent and
that such negligence was the proximate cause of the death of
Lourdes Fernandez. This finding of negligence is based primarily
on the fact that the provision of Section 491 Of the Revised
Ordinances of the City of Manila had not been complied with in
connection with the construction and use of the Gil-Armi building
where the petitioner's vocational school was housed. This
provision reads as follows:
Sec. 491. Firepro of partitions, exits and stairways. ...
All buildings and separate sections of buildings or buildings
otherwise known as accessorias having less than three stories,
having one or more persons domiciled therein either temporarily
or permanently, and all public or quasi-public buildings having
less than three stories, such as hospitals, sanitarium, schools,
reformatories, places of human detention, assembly halls, clubs,
restaurants or panciterias, and the like, shall be provided with at
least two unobstructed stairways of not less than one meter and
twenty centimeters in width and an inclination of not less than
forty degrees from the perpendicular, in case of large buildings
more than two stairways shall likewise be provided when
required by the chief of the fire department, said stairways shall
be placed as far apart as possible.
The alleged violation of the ordinance above-quoted consisted in
the fact that the second storey of the Gil-Armi building had only
one stairway, 1.5 meters wide, instead of two of at least 1.2
meters each, although at the time of the fire the owner of the
building had a second stairway under construction.
In ruling that such non-compliance with the City Ordinances was
an act of negligence and that such negligence was the
proximate cause of the death of Lourdes Fernandez, reliance is
based on a number of authorities in the American jurisdiction,
thus: .
The mere fact of violation of a statute is not sufficient basis for
an inference that such violation was the proximate cause of the
injury complained. However, if the very injury has happened
which was intended to be prevented by the statute, it has been
held that violation of the statute will be deemed to be proximate
cause of the injury. (65 C.J.S. 1156).
The generally accepted view is that violation of a statutory duty
constitutes negligence, negligence as a matter or law, or,
according to the decisions on the question, negligence per se for
the reason that non-observance of what the legislature has
prescribed as a suitable precaution is failure to observe that care
which an ordinarily prudent man would observe, and, when the
state regards certain acts as so liable to injure others as to justify
their absolute prohibition, doing the forbidden act is a breach of
duty with respect to those who may be injured thereby; or, as it
has been otherwise expressed, when the standard of care is
fixed by law, failure to conform to such standard is negligence, Medina, G. R. No. L-10126, October 22, 1957, is cited in support
negligence per se or negligence in and of itself, in the absence of the contention that such failure was not the proximate cause.
of a legal excuse. According to this view it is immaterial, where a It is there stated by this Court:
statute has been violated, whether the act or omission
constituting such violation would have been regarded as The proximate legal cause is that acting first and producing the
negligence in the absence of any statute on the subject or injury, either immediately or by settling other events in motion, all
whether there was, as a matter of fact, any reason to anticipate constituting a natural and continuous chain of events, each
that injury would result from such violation. .... (65 C.J.S. pp. having a close causal connection with its immediate
623-628). predecessor, the final event in the chain immediately affecting
the injury as a natural and probable result of the cause which
But the existence of an ordinance changes the situation. If a first acted, under such circumstances that the person
driver causes an accident by exceeding the speed limit, for responsible for the first event should, as an ordinarily prudent
example, do not inquire whether his prohibited conduct was and intelligent person, have reasonable ground to expect at the
unreasonably dangerous. It is enough that it was prohibited. moment of his act or default that an injury to some person might
Violation of an ordinance intended to promote safety is probably result therefrom.
negligence. If by creating the hazard which the ordinance was
intended to avoid it brings about the harm which the ordinance Having in view the decision just quoted, the petitioner relates the
was intended to prevent, it is a legal cause of the harm. This chain of events that resulted in the death of Lourdes Fernandez
comes only to saying that in such circumstances the law has no as follows: (1) violation of ordinance; (2) fire at a neighboring
reason to ignore the causal relation which obviously exists in place; (3) shouts of "Fire!, Fire!"; (4) panic in the Institute; (5)
fact. The law has excellent reason to recognize it, since it is the stampede; and (6) injuries and death.
very relation which the makers of the ordinance anticipated. This
court has applied these principles to speed limits and other As thus projected the violation of the ordinance, it is argued, was
regulations of the manner of driving. (Ross vs. Hartman, 139 only a remote cause, if at all, and cannot be the basis of liability
Fed. 2d 14 at 15). since there intervened a number of independent causes which
produced the injury complained of. A statement of the doctrine
... However, the fact that other happenings causing or relied upon is found in Manila Electric Co. vs. Remoquillo, L-
contributing toward an injury intervened between the violation of 8328, May 18, 1956, wherein this Court, citing Corpus Juris said:
a statute or ordinance and the injury does not necessarily make
the result so remote that no action can be maintained. The test A prior and remote cause cannot be made the basis of an action
is to be found not in the number of intervening events or agents, if such remote cause did nothing more than furnish the condition
but in their character and in the natural and probable connection or give rise to the occasion by which the injury was made
between the wrong done and the injurious consequence. The possible, if there intervened between such prior or remote cause
general principle is that the violation of a statute or ordinance isand the injury a distinct, successive unrelated, and efficient
not rendered remote as the cause of an injury by the intervention cause of the injury, even though such injury would not have
of another agency if the occurrence of the accident, in the happened but for such condition or occasion. If no danger
manner in which it happened, was the very thing which the existed in the condition except because of the independent
statute or ordinance was intended to Prevent. (38 Am Jur 841). cause, such condition was not the proximate cause. And if an
independent negligent act or defective condition sets into
The petitioner has raised a number of issues. The first is that operation the circumstances which result in injury because of the
Section 491 of the Revised Ordinances of the City of Manila prior defective condition, such subsequent act or condition is the
refers to public buildings and hence did not apply to the Gil-Armi proximate cause. (45 C.J. p. 931.)
building which was of private ownership. It will be noted from the
text of the ordinance, however, that it is not ownership which According to the petitioner "the events of fire, panic and
determines the character of buildings subject to its requirements, stampede were independent causes with no causal connection
but rather the use or the purpose for which a particular building at all with the violation of the ordinance." The weakness in the
is utilized. Thus the same may be privately owned, but if it is argument springs from a faulty juxtaposition of the events which
devoted to any one of the purposes mentioned in the ordinance formed a chain and resulted in the injury. It is true that the
for instance as a school, which the Realistic Institute precisely petitioner's non-compliance with the ordinance in question was
was then the building is within the coverage of the ordinance. ahead of and prior to the other events in point of time, in the
Indeed the requirement that such a building should have two (2) sense that it was coetaneous with its occupancy of the building.
separate stairways instead of only one (1) has no relevance or But the violation was a continuing one, since the ordinance was
reasonable relation to the fact of ownership, but does have such a measure of safety designed to prevent a specific situation
relation to the use or purpose for which the building is devoted. which would pose a danger to the occupants of the building.
That situation was undue overcrowding in case it should become
It is next contended that the obligation to comply with the necessary to evacuate the building, which, it could be
ordinance devolved upon the owners of the building and reasonably foreseen, was bound to happen under emergency
therefore it is they and not the petitioner herein, who is a mere conditions if there was only one stairway available. It is true that
lessee, who should be liable for the violation. The contention in this particular case there would have been no overcrowding in
ignores the fact that it was the use of the building for school the single stairway if there had not been a fire in the
purposes which brought the same within the coverage of the neighborhood which caused the students to panic and rush
ordinance; and it was the petitioner and not the owners who was headlong for the stairs in order to go down. But it was precisely
responsible for such use. such contingencies or event that the authors of the ordinance
had in mind, for under normal conditions one stairway would be
The next issue, indeed the basic one, raised by the petitioner is adequate for the occupants of the building. Thus, as stated in 38
whether or not the failure to comply with the requirement of the American Jurisprudence, page 841: "The general principle is
ordinance was the proximate cause of the death of Lourdes that the violation of a statute or ordinance is not rendered remote
Fernandez. The case of Villanueva Vda. de Bataclan, et al. vs. as the cause of an injury by the intervention of another agency if
the occurrence of the accident, in the manner in which it Jose Koh, Kim Koh McKee and Loida Bondoc and caused
happened, was the very thing which the statute or ordinance physical injuries to George Koh McKee, Christopher Koh McKee
was intended to prevent." To consider the violation of the and petitioner Araceli Koh McKee.
ordinance as the proximate cause of the injury does not portray
the situation in its true perspective; it would be more accurate to Petitioners in G.R. No. 68102, parents of the minors George Koh
say that the overcrowding at the stairway was the proximate McKee, Christopher Koh McKee and the deceased Kim Koh
cause and that it was precisely what the ordinance intended to McKee, were the plaintiffs in Civil Case No. 4478, while
prevent by requiring that there be two stairways instead of only petitioner Carmen Dayrit Koh and her co-petitioners in G.R. No.
