Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 152040 March 31, 2006

MARIKINA AUTO LINE TRANSPORT CORPORATION and FREDDIE L. SUELTO, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES and ERLINDA V. VALDELLON, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA)
in CA-G.R. CR No. 16739 affirming the Joint Decision of the Regional Trial Court (RTC) in Criminal
Case No. Q-93-42629 and Civil Case No. Q-93-16051, where Freddie Suelto was convicted of
reckless imprudence resulting in damages to property.

Erlinda V. Valdellon is the owner of a two-door commercial apartment located at No. 31 Kamias
Road, Quezon City. The Marikina Auto Line Transport Corporation (MALTC) is the owner-operator of
a passenger bus with Plate Number NCV-849. Suelto, its employee, was assigned as the regular
driver of the bus.2

At around 2:00 p.m. on October 3, 1992, Suelto was driving the aforementioned passenger bus
along Kamias Road, Kamuning, Quezon City, going towards Epifanio de los Santos Avenue (EDSA).
The bus suddenly swerved to the right and struck the terrace of the commercial apartment owned by
Valdellon located along Kamuning Road.3 Upon Valdellon’s request, the court ordered Sergio
Pontiveros, the Senior Building Inspection Officer of the City Engineer’s Office, to inspect the
damaged terrace. Pontiveros submitted a report enumerating and describing the damages:

(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

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

Valdellon filed a criminal complaint for reckless imprudence resulting in damage to property against
Suelto. After the requisite preliminary investigation, an Information was filed with the RTC of Quezon
City. The accusatory portion of the Information reads:

That on or about the 3rd day of October 1992, in Quezon City, Philippines, the said accused, being
then the driver and/or person in charge of a Marikina Auto Line bus bearing Plate No. NVC-849, did
then and there unlawfully, and feloniously drive, manage, and operate the same along Kamias Road,
in said City, in a careless, reckless, negligent, and imprudent manner, by then and there making the
said vehicle run at a speed greater than was reasonable and proper without taking the necessary
precaution to avoid accident to person/s and damage to property, and considering the condition of
the traffic at said place at the time, causing as a consequence of his said carelessness, negligence,
imprudence and lack of precaution, the said vehicle so driven, managed and operated by him to hit
and bump, as in fact it hit and bump a commercial apartment belonging to ERLINDA V.
VALDELLON located at No. 31 Kamias Road, this City, thereby causing damages to said apartment
in the total amount of P171,088.46, Philippine Currency, to her damage and prejudice in the total
amount aforementioned.

CONTRARY TO LAW.10

Valdellon also filed a separate civil complaint against Suelto and the bus company for damages. She
prayed that after due proceedings, judgment be rendered in her favor, thus:

WHEREFORE, it is respectfully prayed of this Honorable Court to issue a writ of preliminary

attachment against the defendants upon approval of plaintiff’s bond, and after trial on the merits, to
render a decision in favor of the plaintiff, ordering the defendants, jointly and severally, to pay –

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 attorney’s fees and the sum of P1,000.00 for each appearance
of plaintiff’s 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
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 destroyed, [one]
cannot have it restored to its original position."15

Engr. Jesus Regal, Jr., the proprietor of the SSP Construction, declared that he inspected the
terrace and estimated the cost of repairs, including labor, at P171,088.46.

Suelto testified that at 2:00 p.m. on October 3, 1992, he was driving the bus on its way to Ayala
Avenue, Makati, Metro Manila. When he reached the corner of K-H Street at Kamias Road, Quezon
City, a passenger jeepney suddenly crossed from EDSA going to V. Luna and swerved to the lane
occupied by the bus. Suelto had to swerve the bus to the right upon which it hit the side front of the
terrace of Valdellon’s two-door apartment.16 Based on his estimate, the cost to the damage on the
terrace of the apartment amounted to P40,000.00.17 On cross-examination, Suelto declared that he
saw the passenger jeepney when it was a meter away from the bus. Before then, he had seen some
passenger jeepneys on the right trying to overtake one another.18

Architect Arnulfo Galapate testified that the cost of the repair of the damaged terrace amounted
to P55,000.00.19

On April 28, 1994, the trial court rendered judgment finding Suelto guilty beyond reasonable doubt of
reckless imprudence resulting in damage to property, and ordered MALTC and Suelto to pay, jointly
and severally, P150,000.00 to Valdellon, by way of actual and compensatory damages, as well as
attorney’s fees and costs of suit. The fallo of the decision reads:

WHEREFORE, finding the accused FREDDIE SUELTO Y LIWAG guilty beyond reasonable doubt of
the crime of Reckless Imprudence Resulting in Damage to Property, said accused is hereby
sentenced to suffer imprisonment of ONE (1) YEAR.

With respect to the civil liability, judgment is hereby rendered in favor of plaintiff Erlinda Valdellon
and against defendant Marikina Auto Line Transport Corporation and accused Freddie Suelto, where
both are ordered, jointly and severally, to pay plaintiff:

a. the sum of P150,000.00, as reasonable compensation sustained by plaintiff for her

damaged apartment;

b. the sum of P20,000.00, as compensatory and exemplary damages;

c. the sum of P20,000.00, as attorney’s fees; and,

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 Suelto’s 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 prosecution’s 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.

In its Brief for the People of the Philippines, the Office of the Solicitor General (OSG) submitted that
the appealed decision should be affirmed with modification. On Suelto’s claim that the prosecution
failed to prove his guilt for the crime of reckless imprudence resulting in damage to property, the
OSG contended that, applying the principle of res ipsa loquitur, the prosecution was able to prove
that he drove the bus with negligence and recklessness. The OSG averred that the prosecution was
able to prove that Suelto’s act of swerving the bus to the right was the cause of damage to the
terrace of Valdellon’s apartment, and in the absence of an explanation to the contrary, the accident
was evidently due to appellant’s want of care. Consequently, the OSG posited, the burden was on
the appellant to prove that, in swerving the bus to the right, he acted on an emergency, and failed to
discharge this burden. However, the OSG averred that the trial court erred in sentencing appellant to
a straight penalty of one year, and recommended a penalty of fine.

On June 20, 2000, the CA rendered judgment affirming the decision of the trial court, but the award
for actual damages was reduced to P100,000.00. The fallo of the decision reads:

WHEREFORE, premises considered, the decision dated April 28, 1994, rendered by the court a quo
is AFFIRMED with the modification that the sum of P150,000.00 as compensation sustained by the
plaintiff-appellee for her damaged apartment be reduced to P100,000.00 without pronouncement as
to costs.

SO ORDERED.21

Appellants filed a Motion for Reconsideration, but the CA denied the same.22

MALTC and Suelto, now petitioners, filed the instant petition reiterating its submissions in the CA: (a)
the prosecution failed to prove the crime charged against petitioner Suelto; (b) the prosecution failed
to adduce evidence to prove that respondent suffered actual damages in the amount
of P100,000.00; and (c) the trial court erred in sentencing petitioner Suelto to one (1) year prison
term.

On the first issue, petitioners aver that the prosecution was mandated to prove that petitioner Suelto
acted with recklessness in swerving the bus to the right thereby hitting the terrace of private
respondent’s apartment. However, the prosecution failed to discharge its burden. On the other hand,
petitioner Suelto was able to prove that he acted in an emergency when a passenger jeepney
coming from EDSA towards the direction of the bus overtook another vehicle and, in the process,
intruded into the lane of the bus.

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 respondent’s 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, and when he testified in the trial court.

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 respondent. Petitioners were burdened to prove that the damage to the
terrace of private respondent was not the fault of petitioner Suelto.

We have reviewed the evidence on record and find that, as ruled by the trial court and the appellate
court, petitioners failed to prove that petitioner acted on an emergency caused by the sudden
intrusion of a passenger jeepney into the lane of the bus he was driving.

It was the burden of petitioners herein to prove petitioner Suelto’s defense that he acted on an
emergency, that is, he had to swerve the bus to the right to avoid colliding with a passenger jeep
coming from EDSA that had overtaken another vehicle and intruded into the lane of the bus. The
sudden emergency rule was enunciated by this Court in Gan v. Court of Appeals,23 thus:

[O]ne who suddenly finds himself in a place of danger, and is required to act without time to consider
the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he
fails to adopt what subsequently and upon reflection may appear to have been a better method
unless the emergency in which he finds himself is brought about by his own negligence.

Under Section 37 of Republic Act No. 4136, as amended, otherwise known as the Land
Transportation and Traffic Code, motorists are mandated to drive and operate vehicles on the right
side of the road or highway:

SEC. 37. Driving on right side of highway. – Unless a different course of action is required in the
interest of the safety and the security of life, person or property, or because of unreasonable
difficulty of operation in compliance herewith, every person operating a motor vehicle or an animal-
drawn vehicle on a highway shall pass to the right when meeting persons or vehicles coming toward
him, and to the left when overtaking persons or vehicles going the same direction, and when turning
to the left in going from one highway to another, every vehicle shall be conducted to the right of the
center of the intersection of the highway.

Section 35 of the law provides, thus:

Sec. 35. Restriction as to speed.—(a) Any person driving a motor vehicle on a highway shall drive
the same at a careful and prudent speed, not greater nor less than is reasonable and proper, having
due regard for the traffic, the width of the highway, and of any other condition then and there
existing; and no person shall drive any motor vehicle upon a highway at such a speed as to
endanger the life, limb and property of any person, nor at a speed greater than will permit him to
bring the vehicle to a stop within the assured clear distance ahead (emphasis supplied).

In relation thereto, Article 2185 of the New Civil Code provides that "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
mishap, he was violating any traffic regulation." By his own admission, petitioner Suelto violated the
Land Transportation and Traffic Code when he suddenly swerved the bus to the right, thereby
causing damage to the property of private respondent.
However, the trial court correctly rejected petitioner Suelto’s defense, in light of his contradictory
testimony vis-à-vis his Counter-Affidavit submitted during the preliminary investigation:

It is clear from the photographs submitted by the prosecution (Exhs. C, D, G, H & I) that the
commercial apartment of Dr. Valdellon sustained heavy damage caused by the bus being driven by
Suelto. "It seems highly improbable that the said damages were not caused by a strong impact. And,
it is quite reasonable to conclude that, at the time of the impact, the bus was traveling at a high
speed when Suelto tried to avoid the passenger jeepney." Such a conclusion finds support in the
decision of the Supreme Court in People vs. Ison, 173 SCRA 118, where the Court stated that
"physical evidence is of the highest order. It speaks more eloquently than a hundred witnesses." The
pictures submitted do not lie, having been taken immediately after the incident. The damages could
not have been caused except by a speeding bus. Had the accused not been speeding, he could
have easily reduced his speed and come to a full stop when he noticed the jeep. Were he more
prudent in driving, he could have avoided the incident or even if he could not avoid the incident, the
damages would have been less severe.

In addition to this, the accused has made conflicting statements in his counter-affidavit and his
testimony in court. In the former, he stated that the reason why he swerved to the right was because
he wanted to avoid the passenger jeepney in front of him that made a sudden stop. But, in his
testimony in court, he said that it was to avoid a passenger jeepney coming from EDSA that was
overtaking by occupying his lane. Such glaring inconsistencies on material points render the
testimony of the witness doubtful and shatter his credibility. Furthermore, the variance between
testimony and prior statements renders the witness unreliable. Such inconsistency results in the loss
in the credibility of the witness and his testimony as to his prudence and diligence.

As already maintained and concluded, the severe damages sustained could not have resulted had
the accused acted as a reasonable and prudent man would. The accused was not diligent as he
claims to be. What is more probable is that the accused had to swerve to the right and hit the
commercial apartment of the plaintiff because he could not make a full stop as he was driving too
fast in a usually crowded street.24

Moreover, if the claim of petitioners were true, they should have filed a third-party complaint against
the driver of the offending passenger jeepney and the owner/operator thereof.

Petitioner Suelto’s reliance on the sudden emergency rule to escape conviction for the crime
charged and his civil liabilities based thereon is, thus, futile.

On the second issue, we agree with the contention of petitioners that respondents failed to prove
that the damages to the terrace caused by the incident amounted to P100,000.00. The only
evidence adduced by respondents to prove actual damages claimed by private respondent were the
summary computation of damage made by Engr. Jesus R. Regal, Jr. amounting to P171,088.46 and
the receipt issued by the BB Construction and Steel Fabricator to private respondent for P35,000.00
representing cost for carpentry works, masonry, welding, and electrical works. Respondents failed to
present Regal to testify on his estimation. In its five-page decision, the trial court
awarded P150,000.00 as actual damages to 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.

Considering the aforesaid damages which are the direct result of the accident, the reasonable, and
adequate compensation due is hereby fixed at P100,000.00.25

Under Article 2199 of the New Civil Code, actual damages include all the natural and probable
consequences of the act or omission complained of, classified as one for the loss of what a person
already possesses (daño emergente) and the other, for the failure to receive, as a benefit, that which
would have pertained to him (lucro cesante). As expostulated by the Court in PNOC Shipping and
Transport Corporation v. Court of Appeals:26

Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in
satisfaction of, or in recompense for, loss or injury sustained. They proceed from a sense of natural
justice and are designed to repair the wrong that has been done, to compensate for the injury
inflicted and not to impose a penalty. In actions based on torts or quasi-delicts, actual damages
include all the natural and probable consequences of the act or omission complained of. There are
two kinds of actual or compensatory damages: one is the loss of what a person already possesses
(daño emergente), and the other is the failure to receive as a benefit that which would have
pertained to him (lucro cesante).27

The burden of proof is on the party who would be defeated if no evidence would be presented on
either side. The burden is to establish one’s case by a preponderance of evidence which means that
the evidence, as a whole, adduced by one side, is superior to that of the other. Actual damages are
not presumed. The claimant must prove the actual amount of loss with a reasonable degree of
certainty premised upon competent proof and on the best evidence obtainable. Specific facts that
could afford a basis for measuring whatever compensatory or actual damages are borne must be
pointed out. Actual damages cannot be anchored on mere surmises, speculations or conjectures. As
the Court declared:

As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is
required to prove the actual amount of loss with reasonable degree of certainty premised upon
competent proof and on the best evidence available. The burden of proof is on the party who would
be defeated if no evidence would be presented on either side. He must establish his case by a
preponderance of evidence which means that the evidence, as a whole, adduced by one side is
superior to that of the other. In other words, damages cannot be presumed and courts, in making an
award, must point out 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:
For this reason, Del Rosario’s claim that private respondent incurred losses in the total amount
of P6,438,048.00 should be admitted with extreme caution considering that, because it was a bare
assertion, it should be supported by independent evidence. Moreover, because he was the owner of
private respondent corporation whatever testimony he would give with regard to the value of the lost
vessel, its equipment and cargoes should be viewed in the light of his self-interest therein. We agree
with the Court of Appeals that his testimony as to the equipment installed and the cargoes loaded on
the vessel should be given credence considering his familiarity thereto. However, we do not
subscribe to the conclusion that his valuation of such equipment, cargo, and the vessel itself should
be accepted as gospel truth. We must, therefore, examine the documentary evidence presented to
support Del Rosario’s claim as regards the amount of losses.30

An estimate of the damage cost will not suffice:

Private respondents failed to adduce adequate and competent proof of the pecuniary loss they
actually incurred. It is not enough that the damage be capable of proof but must be actually proved
with a reasonable degree of certainty, pointing out specific facts that afford a basis for measuring
whatever compensatory damages are borne. Private respondents merely sustained an estimated
amount needed for the repair of the roof of their subject building. What is more, whether the
necessary repairs were caused only by petitioner’s alleged negligence in the maintenance of its
school building, or included the ordinary wear and tear of the house itself, is an essential question
that remains indeterminable.31

We note, however, that petitioners adduced evidence that, in their view, the cost of the damage to
the terrace of private respondent would amount to P55,000.00.32 Accordingly, private respondent is
entitled to P55,000.00 actual damages.