one. Under the doctrine of the cases cited by the respondents, 68103, who are the wife and children, respectively, of the late
the principle of proximate cause applies to such violation. Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the
other hand, private respondents are the owners of the cargo
A procedural point mentioned by the petitioner is that the truck which figured in the mishap; a certain Ruben Galang was
complaint did not specifically allege that the ordinance in the driver of the truck at the time of the accident.
question had been violated. The violation, however, as an act of
negligence which gave rise to liability, was sufficiently The antecedent facts are not disputed.
comprehended within paragraph 7 of the complaint, which reads:
. Between nine and ten o'clock in the morning of 8 January 1977,
in Pulong Pulo Bridge along MacArthur Highway, between
Par. 7. That the death of Lourdes Fernandez was due to the Angeles City and San Fernando, Pampanga, a head-on-collision
gross negligence of the defendant who failed to exercise due took place between an International cargo truck, Loadstar, with
care and diligence for the safety of its students in not providing Plate No. RF912-T Philippines '76 owned by private
the building with adequate fire exits and in not practicing fire drill respondents, and driven by Ruben Galang, and a Ford Escort
exercises to avoid the stampede, aside from the fact that the car bearing Plate No. S2-850 Pampanga '76 driven by Jose Koh.
defendant did not have a permit to use the building as a school- The collision resulted in the deaths of Jose Koh, Kim Koh McKee
house. and Loida Bondoc, and physical injuries to George Koh McKee,
Christopher Koh McKee and Araceli Koh McKee, all passengers
The decision appealed from is affirmed, with costs. of the Ford Escort.

G.R. No. L-68102 July 16, 1992
GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and
ROSALINDA MANALO, respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH
TUQUERO, ARACELI KOH MCKEE, ANTONIO KOH and
ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and
ROSALINDA MANALO, respondents.
DAVIDE, JR., J.:
Petitioners urge this Court to review and reverse the Resolution
of the Court of Appeals in C.A.-G.R. CV Nos. 69040-41,
promulgated on 3 April 1984, which set aside its previous
Decision dated 29 November 1983 reversing the Decision of the
trial court which dismissed petitioners' complaints in Civil Case
No. 4477 and Civil Case No. 4478 of the then Court of First
Instance (now Regional Trial Court) of Pampanga entitled
"Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli
Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and
Rosalinda Manalo," and "George McKee and Araceli Koh McKee
vs. Jaime Tayag and Rosalinda Manalo," respectively, and
granted the private respondents' counterclaim for moral
damages, attorney's fees and litigation expenses.
The said civil cases for damages based on quasi-delict were
filed as a result of a vehicular accident which led to the deaths of
Jose Koh was the father of petitioner Araceli Koh McKee, the
mother of minors George, Christopher and Kim Koh McKee.
Loida Bondoc, on the other hand, was the baby sitter of one and
a half year old Kim. At the time of the collision, Kim was seated
on the lap of Loida Bondoc who was at the front passenger's
seat of the car while Araceli and her two (2) sons were seated at
the car's back seat.
Immediately before the collision, the cargo truck, which was
loaded with two hundred (200) cavans of rice weighing about
10,000 kilos, was traveling southward from Angeles City to San
Fernando Pampanga, and was bound for Manila. The Ford
Escort, on the other hand, was on its way to Angeles City from
San Fernando. When the northbound car was about (10) meters
away from the southern approach of the bridge, two (2) boys
suddenly darted from the right side of the road and into the lane
of the car. The boys were moving back and forth, unsure of
whether to cross all the way to the other side or turn back. Jose
Koh blew the horn of the car, swerved to the left and entered the
lane of the truck; he then switched on the headlights of the car,
applied the brakes and thereafter attempted to return to his lane.
Before he could do so, his car collided with the truck. The
collision occurred in the lane of the truck, which was the
opposite lane, on the said bridge.
The incident was immediately reported to the police station in
Angeles City; consequently, a team of police officers was
forthwith dispatched to conduct an on the spot investigation. In
the sketch 1 prepared by the investigating officers, the bridge is
described to be sixty (60) "footsteps" long and fourteen (14)
"footsteps" wide seven (7) "footsteps" from the center line to
the inner edge of the side walk on both sides. 2 Pulong Pulo
Bridge, which spans a dry brook, is made of concrete with soft
shoulders and concrete railings on both sides about three (3)
feet high.
The sketch of the investigating officer discloses that the right
rear portion of the cargo truck was two (2) "footsteps" from the
edge of the right sidewalk, while its left front portion was
touching the center line of the bridge, with the smashed front
side of the car resting on its front bumper. The truck was about and at a moderate speed observing all traffic rules and
sixteen (16) "footsteps" away from the northern end of the bridge regulations applicable under the circumstances then prevailing;"
while the car was about thirty-six (36) "footsteps" from the in their counterclaim, they prayed for an award of damages as
opposite end. Skid marks produced by the right front tire of the may be determined by the court after due hearing, and the sums
truck measured nine (9) "footsteps", while skid marks produced of P10,000.00 as attorney's fees and P5,000.00 as expenses of
by the left front tire measured five (5) "footsteps." The two (2) litigation.
rear tires of the truck, however, produced no skid marks.
Petitioners filed their Answers to the Counterclaims in both
In his statement to the investigating police officers immediately cases.
after the accident, Galang admitted that he was traveling at thirty
(30) miles (48 kilometers) per hour. To expedite the proceedings, the plaintiffs in Civil Case No. 4478
filed on 27 March 1978 a motion to adopt the testimonies of
As a consequence of the collision, two (2) cases, Civil Case No. witnesses taken during the hearing of Criminal Case No. 3751,
4477 and No. 4478, were filed on 31 January 1977 before the which private respondents opposed and which the court denied.
then Court of First Instance of Pampanga and were raffled to 9 Petitioners subsequently moved to reconsider the order
Branch III and Branch V of the said court, respectively. In the denying the motion for consolidation, 10 which Judge Capulong
first, herein petitioners in G.R. No. 68103 prayed for the award of granted in the Order of 5 September 1978; he then directed that
P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 Civil Case No. 4478 be consolidated with Civil Case No. 4477 in
as moral damages, P60,000.00 as exemplary damages, Branch III of the court then presided over by Judge Mario
P10,000.00 for litigation expenses, P6,000.00 for burial Castaeda, Jr.
expenses, P3,650.00 for the burial lot and P9,500.00 for the
tomb, plus attorney's fees. 3 In the second case, petitioners in Left then with Branch V of the trial court was Criminal Case No.
G.R. No. 68102 prayed for the following: (a) in connection with 3751.
the death of Kim McKee, the sum of P12,000.00 as death
benefit, P3,150.00 for funeral services, P3,650.00 for the In the civil cases, the plaintiffs presented as witnesses Araceli
cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral Koh McKee, Fernando Nuag, Col. Robert Fitzgerald, Primitivo
damages, P10,000.00 as exemplary damages and P2,000.00 as Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11
miscellaneous damages; (b) in the case of Araceli Koh McKee, and offered several documentary exhibits. Upon the other hand,
in connection with the serious physical injuries suffered, the sum private respondents presented as witnesses Ruben Galang,
of P100,000.00 as moral damages, P20,000.00 as exemplary Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12
damages, P12,000.00 for loss of earnings, P5,000.00 for the
hospitalization expenses up to the date of the filing of the In the criminal case, the prosecution presented as witnesses
complaint; and (c) with respect to George McKee, Jr., in Mrs. Araceli McKee, Salud Samia, Pfc. Fernando Nuag, Dr.
connection with the serious physical injuries suffered, the sum of Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr.
P50,000.00 as moral damages, P20,000.00 as exemplary Hector, Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo
damages and the following medical expenses: P3,400 payable Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco,
to the Medical Center, P3,500.00 payable to the St. Francis and offered several documentary exhibits. 13 Upon the other
Medical Center, P5,175.00 payable to the Clark Air Base hand, the defense presented the accused Ruben Galang,
Hospital, and miscellaneous expenses amounting to P5,000.00. Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and
They also sought an award of attorney's fees amounting to 25% offered documentary exhibits. 14
of the total award plus traveling and hotel expenses, with costs.
4 On 1 October 1980, Judge Capulong rendered a decision
against the accused Ruben Galang in the aforesaid criminal
On 1 March 1977, an Information charging Ruben Galang with case. The dispositive portion of the decision reads as follows:
the crime of "Reckless Imprudence Resulting to (sic) Multiple
Homicide and Physical Injuries and Damage to Property" was WHEREFORE, in view of the foregoing, judgment is hereby
filed with the trial court. It was docketed as Criminal Case No. rendered finding the accused Ruben Galang guilty beyond
3751 and was raffled to Branch V of the court, the same Branch reasonable doubt of the crime charged in the information and
where Civil Case No. 4478 was assigned. 5 after applying the provisions of Article 365 of the Revised Penal
Code and indeterminate sentence law, this Court, imposes upon
In their Answer with Counterclaim in Civil Case No. 4477, private said accused Ruben Galang the penalty of six (6) months of
respondents asserted that it was the Ford Escort car which arresto mayor as minimum to two (2) years, four (4) months and
"invaded and bumped (sic) the lane of the truck driven by Ruben one (1) day of prision correccional as maximum; the accused is
Galang and, as counterclaim, prayed for the award of further sentenced to pay and indemnify the heirs of Loida
P15,000.00 as attorney's fees, P20,000.00 as actual and Bondoc the amount of P12,000.00 as indemnity for her death; to
liquidated damages, P100,000.00 as moral damages and reimburse the heirs of Loida Bondoc the amount of P2,000.00
P30,000.00 as business losses. 6 In Civil Case No. 4478, private representing the funeral expenses; to pay the heirs of Loida
respondents first filed a motion to dismiss on grounds of Bondoc the amount of P20,000.00 representing her loss of
pendency of another action (Civil Case No. 4477) and failure to income; to indemnify and pay the heirs of the deceased Jose
implead an indispensable party, Ruben Galang, the truck driver; Koh the value of the car in the amount of P53,910.95, and to pay
they also filed a motion to consolidate the case with Civil Case the costs. 15
No. 4477 pending before Branch III of the same court, which
was opposed by the plaintiffs. 7 Both motions were denied by The aforecited decision was promulgated only on 17 November
Branch V, then presided over by Judge Ignacio Capulong. 1980; on the same day, counsel for petitioners filed with Branch
Thereupon, private respondents filed their Answer with Counter- III of the court where the two (2) civil cases were pending a
claim 8 wherein they alleged that Jose Koh was the person "at manifestation to that effect and attached thereto a copy of the
fault having approached the lane of the truck driven by Ruben decision. 16
Galang, . . . which was on the right lane going towards Manila
Upon the other hand, Judge Mario Castaeda, Jr. dismissed the
two (2) civil cases on 12 November 1980 and awarded the
private respondents moral damages, exemplary damages and
attorney's fees. 17 The dispositive portion of the said decision
reads as follows:
WHEREFORE, finding the preponderance of evidence to be in
favor of the defendants and against the plaintiffs, these cases
are hereby ordered DISMISSED with costs against the plaintiffs.
The defendants had proven their counter-claim, thru evidences
(sic) presented and unrebutted. Hence, they are hereby awarded
moral and exemplary damages in the amount of P100,000.00
plus attorney's fee of P15,000.00 and litigation expenses for (sic)
P2,000.00. The actual damages claimed for (sic) by the
defendants is (sic) hereby dismissing for lack of proof to that
effect (sic). 18
A copy of the decision was sent by registered mail to the
petitioners on 28 November 1980 and was received on 2
December 1980. 19
Accused Ruben Galang appealed the judgment of conviction to
the Court of Appeals. The appeal was docketed as C.A.-G.R.
Blg. 24764-CR and was assigned to the court's Third Division.
Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately
appealed the 12 November 1980 decision to the appellate court.
The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-
G.R. No. 69040-R, respectively, and were assigned to the
Fourth Civil Cases Division.
On 4 October 1982, the respondent Court promulgated its
decision 20 in C.A.-G.R. Blg. 24764-CR affirming the conviction
of Galang. 21 The dispositive portion of the decision reads:
DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay
Aming pinagtitibay sa kanyang kabuuan. Ang naghahabol pa rin
ang pinagbabayad ng gugol ng paghahabol.
A motion for reconsideration of the decision was denied by the
respondent Court in its Kapasiyahan promulgated on 25
November 1982. 22 A petition for its review 23 was filed with this
Court; said petition was subsequently denied. A motion for its
reconsideration was denied with finality in the Resolution of 20
April 1983. 24
On 29 November 1983, respondent Court, by then known as the
Intermediate Appellate Court, promulgated its consolidated
decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the
dispositive portion of which reads:
WHEREFORE, the decision appealed from it hereby reversed
and set aside and another one is rendered, ordering defendants-
appellees to pay plaintiffs-appellants as follows:
For the death of Jose Koh:
P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April
19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)
For the death of Kim Koh McKee:
P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)
For the physical injuries suffered by George Koh McKee:
P 25,000.00 as moral damages
P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1
and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B
and B-1)
For the physical injuries suffered by Araceli Koh McKee:
P 25,000.00 as moral damages
P 1,055.00 paid to St. Francis Medical Center (Exhs. G
and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2
and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muoz Clinic (Exh. MM)
For the physical injuries suffered by Christopher Koh McKee:
P 10,000.00 as moral damages
P 1,231.10 to St. Francis Medical Center (Exhs. L and L-
1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)
In addition, We award P10,000.00 as counsel (sic) fees in Civil
Case No. 4477 and another P10,000.00; as counsel (sic) fees in
Civil Case No. 4478.
No pronouncement as to costs.
SO ORDERED. 26
The decision is anchored principally on the respondent Court's
findings that it was Ruben Galang's inattentiveness or reckless
imprudence which caused the accident. The appellate court
further said that the law presumes negligence on the part of the
defendants (private respondents), as employers of Galang, in
the selection and supervision of the latter; it was further asserted
that these defendants did not allege in their Answers the
defense of having exercised the diligence of a good father of a
family in selecting and supervising the said employee.27 This
conclusion of reckless imprudence is based on the following
findings of fact:
In the face of these diametrically opposed judicial positions, the
determinative issue in this appeal is posited in the fourth
assigned error as follows:
IV
THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER
OF THE TRUCK STOPPED HIS TRUCK BLEW HIS HORN
SWITCHED ON HIS HEADLIGHTS AND COULD NOT
SWERVE TO THE RIGHT.
Supportive of plaintiffs' version, principal witness Araceli Koh
McKee testified thus:
Q What happened after that, as you approached the
bridge?

A When we were approaching the bridge, two (2) boys
tried to cross the right lane on the right side of the highway going
to San Fernando. My father, who is (sic) the driver of the car
tried to avoid the two (2) boys who were crossing, he blew his
horn and swerved to the left to avoid hitting the two (2) boys. We
noticed the truck, he switched on the headlights to warn the
truck driver, to slow down to give us the right of way to come
back to our right lane.
Q Did the truck slow down?
A No, sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go back
to the right lane since the truck is (sic) coming, my father
stepped on the brakes and all what (sic) I heard is the sound of
impact (sic), sir. (tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in
these Civil Cases).
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the
herein accused, Ruben Galang did not reduce its speed before
the actual impact of collision (sic) as you narrated in this Exhibit
"1," how did you know (sic)?
xxx
A It just kept on coming, sir. If only he reduced his speed,
we could have got (sic) back to our right lane on side (sic) of the A
highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in
these Civil Cases) (pp. 30-31, Appellants' Brief). ATTY. SOTTO:
Plaintiffs' version was successfully corroborated to Our
satisfaction by the following facts and circumstances:
1. An impartial eye-witness to the mishap, Eugenio
Tanhueco, declared that the truck stopped only when it had
already collided with the car:
xxx xxx xxx
Tanhueco repeated the same testimony during the hearing in the
criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an accommodation
witness because he was one of the first to arrive at the scene of
the accident. As a matter of fact, he brought one of the injured
passengers to the hospital.
We are not prepared to accord faith and credit to defendants'
witnesses, Zenaida Soliman, a passenger of the truck, and
Roman Dayrit, who supposedly lived across the street.
Regarding Soliman, experience has shown that in the ordinary
course of events people usually take the side of the person with
whom they are associated at the time of the accident, because,
as a general rule, they do not wish to be identified with the
person who was at fault. Thus an imaginary bond is
unconsciously created among the several persons within the
same group (People vs. Vivencio, CA-G.R. No. 00310-CR, Jan.
31, 1962).
With respect to Dayrit, We can not help suspecting (sic) that he
is an accommodation witness. He did not go to the succor of the
injured persons. He said he wanted to call the police authorities
about the mishap, but his phone had no dial tone. Be this (sic)
as it may, the trial court in the criminal case acted correctly in
refusing to believe Dayrit.
2. Exhibit 2, the statement of Galang, does not include the
claim that Galang stopped his truck at a safe distance from the
car, according to plaintiffs (p. 25, Appellants' Brief). This
contention of appellants was completely passed sub-silencio or
was not refuted by appellees in their brief. Exhibit 2 is one of the
exhibits not included in the record. According to the Table of
Contents submitted by the court below, said Exhibit 2 was not
submitted by defendants-appellees. In this light, it is not far-
fetched to surmise that Galang's claim that he stopped was an
eleventh-hour desperate attempt to exculpate himself from
imprisonment and damages.