We also agree with petitioner Suelto’s contention that the trial court erred in sentencing him to suffer
a straight penalty of one (1) year. This is so because under the third paragraph of Article 365 of the
Revised Penal Code, the offender must be sentenced to pay a fine when the execution of the act
shall have only resulted in damage to property. The said provision reads in full:

ART. 365. Imprudence and negligence. – Any person who, by reckless imprudence, shall commit
any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of
arresto mayor in its maximum period, to prision correccional in its medium period; 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 constituted a light felony, the penalty of arresto menor in its
maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would, otherwise,
constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum
periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.

When the execution of the act covered by this article shall have only resulted in damage to the
property of another, the offender shall be punished by a fine ranging from an amount equal to the
value of said damages to three times such value, but which shall in no case be less than 25 pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by
simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have
constituted a light felony.
In the imposition of these penalties, the courts shall exercise their sound discretion, without regard to
the rules prescribed in Article 64 (Emphasis supplied).

In the present case, the only damage caused by petitioner Suelto’s act was to the terrace of private
respondent’s apartment, costing P55,000.00. Consequently, petitioner’s contention that the CA erred
in awarding P100,000.00 by way of actual damages to private respondent is correct. We agree that
private respondent is entitled to exemplary damages, and find that the award given by the trial court,
as affirmed by the CA, is reasonable. Considering the attendant circumstances, we rule that private
respondent Valdellon is entitled to only P20,000.00 by way of exemplary damages.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The joint decision of
the Regional Trial Court of Quezon City is AFFIRMED WITH THE MODIFICATION that petitioner
Suelto is sentenced to pay a fine of P55,000.00 with subsidiary imprisonment in case of insolvency.
Petitioners are ORDERED to pay to Erlinda V. Valdellon, jointly and severally, the total amount
of P55,000.00 by way of actual damages, and P20,000.00 by way of exemplary damages.

No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-29803 September 14, 1979

LEOPOLDO POBLETE, plaintiff-appellant,

vs.
DONATO FABROS and GODOFREDO DE LA CRUZ, defendants-appellees.

Nere C. Cordova for appellant.

F.L. Isidro for appellees.

DE CASTRO, J.:

This is an action for damages, arising from a vehicular accident, filed by the plaintiff Godofredo
Poblete as owner of the damaged taxicab against the driver and owner of the allegedly offending
vehicle, Donato Fabros and Godofredo de la Cruz, respectively.

After trial on the merits, and the case submitted for decision, the trial court, the Court of First
Instance of Davao, Judge Vicente Cusi, Jr., presiding, dismissed the case on the ground that from
the allegation of the complaint, the action is one to hold Donato Fabros, as the employer of the
allegedly negligent driver, Godofredo de la Cruz, subsidiarily liable for the damage caused the
plaintiff, and is, therefore, premature, there having been no criminal action filed against the driver
who had died during the pendency of the case at bar, and, in effect, states no cause of action. A
motion for reconsideration was filed to the order of dismissal, but to no avail. Hence, this appeal.
The question raised is whether on the basis of the allegation of the complaint, the action is one to
enforce the subsidiary liability of the employer of the negligent driver as provided in Article 103 of the
Revised Penal Code, as held by the court a quo, or it is an action based on quasi-delict. In the first
case, the action would be premature and would, accordingly, be wanting in a cause of action before
a judgment of conviction has been rendered against the negligent driver, for, while a separate civil
action may be filed for damages arising from the criminal offense of the accused for negligence,
upon proper reservation of said action (Section 2, Rule III, Rules of Court), the same may not be
heard separately in advance or ahead of the criminal action. While in the second case, the action,
being for liability based on quasi-delict, not for liability arising from crime, may proceed
independently from the criminal action. It is also for a different purpose, the liability sought to be
imposed on the employer being a primary and direct liability, not merely subsidiary. Civil liability for
quasi-delict and that arising out of a crime are clearly different and distinct from each other, as
lucidly demonstrated and discussed in Barredo vs. Garcia, et al., 78 Phil. 607.

Examining the allegations of the complaints, to determine what is made the basis thereof for the
relief sought, which is to impose a "joint and several" liability on the defendants (p. 5 Record on
Appeal; Page 26, Rollo), there is absolutely no reason to exclude and rule out, as the court a
quo did, the fact that the action is one based on quasi delict and hold, as again the court did, that the
action is based on the criminal offense of negligence, as defined in the Revised Penal Code,
committed by the driver alone, and concluding that the purpose of the action is to impose the
subsidiary liability on the employer as provided in the same Code.

The court a quo said:

As it is, the complaint really states no cause of action against Donato Fabros in his
capacity as employer of Godofredo de la Cruz. Stated differently, the complaint
against Donato Fabros is premature, because he is only subsidiarily liable under the
Penal Code. His subsidiary liability should not be litigated in the civil action against
de la Cruz. It follows that the third-party complaint that he filed is also premature.

From the above observation of the Court, it is crystal clear that the court itself has found that the
employer-employee relation of the two defendants has been sufficiently alleged; otherwise, it would
have no basis for saying that the complaint is "against Donato Fabros in his capacity as employer of
Godofredo de la Cruz." The defendant Donato Fabros has himself correctly perceived the basis of
the complaint against him, as one based on quasi-delict, for instead of filing a motion for a bill of
particulars if he deemed the allegations vague or ambiguous, he interposed in his answer the
defense of a "due diligence of a good father of a family in the selection, employment and supervision
of his driver." (Page 8, Record on Appeal; Page 26, Rollo).

In the second place, in alluding to the subsidiary liability of the employer, Donato Fabros, the court a
quo has, likewise, found sufficiently alleged negligence as the basis for the action. The complaint
expressly and clearly alleges that the accident was "due solely to the gross negligence,
carelessness and unskillful driving of defendant Godofredo de la Cruz" (Page 3, Record on Appeal,
Page 20, Rollo).

With the allegation of negligence against the driver, Godofredo de la Cruz, and that of an employer-
employee relation between him and his co-defendant, Donato Fabros, the complaint clearly and
unmistakably makes out a case based on quasi-delict, as explicitly provided in Article 2180 of the
Civil Code which, inter alia, provides:
 ... 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.

What needs only to be alleged under the aforequoted provision is that the employee (driver) has, by
his negligence (quasi-delict) caused damage to make the employer, likewise, responsible for the
tortious act of the employee, and his liability is, as earlier observed, primary and solidary. (Bachrach
Motor Co. vs. Gamboa, L-10296, May 21, 1957; Malipol vs. Tan, 55 SCRA 202: Barredo vs. Garcia
and Almario, 73 Phil. 607; Vinluan vs. Court of Appeals, et al., 16 SCRA 742; Anuran, et al. vs. Buno
et al. 17 SCRA 224).

It is such a firmly established principle, as to have virtually formed part of the 'law itself, that the
negligence of the employee gives rise to the presumption of negligence on the part of the employer.
This is the presumed negligence in the selection and supervision of the employee. The theory of
presumed negligence, in contrast with the American doctrine of respondent superior, where the
negligence of the employee is conclusively presumed to be the negligence of the employer, is clearly
deducible from the last paragraph of Article 2180 of the Civil Code which provides that the
responsibility therein mentioned shall cease if the employers prove that they observed all the
diligence of a good father of a family to prevent damages (12 Manresa, 657; Balica vs. Litonjua and
Leynes, 30 Phil. 624; Cangco vs. Manila Railroad Co., 38 Phil. 768), as observed in the same cases
just cited.

From what has been said, the error of the court a quo in dismissing the case on his mistaken notion
that the action is based on crime, not quasi-delict, becomes very patent. How the court concluded
that the action is to enforce the subsidiary liability of Donato Fabros as the employer of the negligent
driver Godofredo de la Cruz is inconceivable, with the plain and explicit prayer of the complaint to
declare the defendants "jointly and severally" liable for damages, a concept antagonistic to that of
subsidiary liability. The death of defendant, Godofredo de la Cruz, the driver, is therefore, no
hindrance to the present action, at least as against the employer, Donato Fabros, taking its course to
final judgment, which the court a quo should have rendered, the trial of the case having been
terminated, instead of dismissing the case, without even a motion to dismiss, with the evidence, in
an probability, supportive of an action on quasi-delict, which the pleadings, both the complaint and
the answer, raised as the specific issue involved and as joined by said pleadings.

A word of advice at least as a reminder, may be meet at this juncture, for judges to give a deeper
study and reflection in the disposition of cases, so that undue delay which could very well be
avoided, as in this case, had the judge been more circumspect and analytical, would not cause
injustice to litigants, under the familiar maxim that justice delayed is justice denied, which should
constantly sound its stern warning to all dispensers of justice.

WHEREFORE, the order of dismissal dated April 17, 1968 is hereby set aside, and let this case be
remanded to the court of origin for the rendition of the judgment on the merits based on the evidence
adduced during the trial. This judgment shall be immediately executory upon its promulgation.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 52159 December 22, 1989

JOSE PILAPIL, petitioner,
vs.
HON. COURT OF APPEALS and ALATCO TRANSPORTATION COMPANY, INC., respondents.

Martin Badong, Jr. for petitioner.

Eufronio K. Maristela for private respondent.

PADILLA, J.:

This is a petition to review on certiorari the decision* rendered by the Court of Appeals dated 19
October 1979 in CA-G.R. No. 57354-R entitled "Jose Pilapil, plaintiff-appellee versus Alatco
Transportation Co., Inc., defendant-appellant," which reversed and set aside the judgment of the
Court of First Instance of Camarines Sur in Civil Case No. 7230 ordering respondent transportation
company to pay to petitioner damages in the total sum of sixteen thousand three hundred pesos (P
16,300.00).

The record discloses the following facts:

Petitioner-plaintiff Jose Pilapil, a paying passenger, boarded respondent-defendant's bus bearing

No. 409 at San Nicolas, Iriga City on 16 September 1971 at about 6:00 P.M. While said bus No. 409
was in due course negotiating the distance between Iriga City and Naga City, upon reaching the
vicinity of the cemetery of the Municipality of Baao, Camarines Sur, on the way to Naga City, an
unidentified man, a bystander along said national highway, hurled a stone at the left side of the bus,
which hit petitioner above his left eye. Private respondent's personnel lost no time in bringing the
petitioner to the provincial hospital in Naga City where he was confined and treated.

Considering that the sight of his left eye was impaired, petitioner was taken to Dr. Malabanan of Iriga
City where he was treated for another week. Since there was no improvement in his left eye's vision,
petitioner went to V. Luna Hospital, Quezon City where he was treated by Dr. Capulong. Despite the
treatment accorded to him by Dr. Capulong, petitioner lost partially his left eye's vision and sustained
a permanent scar above the left eye.

Thereupon, petitioner instituted before the Court of First Instance of Camarines Sur, Branch I an
action for recovery of damages sustained as a result of the stone-throwing incident. After trial, the
court a quo rendered judgment with the following dispositive part:

Wherefore, judgment is hereby entered:

1. Ordering defendant transportation company to pay plaintiff Jose

Pilapil the sum of P 10,000.00, Philippine Currency, representing
actual and material damages for causing a permanent scar on the
face and injuring the eye-sight of the plaintiff;

2. Ordering further defendant transportation company to pay the sum

of P 5,000.00, Philippine Currency, to the plaintiff as moral and
exemplary damages;
 3. Ordering furthermore, defendant transportation company to
reimburse plaintiff the sum of P 300.00 for his medical expenses and
attorney's fees in the sum of P 1,000.00, Philippine Currency; and

4. To pay the costs.

SO ORDERED 1

From the judgment, private respondent appealed to the Court of Appeals where the appeal was
docketed as CA-G.R. No. 57354R. On 19 October 1979, the Court of Appeals, in a Special Division
of Five, rendered judgment reversing and setting aside the judgment of the court a quo.

Hence the present petition.

In seeking a reversal of the decision of the Court of Appeals, petitioner contends that said court has
decided the issue not in accord with law. Specifically, petitioner argues that the nature of the
business of a transportation company requires the assumption of certain risks, and the stoning of the
bus by a stranger resulting in injury to petitioner-passenger is one such risk from which the common
carrier may not exempt itself from liability.

We do not agree.

In consideration of the right granted to it by the public to engage in the business of transporting
passengers and goods, a common carrier does not give its consent to become an insurer of any and
all risks to passengers and goods. It merely undertakes to perform certain duties to the public as the
law imposes, and holds itself liable for any breach thereof.

Under Article 1733 of the Civil Code, common carriers are required to observe extraordinary
diligence for the safety of the passenger transported by them, according to all the circumstances of
each case. The requirement of extraordinary diligence imposed upon common carriers is restated in
Article 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 due regard for all the
circumstances." Further, in case of death of or injuries to passengers, the law presumes said
common carriers to be at fault or to have acted negligently. 2

While the law requires the highest degree of diligence from common carriers in the safe transport of
their passengers and creates a presumption of negligence against them, it does not, however, make
the carrier an insurer of the absolute safety of its passengers. 3

Article 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance and precaution in the
carriage of passengers by common carriers to only such as human care and foresight can provide.
what constitutes compliance with said duty is adjudged with due regard to all the circumstances.

Article 1756 of the Civil Code, in creating a presumption of fault or negligence on the part of the
common carrier when its passenger is injured, merely relieves the latter, for the time being, from
introducing evidence to fasten the negligence on the former, because the presumption stands in the
place of evidence. Being a mere presumption, however, the same is rebuttable by proof that the
common carrier had exercised extraordinary diligence as required by law in the performance of its
contractual obligation, or that the injury suffered by the passenger was solely due to a fortuitous
event. 4
In fine, we can only infer from the law the intention of the Code Commission and Congress to curb
the recklessness of drivers and operators of common carriers in the conduct of their business.

Thus, it is clear that neither the law nor the nature of the business of a transportation company
makes it an insurer of the passenger's safety, but that its liability for personal injuries sustained by its
passenger rests upon its negligence, its failure to exercise the degree of diligence that the law
requires. 5

Petitioner contends that respondent common carrier failed to rebut the presumption of negligence
against it by proof on its part that it exercised extraordinary diligence for the safety of its passengers.

We do not agree.

First, as stated earlier, the presumption of fault or negligence against the carrier is only a disputable
presumption. It gives in where contrary facts are established proving either that the carrier had
exercised the degree of diligence required by law or the injury suffered by the passenger was due to
a fortuitous event. Where, as in the instant case, the injury sustained by the petitioner was in no way
due to any defect in the means of transport or in the method of transporting or to the negligent or
willful acts of private respondent's employees, and therefore involving no issue of negligence in its
duty to provide safe and suitable cars as well as competent employees, with the injury arising wholly
from causes created by strangers over which the carrier had no control or even knowledge or could
not have prevented, the presumption is rebutted and the carrier is not and ought not to be held
liable. To rule otherwise would make the common carrier the insurer of the absolute safety of its
passengers which is not the intention of the lawmakers.

Second, while as a general rule, common carriers are bound to exercise extraordinary diligence in
the safe transport of their passengers, it would seem that this is not the standard by which its liability
is to be determined when intervening acts of strangers is to be determined directly cause the injury,
while the contract of carriage Article 1763 governs:

Article 1763. A common carrier is responsible for injuries suffered by a passenger on

account of the wilful 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.

Clearly under the above provision, a tort committed by a stranger which causes injury to a
passenger does not accord the latter a cause of action against the carrier. The negligence for which
a common carrier is held responsible is the negligent omission by the carrier's employees to prevent
the tort from being committed when the same could have been foreseen and prevented by them.
Further, under the same provision, it is to be noted that when the violation of the contract is due to
the willful acts of strangers, as in the instant case, the degree of care essential to be exercised by
the common carrier for the protection of its passenger is only that of a good father of a family.

Petitioner has charged respondent carrier of negligence on the ground that the injury complained of
could have been prevented by the common carrier if something like mesh-work grills had covered
the windows of its bus.

We do not agree.

Although the suggested precaution could have prevented the injury complained of, the rule of
ordinary care and prudence is not so exacting as to require one charged with its exercise to take
doubtful or unreasonable precautions to guard against unlawful acts of strangers. The carrier is not
charged with the duty of providing or maintaining vehicles as to absolutely prevent any and all
injuries to passengers. Where the carrier uses cars of the most approved type, in general use by
others engaged in the same occupation, and exercises a high degree of care in maintaining them in
suitable condition, the carrier cannot be charged with negligence in this respect. 6

Finally, petitioner contends that it is to the greater interest of the State if a carrier were made liable
for such stone-throwing incidents rather than have the bus riding public lose confidence in the
transportation system.

Sad to say, we are not in a position to so hold; such a policy would be better left to the consideration
of Congress which is empowered to enact laws to protect the public from the increasing risks and
dangers of lawlessness in society.

WHEREFORE, the judgment appealed from is hereby AFFIRMED.

SO ORDERED.

FIRST DIVISION

[G.R. No. 124354. April 11, 2002]

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as

natural guardians of the minors, ROMMEL RAMOS, ROY
RODERICK RAMOS, and RON RAYMOND RAMOS, petitioners,
vs. COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER,
DR. ORLINO HOSAKA and DR. PERFECTA
GUTIERREZ, respondents.

RESOLUTION
KAPUNAN, J.:

Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr.
Perfecta Gutierrez move for a reconsideration of the Decision, dated December 29,
1999, of this Court holding them civilly liable for petitioner Erlinda Ramos comatose
condition after she delivered herself to them for their professional care and
management.
For better understanding of the issues raised in private respondents respective
motions, we will briefly restate the facts of the case as follows:
Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical
help, was advised to undergo an operation for the removal of a stone in her gall
bladder (cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed to
perform the operation on her. The operation was scheduled for June 17, 1985 at 9:00
in the morning at private respondent De Los Santos Medical Center (DLSMC). Since
neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of any
anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez.
Petitioner Erlinda was admitted to the DLSMC the day before the scheduled
operation. By 7:30 in the morning of the following day, petitioner Erlinda was already
being prepared for operation. Upon the request of petitioner Erlinda, her sister-in-law,
Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical
Center, was allowed to accompany her inside the operating room.
At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez
tried to get in touch with him by phone. Thereafter, Dr. Gutierrez informed Cruz that
the operation might be delayed due to the late arrival of Dr. Hosaka. In the meantime,
the patient, petitioner Erlinda said to Cruz, Mindy, inip na inip na ako, ikuha mo ako
ng ibang Doctor.
By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner
Rogelio already wanted to pull out his wife from the operating room. He met Dr.
Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka
finally arrived at the hospital at around 12:10 in the afternoon, or more than three (3)
hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about Dr. Hosakas
arrival. While she held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate
the patient. Cruz heard Dr. Gutierrez utter: ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan. Cruz noticed a bluish discoloration of Erlindas
nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct someone to call
Dr. Calderon, another anesthesiologist. When he arrived, Dr. Calderon attempted to
intubate the patient. The nailbeds of the patient remained bluish, thus, she was placed
in a trendelenburg position a position where the head of the patient is placed in a
position lower than her feet. At this point, Cruz went out of the operating room to
express her concern to petitioner Rogelio that Erlindas operation was not going well.
Cruz quickly rushed back to the operating room and saw that the patient was still
in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being
wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio
that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was
released from the hospital only four months later or on November 15, 1985.Since the
ill-fated operation, Erlinda remained in comatose condition until she died on August
3, 1999.[1]
 Petitioners filed with the Regional Trial Court of Quezon City a civil case for
damages against private respondents. After due trial, the court a quo rendered
judgment in favor of petitioners. Essentially, the trial court found that private
respondents were negligent in the performance of their duties to Erlinda. On appeal by
private respondents, the Court of Appeals reversed the trial courts decision and
directed petitioners to pay their unpaid medical bills to private respondents.
Petitioners filed with this Court a petition for review on certiorari. The private
respondents were then required to submit their respective comments thereon. On
December 29, 1999, this Court promulgated the decision which private respondents
now seek to be reconsidered. The dispositive portion of said Decision states:

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

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

THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE

ERROR WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON
THE BASIS OF THE CAPTAIN-OF-THE-SHIP DOCTRINE.
II

THE HONORABLE SUPREME COURT ERRED IN HOLDING

RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT THAT NO
NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.
III

ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR.

HOSAKA IS LIABLE, THE HONORABLE SUPREME COURT ERRED IN
AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND
WITHOUT LEGAL BASIS.[3]

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

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

B. THE HONORABLE SUPREME COURT MAY HAVE

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

B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY

DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF
OF HER COMPLIANCE WITH THE STANDARDS OF DUE CARE
EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL
SPECIALIZATION.
B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY
DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF
OF HER HAVING SUCCESSFULLY INTUBATED PATIENT ERLINDA
RAMOS

C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED

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

D. THE SUPREME COURT MAY HAVE INADVERTENTLY

DISREGARDED THE EXPERT TESTIMONY OF DR. JAMORA AND
DRA. CALDERON

E. THE HONORABLE SUPREME COURT MAY HAVE

INADVERTENTLY AWARDED DAMAGES TO PETITIONERS
DESPITE THE FACT THAT THERE WAS NO NEGLIGENCE ON THE
PART OF RESPONDENT DOCTOR.[4]

Private respondent De Los Santos Medical Center likewise moves for

reconsideration on the following grounds:
I
 THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE
INSTANT PETITION AS THE DECISION OF THE HONORABLE
COURT OF APPEALS HAD ALREADY BECOME FINAL AND
EXECUTORY
II

THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN

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

THE HONORABLE SUPREME COURT ERRED IN FINDING THAT

RESPONDENT DE LOS SANTOS MEDICAL CENTER IS SOLIDARILY
LIABLE WITH RESPONDENT DOCTORS
IV

THE HONORABLE SUPREME COURT ERRED IN INCREASING THE

AWARD OF DAMAGES IN FAVOR OF PETITIONERS.[5]

In the Resolution of February 21, 2000, this Court denied the motions for
reconsideration of private respondents Drs. Hosaka and Gutierrez. They then filed
their respective second motions for reconsideration. The Philippine College of
Surgeons filed its Petition-in-Intervention contending in the main that this Court erred
in holding private respondent Dr. Hosaka liable under the captain of the ship
doctrine. According to the intervenor, said doctrine had long been abandoned in the
United States in recognition of the developments in modern medical and hospital
practice.[6] The Court noted these pleadings in the Resolution of July 17, 2000. [7]
On March 19, 2001, the Court heard the oral arguments of the parties, including
the intervenor. Also present during the hearing were the amicii curiae: Dr. Felipe A.
Estrella, Jr., Consultant of the Philippine Charity Sweepstakes, former Director of the
Philippine General Hospital and former Secretary of Health; Dr. Iluminada T.
Camagay, President of the Philippine Society of Anesthesiologists, Inc. and Professor
and Vice-Chair for Research, Department of Anesthesiology, College of Medicine-
Philippine General Hospital, University of the Philippines; and Dr. Lydia M. Egay,
Professor and Vice-Chair for Academics, Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of the Philippines.
The Court enumerated the issues to be resolved in this case as follows:
 1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR
NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS LIABLE
FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS
LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR VISITING
CONSULTANT SURGEON AND ANESTHESIOLOGIST.[8]

We shall first resolve the issue pertaining to private respondent Dr. Gutierrez. She
maintains that the Court erred in finding her negligent and in holding that it was the
faulty intubation which was the proximate cause of Erlindas comatose condition. The
following objective facts allegedly negate a finding of negligence on her part: 1) That
the outcome of the procedure was a comatose patient and not a dead one; 2) That the
patient had a cardiac arrest; and 3) That the patient was revived from that cardiac
arrest.[9] In effect, Dr. Gutierrez insists that, contrary to the finding of this Court, the
intubation she performed on Erlinda was successful.
Unfortunately, Dr. Gutierrez claim of lack of negligence on her part is belied by
the records of the case. It has been sufficiently established that she failed to exercise
the standards of care in the administration of anesthesia on a patient. Dr. Egay
enlightened the Court on what these standards are:

x x x What are the standards of care that an anesthesiologist should do before we

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

The conduct of a preanesthetic/preoperative evaluation prior to an operation,

whether elective or emergency, cannot be dispensed with.[11] Such evaluation is
necessary for the formulation of a plan of anesthesia care suited to the needs of the
patient concerned.
Pre-evaluation for anesthesia involves taking the patients medical history,
reviewing his current drug therapy, conducting physical examination,
interpreting laboratory data, and determining the appropriate prescription of
preoperative medications as necessary to the conduct of anesthesia.[12]
Physical examination of the patient entails not only evaluating the patients central
nervous system, cardiovascular system and lungs but also the upper airway.
Examination of the upper airway would in turn include an analysis of the patients
cervical spine mobility, temporomandibular mobility, prominent central incisors,
deceased or artificial teeth, ability to visualize uvula and the thyromental distance.[13]
Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation
on Erlinda. As she herself admitted, she saw Erlinda for the first time on the day of
the operation itself, one hour before the scheduled operation. She auscultated[14] the
patients heart and lungs and checked the latters blood pressure to determine if Erlinda
was indeed fit for operation.[15] However, she did not proceed to examine the patients
airway. Had she been able to check petitioner Erlindas airway prior to the operation,
Dr. Gutierrez would most probably not have experienced difficulty in intubating the
former, and thus the resultant injury could have been avoided. As we have stated in
our Decision:

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

Further, there is no cogent reason for the Court to reverse its finding that it was
the faulty intubation on Erlinda that caused her comatose condition. There is no
question that Erlinda became comatose after Dr. Gutierrez performed a medical
procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during the
oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this involves a comatose patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose after any other acts were done by Dr.
Gutierrez or comatose before any act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some intervention, professional acts have been
done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of some acts performed by D. Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.[17]

What is left to be determined therefore is whether Erlindas hapless condition was