3. Galang divulged that he stopped after seeing the car
about 10 meters away:
ATTY. SOTTO:
Q Do I understand from your testimony that inspite of the
fact that you admitted that the road is straight and you may be
able to (sic) see 500-1000 meters away from you any vehicle,
you first saw that car only about ten (10) meters away from you
for the first time?
xxx xxx
I noticed it, sir, that it was about ten (10) meters away.
Q So, for clarification, you clarify and state under your
oath that you have (sic) not noticed it before that ten (10)
meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants' Brief)
Galang's testimony substantiate (sic) Tanhueco's statement that
Galang stopped only because of the impact. At ten (10) meters
away, with the truck running at 30 miles per hour, as revealed in
Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh
impossible to avoid a collision on a bridge.
5. Galang's truck stopped because of the collision, and
not because he waited for Jose Koh to return to his proper lane.
The police investigator, Pfc. Fernando L. Nuag, stated that he
found skid marks under the truck but there were not (sic) skid
marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The
presence of skid marks show (sic) that the truck was speeding.
Since the skid marks were found under the truck and none were
found at the rear of the truck, the reasonable conclusion is that
the skid marks under the truck were caused by the truck's front
wheels when the trucks (sic) suddenly stopped seconds before
the mishap in an endeavor to avoid the same. But, as aforesaid,
Galang saw the car at barely 10 meters away, a very short
distance to avoid a collision, and in his futile endeavor to avoid
the collision he abruptly stepped on his brakes but the smashup
happened just the same.
For the inattentiveness or reckless imprudence of Galang, the
law presumes negligence on the part of the defendants in the
selection of their driver or in the supervision over him. Appellees
did not allege such defense of having exercised the duties of a
good father of a family in the selection and supervision of their
employees in their answers. They did not even adduce evidence
that they did in fact have methods of selection and programs of
supervision. The inattentiveness or negligence of Galang was
the proximate cause of the mishap. If Galang's attention was on
the highway, he would have sighted the car earlier or at a very
safe distance than (sic) 10 meters. He proceeded to cross the
bridge, and tried to stop when a collision was already inevitable,
because at the time that he entered the bridge his attention was
not riveted to the road in front of him.
On the question of damages, the claims of appellants were
amply proven, but the items must be reduced. 28
A motion for reconsideration alleging improper appreciation of
the facts was subsequently filed by private respondents on the
basis of which the respondent Court, in its Resolution of 3 April
1984, 29 reconsidered and set aside its 29 November 1983
decision and affirmed in toto the trial court's judgment of 12
November 1980. A motion to reconsider this Resolution was
denied by the respondent Court on 4 July 1984.30
Hence, this petition.
Petitioners allege that respondent Court:
I ACCORDANCE WITH THE EVIDENCE, THE LAW AND
. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR
WHEN IT TOTALLY REVERSED ITS DECISION BY MERELY
BASING IT FROM (sic) A MERE "PRESUMPTION," TOTALLY
DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S
ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY
COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT
(sic), FURTHER, IT ALSO DISREGARDED THE EVIDENCE
ADDUCED AND FOUND IN THE RECORDS; THEREFORE,
RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B,
PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED
ON SPECULATIONS, CONJECTURES AND WITHOUT SURE
FOUNDATION IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN
IN EFFECT IT DISREGARDED A DOCTRINE LAID DOWN BY
THIS HONORABLE COURT BY STATING AMONG OTHERS,
"IT CANNOT CATEGORICALLY ADOPT THE FINDINGS OF
GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF
THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF
DISCRETION AND MADE A MISLEADING
PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS
INCUMBENT UPON THE PLAINTIFFS-APPELLANTS
(APPELLEES WRONGLY MENTIONED IN THE RESOLUTION)
TO PROVE THEIR ALLEGATIONS THAT THE PROXIMATE
CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF
PRIVATE RESPONDENTS' DRIVER.
IV
. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR;
COMMITTED GRAVE ABUSE OF DISCRETION AND CITED
ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO
THESE CASES.
V appreciating, according to their respective orientation, perception
. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED
ITS DISCRETION IN ADOPTING THE FINDINGS OF THE
TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND
CONTRARY TO THE EVIDENCE FOUND IN THE RECORDS,
SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED
FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE
RESPONDENTS' DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE
ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT
AWARDED DAMAGES TO THE PRIVATE RESPONDENTS
WHEN SAID AWARD IS NOT SUPPORTED BY EVIDENCE, IN
THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY
LAW AND THE CONSISTENT DECISIONS OF THIS
HONORABLE COURT.
VII
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE
ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT
ERRONEOUSLY SET ASIDE ITS DECISION AWARDING
DAMAGES TO PETITIONERS WHICH IS CLEARLY IN
JURISPRUDENCE RELATIVE TO THE AWARD OF
DAMAGES. 31
In the Resolution of 12 September 1984, We required private
respondents to Comment on the petition. 32 After the said
Comment 33 was filed, petitioners submitted a Reply 34 thereto;
this Court then gave due course to the instant petitions and
required petitioners to file their Brief, 35 which they accordingly
complied with.
There is merit in the petition. Before We take on the main task of
dissecting the arguments and counter-arguments, some
observations on the procedural vicissitudes of these cases are in
order.
Civil Cases Nos. 4477 and 4478, which were for the recovery of
civil liability arising from a quasi-delict under Article 2176 in
relation to Article 2180 of the Civil Code, were filed ahead of
Criminal Case No. 3751. Civil Case No. 4478 was eventually
consolidated with Civil Case No. 4477 for joint trial in Branch III
of the trial court. The records do not indicate any attempt on the
part of the parties, and it may therefore be reasonably concluded
that none was made, to consolidate Criminal Case No. 3751 with
the civil cases, or vice-versa. The parties may have then
believed, and understandably so, since by then no specific
provision of law or ruling of this Court expressly allowed such a
consolidation, that an independent civil action, authorized under
Article 33 in relation to Article 2177 of the Civil Code, such as
the civil cases in this case, cannot be consolidated with the
criminal case. Indeed, such consolidation could have been
farthest from their minds as Article 33 itself expressly provides
that the "civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of
evidence." Be that as it may, there was then no legal
impediment against such consolidation. Section 1, Rule 31 of the
Rules of Court, which seeks to avoid a multiplicity of suits, guard
against oppression and abuse, prevent delays, clear congested
dockets to simplify the work of the trial court, or in short, attain
justice with the least expense to the parties litigants, 36 would
have easily sustained a consolidation, thereby preventing the
unseeming, if no ludicrous, spectacle of two (2) judges
and perhaps even prejudice, the same facts differently, and
thereafter rendering conflicting decisions. Such was what
happened in this case. It should not, hopefully, happen anymore.
In the recent case of Cojuangco vs. Court or Appeals, 37 this
Court held that the present provisions of Rule 111 of the Revised
Rules of Court allow a consolidation of an independent civil
action for the recovery of civil liability authorized under Articles
32, 33, 34 or 2176 of the Civil Code with the criminal action
subject, however, to the condition that no final judgment has
been rendered in that criminal case.
Let it be stressed, however, that the judgment in Criminal Case
No. 3751 finding Galang guilty of reckless imprudence, although
already final by virtue of the denial by no less than this Court of
his last attempt to set aside the respondent Court's affirmance of
the verdict of conviction, has no relevance or importance to this
case.
As We held in Dionisio vs. Alvendia, 38 the responsibility arising
from fault or negligence in a quasi-delict is entirely separate and
distinct from the civil liability arising from negligence under the
Penal Code. And, as more concretely stated in the concurring
opinion of Justice J.B.L. Reyes, "in the case of independent civil
actions under the new Civil Code, the result of the criminal case,
whether acquittal or conviction, would be entirely irrelevant to the
civil action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40
this Court stated:
. . . It seems perfectly reasonable to conclude that the civil
actions mentioned in Article 33, permitted in the same manner to
be filed separately from the criminal case, may proceed similarly
regardless of the result of the criminal case.
Indeed, when the law has allowed a civil case related to a
criminal case, to be filed separately and to proceed
independently even during the pendency of the latter case, the
intention is patent to make the court's disposition of the criminal
case of no effect whatsoever on the separate civil case. This
must be so because the offenses specified in Article 33 are of
such a nature, unlike other offenses not mentioned, that they
may be made the subject of a separate civil action because of
the distinct separability of their respective juridical cause or basis
of action . . . .
What remains to be the most important consideration as to why
the decision in the criminal case should not be considered in this
appeal is the fact that private respondents were not parties
therein. It would have been entirely different if the petitioners'
cause of action was for damages arising from a delict, in which
case private respondents' liability could only be subsidiary
pursuant to Article 103 of the Revised Penal Code. In the
absence of any collusion, the judgment of conviction in the
criminal case against Galang would have been conclusive in the
civil cases for the subsidiary liability of the private respondents.