due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was
under the latters care. Dr. Gutierrez maintains that the bronchospasm and cardiac
arrest resulting in the patients comatose condition was brought about by the
anaphylactic reaction of the patient to Thiopental Sodium (pentothal). [18] In the
Decision, we explained why we found Dr. Gutierrez theory unacceptable. In the first
place, Dr. Eduardo Jamora, the witness who was presented to support her (Dr.
Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an authority
on anesthesia practice and procedure and their complications.[19]
Secondly, there was no evidence on record to support the theory that Erlinda
developed an allergic reaction to pentothal. Dr. Camagay enlightened the Court as to
the manifestations of an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical terminology an allergic reaction is
something which is not usual response and it is further qualified by the release of a hormone
called histamine and histamine has an effect on all the organs of the body generally release
because the substance that entered the body reacts with the particular cell, the mass cell, and the
mass cell secretes this histamine. In a way it is some form of response to take away that which is
not mine, which is not part of the body. So, histamine has multiple effects on the body. So, one of
the effects as you will see you will have redness, if you have an allergy you will have tearing of
the eyes, you will have swelling, very crucial swelling sometimes of the larynges which is your
voice box main airway, that swelling may be enough to obstruct the entry of air to the trachea and
you could also have contraction, constriction of the smaller airways beyond the trachea, you see
you have the trachea this way, we brought some visual aids but unfortunately we do not have a
projector. And then you have the smaller airways, the bronchi and then eventually into the mass
of the lungs you have the bronchus. The difference is that these tubes have also in their walls
muscles and this particular kind of muscles is smooth muscle so, when histamine is released they
close up like this and that phenomenon is known as bronco spasm. However, the effects of
histamine also on blood vessels are different. They dilate blood vessel open up and the patient or
whoever has this histamine release has hypertension or low blood pressure to a point that the
patient may have decrease blood supply to the brain and may collapse so, you may have people
who have this.[20]
These symptoms of an allergic reaction were not shown to have been extant in
Erlindas case. As we held in our Decision, no evidence of stridor, skin reactions, or
wheezing some of the more common accompanying signs of an allergic reaction
appears on record. No laboratory data were ever presented to the court.[21]
Dr. Gutierrez, however, insists that she successfully intubated Erlinda as
evidenced by the fact that she was revived after suffering from cardiac arrest. Dr.
Gutierrez faults the Court for giving credence to the testimony of Cruz on the matter
of the administration of anesthesia when she (Cruz), being a nurse, was allegedly not
qualified to testify thereon. Rather, Dr. Gutierrez invites the Courts attention to her
synopsis on what transpired during Erlindas intubation:
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by slow IV. 02
was started by mask. After pentothal injection this was followed by IV injection of
Norcuron 4mg. After 2 minutes 02 was given by positive pressure for about one
minute. Intubation with endotracheal tube 7.5 m in diameter was done with slight
 difficulty (short neck & slightly prominent upper teeth) chest was examined for
breath sounds & checked if equal on both sides. The tube was then anchored to the
mouth by plaster & cuff inflated. Ethrane 2% with 02 4 liters was given. Blood
pressure was checked 120/80 & heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02 given
alone. Cyanosis disappeared. Blood pressure and heart beats stable.
12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all over the
chest. D_5%_H20 & 1 ampule of aminophyline by fast drip was started. Still the
cyanosis was persistent. Patient was connected to a cardiac monitor. Another
ampule of of [sic] aminophyline was given and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac injection of
adrenalin was given & heart beat reappeared in less than one minute. Sodium
bicarbonate & another dose of solu cortef was given by IV. Cyanosis slowly
disappeared & 02 continuously given & assisted positive pressure. Laboratory
exams done (see results in chart).
Patient was transferred to ICU for further management.[22]
From the foregoing, it can be allegedly seen that there was no withdrawal
(extubation) of the tube. And the fact that the cyanosis allegedly disappeared after
pure oxygen was supplied through the tube proved that it was properly placed.
The Court has reservations on giving evidentiary weight to the entries purportedly
contained in Dr. Gutierrez synopsis. It is significant to note that the said record
prepared by Dr. Gutierrez was made only after Erlinda was taken out of the operating
room. The standard practice in anesthesia is that every single act that the
anesthesiologist performs must be recorded. In Dr. Gutierrez case, she could not
account for at least ten (10) minutes of what happened during the administration of
anesthesia on Erlinda. The following exchange between Dr. Estrella, one of the amicii
curiae, and Dr. Gutierrez is instructive:
DR. ESTRELLA
You mentioned that there were two (2) attempts in the intubation period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the first attempt was the tube inserted or was the laryngoscope only
inserted, which was inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right somewhere in the re-direct, a certain lawyer, you were
asked that you did a first attempt and the question was did you withdraw the tube? And you said
you never withdrew the tube, is that right?
A Yes.
Q Yes. And so if you never withdrew the tube then there was no, there was no insertion of the tube
during that first attempt. Now, the other thing that we have to settle here is when cyanosis
occurred, is it recorded in the anesthesia record when the cyanosis, in your recording when did
the cyanosis occur?
A (sic)
Q Is it a standard practice of anesthesia that whatever you do during that period or from the time of
induction to the time that you probably get the patient out of the operating room that every single
action that you do is so recorded in your anesthesia record?
A I was not able to record everything I did not have time anymore because I did that after the, when
the patient was about to leave the operating room. When there was second cyanosis already that
was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at 12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was oxygenated for around one to two minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start giving the pentothal very slowly and that was
around one minute.
Q So, that is about 12:13 no, 12:15, 12:17?
A Yes, and then, after one minute another oxygenation was given and after (interrupted)
Q 12:18?
A Yes, and then after giving the oxygen we start the menorcure which is a relaxant. After that relaxant
(interrupted)
Q After that relaxant, how long do you wait before you do any manipulation?
A Usually you wait for two minutes or three minutes.
Q So, if our estimate of the time is accurate we are now more or less 12:19, is that right?
A Maybe.
Q 12:19. And at that time, what would have been done to this patient?
A After that time you examine the, if there is relaxation of the jaw which you push it downwards and
when I saw that the patient was relax because that monorcure is a relaxant, you cannot intubate
the patient or insert the laryngoscope if it is not keeping him relax. So, my first attempt when I
put the laryngoscope on I saw the trachea was deeply interiorly. So, what I did ask mahirap ata ito
ah. So, I removed the laryngoscope and oxygenated again the patient.
Q So, more or less you attempted to do an intubation after the first attempt as you claimed that it was
only the laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the laryngoscope and now possible intubation?
A Yes.
Q And at that point, you made a remark, what remark did you make?
A I said mahirap ata ito when the first attempt I did not see the trachea right away. That was when I
(interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away within two to three seconds.
Q At what point, for purposes of discussion without accepting it, at what point did you make the
comment na mahirap ata to intubate, mali ata ang pinasukan
A I did not say mali ata ang pinasukan I never said that.
Q Well, just for the information of the group here the remarks I am making is based on the documents
that were forwarded to me by the Supreme Court. That is why for purposes of discussion I am
trying to clarify this for the sake of enlightenment. So, at what point did you ever make that
comment?
A Which one, sir?
Q The mahirap intubate ito assuming that you (interrupted)
A Iyon lang, that is what I only said mahirap intubate (interrupted)
Q At what point?
A When the first attempt when I inserted the laryngoscope for the first time.
Q So, when you claim that at the first attempt you inserted the laryngoscope, right?
A Yes.
Q But in one of the recordings somewhere at the, somewhere in the transcript of records that when the
lawyer of the other party try to inquire from you during the first attempt that was the time when
mayroon ba kayong hinugot sa tube, I do not remember the page now, but it seems to me it is
there. So, that it was on the second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time 12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and looking at the anesthesia records from 12:20 to
12:30 there was no recording of the vital signs. And can we presume that at this stage there was
already some problems in handling the patient?
 A Not yet.
Q But why are there no recordings in the anesthesia record?
A I did not have time.
Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the witness is laughing)
Q No, I am just asking. Remember I am not here not to pin point on anybody I am here just to more or
less clarify certainty more ore less on the record.
A Yes, Sir.
Q And so it seems that there were no recording during that span of ten (10) minutes. From 12:20 to
12:30, and going over your narration, it seems to me that the cyanosis appeared ten (10) minutes
after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going over the record ano,
kung mali ito kuwan eh di ano. So, ganoon po ano, that it seems to me that there is no recording
from 12:20 to 12:30, so, I am just wondering why there were no recordings during the period and
then of course the second cyanosis, after the first cyanosis. I think that was the time Dr. Hosaka
came in?
A No, the first cyanosis (interrupted).[23]
We cannot thus give full credence to Dr. Gutierrez synopsis in light of her
admission that it does not fully reflect the events that transpired during the
administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there was a
ten-minute gap in Dr. Gutierrez synopsis, i.e., the vital signs of Erlinda were not
recorded during that time. The absence of these data is particularly significant
because, as found by the trial court, it was the absence of oxygen supply for four (4)
to five (5) minutes that caused Erlindas comatose condition.
On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As
we stated in the Decision, she is competent to testify on matters which she is capable
of observing such as, the statements and acts of the physician and surgeon, external
appearances and manifest conditions which are observable by any one. [24] Cruz,
Erlindas sister-in-law, was with her inside the operating room.Moreover, being a
nurse and Dean of the Capitol Medical Center School of Nursing at that, she is not
entirely ignorant of anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez
remark, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan. She observed that the nailbeds of Erlinda became bluish and thereafter Erlinda
was placed in trendelenburg position.[25] Cruz further averred that she noticed that the
abdomen of Erlinda became distended.[26]
The cyanosis (bluish discoloration of the skin or mucous membranes caused by
lack of oxygen or abnormal hemoglobin in the blood) and enlargement of the stomach
of Erlinda indicate that the endotracheal tube was improperly inserted into the
esophagus instead of the trachea. Consequently, oxygen was delivered not to the lungs
but to the gastrointestinal tract. This conclusion is supported by the fact that Erlinda
was placed in trendelenburg position. This indicates that there was a decrease of blood
supply to the patients brain. The brain was thus temporarily deprived of oxygen
supply causing Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not normally happen absent any
negligence in the administration of anesthesia and in the use of an endotracheal
tube. As was noted in our Decision, the instruments used in the administration of
anesthesia, including the endotracheal tube, were all under the exclusive control of
private respondents Dr. Gutierrez and Dr. Hosaka.[27] In Voss vs. Bridwell,[28]which
involved a patient who suffered brain damage due to the wrongful administration of
anesthesia, and even before the scheduled mastoid operation could be performed, the
Kansas Supreme Court applied the doctrine of res ipsa loquitur, reasoning that the
injury to the patient therein was one which does not ordinarily take place in the
absence of negligence in the administration of an anesthetic, and in the use and
employment of an endotracheal tube. The court went on to say that [o]rdinarily a
person being put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence. Upon these facts and
under these circumstances, a layman would be able to say, as a matter of common
knowledge and observation, that the consequences of professional treatment were not
as such as would ordinarily have followed if due care had been
exercised.[29] Considering the application of the doctrine of res ipsa loquitur, the
testimony of Cruz was properly given credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred in finding him
negligent as a surgeon by applying the Captain-of-the-Ship doctrine.[30] Dr. Hosaka
argues that the trend in United States jurisprudence has been to reject said doctrine in
light of the developments in medical practice. He points out that anesthesiology and
surgery are two distinct and specialized fields in medicine and as a surgeon, he is not
deemed to have control over the acts of Dr. Gutierrez. As anesthesiologist, Dr.
Gutierrez is a specialist in her field and has acquired skills and knowledge in the
course of her training which Dr. Hosaka, as a surgeon, does not possess. [31] He states
further that current American jurisprudence on the matter recognizes that the trend
towards specialization in medicine has created situations where surgeons do not
always have the right to control all personnel within the operating room, [32] especially
a fellow specialist.[33]
 Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,[34] which
involved a suit filed by a patient who lost his voice due to the wrongful insertion of
the endotracheal tube preparatory to the administration of anesthesia in connection
with the laparotomy to be conducted on him. The patient sued both the
anesthesiologist and the surgeon for the injury suffered by him. The Supreme Court of
Appeals of West Virginia held that the surgeon could not be held liable for the loss of
the patients voice, considering that the surgeon did not have a hand in the intubation
of the patient. The court rejected the application of the Captain-of-the-Ship Doctrine,
citing the fact that the field of medicine has become specialized such that surgeons
can no longer be deemed as having control over the other personnel in the operating
room. It held that [a]n assignment of liability based on actual control more
realistically reflects the actual relationship which exists in a modern operating
room.[35] Hence, only the anesthesiologist who inserted the endotracheal tube into the
patients throat was held liable for the injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with the Captain-of-
the-Ship doctrine does not mean that this Court will ipso facto follow said trend. Due
regard for the peculiar factual circumstances obtaining in this case justify the
application of the Captain-of-the-Ship doctrine. From the facts on record it can be
logically inferred that Dr. Hosaka exercised a certain degree of, at the very least,
supervision over the procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the services of Dr.
Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed the
necessary competence and skills. Drs. Hosaka and Gutierrez had worked together
since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage the
services of Dr. Gutierrez to administer the anesthesia on his patient.[36]
Second, Dr. Hosaka himself admitted that he was the attending physician of
Erlinda. Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave
instructions to call for another anesthesiologist and cardiologist to help resuscitate
Erlinda.[37]
Third, it is conceded that in performing their responsibilities to the patient, Drs.
Hosaka and Gutierrez worked as a team. Their work cannot be placed in separate
watertight compartments because their duties intersect with each other.[38]
While the professional services of Dr. Hosaka and Dr. Gutierrez were secured
primarily for their performance of acts within their respective fields of expertise for
the treatment of petitioner Erlinda, and that one does not exercise control over the
other, they were certainly not completely independent of each other so as to absolve
one from the negligent acts of the other physician.
 That they were working as a medical team is evident from the fact that Dr. Hosaka
was keeping an eye on the intubation of the patient by Dr. Gutierrez, and while doing
so, he observed that the patients nails had become dusky and had to call Dr.
Gutierrezs attention thereto. The Court also notes that the counsel for Dr. Hosaka
admitted that in practice, the anesthesiologist would also have to observe the surgeons
acts during the surgical process and calls the attention of the surgeon whenever
necessary[39] in the course of the treatment. The duties of Dr. Hosaka and those of Dr.
Gutierrez in the treatment of petitioner Erlinda are therefore not as clear-cut as
respondents claim them to be. On the contrary, it is quite apparent that they have a
common responsibility to treat the patient, which responsibility necessitates that they
call each others attention to the condition of the patient while the other physician is
performing the necessary medical procedures.
It is equally important to point out that Dr. Hosaka was remiss in his duty of
attending to petitioner Erlinda promptly, for he arrived more than three (3) hours late
for the scheduled operation. The cholecystectomy was set for June 17, 1985 at 9:00
a.m., but he arrived at DLSMC only at around 12:10 p.m. In reckless disregard for his
patients well being, Dr. Hosaka scheduled two procedures on the same day, just thirty
minutes apart from each other, at different hospitals. Thus, when the first procedure
(protoscopy) at the Sta. Teresita Hospital did not proceed on time, Erlinda was kept in
a state of uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlindas scheduled operation subjected her to
continued starvation and consequently, to the risk of acidosis, [40] or the condition of
decreased alkalinity of the blood and tissues, marked by sickly sweet breath,
headache, nausea and vomiting, and visual disturbances.[41] The long period that Dr.
Hosaka made Erlinda wait for him certainly aggravated the anxiety that she must have
been feeling at the time. It could be safely said that her anxiety adversely affected the
administration of anesthesia on her. As explained by Dr. Camagay, the patients
anxiety usually causes the outpouring of adrenaline which in turn results in high blood
pressure or disturbances in the heart rhythm:
DR. CAMAGAY:
x x x Pre-operative medication has three main functions: One is to alleviate anxiety. Second
is to dry up the secretions and Third is to relieve pain. Now, it is very important to alleviate
anxiety because anxiety is associated with the outpouring of certain substances formed in the
body called adrenalin. When a patient is anxious there is an outpouring of adrenalin which would
have adverse effect on the patient. One of it is high blood pressure, the other is that he opens
himself to disturbances in the heart rhythm, which would have adverse implications. So, we
would like to alleviate patients anxiety mainly because he will not be in control of his body there
could be adverse results to surgery and he will be opened up; a knife is going to open up his
body. x x x[42]

Dr. Hosaka cannot now claim that he was entirely blameless of what happened to
Erlinda. His conduct clearly constituted a breach of his professional duties to Erlinda:
 CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking about anxiety, would you consider a
patient's stay on the operating table for three hours sufficient enough to aggravate or magnify his
or her anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that was the case, three hours waiting and
the patient was already on the operating table (interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to the aggravation of the anxiety of
the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already a source of anxiety and most
operating tables are very narrow and that patients are usually at risk of falling on the floor so
there are restraints that are placed on them and they are never, never left alone in the operating
room by themselves specially if they are already pre-medicated because they may not be aware of
some of their movement that they make which would contribute to their injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to come on time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.[43]

Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled
operation of petitioner Erlinda is violative, not only of his duty as a physician to serve
the interest of his patients with the greatest solicitude, giving them always his best
talent and skill,[44] but also of Article 19 of the Civil Code which requires a person, in
the performance of his duties, to act with justice and give everyone his due.
Anent private respondent DLSMCs liability for the resulting injury to petitioner
Erlinda, we held that respondent hospital is solidarily liable with respondent doctors
therefor under Article 2180 of the Civil Code[45] since there exists an employer-
employee relationship between private respondent DLSMC and Drs. Gutierrez and
Hosaka:

In other words, private hospitals, hire, fire and exercise real control over their
attending and visiting consultant staff. While consultants are not, technically
employees, x x x the control exercised, the hiring and the right to terminate
consultants all fulfill the important hallmarks of an employer-employee relationship,
with the exception of the payment of wages. In assessing whether such a relationship
in fact exists, the control test is determining. x x x[46]

DLSMC however contends that applying the four-fold test in determining whether
such a relationship exists between it and the respondent doctors, the inescapable
conclusion is that DLSMC cannot be considered an employer of the respondent
doctors.
It has been consistently held that in determining whether an employer-employee
relationship exists between the parties, the following elements must be present: (1)
selection and engagement of services; (2) payment of wages; (3) the power to hire and
fire; and (4) the power to control not only the end to be achieved, but the means to be
used in reaching such an end.[47]
DLSMC maintains that first, a hospital does not hire or engage the services of a
consultant, but rather, accredits the latter and grants him or her the privilege of
maintaining a clinic and/or admitting patients in the hospital upon a showing by the
consultant that he or she possesses the necessary qualifications, such as accreditation
by the appropriate board (diplomate), evidence of fellowship and
references.[48] Second, it is not the hospital but the patient who pays the consultants fee
for services rendered by the latter.[49] Third, a hospital does not dismiss a consultant;
instead, the latter may lose his or her accreditation or privileges granted by the
hospital.[50] Lastly, DLSMC argues that when a doctor refers a patient for admission in
a hospital, it is the doctor who prescribes the treatment to be given to said patient. The
hospitals obligation is limited to providing the patient with the preferred room
accommodation, the nutritional diet and medications prescribed by the doctor, the
equipment and facilities necessary for the treatment of the patient, as well as the
services of the hospital staff who perform the ministerial tasks of ensuring that the
doctors orders are carried out strictly.[51]
 After a careful consideration of the arguments raised by DLSMC, the Court finds
that respondent hospitals position on this issue is meritorious. There is no employer-
employee relationship between DLSMC and Drs. Gutierrez and Hosaka which would
hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under
Article 2180 of the Civil Code.
As explained by respondent hospital, that the admission of a physician to
membership in DLSMCs medical staff as active or visiting consultant is first decided
upon by the Credentials Committee thereof, which is composed of the heads of the
various specialty departments such as the Department of Obstetrics and Gynecology,
Pediatrics, Surgery with the department head of the particular specialty applied for as
chairman. The Credentials Committee then recommends to DLSMC's Medical
Director or Hospital Administrator the acceptance or rejection of the applicant
physician, and said director or administrator validates the committee's
recommendation.[52] Similarly, in cases where a disciplinary action is lodged against a
consultant, the same is initiated by the department to whom the consultant concerned
belongs and filed with the Ethics Committee consisting of the department specialty
heads. The medical director/hospital administrator merely acts as ex-officio member
of said committee.
Neither is there any showing that it is DLSMC which pays any of its consultants
for medical services rendered by the latter to their respective patients. Moreover, the
contract between the consultant in respondent hospital and his patient is separate and
distinct from the contract between respondent hospital and said patient. The first has
for its object the rendition of medical services by the consultant to the patient, while
the second concerns the provision by the hospital of facilities and services by its staff
such as nurses and laboratory personnel necessary for the proper treatment of the
patient.
Further, no evidence was adduced to show that the injury suffered by petitioner
Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital
facilities and staff necessary for her treatment.
For these reasons, we reverse the finding of liability on the part of DLSMC for the
injury suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to modify the award of damages to
petitioners in view of the supervening event of petitioner Erlindas death. In the
assailed Decision, the Court awarded actual damages of One Million Three Hundred
Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner
Erlindas treatment and care from the date of promulgation of the Decision up to the
time the patient expires or survives.[53] In addition thereto, the Court awarded
temperate damages of One Million Five Hundred Thousand Pesos (P1,500,000.00) in
view of the chronic and continuing nature of petitioner Erlindas injury and the
certainty of further pecuniary loss by petitioners as a result of said injury, the amount
of which, however, could not be made with certainty at the time of the promulgation
of the decision. The Court justified such award in this manner:

Our rules on actual or compensatory damages generally assume that at the time of
litigation, the injury suffered as a consequence of an act of negligence has been
completed and that the cost can be liquidated.However, these provisions neglect to
take into account those situations, as in this case, where the resulting injury might be
continuing and possible future complications directly arising from the injury, while
certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to
adequately and correctly respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved, up to the time of trial; and one
which would meet pecuniary loss certain to be suffered but which could not, from the
nature of the case, be made with certainty. In other words, temperate damages can and
should be awarded on top of actual or compensatory damages in instances where the
injury is chronic and continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages are provided for. The
reason is that these damages cover two distinct phases.