41
And now to the merits of the petition.
It is readily apparent from the pleadings that the principal issue
raised in this petition is whether or not respondent Court's
findings in its challenged resolution are supported by evidence
or are based on mere speculations, conjectures and
presumptions.
The principle is well-established that this Court is not a trier of
facts. Therefore, in an appeal by certiorari under Rule 45 of the
Revised Rules of Court, only questions of law may be raised.
The resolution of factual issues is the function of the lower courts
whose findings on these matters are received with respect and
are, as a rule, binding on this Court. 42
The foregoing rule, however, is not without exceptions. Findings
of facts of the trial courts and the Court of Appeals may be set
aside when such findings are not supported by the evidence or
when the trial court failed to consider the material facts which
would have led to a conclusion different from what was stated in
its judgment. 43 The same is true where the appellate court's
conclusions are grounded entirely on conjectures, speculations
and surmises 44 or where the conclusions of the lower courts
are based on a misapprehension of facts. 45
It is at once obvious to this Court that the instant case qualifies
as one of the aforementioned exceptions as the findings and
conclusions of the trial court and the respondent Court in its
challenged resolution are not supported by the evidence, are
based on an misapprehension of facts and the inferences made
therefrom are manifestly mistaken. The respondent Court's
decision of 29 November 1983 makes the correct findings of
fact.
In the assailed resolution, the respondent Court held that the fact
that the car improperly invaded the lane of the truck and that the
collision occurred in said lane gave rise to the presumption that
the driver of the car, Jose Koh, was negligent. On the basis of
this presumed negligence, the appellate court immediately
concluded that it was Jose Koh's negligence that was the
immediate and proximate cause of the collision. This is an
unwarranted deduction as the evidence for the petitioners
convincingly shows that the car swerved into the truck's lane
because as it approached the southern end of the bridge, two (2)
boys darted across the road from the right sidewalk into the lane
of the car. As testified to by petitioner Araceli Koh McKee:
Q What happened after that, as you approached the
bridge?
A When we were approaching the bridge, two (2) boys
tried to cross the right lane on the right side of the highway going
to San Fernando. My father, who is (sic) the driver of the car
tried to avoid the two (2) boys who were crossing, he blew his
horn and swerved to the left to avoid hitting the two (2) boys. We
noticed the truck, he switched on the headlights to warn the
truck driver, to slow down to give us the right of way to come
back to our right lane.
Q Did the truck slow down?
A No sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go back
to the right lane since the truck is (sic) coming, my father
stepped on the brakes and all what (sic) I heard is the sound of
impact (sic), sir. 46
Her credibility and testimony remained intact even during cross
examination. Jose Koh's entry into the lane of the truck was
necessary in order to avoid what was, in his mind at that time, a
greater peril death or injury to the two (2) boys. Such act can
hardly be classified as negligent.
Negligence was defined and described by this Court in Layugan
vs. Intermediate Appellate Court, 47 thus:
. . . Negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do
(Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley which first acted, under such circumstances that the person
defines it, "(T)he failure to observe for the protection of the responsible for the first event should, as an ordinary prudent and
interests of another person, that degree of care, precaution, and intelligent person, have reasonable ground to expect at the
vigilance which the circumstances justly demand, whereby such moment of his act or default that an injury to some person might
other person suffers injury." (Cooley on Torts, Fourth Edition, probably result therefrom. 50
vol. 3, 265)
Applying the above definition, although it may be said that the
In Picart vs. Smith (37 Phil 809, 813), decided more than act of Jose Koh, if at all negligent, was the initial act in the chain
seventy years ago but still a sound rule, (W)e held: of events, it cannot be said that the same caused the eventual
injuries and deaths because of the occurrence of a sufficient
The test by which to determine the existence of negligence in a intervening event, the negligent act of the truck driver, which was
particular case may be stated as follows: Did the defendant in the actual cause of the tragedy. The entry of the car into the lane
doing the alleged negligent act use that (reasonable care and of the truck would not have resulted in the collision had the latter
caution which an ordinarily prudent person would have used in heeded the emergency signals given by the former to slow down
the same situation?) If not, then he is guilty of negligence. The and give the car an opportunity to go back into its proper lane.
law here in effect adopts the standard supposed to be supplied Instead of slowing down and swerving to the far right of the road,
by the imaginary conduct of the discreet paterfamilias of the which was the proper precautionary measure under the given
Roman circumstances, the truck driver continued at full speed towards
law. . . . the car. The truck driver's negligence becomes more apparent in
view of the fact that the road is 7.50 meters wide while the car
In Corliss vs. Manila Railroad Company, 48 We held: measures 1.598 meters and the truck, 2.286 meters, in width.
This would mean that both car and truck could pass side by side
. . . Negligence is want of the care required by the with a clearance of 3.661 meters to spare. 51 Furthermore, the
circumstances. It is a relative or comparative, not an absolute, bridge has a level sidewalk which could have partially
term and its application depends upon the situation of the parties accommodated the truck. Any reasonable man finding himself in
and the degree of care and vigilance which the circumstances the given situation would have tried to avoid the car instead of
reasonably require. Where the danger is great, a high degree of meeting it head-on.
care is necessary, and the failure to observe it is a want of
ordinary care under the circumstances. (citing Ahern v. Oregon The truck driver's negligence is apparent in the records. He
Telephone Co., 35 Pac. 549 (1894). himself said that his truck was running at 30 miles (48
kilometers) per hour along the bridge while the maximum speed
On the basis of the foregoing definition, the test of negligence allowed by law on a bridge 52 is only 30 kilometers per hour.
and the facts obtaining in this case, it is manifest that no Under Article 2185 of the Civil Code, a person driving a vehicle
negligence could be imputed to Jose Koh. Any reasonable and is presumed negligent if at the time of the mishap, he was
ordinary prudent man would have tried to avoid running over the violating any traffic regulation. We cannot give credence to
two boys by swerving the car away from where they were even if private respondents' claim that there was an error in the
this would mean entering the opposite lane. Avoiding such translation by the investigating officer of the truck driver's
immediate peril would be the natural course to take particularly response in Pampango as to whether the speed cited was in
where the vehicle in the opposite lane would be several meters kilometers per hour or miles per hour. The law presumes that
away and could very well slow down, move to the side of the official duty has been regularly performed; 53 unless there is
road and give way to the oncoming car. Moreover, under what is proof to the contrary, this presumption holds. In the instant case,
known as the emergency rule, "one who suddenly finds himself private respondents' claim is based on mere conjecture.
in a place of danger, and is required to act without time to
consider the best means that may be adopted to avoid the The truck driver's negligence was likewise duly established
impending danger, is not guilty of negligence, if he fails to adopt through the earlier quoted testimony of petitioner Araceli Koh
what subsequently and upon reflection may appear to have been McKee which was duly corroborated by the testimony of Eugenio
a better method, unless the emergency in which he finds himself Tanhueco, an impartial eyewitness to the mishap.
is brought about by his own negligence." 49
Araceli Koh McKee testified further, thus:
Considering the sudden intrusion of the two (2) boys into the
lane of the car, We find that Jose Koh adopted the best means x x x xxx xxx
possible in the given situation to avoid hitting them. Applying the
above test, therefore, it is clear that he was not guilty of Q Mrs. how did you know that the truck driven by the
negligence. herein accused, Ruben Galang did not reduce its speed before
the actual impact of collision as you narrated in this Exhibit "1,"
In any case, assuming, arguendo that Jose Koh is negligent, it how did you know?
cannot be said that his negligence was the proximate cause of
the collision. Proximate cause has been defined as: A It just kept on coming, sir. If only he reduced his speed,
we could have got (sic) back to our right lane on side (sic) of the
. . . that cause, which, in natural and continuous sequence, highway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in
unbroken by any efficient intervening cause, produces the injury, these Civil Cases) (pp. 30-31, Appellants' Brief)54
and without which the result would not have occurred. And more
comprehensively, the proximate legal cause is that acting first while Eugenio Tanhueco testified thus:
and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain Q When you saw the truck, how was it moving?
of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately A It was moving 50 to 60 kilometers per hour, sir.
effecting the injury as a natural and probable result of the cause
Q Immediately after you saw this truck, do you know what
happened? The doctrine applies only in a situation where the plaintiff was
guilty of prior or antecedent negligence but the defendant, who
A I saw the truck and a car collided (sic), sir, and I went to had the last fair chance to avoid the impending harm and failed
the place to help the victims. (tsn. 28, April 19, 1979) to do so, is made liable for all the consequences of the accident
notwithstanding the prior negligence of the plaintiff [Picart v.
xxx xxx xxx Smith, 37 Phil. 809 (1918); Glan People's Lumber and
Hardware, et al. vs. Intermediate Appellate Court, Cecilia Alferez
Q From the time you saw the truck to the time of the Vda. de Calibo, et al., G.R. No. 70493, May, 18, 1989]. The
impact, will you tell us if the said truck ever stopped? subsequent negligence of the defendant in failing to exercise
ordinary care to avoid injury to plaintiff becomes the immediate
A I saw it stopped (sic) when it has (sic) already collided or proximate cause of the accident which intervenes between
with the car and it was already motionless. (tsn. 31, April 19, the accident and the more remote negligence of the plaintiff,
1979; Emphasis Supplied). (p. 27, Appellants' Brief). 55 thus making the defendant liable to the plaintiff [Picart v. Smith,
supra].