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

In the instant case, petitioners were able to provide only home-based nursing care for
a comatose patient who has remained in that condition for over a decade. Having
premised our award for compensatory damages on the amount provided by petitioners
at the onset of litigation, it would be now much more in step with the interests of
justice if the value awarded for temperate damages would allow petitioners to provide
optimal care for their loved one in a facility which generally specializes in such
care. They should not be compelled by dire circumstances to provide substandard care
at home without the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of P1,500,000.00 in temperate
damages would therefore be reasonable.[54]

However, subsequent to the promulgation of the Decision, the Court was

informed by petitioner Rogelio that petitioner Erlinda died on August 3, 1999. [55] In
view of this supervening event, the award of temperate damages in addition to the
actual or compensatory damages would no longer be justified since the actual
damages awarded in the Decision are sufficient to cover the medical expenses
incurred by petitioners for the patient. Hence, only the amounts representing actual,
moral and exemplary damages, attorneys fees and costs of suit should be awarded to
petitioners.
WHEREFORE, the assailed Decision is hereby modified as follows:
(1) Private respondent De Los Santos Medical Center is hereby absolved from
liability arising from the injury suffered by petitioner Erlinda Ramos on June 17,
1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby
declared to be solidarily liable for the injury suffered by petitioner Erlinda on June 17,
1985 and are ordered to pay petitioners

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

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

(c) P100,000.00 as exemplary damages;

(d) P100,000.00 as attorneys fees; and

(e) the costs of the suit.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

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 mankind’s 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 hospital’s 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 Decision3dated 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 Natividad’s 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."

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 she
was free of cancer. Hence, she was advised to return to the Philippines.

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.

Dr. Ampil’s 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.

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 Natividad’s 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.

On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly
substituted by her above-named children (the Aganas).

On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and
Dr. Fuentes liable for negligence and malpractice, the decretal part of which reads:

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:

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;

2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;

4. As attorney’s 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.

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.

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.

Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision6 in
Administrative Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the
prosecution failed to show that Dr. Fuentes was the one who left the two pieces of gauze inside
Natividad’s body; and that he concealed such fact from Natividad.

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.

SO ORDERED.

Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution7 dated December
19, 1996.

Hence, the instant consolidated petitions.

In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is
estopped from raising the 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 against the Aganas. PSI contends that Dr. Ampil is
not its employee, but a mere consultant or independent contractor. As such, he alone should answer
for his negligence.

In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes
is not guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They
contend that the pieces of gauze are prima facie proofs that the operating surgeons have been
negligent.

Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina.
He pointed to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing
the hysterectomy; (2) the attending nurses’ failure to properly count the gauzes used during surgery;
and (3) the medical intervention of the American doctors who examined Natividad in the United
States of America.

For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr.
Ampil liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving
Dr. Fuentes of any liability; and third, whether PSI may be held solidarily liable for the negligence of
Dr. Ampil.

I - G.R. No. 127590

Whether the Court of Appeals Erred in Holding Dr. Ampil

Liable for Negligence and Malpractice.

Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes of
Natividad’s detriment. He argues that the Court should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in Natividad’s 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 Natividad’s body.

Dr. Ampil’s 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
Natividad’s 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.

Second, immediately after the operation, the nurses who assisted in the surgery noted in
their report that the ‘sponge count (was) lacking 2’; that such anomaly was ‘announced to
surgeon’ and that a ‘search was done but to no avail’ prompting Dr. Ampil to ‘continue for
closure’ x x x.

Third, after the operation, two (2) gauzes were extracted from the same spot of the body of
Mrs. Agana where the surgery was performed.

An operation requiring the placing of sponges in the incision is not complete until the sponges are
properly removed, and it is settled that the leaving of sponges or other foreign substances in the
wound after the incision has been closed is at least prima facie negligence by the operating
surgeon.8 To put it simply, such act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to the effect that such act is
negligence per se.9

Of course, the Court is not blind to the reality that there are times when danger to a patient’s life
precludes a surgeon from further searching missing sponges or foreign objects left in the body. But
this does not leave him free from any obligation. Even if it has been shown that a surgeon was
required by the urgent necessities of the case to leave a sponge in his patient’s abdomen, because
of the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a
reasonable time thereafter by advising her of what he had been compelled to do. This is in order that
she might seek relief from the effects of the foreign object left in her body as her condition might
permit. The ruling in Smith v. Zeagler10 is explicit, thus:

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon
fails to remove a sponge he has placed in his patient’s body that should be removed as part of the
operation, he thereby leaves his operation uncompleted and creates a new condition which imposes
upon him the legal duty of calling the new condition to his patient’s attention, and endeavoring with
the means he has at hand to minimize and avoid untoward results likely to ensue therefrom.

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.

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 Natividad’s 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. Ampil’s
negligence is the proximate cause12 of Natividad’s 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 Natividad’s vagina established the causal link
between Dr. Ampil’s 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

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 Natividad’s body is a prima facie evidence of Dr. Fuentes’ negligence.

We are not convinced.

Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the
occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise
a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of
fact for defendant to meet with an explanation.13 Stated differently, where the thing which caused the
injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is
such that it should not have occurred if he, having such control used proper care, it affords
reasonable evidence, in the absence of explanation that the injury arose from the defendant’s want
of care, and the burden of proof is shifted to him to establish that he has observed due care and
diligence.14

From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res
ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the
control and management of the defendant; (3) the occurrence was such that in the ordinary course
of things, would not have happened if those who had control or management used proper care; and
(4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental
is 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.

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 Natividad’s body. Clearly, the control and management of the
thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.

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.

III - G.R. No. 126297

Whether PSI Is Liable for the Negligence of Dr. Ampil

The third issue necessitates a glimpse at the historical development of hospitals and the resulting
theories concerning their liability for the negligence of physicians.

Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical
services to the lowest classes of society, without regard for a patient’s ability to pay.18 Those who
could afford medical treatment were usually treated at home by their doctors.19 However, the days of
house calls and philanthropic health care are over. The modern health care industry continues to
distance itself from its charitable past and has experienced a significant conversion from a not-for-
profit health care to for-profit hospital businesses. Consequently, significant changes in health law
have accompanied the business-related changes in the hospital industry. One important legal
change is an increase in hospital liability for medical malpractice. Many courts now allow claims for
hospital vicarious liability under the theories of respondeat superior, apparent authority, ostensible
authority, or agency by estoppel. 20

In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code,
which reads:

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.

A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of
respondeat superior, thus:

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.

x x x x x x
The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.

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

x x x x x x

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.

A prominent civilist commented that professionals engaged by an employer, such as physicians,

dentists, and pharmacists, are not "employees" under this article because the manner in which they
perform their work is not within the control of the latter (employer). In other words, professionals are
considered personally liable for the fault or negligence they commit in the discharge of their duties,
and their employer cannot be held liable for such fault or negligence. In the context of the present
case, "a hospital cannot be held liable for the fault or negligence of a physician or surgeon in the
treatment or operation of patients."21

The foregoing view is grounded on the traditional notion that the professional status and the very
nature of the physician’s calling preclude him from being classed as an agent or employee of a
hospital, whenever he acts in a professional capacity.22 It has been said that medical practice strictly
involves highly developed and specialized knowledge,23 such that physicians are generally free to
exercise their own skill and judgment in rendering medical services sans interference.24 Hence, when
a doctor practices medicine in a hospital setting, the hospital and its employees are deemed to
subserve him in his ministrations to the patient and his actions are of his own responsibility.25

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 to realize that modern hospitals are increasingly taking active role in
supplying and regulating medical care to patients. No longer were a hospital’s functions limited to
furnishing room, food, facilities for treatment and operation, and attendants for its patients. Thus, in
Bing v. Thunig,27 the New York Court of Appeals deviated from the Schloendorff doctrine, noting that
modern hospitals actually do far more than provide facilities for treatment. Rather, they regularly
employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual
workers. They charge patients for medical care and treatment, even collecting for such services
through legal action, if necessary. The court then concluded that there is no reason to exempt
hospitals from the universal rule of respondeat superior.

In our shores, the nature of the relationship between the hospital and the physicians is rendered
inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals28 that for
purposes of apportioning responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting physicians. This Court
held:
"We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting "consultants," who
are allegedly not hospital employees, presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the
conduct of their work within the hospital premises. Doctors who apply for ‘consultant’ slots, visiting or
attending, are required to submit proof of completion of residency, their educational qualifications,
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are carefully scrutinized by members of the
hospital administration or by a review committee set up by the hospital who either accept or reject
the application. x x x.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to

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

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
‘consultant’ staff. While ‘consultants’ are not, technically employees, 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 physicians. "

But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is also
anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of
corporate negligence which have gained acceptance in the determination of a hospital’s liability for
negligent acts of health professionals. The present case serves as a perfect platform to test the
applicability of these doctrines, thus, enriching our jurisprudence.

Apparent authority, or what is sometimes referred to as the "holding

out" theory, or doctrine of ostensible agency or agency by estoppel,29 has its origin from the law of
agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather
because of the actions of a principal or an employer in somehow misleading the public into believing
that the relationship or the authority exists.30 The concept is essentially one of estoppel and has
been explained in this manner:

"The principal is bound by the acts of his agent with the apparent authority which he knowingly
permits the agent to assume, or which he holds the agent out to the public as possessing. The
question in every case is whether the principal has by his voluntary act placed the agent in such a
situation that a person of ordinary prudence, conversant with business usages and the nature of the
particular business, is justified in presuming that such agent has authority to perform the particular
act in question.31
The applicability of apparent authority in the field of hospital liability was upheld long time ago in
Irving v. Doctor Hospital of Lake Worth, Inc.32 There, it was explicitly stated that "there does not
appear to be any rational basis for excluding the concept of apparent authority from the field of
hospital liability." Thus, in cases where it can be shown that a hospital, by its actions, has held out a
particular physician as its agent and/or employee and that a patient has accepted treatment from
that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the
hospital will be liable for the physician’s negligence.

Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the
Civil Code reads:

ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack
of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf
without authority.

In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and
specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr.
Fuentes. We concur with the Court of Appeals’ conclusion that it "is now estopped from passing all
the blame to the physicians whose names it proudly paraded in the public directory leading the
public to believe that it vouched for their skill and competence." Indeed, PSI’s act is tantamount to
holding out to the public that Medical City Hospital, through its accredited physicians, offers quality
health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their
qualifications, the hospital created the impression that they were its agents, authorized to perform
medical or surgical services for its patients. As expected, these patients, Natividad being one of
them, accepted the services on the reasonable belief that such were being rendered by the hospital
or its employees, agents, or servants. The trial court correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with the
defense of absence of employer-employee relationship between the hospital and the independent
physician whose name and competence are certainly certified to the general public by the hospital’s
act of listing him and his specialty in its lobby directory, as in the case herein. The high costs of
today’s medical and health care should at least exact on the hospital greater, if not broader, legal
responsibility for the conduct of treatment and surgery within its facility by its accredited physician or
surgeon, regardless of whether he is independent or employed."33

The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable
of acting only through other individuals, such as physicians. If these accredited physicians do their
job well, the hospital succeeds in its mission of offering quality medical services and thus profits
financially. Logically, where negligence mars the quality of its services, the hospital should not be
allowed to escape liability for the acts of its ostensible agents.

We now proceed to the doctrine of corporate negligence or corporate responsibility.

One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI
as owner, operator and manager of Medical City Hospital, "did not perform the necessary
supervision nor exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing
staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in the performance
of their duties as surgeons."34 Premised on the doctrine of corporate negligence, the trial court held
that PSI is directly liable for such breach of duty.

We agree with the trial court.

Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem
of allocating hospital’s liability for the negligent acts of health practitioners, absent facts to support
the application of respondeat superior or apparent authority. Its formulation proceeds from the
judiciary’s acknowledgment that in these modern times, the duty of providing quality medical service
is no longer the sole prerogative and responsibility of the physician. The modern hospitals have
changed structure. Hospitals now tend to organize a highly professional medical staff whose
competence and performance need to be monitored by the hospitals commensurate with their
inherent responsibility to provide quality medical care.35

The doctrine has its genesis in Darling v. Charleston Community Hospital.36 There, the Supreme
Court of Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a
sufficient number of trained nurses attending the patient; failing to require a consultation with or
examination by members of the hospital staff; and failing to review the treatment rendered to the
patient." On the basis of Darling, other jurisdictions held that a hospital’s corporate negligence
extends to permitting a physician known to be incompetent to practice at the hospital.37 With the
passage of time, more duties were expected from hospitals, among them: (1) the use of reasonable
care in the maintenance of safe and adequate facilities and equipment; (2) 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 the Medical City Hospital for the
purpose and under the concept of providing comprehensive medical services to the public.
Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted
into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of
the trial court are convincing, thus:

x x x PSI’s 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 PSI’s 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 PSI’s
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 Natividad’s
case.

It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the
Medical City Hospital’s 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 regarding the quality of medical care furnished to patients within its walls
and it must meet the standards of responsibility commensurate with this undertaking. Beeck v.
Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the
rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the
doctors on its 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 patient’s 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 hospital’s 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.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 192123 March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless
imprudence resulting in serious physical injuries by the Regional Trial Court (RTC) and the Court of
Appeals (CA). He had been part of the team of anesthesiologists during the surgical pull-through
operation conducted on a three-year old patient born with an imperforate anus.1

The antecedents are as follows:

Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an imperforate anus. Two days after
his birth, Gerald underwent colostomy, a surgical procedure to bring one end of the large intestine
out through the abdominal wall,3 enabling him to excrete through a colostomy bag attached to the
side of his body.4

On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a pull-
through operation.5Dr. Leandro Resurreccion headed the surgical team, and was assisted by Dr.
Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph Tibio. The anesthesiologists included Dr.
Marichu Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the
operation, Gerald experienced bradycardia,7 and went into a coma.8His coma lasted for two
weeks,9 but he regained consciousness only after a month.10 He could no longer see, hear or move.11

Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint
for reckless imprudence resulting in serious physical injuries with the City Prosecutor’s Office of
Manila against the attending physicians.12

Upon a finding of probable cause, the City Prosecutor’s Office filed an information solely against Dr.
Solidum,13alleging: –

That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then an
anesthesiologist at the Ospital ng Maynila, Malate, this City, and as such was tasked to administer
the anesthesia on three-year old baby boy GERALD ALBERT GERCAYO, represented by his
mother, MA. LUZ GERCAYO, the former having been born with an imperforate anus [no anal
opening] and was to undergo an operation for anal opening [pull through operation], did then and
there willfully, unlawfully and feloniously fail and neglect to use the care and diligence as the best of
his judgment would dictate under said circumstance, by failing to monitor and regulate properly the
levels of anesthesia administered to said GERALD ALBERT GERCAYO and using 100% halothane
and other anesthetic medications, causing as a consequence of his said carelessness and
negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest and consequently a defect
called hypoxic encephalopathy meaning insufficient oxygen supply in the brain, thereby rendering
said GERALD ALBERT GERCAYO incapable of moving his body, seeing, speaking or hearing, to
his damage and prejudice.

Contrary to law.14

The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the RTC
pursuant to Section 5 of Republic Act No. 8369 (The Family Courts Act of 1997),15 where it was
docketed as Criminal Case No. 01-190889.

Judgment of the RTC

On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable
doubt of reckless imprudence resulting to serious physical injuries,16 decreeing:

WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM
GUILTY beyond reasonable doubt as principal of the crime charged and is hereby sentenced to
suffer the indeterminate penalty of TWO (2) MONTHS and ONE (1) DAY of arresto mayor as
minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision correccional as
maximum and to indemnify, jointly and severally with the Ospital ng Maynila, Dr. Anita So and Dr.
Marichu Abella, private complainant Luz Gercayo, the amount of P500,000.00 as moral damages
and P100,000.00 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED.