Clearly, therefore, it was the truck driver's subsequent
negligence in failing to take the proper measures and degree of Generally, the last clear chance doctrine is invoked for the
care necessary to avoid the collision which was the proximate purpose of making a defendant liable to a plaintiff who was guilty
cause of the resulting accident. of prior or antecedent negligence, although it may also be raised
as a defense to defeat claim (sic) for damages.
Even if Jose Koh was indeed negligent, the doctrine of last clear
chance finds application here. Last clear chance is a doctrine in Applying the foregoing doctrine, it is not difficult to rule, as We
the law of torts which states that the contributory negligence of now rule, that it was the truck driver's negligence in failing to
the party injured will not defeat the claim for damages if it is exert ordinary care to avoid the collision which was, in law, the
shown that the defendant might, by the exercise of reasonable proximate cause of the collision. As employers of the truck
care and prudence, have avoided the consequences of the driver, the private respondents are, under Article 2180 of the
negligence of the injured party. In such cases, the person who Civil Code, directly and primarily liable for the resulting
had the last clear chance to avoid the mishap is considered in damages. The presumption that they are negligent flows from
law solely responsible for the consequences thereof.56 the negligence of their employee. That presumption, however, is
only juris tantum, not juris et de jure. 59 Their only possible
In Bustamante vs. Court of Appeals, 57 We held: defense is that they exercised all the diligence of a good father
of a family to prevent the damage. Article 2180 reads as follows:
The respondent court adopted the doctrine of "last clear
chance." The doctrine, stated broadly, is that the negligence of The obligation imposed by Article 2176 is demandable not only
the plaintiff does not preclude a recovery for the negligence of for one's own acts or omissions, but also for those of persons for
the defendant where it appears that the defendant, by exercising whom one is responsible.
reasonable care and prudence, might have avoided injurious
consequences to the plaintiff notwithstanding the plaintiff's xxx xxx xxx
negligence. In other words, the doctrine of last clear chance
means that even though a person's own acts may have placed Employers shall be liable for the damages caused by their
him in a position of peril, and an injury results, the injured person employees and household helpers acting within the scope of
is entitled to recovery (sic). As the doctrine is usually stated, a their assigned tasks, even though the former are not engaged in
person who has the last clear chance or opportunity of avoiding any business or industry.
an accident, notwithstanding the negligent acts of his opponent
or that of a third person imputed to the opponent is considered in xxx xxx xxx
law solely responsible for the consequences of the accident.
(Sangco, Torts and Damages, 4th Ed., 1986, p. 165). The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
The practical import of the doctrine is that a negligent defendant diligence of a good father of a family to prevent damage.
is held liable to a negligent plaintiff, or even to a plaintiff who has
been grossly negligent in placing himself in peril, if he, aware of The diligence of a good father referred to means the diligence in
the plaintiff's peril, or according to some authorities, should have the selection and supervision of employees. 60 The answers of
been aware of it in the reasonable exercise of due care, had in the private respondents in Civil Cases Nos. 4477 and 4478 did
fact an opportunity later than that of the plaintiff to avoid an not interpose this defense. Neither did they attempt to prove it.
accident (57 Am. Jur., 2d, pp. 798-799).
The respondent Court was then correct in its Decision of 29
In Pantranco North Express, Inc., vs. Baesa, 58 We ruled: November 1983 in reversing the decision of the trial court which
dismissed Civil Cases Nos. 4477 and 4478. Its assailed
The doctrine of last clear chance was defined by this Court in the Resolution of 3 April 1984 finds no sufficient legal and factual
case of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), moorings.
in this wise:
In the light of recent decisions of this Court, 61 the indemnity for
The doctrine of the last clear chance simply, means that the death must, however, be increased from P12,000.00 to
negligence of a claimant does not preclude a recovery for the P50,000.00.
negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided WHEREFORE, the instant petition is GRANTED. The assailed
injurious consequences to claimant notwithstanding his Resolution of the respondent Court of 3 April 1984 is SET
negligence. ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV
Nos. 69040-41 is REINSTATED, subject to the modification that
the indemnity for death is increased from P12,000.00 to
P50,000.00 each for the death of Jose Koh and Kim Koh McKee.
Costs against private respondents.
SO ORDERED.
Persons Liable
G.R. No. 147791 September 8, 2006
CONSTRUCTION DEVELOPMENT CORPORATION OF THE
PHILIPPINES, petitioner,
vs.
REBECCA G. ESTRELLA, RACHEL E. FLETCHER,
PHILIPPINE PHOENIX SURETY & INSURANCE INC.,
BATANGAS LAGUNA TAYABAS BUS CO., and WILFREDO
DATINGUINOO, respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review assails the March 29, 2001 Decision1 of
the Court of Appeals in CA-G.R. CV No. 46896, which affirmed
with modification the February 9, 1993 Decision2 of the Regional
Trial Court of Manila, Branch 13, in Civil Case No. R-82-2137,
finding Batangas Laguna Tayabas Bus Co. (BLTB) and
Construction Development Corporation of the Philippines
(CDCP) liable for damages.
The antecedent facts are as follows:
On December 29, 1978, respondents Rebecca G. Estrella and
her granddaughter, Rachel E. Fletcher, boarded in San Pablo
City, a BLTB bus bound for Pasay City. However, they never
reached their destination because their bus was rammed from
behind by a tractor-truck of CDCP in the South Expressway. The
strong impact pushed forward their seats and pinned their knees
to the seats in front of them. They regained consciousness only
when rescuers created a hole in the bus and extricated their legs
from under the seats. They were brought to the Makati Medical
Center where the doctors diagnosed their injuries to be as
follows:
Medical Certificate of Rebecca Estrella
Fracture, left tibia mid 3rd
Lacerated wound, chin
Contusions with abrasions, left lower leg
Fracture, 6th and 7th ribs, right3
Medical Certificate of Rachel Fletcher
Extensive lacerated wounds, right leg posterior aspect popliteal
area
and antero-lateral aspect mid lower leg with severance of
muscles.
Partial amputation BK left leg with severance of gastro-soleus
and
antero-lateral compartment of lower leg.
Fracture, open comminuted, both tibial4
Thereafter, respondents filed a Complaint5 for damages against
CDCP, BLTB, Espiridion Payunan, Jr. and Wilfredo Datinguinoo
before the Regional Trial Court of Manila, Branch 13. They
alleged (1) that Payunan, Jr. and Datinguinoo, who were the
drivers of CDCP and BLTB buses, respectively, were negligent
and did not obey traffic laws; (2) that BLTB and CDCP did not
exercise the diligence of a good father of a family in the selection
and supervision of their employees; (3) that BLTB allowed its
bus to operate knowing that it lacked proper maintenance thus
exposing its passengers to grave danger; (4) that they suffered
actual damages amounting to P250,000.00 for Estrella and
P300,000.00 for Fletcher; (5) that they suffered physical
discomfort, serious anxiety, fright and mental anguish,
besmirched reputation and wounded feelings, moral shock, and
lifelong social humiliation; (6) that defendants failed to act with
justice, give respondents their due, observe honesty and good
faith which entitles them to claim for exemplary damage; and (7)
that they are entitled to a reasonable amount of attorney's fees
and litigation expenses.
CDCP filed its Answer6 which was later amended to include a
third-party complaint against Philippine Phoenix Surety and
Insurance, Inc. (Phoenix).7
On February 9, 1993, the trial court rendered a decision finding
CDCP and BLTB and their employees liable for damages, the
dispositive portion of which, states:
WHEREFORE, judgment is rendered:
In the Complaint
1. In favor of the plaintiffs and against the defendants BLTB,
Wilfredo Datinguinoo, Construction and Development
Corporation of the Philippines (now PNCC) and Espiridion
Payunan, Jr., ordering said defendants, jointly and severally to
pay the plaintiffs the sum of P79,254.43 as actual damages and
to pay the sum of P10,000.00 as attorney's fees or a total of
P89,254.43;
2. In addition, defendant Construction and Development
Corporation of the Philippines and defendant Espiridion
Payunan, Jr., shall pay the plaintiffs the amount of Fifty
Thousand (P50,000.00) Pesos to plaintiff Rachel Fletcher and
Twenty Five Thousand (P25,000.00) Pesos to plaintiff Rebecca
Estrella;
3. On the counterclaim of BLTB Co. and Wilfredo Datinguinoo
Dismissing the counterclaim;
4. On the crossclaim against Construction and Development
Corporation of the Philippines (now PNCC) and Espiridion
Payunan, Jr.
Dismissing the crossclaim;
5. On the counterclaim of Construction and Development
Corporation of the Philippines (now PNCC)
Dismissing the counterclaim;
6. On the crossclaim against BLTB
Dismissing the crossclaim;
7. On the Third Party Complaint by Construction and
Development Corporation of the Philippines against Philippine
Phoenix Surety and Insurance, Incorporated
Dismissing the Third Party Complaint.
SO ORDERED.8
The trial court held that BLTB, as a common carrier, was bound
to observe extraordinary diligence in the vigilance over the
safety of its passengers. It must carry the passengers safely as
far as human care and foresight provide, using the utmost
diligence of very cautious persons, with a due regard for all the
circumstances. Thus, where a passenger dies or is injured, the
carrier is presumed to have been at fault or has acted
negligently. BLTB's inability to carry respondents to their
destination gave rise to an action for breach of contract of
carriage while its failure to rebut the presumption of negligence
made it liable to respondents for the breach.9
Regarding CDCP, the trial court found that the tractor-truck it
owned bumped the BLTB bus from behind. Evidence showed
that CDCP's driver was reckless and driving very fast at the time
of the incident. The gross negligence of its driver raised the
presumption that CDCP was negligent either in the selection or
in the supervision of its employees which it failed to rebut thus
making it and its driver liable to respondents.10
Unsatisfied with the award of damages and attorney's fees by
the trial court, respondents moved that the decision be
reconsidered but was denied. Respondents elevated the case11
to the Court of Appeals which affirmed the decision of the trial
court but modified the amount of damages, the dispositive
portion of which provides:
WHEREFORE, the assailed decision dated October 7, 1993 of
the Regional Trial Court, Branch 13, Manila is hereby
AFFIRMED with the following MODIFICATION:
1. The interest of six (6) percent per annum on the actual
damages of P79,354.43 should commence to run from the time
the judicial demand was made or from the filing of the complaint
on February 4, 1980;
2. Thirty (30) percent of the total amount recovered is hereby
awarded as attorney's fees;
3. Defendants-appellants Construction and Development
Corporation of the Philippines (now PNCC) and Espiridion
Payunan, Jr. are ordered to pay plaintiff-appellants Rebecca
Estrella and Rachel Fletcher the amount of Twenty Thousand
(P20,000.00) each as exemplary damages and P80,000.00 by
way of moral damages to Rachel Fletcher.
SO ORDERED.12
The Court of Appeals held that the actual or compensatory
damage sought by respondents for the injuries they sustained in
the form of hospital bills were already liquidated and were
ascertained. Accordingly, the 6% interest per annum should
commence to run from the time the judicial demand was made
or from the filing of the complaint and not from the date of
judgment. The Court of Appeals also awarded attorney's fees
equivalent to 30% of the total amount recovered based on the
retainer agreement of the parties. The appellate court also held
that respondents are entitled to exemplary and moral damages.
Finally, it affirmed the ruling of the trial court that the claim of
CDCP against Phoenix had already prescribed.
Hence, this petition raising the following issues:
I
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN NOT HOLDING RESPONDENTS BLTB AND/OR ITS
DRIVER WILFREDO DATINGUINOO SOLELY LIABLE FOR
THE DAMAGES SUSTAINED BY HEREIN RESPONDENTS
FLETCHER AND ESTRELLA.
II
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN AWARDING EXCESSIVE OR UNFOUNDED
DAMAGES, ATTORNEY'S FEES AND LEGAL INTEREST TO
RESPONDENTS FLETCHER AND ESTRELLA.
III
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN NOT HOLDING RESPONDENT PHOENIX LIABLE
UNDER ITS INSURANCE POLICY ON THE GROUND OF
PRESCRIPTION.
The issues for resolution are as follows: (1) whether BLTB and
its driver Wilfredo Datinguinoo are solely liable for the damages
sustained by respondents; (2) whether the damages, attorney's
fees and legal interest awarded by the CA are excessive and
unfounded; (3) whether CDCP can recover under its insurance
policy from Phoenix.
Petitioner contends that since it was made solidarily liable with
BLTB for actual damages and attorney's fees in paragraph 1 of
the trial court's decision, then it should no longer be held liable to
pay the amounts stated in paragraph 2 of the same decision.
Petitioner claims that the liability for actual damages and
attorney's fees is based on culpa contractual, thus, only BLTB
should be held liable. As regards paragraph 2 of the trial court's
decision, petitioner claims that it is ambiguous and arbitrary
because the dispositive portion did not state the basis and
nature of such award.
Respondents, on the other hand, argue that petitioner is also at
fault, hence, it was properly joined as a party. There may be an
action arising out of one incident where questions of fact are
common to all. Thus, the cause of action based on culpa
aquiliana in the civil suit they filed against it was valid.
The petition lacks merit.
The case filed by respondents against petitioner is an action for
culpa aquiliana or quasi-delict under Article 2176 of the Civil
Code.13 In this regard, Article 2180 provides that the obligation
imposed by Article 2176 is demandable for the acts or omissions
of those persons for whom one is responsible. Consequently, an
action based on quasi-delict may be instituted against the
employer for an employee's act or omission. The liability for the
negligent conduct of the subordinate is direct and primary, but is
subject to the defense of due diligence in the selection and
supervision of the employee.14 In the instant case, the trial court It may be stated as a general rule that joint tort feasors are all
found that petitioner failed to prove that it exercised the diligence the persons who command, instigate, promote, encourage,
of a good father of a family in the selection and supervision of advise, countenance, cooperate in, aid or abet the commission
Payunan, Jr. of a tort, or who approve of it after it is done, if done for their
benefit. They are each liable as principals, to the same extent
The trial court and the Court of Appeals found petitioner and in the same manner as if they had performed the wrongful
solidarily liable with BLTB for the actual damages suffered by act themselves. x x x
respondents because of the injuries they sustained. It was
established that Payunan, Jr. was driving recklessly because of Joint tort feasors are jointly and severally liable for the tort which
the skid marks as shown in the sketch of the police investigator. they commit. The persons injured may sue all of them or any
number less than all. Each is liable for the whole damages
It is well-settled in Fabre, Jr. v. Court of Appeals,15 that the caused by all, and all together are jointly liable for the whole
owner of the other vehicle which collided with a common carrier damage. It is no defense for one sued alone, that the others who
is solidarily liable to the injured passenger of the same. We held, participated in the wrongful act are not joined with him as
thus: defendants; nor is it any excuse for him that his participation in
the tort was insignificant as compared to that of the others. x x x
The same rule of liability was applied in situations where the
negligence of the driver of the bus on which plaintiff was riding Joint tort feasors are not liable pro rata. The damages can not
concurred with the negligence of a third party who was the driver be apportioned among them, except among themselves. They
of another vehicle, thus causing an accident. In Anuran v. Buo, cannot insist upon an apportionment, for the purpose of each
Batangas Laguna Tayabas Bus Co. v. Intermediate Appellate paying an aliquot part. They are jointly and severally liable for
Court, and Metro Manila Transit Corporation v. Court of Appeals, the whole amount. x x x
the bus company, its driver, the operator of the other vehicle and
the driver of the vehicle were jointly and severally held liable to A payment in full for the damage done, by one of the joint tort
the injured passenger or the latter's heirs. The basis of this feasors, of course satisfies any claim which might exist against
allocation of liability was explained in Viluan v. Court of Appeals, the others. There can be but satisfaction. The release of one of
thus: the joint tort feasors by agreement generally operates to
discharge all. x x x
Nor should it make any difference that the liability of petitioner
[bus owner] springs from contract while that of respondents Of course the court during trial may find that some of the alleged
[owner and driver of other vehicle] arises from quasi-delict. As tort feasors are liable and that others are not liable. The courts
early as 1913, we already ruled in Gutierrez vs. Gutierrez, 56 may release some for lack of evidence while condemning others
Phil. 177, that in case of injury to a passenger due to the of the alleged tort feasors. And this is true even though they are
negligence of the driver of the bus on which he was riding and of charged jointly and severally.19
the driver of another vehicle, the drivers as well as the owners of
the two vehicles are jointly and severally liable for damages. x x Petitioner's claim that paragraph 2 of the dispositive portion of
x the trial court's decision is ambiguous and arbitrary and also
entitles respondents to recover twice is without basis. In the
xxxx body of the trial court's decision, it was clearly stated that
petitioner and its driver Payunan, Jr., are jointly and solidarily
As in the case of BLTB, private respondents in this case and her liable for moral damages in the amount of P50,000.00 to
co-plaintiffs did not stake out their claim against the carrier and respondent Fletcher and P25,000.00 to respondent Estrella.20
the driver exclusively on one theory, much less on that of breach Moreover, there could be no double recovery because the award
of contract alone. After all, it was permitted for them to allege in paragraph 2 is for moral damages while the award in
alternative causes of action and join as many parties as may be paragraph 1 is for actual damages and attorney's fees.