SO ORDERED.17

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability,18 the RTC
excluded them from solidary liability as to the damages, modifying its decision as follows:

WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond
reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the
indeterminate penalty of two (2) months and one (1) day of arresto mayor as minimum to one (1)
year, one (1) month and ten (10) days of prision correccional as maximum and to indemnify jointly
and severally with Ospital ng Maynila, private complainant Luz Gercayo the amount of P500,000.00
as moral damages and P100,000 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled.19

Decision of the CA

On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,20 pertinently stating and ruling:

The case appears to be a textbook example of res ipsa loquitur.

xxxx
x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation. As
noted by the OSG, the accused himself testified that pre-operation tests were conducted to ensure
that the child could withstand the surgery. Except for his imperforate anus, the child was healthy.
The tests and other procedures failed to reveal that he was suffering from any known ailment or
disability that could turn into a significant risk. There was not a hint that the nature of the operation
itself was a causative factor in the events that finally led to hypoxia.

In short, the lower court has been left with no reasonable hypothesis except to attribute the accident
to a failure in the proper administration of anesthesia, the gravamen of the charge in this case. The
High Court elucidates in Ramos vs. Court of Appeals 321 SCRA 584 –

In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent
upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its
fund of common knowledge can determine the proper standard of care.

Where common knowledge and experience teach that a resulting injury would not have occurred to
the patient if due care had been exercised, an inference of negligence may be drawn giving rise to
an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular act or omission
complained of and the injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard of care. Resort to res
ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which
the patient can obtain redress for injury suffered by him.

The lower court has found that such a nexus exists between the act complained of and the injury
sustained, and in line with the hornbook rules on evidence, we will afford the factual findings of a trial
court the respect they deserve in the absence of a showing of arbitrariness or disregard of material
facts that might affect the disposition of the case. People v. Paraiso 349 SCRA 335.

The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a
presumption of negligence, it need not offend due process, as long as the accused is afforded the
opportunity to go forward with his own evidence and prove that he has no criminal intent. It is in this
light not inconsistent with the constitutional presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.

SO ORDERED.21

Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010.22

Hence, this appeal.

Issues

Dr. Solidum avers that:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE

LOWER COURT IN UPHOLDING THE PETITIONER’S CONVICTION FOR THE CRIME
 CHARGED BASED ON THE TRIAL COURT’S OPINION, AND NOT ON THE BASIS OF
THE FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR
MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT TO THE
ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE COURT ERRED IN
AFFIRMING THE SAID DECISION OF THE LOWER COURT, AS THIS BREACHES THE
CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST PROVE THE
ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON
THE BASIS OF ITS PRESUMPTIVE CONCLUSION.

II.

THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES

IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO
NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO OVERDOSING IN THE
APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100%
HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND
THE APPLICATION THEREOF, WAS REGULATED BY AN ANESTHESIA MACHINE.
THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA LOQUITOR (sic)
CONTRADICTED THE ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE
CASE.

III.

THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED

THERE BEING NO NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING
THAT THE CHILD IS ENTITLED TO FINANCIAL CONSIDERATION, IT SHOULD BE ONLY
AS A FINANCIAL ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE, AND NO
OVERDOSING OF ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO
EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS.23

To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of res
ipsa loquitur was applicable herein; and (b) whether or not Dr. Solidum was liable for criminal
negligence.

Ruling

The appeal is meritorious.

Applicability of the Doctrine of Res Ipsa Loquitur

Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The doctrine
res ipsa loquitur means that "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."24 It is simply
"a recognition of the postulate that, as a matter of common knowledge and experience, the very
nature of certain types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some explanation by the
defendant who is charged with negligence. It is grounded in the superior logic of ordinary human
experience and on the basis of such experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge."25

Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law, but merely a
mode of proof or a mere procedural convenience. The doctrine, when applicable to the facts and
circumstances of a given case, is not meant to and does not dispense with the requirement of proof
of culpable negligence against the party charged. It merely determines and regulates what shall be
prima facie evidence thereof, and helps the plaintiff in proving a breach of the duty. The doctrine can
be invoked when and only when, under the circumstances involved, direct evidence is absent and
not readily available.27

The applicability of the doctrine of res ipsa loquitur in medical negligence cases was significantly and
exhaustively explained in Ramos v. Court of Appeals,28 where the Court said –

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

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

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

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it
does not automatically apply to all cases of medical negligence as to mechanically shift the burden
of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is
not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would ordinarily have followed if due care
had been exercised. A distinction must be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that particular practice. It must be conceded that the
doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which
involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not
required at his peril to explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result of an operation or treatment was not
accomplished. The real question, therefore, is whether or not in the process of the operation any
extraordinary incident or unusual event outside of the routine performance occurred which is beyond
the regular scope of customary professional activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the negligent cause or causes of the untoward
consequence. If there was such extraneous intervention, the doctrine of res ipsa loquitur may be
utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he
could.

In order to allow resort to the doctrine, therefore, the following essential requisites must first be
satisfied, to wit: (1) the accident was of a kind that does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of
the person charged; and (3) the injury suffered must not have been due to any voluntary action or
contribution of the person injured.29

The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although it
should be conceded without difficulty that the second and third elements were present, considering
that the anesthetic agent and the instruments were exclusively within the control of Dr. Solidum, and
that the patient, being then unconscious during the operation, could not have been guilty of
contributory negligence, the first element was undeniably wanting. Luz delivered Gerald to the care,
custody and control of his physicians for a pull-through operation. Except for the imperforate anus,
Gerald was then of sound body and mind at the time of his submission to the physicians. Yet, he
experienced bradycardia during the operation, causing loss of his senses and rendering him
immobile. Hypoxia, or the insufficiency of oxygen supply to the brain that caused the slowing of the
heart rate, scientifically termed as bradycardia, would not ordinarily occur in the process of a pull-
through operation, or during the administration of anesthesia to the patient, but such fact alone did
not prove that the negligence of any of his attending physicians, including the anesthesiologists, had
caused the injury. In fact, the anesthesiologists attending to him had sensed in the course of the
operation that the lack of oxygen could have been triggered by the vago-vagal reflex, prompting
them to administer atropine to the patient.30

This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham,31 relevant
portions of the decision therein being as follows:

On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the
treatment of infectious mononucleosis. The patient's symptoms had included a swollen throat and
some breathing difficulty. Early in the morning of January 9 the patient was restless, and at 1:30 a.m.
Dr. Brigham examined the patient. His inspection of the patient's air passage revealed that it was in
satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone call from the hospital, advising
him that the patient was having respiratory difficulty. The doctor ordered that oxygen be
administered and he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital
called a second time to advise the doctor that the patient was not responding. The doctor ordered
that a medicine be administered, and he departed for the hospital. When he arrived, the physician
who had been on call at the hospital had begun attempts to revive the patient. Dr. Brigham joined
him in the effort, but the patient died.

The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and 4:30
a.m. of asphyxia, as a result of a sudden, acute closing of the air passage. He also found that the air
passage had been adequate to maintain life up to 2 or 3 minutes prior to death. He did not know
what caused the air passage to suddenly close.

xxxx

It is a rare occurrence when someone admitted to a hospital for the treatment of infectious
mononucleosis dies of asphyxiation. But that is not sufficient to invoke res ipsa loquitur. The fact that
the injury rarely occurs does not in itself prove that the injury was probably caused by someone's
negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result by itself
enough to warrant the application of the doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472
(1953). See 2 S. Speiser, The Negligence Case – Res Ipsa Loquitur § 24:10 (1972). The evidence
presented is insufficient to establish the first element necessary for application of res ipsa loquitur
doctrine. The acute closing of the patient’s air passage and his resultant asphyxiation took place
over a very short period of time. Under these circumstances it would not be reasonable to infer that
the physician was negligent. There was no palpably negligent act. The common experience of
mankind does not suggest that death would not be expected without negligence. And there is no
expert medical testimony to create an inference that negligence caused the injury.

Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines whether
the CA correctly affirmed the conviction of Dr. Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the interests of another person
that degree of care, precaution, and vigilance that the circumstances justly demand, whereby such
other person suffers injury.32Reckless imprudence, on the other hand, consists of voluntarily doing or
failing to do, without malice, an act from which material damage results by reason of an inexcusable
lack of precaution on the part of the person performing or failing to perform such act.33

Dr. Solidum’s conviction by the RTC was primarily based on his failure to monitor and properly
regulate the level of anesthetic agent administered on Gerald by overdosing at 100% halothane. In
affirming the conviction, the CA observed:

On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and
conclusions in his report except for an observation which, to all intents and purposes, has become
the storm center of this dispute. He wanted to correct one piece of information regarding the dosage
of the anesthetic agent administered to the child. He declared that he made a mistake in reporting a
100% halothane and said that based on the records it should have been 100% oxygen.

The records he was relying on, as he explains, are the following:

(a) the anesthesia record – A portion of the chart in the record was marked as Exhibit 1-A
and 1-B to indicate the administration at intervals of the anesthetic agent.
 (b) the clinical abstract – A portion of this record that reads as follows was marked Exhibit
3A. 3B – Approximately 1 hour and 45 minutes through the operation, patient was noted to
have bradycardia (CR = 70) and ATSO4 0.2 mg was immediately administered. However,
the bradycardia persisted, the inhalational agent was shut off, and the patient was ventilated
with 100% oxygen and another dose of ATSO4 0.2 mg was given. However, the patient did
not respond until no cardiac rate can be auscultated and the surgeons were immediately told
to stop the operation. The patient was put on a supine position and CPR was initiated.
Patient was given 1 amp of epinephrine initially while continuously doing cardiac massage –
still with no cardiac rate appreciated; another ampule of epinephrine was given and after 45
secs, patient’s vital signs returned to normal. The entire resuscitation lasted approximately 3-
5 mins. The surgeons were then told to proceed to the closure and the child’s vital signs
throughout and until the end of surgery were: BP = 110/70; CR = 116/min and RR = 20-22
cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated with
100% oxygen and another dose of ATSO4 when the bradycardia persisted, but for one reason or
another, he read it as 100% halothane. He was asked to read the anesthesia record on the
percentage of the dosage indicated, but he could only sheepishly note I can’t understand the
number. There are no clues in the clinical abstract on the quantity of the anesthetic agent used. It
only contains the information that the anesthetic plan was to put the patient under general
anesthesia using a nonrebreathing system with halothane as the sole anesthetic agent and that 1
hour and 45 minutes after the operation began, bradycardia occurred after which the inhalational
agent was shut off and the patient administered with 100% oxygen. It would be apparent that the
100% oxygen that Dr. Vertido said should be read in lieu of 100% halothane was the pure oxygen
introduced after something went amiss in the operation and the halothane itself was reduced or shut
off.

The key question remains – what was the quantity of halothane used before bradycardia set in?

The implication of Dr. Vertido’s admission is that there was no overdose of the anesthetic agent, and
the accused Dr. Solidum stakes his liberty and reputation on this conclusion. He made the
assurance that he gave his patient the utmost medical care, never leaving the operating room except
for a few minutes to answer the call of nature but leaving behind the other members of his team Drs.
Abella and Razon to monitor the operation. He insisted that he administered only a point 1% not
100% halothane, receiving corroboration from Dr. Abella whose initial MA in the record should be
enough to show that she assisted in the operation and was therefore conversant of the things that
happened. She revealed that they were using a machine that closely monitored the concentration of
the agent during the operation.

But most compelling is Dr. Solidum’s interpretation of the anesthesia record itself, as he takes the
bull by the horns, so to speak. In his affidavit, he says, reading from the record, that the quantity of
halothane used in the operation is one percent (1%) delivered at time intervals of 15 minutes. He
studiedly mentions – the concentration of halothane as reflected in the anesthesia record (Annex D
of the complaint-affidavit) is only one percent (1%) – The numbers indicated in 15 minute increments
for halothane is an indication that only 1% halothane is being delivered to the patient Gerard
Gercayo for his entire operation; The amount of halothane delivered in this case which is only one
percent cannot be summated because halothane is constantly being rapidly eliminated by the body
during the entire operation.

xxxx
In finding the accused guilty, despite these explanations, the RTC argued that the volte-face of Dr.
Vertido on the question of the dosage of the anesthetic used on the child would not really validate
the non-guilt of the anesthesiologist. Led to agree that the halothane used was not 100% as initially
believed, he was nonetheless unaware of the implications of the change in his testimony. The court
observed that Dr. Vertido had described the condition of the child as hypoxia which is deprivation of
oxygen, a diagnosis supported by the results of the CT Scan. All the symptoms attributed to a failing
central nervous system such as stupor, loss of consciousness, decrease in heart rate, loss of usual
acuity and abnormal motor function, are manifestations of this condition or syndrome. But why would
there be deprivation of oxygen if 100% oxygen to 1% halothane was used? Ultimately, to the court,
whether oxygen or halothane was the object of mistake, the detrimental effects of the operation are
incontestable, and they can only be led to one conclusion – if the application of anesthesia was
really closely monitored, the event could not have happened.34

The Prosecution did not prove the elements of reckless imprudence beyond reasonable doubt
because the circumstances cited by the CA were insufficient to establish that Dr. Solidum had been
guilty of inexcusable lack of precaution in monitoring the administration of the anesthetic agent to
Gerald. The Court aptly explained in Cruz v. Court of Appeals35 that:

Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his
patient is to be determined according to the standard of care observed by other members of the
profession in good standing under similar circumstances bearing in mind the advanced state of the
profession at the time of treatment or the present state of medical science. In the recent case of
Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in accepting a case, a
doctor in effect represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in the treatment of
his patients. He therefore has 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. It is in this aspect of
medical malpractice that expert testimony is essential to establish not only the standard of care of
the profession but also that the physician's conduct in the treatment and care falls below such
standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been recognized that expert testimony is
usually necessary to support the conclusion as to causation.

xxxx

In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's
negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on
the part of the surgeon as well as a causal connection of such breach and the resulting death of his
patient. In Chan Lugay v. St Luke's Hospital, Inc., where the attending physician was absolved of
liability for the death of the complainant’s wife and newborn baby, this Court held that:

"In order that there may be a recovery for an injury, however, it must be shown that the ‘injury for
which recovery is sought must be the legitimate consequence of the wrong done; the connection
between the negligence and the injury must be a direct and natural sequence of events, unbroken by
intervening efficient causes.’ In other words, the negligence must be the proximate cause of the
injury. For, ‘negligence, no matter in what it consists, cannot create a right of action unless it is the
proximate cause of the injury complained of.’ And ‘the proximate cause of an injury is that cause,
which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred.’"

An action upon medical negligence – whether criminal, civil or administrative – calls for the plaintiff to
prove by competent evidence each of the following four elements, namely: (a) the duty owed by the
physician to the patient, as created by the physician-patient relationship, to act in accordance with
the specific norms or standards established by his profession; (b) the breach of the duty by the
physician’s failing to act in accordance with the applicable standard of care; (3) the causation, i.e.,
there must be a reasonably close and causal connection between the negligent act or omission and
the resulting injury; and (4) the damages suffered by the patient.36

In the medical profession, specific norms or standards to protect the patient against unreasonable
risk, commonly referred to as standards of care, set the duty of the physician to act in respect of the
patient. Unfortunately, no clear definition of the duty of a particular physician in a particular case
exists. Because most medical malpractice cases are highly technical, witnesses with special medical
qualifications must provide guidance by giving the knowledge necessary to render a fair and just
verdict. As a result, the standard of medical care of a prudent physician must be determined from
expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the
standard of care by which the specialist is judged is the care and skill commonly possessed and
exercised by similar specialists under similar circumstances. The specialty standard of care may be
higher than that required of the general practitioner.37

The standard of care is an objective standard by which the conduct of a physician sued for
negligence or malpractice may be measured, and it does not depend, therefore, on any individual
physician’s own knowledge either. In attempting to fix a standard by which a court may determine
whether the physician has properly performed the requisite duty toward the patient, expert medical
testimony from both plaintiff and defense experts is required. The judge, as the trier of fact,
ultimately determines the standard of care, after listening to the testimony of all medical experts.38

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to
provide guidance to the trial court on what standard of care was applicable. It would consequently be
truly difficult, if not impossible, to determine whether the first three elements of a negligence and
malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served
as the Chairman of the Committee on Ethics and Malpractice of the Philippine Society of
Anesthesiologists that investigated the complaint against Dr. Solidum, his testimony mainly focused
on how his Committee had conducted the investigation.39 Even then, the report of his Committee was
favorable to Dr. Solidum,40 to wit:

Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru
operation and was administered general anesthesia by a team of anesthesia residents. The patient,
at the time when the surgeons was manipulating the recto-sigmoid and pulling it down in preparation
for the anastomosis, had bradycardia. The anesthesiologists, sensing that the cause thereof was the
triggering of the vago-vagal reflex, administered atropine to block it but despite the administration of
the drug in two doses, cardiac arrest ensued. As the records show, prompt resuscitative measures
were administered and spontaneous cardiac function re-established in less than five (5) minutes and
that oxygen was continuously being administered throughout, unfortunately, as later become
manifest, patient suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the
committee find that the same were all in accordance with the universally accepted standards of
medical care and there is no evidence of any fault or negligence on the part of the
anaesthesiologists.

Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was also
presented as a Prosecution witness, but his testimony concentrated on the results of the physical
examination he had conducted on Gerald, as borne out by the following portions of his direct
examination, to wit:

FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?

WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia and in this
case, halothane was used as a sole anesthetic agent.

xxxx

Q Now under paragraph two of page 1 of your report you mentioned that after one hour and 45
minutes after the operation, the patient experienced a bradycardia or slowing of heart rate, now as a
doctor, would you be able to tell this Honorable Court as to what cause of the slowing of heart rate
as to Gerald Gercayo?

WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of time
because is some reason one way or another that might caused bradycardia.

FISCAL CABARON What could be the possible reason?

A Well bradycardia can be caused by anesthetic agent itself and that is a possibility, we’re talking
about possibility here.

Q What other possibility do you have in mind, doctor?

A Well, because it was an operation, anything can happen within that situation.

FISCAL CABARON Now, this representation would like to ask you about the slowing of heart rate,
now what is the immediate cause of the slowing of the heart rate of a person?

WITNESS Well, one of the more practical reason why there is slowing of the heart rate is when you
do a vagal reflex in the neck wherein the vagal receptors are located at the lateral part of the neck,
when you press that, you produce the slowing of the heart rate that produce bradycardia.

Q I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of
oxygen by the patient, would that also cause the slowing of the heart rate?

A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or there is
a low oxygen level in the blood, the normal thing for the heart is to pump or to do not a bradycardia
but a … to counter act the Hypoxia that is being experienced by the patient

(sic).

xxxx

Q Now, you made mention also doctor that the use of general anesthesia using 100% halothane and
other anesthetic medications probably were contributory to the production of hypoxia.

A Yes, sir in general sir.41

On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the
anesthesia record and the factors that could have caused Gerald to experience bradycardia, viz:

ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to this
Honorable court your last paragraph and if you will affirm that as if it is correct?

A "The use of General Anesthesia, that is using 100% Halothane probably will be contributory to the
production of Hypoxia and - - - -"

ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?

WITNESS Based on the records, I know the - - -

Q 100%?

A 100% based on the records.

Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly look at
this and tell me where is 100%, the word "one hundred" or 1-0-0, will you kindly look at this Doctor,
this Xerox copy if you can show to this Honorable Court and even to this representation the word
"one hundred" or 1-0-0 and then call me.

xxxx

ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just call
me and even the attention of the Presiding Judge of this Court. Okay, you read one by one.

WITNESS Well, are you only asking 100%, sir?

ATTY. COMIA I’m asking you, just answer my question, did you see there 100% and 100 figures, tell
me, yes or no?

WITNESS I’m trying to look at the 100%, there is no 100% there sir.

ATTY. COMIA Okay, that was good, so you Honor please, may we request also temporarily,
because this is just a xerox copy presented by the fiscal, that the percentage here that the
Halothane administered by Dr. Solidum to the patient is 1% only so may we request that this portion,
temporarily your Honor, we are marking this anesthesia record as our Exhibit 1 and then this 1%
Halothane also be bracketed and the same be marked as our Exhibit "1-A".

xxxx

ATTY. COMIA Doctor, my attention was called also when you said that there are so many factors
that contributed to Hypoxia is that correct?

WITNESS Yes, sir.

Q I remember doctor, according to you there are so many factors that contributed to what you call
hypoxia and according to you, when this Gerald suffered hypoxia, there are other factors that might
lead to this Hypoxia at the time of this operation is that correct?
WITNESS The possibility is there, sir.

Q And according to you, it might also be the result of such other, some or it might be due to
operations being conducted by the doctor at the time when the operation is being done might also
contribute to that hypoxia is that correct?

A That is a possibility also.

xxxx

ATTY. COMIA How will you classify now the operation conducted to this Gerald, Doctor?

WITNESS Well, that is a major operation sir.

Q In other words, when you say major operation conducted to this Gerald, there is a possibility that
this Gerald might [be] exposed to some risk is that correct?

A That is a possibility sir.

Q And which according to you that Gerald suffered hypoxia is that correct?

A Yes, sir.

Q And that is one of the risk of that major operation is that correct?

A That is the risk sir.42

At the continuation of his cross-examination, Dr. Vertido maintained that Gerald’s operation for his
imperforate anus, considered a major operation, had exposed him to the risk of suffering the same
condition.43 He then corrected his earlier finding that 100% halothane had been administered on
Gerald by saying that it should be 100% oxygen.44

Dr. Solidum was criminally charged for "failing to monitor and regulate properly the levels of
anesthesia administered to said Gerald Albert Gercayo and using 100% halothane and other
anesthetic medications."45However, the foregoing circumstances, taken together, did not prove
beyond reasonable doubt that Dr. Solidum had been recklessly imprudent in administering the
anesthetic agent to Gerald. Indeed, Dr. Vertido’s findings did not preclude the probability that other
factors related to Gerald’s major operation, which could or could not necessarily be attributed to the
administration of the anesthesia, had caused the hypoxia and had then led Gerald to experience
bradycardia. Dr. Vertido revealingly concluded in his report, instead, that "although the
anesthesiologist followed the normal routine and precautionary procedures, still hypoxia and its
corresponding side effects did occur."46

The existence of the probability about other factors causing the hypoxia has engendered in the mind
of the Court a reasonable doubt as to Dr. Solidum’s guilt, and moves us to acquit him of the crime of
reckless imprudence resulting to serious physical injuries. "A reasonable doubt of guilt," according to
United States v. Youthsey:47

x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a
doubt engendered merely by sympathy for the unfortunate position of the defendant, or a dislike to
accept the responsibility of convicting a fellow man. If, having weighed the evidence on both sides,
you reach the conclusion that the defendant is guilty, to that degree of certainty as would lead you to
act on the faith of it in the most important and crucial affairs of your life, you may properly convict
him. Proof beyond reasonable doubt is not proof to a mathematical demonstration. It is not proof
beyond the possibility of mistake.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil
liability. But we cannot now find and declare him civilly liable because the circumstances that have
1âw phi 1

been established here do not present the factual and legal bases for validly doing so. His acquittal
did not derive only from reasonable doubt. There was really no firm and competent showing how the
injury to Gerard had been caused. That meant that the manner of administration of the anesthesia
by Dr. Solidum was not necessarily the cause of the hypoxia that caused the bradycardia
experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on
the cause of the hypoxia. We are not allowed to do so, for civil liability must not rest on speculation
but on competent evidence.

Liability of Ospital ng Maynila

Although the result now reached has resolved the issue of civil liability, we have to address the
unusual decree of the RTC, as affirmed by the CA, of expressly holding Ospital ng Maynila civilly
liable jointly and severally with Dr. Solidum. The decree was flawed in logic and in law.

In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with
the criminal action refers only to that arising from the offense charged.48 It is puzzling, therefore, how
the RTC and the CA could have adjudged Ospital ng Maynila jointly and severally liable with Dr.
Solidum for the damages despite the obvious fact that Ospital ng Maynila, being an artificial entity,
had not been charged along with Dr. Solidum. The lower courts thereby acted capriciously and
whimsically, which rendered their judgment against Ospital ng Maynila void as the product of grave
abuse of discretion amounting to lack of jurisdiction.

Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA
overlooked. We deem it important, then, to express the following observations for the instruction of
the Bench and Bar.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to
be heard was not respected from the outset. The R TC and the CA should have been alert to this
fundamental defect. Verily, no person can be prejudiced by a ruling rendered in an action or
proceeding in which he was not made a party. Such a rule would enforce the constitutional
guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be
properly enforceable pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability
seems far-fetched here. The conditions for subsidiary liability to attach to Ospital ng Maynila should
first be complied with. Firstly, pursuant to Article 103 of the Revised Penal Code, Ospital ng Maynila
must be shown to be a corporation "engaged in any kind of industry." The term industry means any
department or branch of art, occupation or business, especially one that employs labor and capital,
and is engaged in industry.49 However, Ospital ng Maynila, being a public hospital, was not engaged
in industry conducted for profit but purely in charitable and humanitarian work.50 Secondly, assuming
that Ospital ng Maynila was engaged in industry for profit, Dr. Solidum must be shown to be an
employee of Ospital ng Maynila acting in the discharge of his duties during the operation on Gerald.
Yet, he definitely was not such employee but a consultant of the hospital. And, thirdly, assuming that
civil liability was adjudged against Dr. Solidum as an employee (which did not happen here), the
execution against him was unsatisfied due to his being insolvent.
WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND SETS
ASIDE the decision promulgated on January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the
crime of reckless imprudence resulting to serious physical injuries; and MAKES no pronouncement
on costs of suit.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 183198 November 25, 2009

LUZ PALANCA TAN, Petitioner,

vs.
JAM TRANSIT, INC., Respondent.

DECISION

NACHURA, J.:

This is a petition for review on certiorari1 under Rule 45 of the Rules of Court, seeking the reversal of
the Decision2dated June 2, 2008 of the Court of Appeals (CA) in CA-G.R. CV No. 89046 and the
reinstatement of the Decision3dated December 20, 2006 of the Regional Trial Court (RTC), Branch
27, Santa Cruz, Laguna in Civil Case No. SC-3838.

The antecedents are as follows—

In her Complaint, petitioner Luz Palanca Tan (Tan) alleged that she was the owner of a passenger-
type jitney with plate number DKF-168. On March 14, 1997, at around 5:00 a.m., the said jitney
figured in an accident at an intersection along Maharlika Highway, Barangay Bangyas, Calauan,
Laguna, as it collided with a JAM Transit passenger bus bound for Manila, bearing plate number
DVG-557 and body number 8030. The bus was driven by Eddie Dimayuga (Dimayuga).

At the time of the collision, Tan’s jitney was loaded with quail eggs and duck eggs (balot and salted
eggs). It was driven by Alexander M. Ramirez (Ramirez). Tan alleged that Dimayuga was reckless,
negligent, imprudent, and not observing traffic rules and regulations, causing the bus to collide with
the jitney which was then, with care and proper light direction signals, about to negotiate a left turn
towards the feeder or barangay road of Barangay Bangyas, Calauan, Laguna going to the
Poblacion. The jitney turned turtle along the shoulder of the road and the cargo of eggs was
destroyed. Ramirez and his helper were injured and hospitalized, incurring expenses for medical
treatment at the Pagamutang Pangmasa in Bay, Laguna. Tan prayed for damages in the amount
of P400,000.00 for the damaged jitney, P142,210.00 for the destroyed shipment, P20,000.00 for
moral damages, attorney’s fees of P20,000.00 plus P1,000.00 per court appearance of counsel, and
other reliefs warranted under the premises.

In its Answer with Counterclaim, respondent JAM Transit, Inc. (JAM) admitted ownership of the
subject passenger bus and that Dimayuga was under its employ. However, it denied the allegations
in the Complaint, and claimed that the accident occurred due to the gross negligence of
Ramirez. As counterclaim, JAM sought payment of P100,000.00 for the damages sustained by the
bus, P100,000.00 for loss of income, and P50,000.00 as attorney’s fees plus P3,000.00 per court
appearance of counsel.

After pretrial, trial on the merits ensued.

Tan proffered testimonial evidence, summarized by the RTC, and quoted by the CA, as follows:

LUZ PALANCA TAN, 47 years old, married, a resident of Sta. Cruz, Laguna and a businesswoman,
testified to the facts stated in the complaint that: She is engaged in the business of nets and ropes,
and egg dealership based [in] Santa Cruz, Laguna. She supplies her products to her customers [in]
San Pablo and Lucena. On March 14, 1997, while at home, she was informed by her husband that
one of their jeepneys, which was loaded with eggs, was bumped by a JAM Transit bus when the
latter overtook the jeepney. The vehicle was driven by one Alexander Ramirez, who has one
"Monching" as a companion. As a result of the accident, she incurred damages in the amount
of P650,000.00 based on the following computation: P400,000.00 as actual damage sustained by
the jeepney, from an estimate (Exhibit "D") furnished by Plantilla Motors; P142,000.00 for the lost
value of the egg shipment, based on a certification issued by the Calauan Police Station;
and P15,000.00, for the hospitalization and treatment of the driver and his companion. The jeepney
is duly registered as evidenced by its registration receipt (Exhibit "G"). On cross examination, she
testified that Ramirez, the jeepney driver when the accident occurred, was under her employ since
1993 and is still working for her.

On redirect, the plaintiff testified that prior to March 13, 1997, the day the accident happened,
Ramirez has not met any vehicular accident and that it was only in the aforestated date when he
figured in one. On re-cross, she testified that she has no knowledge of Ramirez’ prior experience as
a driver. She did not ask Ramirez for his NBI or police clearance prior to her hiring the said driver.
On additional redirect, the plaintiff testified that she is satisfied with the performance of Ramirez as a
driver as he is kind.

ALEXANDER RAMIREZ, 35 years old, married, resident of Sta. Cruz, Laguna, and a driver testified
that: He knows the plaintiff Luz Palanca Tan because she is his manager. He worked for her as a
driver sometime in 1993. He sometimes drove a jeepney or a truck.

On March 13, 1997, at around 4:00 o’clock in the morning, he reported for work at his employer’s
warehouse located [in] Pagsawitan, Sta. Cruz. He got the passenger jeep loaded with salted eggs,
"balot" and quail eggs for delivery to Lucena City upon instruction of Tan. In going to Lucena City, he
chose to drive on the Maharlika Road at San Isidro, Brgy. Bangyas, Calauan, Laguna because it is
better than the road along Brgy. Dayap of the same municipality. However, while at the Maharlika
Road, he met an accident at around 5:00 a.m. The jitney turned turtle.

PO3 DANIEL C. ESCARES, 37 years old, married, resident of Calauan, Laguna, and a member of
PNP-Calauan, Laguna, testified that: He was on police duty as of March 14, 1997. On that day, he
issued a certification (Exhibit "B") pertaining to a vehicular accident which occurred earlier. He came
to know of the accident as relayed to their office by a concerned citizen. He proceeded to the place
of the accident, which was at Maharlika Highway, in an intersection at Brgy. Bangyas, Calauan,
Laguna for an investigation. Upon reaching the place, as a rule followed by police officers, he
inquired from some of the residents about the incident. As relayed to him, the jeepney with Plate No.
168 was going towards the direction of San Isidro, followed by another jeepney, a truck and then by
a JAM Transit bus. The bus overtook the jeepney it was following then side swept the jeepney
(which figured in the accident) dragging it along ("nakaladkad") towards the sampaguita gardens.
[NOTE: The testimony of the witness regarding the information gathered was ordered by the Court to
be deleted.] Then, he went personally to the place where the incident happened.

He stated it was cloudy that day. He described the highway where the incident happened as having
a double straight yellow line which prohibits overtaking on both sides of the road. The said place is
near the intersection of Maharlika Highway and the barangay road leading to Brgy. San Isidro.

On cross examination, he stated he cannot remember if he was with other police officers during the
investigation of the incident but he can recall having interviewed a certain Mercy Ponteiros and one
Rodel, who are both residents of the place.