liable on such causes of action so long as private respondent
and her co-plaintiffs do not recover twice for the same injury. Petitioner next claims that the damages, attorney's fees, and
What is clear from the cases is the intent of the plaintiff there to legal interest awarded by the Court of Appeals are excessive.
recover from both the carrier and the driver, thus justifying the
holding that the carrier and the driver were jointly and severally Moral damages may be recovered in quasi-delicts causing
liable because their separate and distinct acts concurred to physical injuries.21 The award of moral damages in favor of
produce the same injury.16 (Emphasis supplied) Fletcher and Estrella in the amount of P80,000.00 must be
reduced since prevailing jurisprudence fixed the same at
In a "joint" obligation, each obligor answers only for a part of the P50,000.00.22 While moral damages are not intended to enrich
whole liability; in a "solidary" or "joint and several" obligation, the the plaintiff at the expense of the defendant, the award should
relationship between the active and the passive subjects is so nonetheless be commensurate to the suffering inflicted.23
close that each of them must comply with or demand the
fulfillment of the whole obligation. In Lafarge Cement v. The Court of Appeals correctly awarded respondents exemplary
Continental Cement Corporation,17 we reiterated that joint tort damages in the amount of P20,000.00 each. Exemplary
feasors are jointly and severally liable for the tort which they damages may be awarded in addition to moral and
commit. Citing Worcester v. Ocampo,18 we held that: compensatory damages.24 Article 2231 of the Civil Code also
states that in quasi-delicts, exemplary damages may be granted
x x x The difficulty in the contention of the appellants is that they if the defendant acted with gross negligence.25 In this case,
fail to recognize that the basis of the present action is tort. They petitioner's driver was driving recklessly at the time its truck
fail to recognize the universal doctrine that each joint tort feasor rammed the BLTB bus. Petitioner, who has direct and primary
is not only individually liable for the tort in which he participates, liability for the negligent conduct of its subordinates, was also
but is also jointly liable with his tort feasors. x x x
found negligent in the selection and supervision of its
employees. In Del Rosario v. Court of Appeals,26 we held, thus:
ART. 2229 of the Civil Code also provides that such damages
may be imposed, by way of example or correction for the public
good. While exemplary damages cannot be recovered as a
matter of right, they need not be proved, although plaintiff must
show that he is entitled to moral, temperate or compensatory
damages before the court may consider the question of whether
or not exemplary damages should be awarded. Exemplary
Damages are imposed not to enrich one party or impoverish
another but to serve as a deterrent against or as a negative
incentive to curb socially deleterious actions.
Regarding attorney's fees, we held in Traders Royal Bank
Employees Union-Independent v. National Labor Relations
Commission,27 that:
Accordingly, where the demand is established with reasonable
certainty, the interest shall begin to run from the time the claim is
made judicially or extrajudicially (Art. 1169, Civil Code) but when
such certainty cannot be so reasonably established at the time
the demand is made, the interest shall begin to run only from the
date the judgment of the court is made (at which time the
quantification of damages may be deemed to have been
reasonably ascertained). The actual base for the computation of
legal interest shall, in any case, be on the amount finally
adjudged.
3. When the judgment of the court awarding a sum of money
becomes final and executory, the rate of legal interest, whether
the case falls under paragraph 1 or paragraph 2, above, shall be
12% per annum from such finality until its satisfaction, this
interim period being deemed to be by then an equivalent to a
forbearance of credit.32 (Emphasis supplied)

There are two commonly accepted concepts of attorney's fees, Accordingly, the legal interest of 6% shall begin to run on
the so-called ordinary and extraordinary. In its ordinary concept, February 9, 1993 when the trial court rendered judgment and not
an attorney's fee is the reasonable compensation paid to a on February 4, 1980 when the complaint was filed. This is
lawyer by his client for the legal services he has rendered to the because at the time of the filing of the complaint, the amount of
latter. The basis of this compensation is the fact of his the damages to which plaintiffs may be entitled remains
employment by and his agreement with the client. unliquidated and unknown, until it is definitely ascertained,
assessed and determined by the court and only upon
In its extraordinary concept, an attorney's fee is an indemnity for presentation of proof thereon.33 From the time the judgment
damages ordered by the court to be paid by the losing party in a becomes final and executory, the interest rate shall be 12% until
litigation. The basis of this is any of the cases provided by law its satisfaction.
where such award can be made, such as those authorized in
Article 2208, Civil Code, and is payable not to the lawyer but to Anent the last issue of whether petitioner can recover under its
the client, unless they have agreed that the award shall pertain insurance policy from Phoenix, we affirm the findings of both the
to the lawyer as additional compensation or as part thereof.28 trial court and the Court of Appeals, thus:
(Emphasis supplied)
As regards the liability of Phoenix, the court a quo correctly ruled
In the instant case, the Court of Appeals correctly awarded that defendant-appellant CDCP's claim against Phoenix already
attorney's fees and other expenses of litigation as they may be prescribed pursuant to Section 384 of P.D. 612, as amended,
recovered as actual or compensatory damages when exemplary which provides:
damages are awarded; when the defendant acted in gross and
evident bad faith in refusing to satisfy the plaintiff's valid, just and
Any person having any claim upon the policy issued pursuant to
demandable claim; and in any other case where the court deems this chapter shall, without any unnecessary delay, present to the
it just and equitable that attorney's fees and expenses of insurance company concerned a written notice of claim setting
litigation should be recovered.29 forth the nature, extent and duration of the injuries sustained as
certified by a duly licensed physician. Notice of claim must be
Regarding the imposition of legal interest at the rate of 6% from filed within six months from date of the accident, otherwise, the
the time of the filing of the complaint, we held in Eastern claim shall be deemed waived. Action or suit for recovery of
Shipping Lines, Inc. v. Court of Appeals,30 that when an damage due to loss or injury must be brought in proper cases,
obligation, regardless of its source, i.e., law, contracts, quasi- with the Commissioner or Courts within one year from denial of
contracts, delicts or quasi-delicts is breached, the contravenor the claim, otherwise, the claimant's right of action shall
can be held liable for payment of interest in the concept of actual prescribe. (As amended by PD 1814, BP 874.)34
and compensatory damages,31 subject to the following rules, to
wit The law is clear and leaves no room for interpretation. A written
notice of claim must be filed within six months from the date of
1. When the obligation is breached, and it consists in the the accident. Since petitioner never made any claim within six
payment of a sum of money, i.e., a loan or forbearance of months from the date of the accident, its claim has already
money, the interest due should be that which may have been prescribed.
stipulated in writing. Furthermore, the interest due shall itself
earn legal interest from the time it is judicially demanded. In the WHEREFORE, the instant petition is DENIED. The Decision of
absence of stipulation, the rate of interest shall be 12% per the Court of Appeals in CA-G.R. CV No. 46896 dated March 29,
annum to be computed from default, i.e., from judicial or 2001, which modified the Decision of the Regional Trial Court of
extrajudicial demand under and subject to the provisions of Manila, Branch 13, in Civil Case No. R-82-2137, is AFFIRMED
Article 1169 of the Civil Code. with the MODIFICATIONS that petitioner is held jointly and
severally liable to pay (1) actual damages in the amount of
2. When an obligation, not constituting a loan or forbearance of P79,354.43; (2) moral damages in the amount of P50,000.00
money, is breached, an interest on the amount of damages each for Rachel Fletcher and Rebecca Estrella; (3) exemplary
awarded may be imposed at the discretion of the court at the damages in the amount of P20,000.00 each for Rebecca Estrella
rate of 6% per annum. No interest, however, shall be adjudged and Rachel Fletcher; and (4) thirty percent (30%) of the total
on unliquidated claims or damages except when or until the amount recovered as attorney's fees. The total amount adjudged
demand can be established with reasonable certainty. shall earn interest at the rate of 6% per annum from the date of
judgment of the trial court until finality of this judgment. From the
time this Decision becomes final and executory and the
judgment amount remains unsatisfied, the same shall earn
interest at the rate of 12% per annum until its satisfaction.

SO ORDERED.