On redirect, he stated that the witness Mercy Ponteiros is still residing at Brgy. Bangyas[.]

On additional direct examination, he stated that the accident site is still fresh in his mind and he drew
a sketch (Exhibit "F" to "F-7") of the said place. He identified in the sketch the direction of the
highway which leads to Manila and to Sta. Cruz, Laguna. The road, per his approximation, was
about 10 meters wide, with the shoulder about 5 meters except that it was diminished to about 2
meters on account of some encroachment. The highway has a painted crosswalk. It also has a
yellow line without any cut which means no vehicle could overtake from both sides of the road. He
showed in the sketch the spot where the jitney and the bus were at the time of the incident. Shown
the photographs (Exhibits "E" to "E-6"), he stated that they are truly reflective of the scene of the
incident, the damages in both the jeepney and the bus, as of March 13, 1997.

On cross, he stated that what he saw was the situation after the incident. He came to learn of the
accident at around 5:10 in the morning from a report received by their office, as relayed by a
concerned citizen. He remembers that SPO4 Rogelio Medina, now retired, as one of his companions
at the accident site. The site is about a kilometer away from their police station. He can recall the
scene of the incident because of the photographs. The persons he investigated were the jitney
driver, his "pahinante" (helper) and some people in the vicinity. He could not remember the names of
those persons but they were listed in the police blotter.

RODRIGO CONDINO, 38 years old, married, resident of Victoria, Laguna and a mechanic, testified
that: He is a mechanic of Plantilla Motors at Bubucal, Sta. Cruz, Laguna. He knows the plaintiff Luz
Tan as he and his chief (mechanic) repaired the jeepney owned by the latter after it figured in an
accident on March 13, 1997. He came to know of the accident when the said vehicle was brought to
their motor shop. They made an estimate (Exhibit "D") of the damage sustained by the said vehicle,
which amounted to P450,000.00.4

Tan also formally offered as exhibits the following documents:

Exhibit "A" - Articles of Incorporation of JAM Transit, Inc.;

Exhibit "B" - Certification issued by the Calauan Municipal Police Station regarding the
vehicular accident;

Exhibit "C" - PNP-Calauan Police Report regarding the jitney shipment;

Exhibit "D" - Estimate of damages sustained by the jitney, from A. Plantilla Motors Repair
Shop;

Exhibit "E" - Six (6) photographs depicting the site of the vehicular accident;
 Exhibit "F" - Four (4) pages of receipts representing hospital and medical expenses paid by
the plaintiff for injuries sustained by her driver and helper in the accident;

Exhibit "G" - Certificate of Registration of plaintiff’s jitney;

Exhibit "H" - Driver’s license of Eddie Dimayuga, defendant’s bus driver;

Exhibit "I" - Sketch of the site where the vehicular accident occurred.5

On the other hand, JAM offered the following testimonial evidence –

EDGARDO DIMAYUGA, 49 years old, married, resident of Sta. Cruz, Laguna and bus driver of JAM
Transit Inc., testified that: He has been a passenger bus driver since 1983. He was previously
employed with the Batangas Laguna Tayabas Bus Company (BLTB). He was employed with JAM
Transit since 1992. He has a professional driver’s license, D-12-78-008462562.

On March 14, 1997, he reported for work. He met an accident while driving a bus. The other vehicle
involved, a jitney, belongs to Luz Palanca Tan and driven by Alexander Ramirez. The accident
happened along the intersection of Maharlika Highway, Brgy. Bangyas at around 5:00 o’clock in the
morning. He was driving the bus with a speed of 40 km/h when suddenly, a vehicle overtook the bus
from the right side going to Calauan. He was not able to evade the vehicle as there was no way for
him to do so. The front portion of the bus and the mirror were destroyed.

On cross examination, he stated that his route as of March 14, 1997 was Sta. Cruz-Lawton. He
cannot recall the bus conductor who was on Bangyas, Calauan. He stated he was not able to evade
the jitney as there was no way for him to avoid the situation, causing the jitney to be dragged to the
side. Nothing else happened after the bus hit the jeepney. He and other persons took the driver from
the jeepney and brought him to a hospital.

On redirect, he stated that bus conductors change duties every two or three days.6

JAM did not offer any documentary counter-evidence.

Applying the doctrine of res ipsa loquitur, the RTC found the JAM passenger bus driver at fault as he
was then violating a traffic regulation when the collision took place. Thus, the RTC ruled in favor of
Tan and disposed as follows—

WHEREFORE, judgment is hereby rendered against the defendants who are hereby adjudged to
pay the plaintiff jointly and solidarily, the following:

1. actual damages of P142,210.00 for the lost and damaged cargoes; P400,000.00 for the
destroyed jitney; P1,327.00 medical expenses of the jitney driver and his companion, for a
total amount of [P543,537.00];

2. P10,000.00 as moral damages;

3. P10,000.00 as attorney’s fees[;]

4. Costs of suit[.]

SO ORDERED.7
Aggrieved, JAM appealed to the CA. The CA granted the appeal and dismissed the complaint on the
ground that there was nothing on record that supported the RTC’s finding that the JAM passenger
bus was overtaking Tan’s jitney. The CA noted that Ramirez only testified that, on March 14, 1997,
he met an accident at around 5:00 a.m., while transporting eggs along Maharlika Road in San Isidro,
Barangay Bangyas, Calauan, Laguna, causing the jitney he was driving to turn turtle. The CA also
observed that the Certification (Exhibit "B") made no mention that the JAM passenger bus was
overspeeding or that it was overtaking the jitney; and, thus, there was no evidence as to who
between Ramirez and Dimayuga was negligent in connection with the vehicular accident. The CA
held that the doctrine of res ipsa loquitur can only be invoked when direct evidence is nonexistent or
not accessible. It further said that Tan had access to direct evidence as to the precise cause of the
mishap, such that the circumstances of the vehicular accident or the specific act constituting the
supposed negligence of Dimayuga could have been testified to by Ramirez or by the latter’s
companion. The CA concluded that res ipsa loquitur could not apply in this case because the
doctrine does not dispense with the requirement of establishing proof of negligence.

Hence, this petition, with petitioner positing that the doctrine of res ipsa loquitur is applicable given
the circumstances of the case.

Res ipsa loquitur is a Latin phrase that literally means "the thing or the transaction speaks for itself."
It is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or make out a
plaintiff’s prima facie case, and present a question of fact for defendant to meet with an explanation.
Where the thing that caused the injury complained of is shown to be under the management of the
defendant or his servants; and the accident, in the ordinary course of things, would not happen if
those who had management or control used proper care, it affords reasonable evidence -- in the
absence of a sufficient, reasonable and logical explanation by defendant -- that the accident arose
from or was caused by the defendant’s want of care. This rule is grounded on the superior logic of
ordinary human experience, and it is on the basis of such experience or common knowledge that
negligence may be deduced from the mere occurrence of the accident itself. Hence, the rule is
applied in conjunction with the doctrine of common knowledge.8

However, res ipsa loquitur is not a rule of substantive law and does not constitute an independent or
separate ground for liability. Instead, it is considered as merely evidentiary, a mode of proof, or a
mere procedural convenience, since it furnishes a substitute for, and relieves a plaintiff of, the
burden of producing a specific proof of negligence. In other words, mere invocation and application
of the doctrine do not dispense with the requirement of proof of negligence. It is simply a step in the
process of such proof, permitting plaintiff to present, along with the proof of the accident, enough of
the attending circumstances to invoke the doctrine, creating an inference or presumption of
negligence, and thereby placing on defendant the burden of going forward with the proof.9 Still,
before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown:

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

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

defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is
eliminated.10

Was petitioner able to establish the above requisites? We answer in the affirmative. We do not
subscribe to the finding of the CA that petitioner had direct access to the evidence surrounding the
accident, but since she failed to present it, the doctrine would not operate to apply. While Ramirez
took the witness stand, he was only able to testify that he drove along Maharlika Highway in San
Isidro, Barangay Bangyas, Calauan, Laguna, Tan’s passenger jitney loaded with salted eggs, balot
and quail eggs for delivery at around 5:00 a.m. when he met an accident, causing the vehicle to turn
turtle. Obviously, Ramirez had no vivid recollection of how the passenger jitney was actually hit by
the JAM passenger bus. Further, for some unknown reasons, the other possible eyewitnesses to the
mishap were not available to testify. With the dearth of testimonial or direct evidence, should
petitioner now be left without remedy? The answer is NO.

We cannot agree with the CA when it said that how the incident happened could not be established,
neither from the photographs offered in evidence in favor of petitioner, nor from the
Certification11 that quoted an excerpt from the records on the Police Blotter of the Calauan Municipal
Police Station. The CA, likewise, discounted the probative value of the Police Blotter because,
although prepared in the regular performance of official duty, it was not conclusive proof of the truth
of its entries, since police blotters are usually incomplete and inaccurate; and sometimes based on
partial suggestion, inaccurate reporting and hearsay.12

It is worth noting, however, that photographs are in the nature of physical evidence13 -- a mute but
eloquent manifestation of truth ranking high in the hierarchy of trustworthy evidence.14 When duly
verified and shown by extrinsic evidence to be faithful representations of the subject as of the time in
question, they are, in the discretion of the trial court, admissible in evidence as aids in arriving at an
understanding of the evidence, the situation or condition of objects or premises, or the
circumstances of an accident.15

The photographs16 proffered by petitioner indeed depicted the relative positions of her jitney and of
the JAM passenger bus immediately after the accident took place. An examination of the
photographs would readily show that the highway where the accident occurred was marked by two
yellow continuous parallel lines at the center, separating the right lane from the left. Based on
evidence, the JAM passenger bus was moving along the highway towards Manila, and the jitney was
going along the same route, until it was about to turn left to the barangay road towards the
Poblacion. After the incident, the photographs would show that both vehicles were found on the
opposite lane of the highway. The front right portion of the bus was shown to have collided with or hit
the left portion of the jitney with such an impact, causing the latter to turn turtle with extensive
damage, injuring its driver and his companion, and completely destroying its cargo.17

Although the person who took the pictures was not able to testify because he predeceased the trial,
Senior Police Officer II Daniel Escares (Escares) was recalled to the witness stand to authenticate
the said pictures. He testified that the pictures were faithful representations of the circumstances
immediately after the accident.18 Escares also made an appropriately labeled sketch19 of the situation
after the collision, and testified as to the physical circumstances thereof, including the width of the
road and the road shoulder, especially the double yellow lines at the center of the highway.20

As regards police blotters, it should be remembered that although they are of little probative value,
they are nevertheless admitted and considered in the absence of competent evidence to refute the
facts stated therein. Entries in police records made by a police officer in the performance of a duty
especially enjoined by law are prima facie evidence of the facts therein stated, and their probative
value may be either substantiated or nullified by other competent evidence.21 In this case, the
Certification,22 whose entries were adopted from the police blotter of the Calauan Municipal Police
Station, the sketch23 prepared by Escares, and the photographs, taken together would prove that the
jitney and the bus were going along the same way; that the jitney was about to negotiate the
intersection going to the left towards the feeder road in the direction of the Poblacion; and that the
bus hit the left-turning jitney causing the smaller vehicle to turn turtle.
Indeed, no two motor vehicles traversing the same lane of a highway with double yellow center lines
will collide as a matter of course, both ending up on the opposite lane, unless someone is negligent.
Dimayuga was driving the JAM passenger bus which, from the evidence adduced, appears to have
precipitated the collision with petitioner’s jitney. Driving the bus gave Dimayuga exclusive
management and control over it. Despite the claim of JAM to the contrary, no contributory
negligence could be attributed to Ramirez relative to the incident on the basis of the available
evidence. Inevitably, the requisites being present, the doctrine of res ipsa loquitur applies.

We, thus, quote with concurrence the findings of the RTC—

As both parties are asserting claim for the damages each has respectively sustained from the
subject collision, the negligence of either driver of the bus or of the jitney must be shown, and the
burden to prove the negligence, by preponderance of evidence, lies upon both who are alleging the
other’s negligence. Preponderance of evidence is "evidence as a whole which is superior to that of
the defendant {or the other}" [Pacific Banking Employees Organization vs. CA, 286 SCRA 495].

To prove negligence of the bus driver, plaintiff relies heavily upon the testimony of PO3 DANIEL C.
ESCARES, who identified the police report of the incident [Exhibit "B"] as well as the sketch of the
site [Exhibit "I"] and the pictures taken as reflective of the scene of the incident [Exhibits "E" with
sub-markings], invoking [in plaintiff’s memorandum] the application of the doctrine of "res ipsa
loquitor."

From the said exhibits, the plaintiff postulates that her jitney then being driven by Alexander
Ramirez, as well as the bus driven by defendant Dimayuga were heading the same direction
towards Manila, but when the jitney was about to negotiate the left side road intersection towards the
feeder/Barangay road of Brgy. Bangyas, Calauan, Laguna, it was bumped by the
oncoming/overtaking bus driven by Dimayuga, that caused the jitney to turn turtle at the road
shoulder causing damages on the jitney, the cargoes and injuries to the jitney driver and his
companion. It was allegedly improper for the bus to overtake as the road bears a double yellow line
at the middle which prohibits overtaking.

On the other hand, the bus driver who is the lone witness/evidence for the defendant testified he was
driving at the Maharlika Highway at 40 km/hr when the jitney "overtook" from the right and that there
was no way for him to evade the latter so it was dragged to the side [TSN, May 18, 2006, p. 13]. In
its memorandum, defendants postulate that it was the jitney driver who was negligent as it overtook
the bus from the right which is not proper. Plaintiff allegedly could not claim damages for its failure to
prove the bus driver’s negligence, and it was the jitney’s own negligence that is the proximate cause
of his injury.

No direct evidence was presented with respect to the exact road position of the bus and the jitney at
the time of the collision such that the same can only be inferred from the pictures of the colliding
vehicles taken immediately after the incident [Exhibits "E"].

At this juncture, it was established from exhibits "E-5" and "E-6" that the jitney’s left side portion was
directly hit by the front-right portion of the bus. This is consistent with the plaintiff’s theory that the
jitney was then negotiating the left portion of the road when it was hit by the oncoming bus causing
the jitney to have a 90-degree turn around. The bus and the jitney were almost perpendicular to
each other when the collision took place, with the bus directly hitting the jitney head on.

The statement of the bus driver that the jitney "overtook" from the right only presumes that at the
point of collision, the bus was at the left lane of the road overtaking the vehicle/s at the right. This
scenario, in fact, was affirmed by the police report of the incident [Exhibit "B"]. It is not quite logical
that the jitney, in allegedly overtaking the bus from the right came from the right shoulder of the road,
a rough road merely 5 meters in width [Exhibit "F"] and even diminished by two (2) meters because
of the encroachment at the sides [TSN, 11-6-02]. No evidence was shown that the jitney came from
the right shoulder. The jitney then loaded with eggs for delivery, was about to negotiate the left lane
towards the feeder/barangay road intersection, and it would be illogical in such a situation that the
jitney driver would take the right shoulder. The foregoing suggest the fact that the bus overtook the
passing vehicles at the right lane and in the course thereof, the jitney in front that was about to
negotiate the left lane, was hit.24

Verily, although there was no direct evidence that the JAM passenger bus was overtaking the
vehicles running along the right lane of the highway from the left lane, the available evidence readily
points to such fact. There were two continuous yellow lines at the center of the highway, which
meant that no vehicle in the said area should overtake another on either side of the road. The
"double yellow center lines" regulation, which this Court takes judicial notice of as an internationally
recognized pavement regulation, was precisely intended to avoid accidents along highways, such as
what happened in this case. This prohibition finds support in Republic Act (R.A.) No. 4136 (Land
Transportation and Traffic Code), Section 41(e).25 Furthermore, it is observed that the area of
collision was an intersection. Section 41(c)26 of R.A. No. 4136, likewise, prohibits overtaking or
passing any other vehicle proceeding in the same direction at any intersection of highways, among
others. Thus, by overtaking on the left lane, Dimayuga was not only violating the "double yellow
center lines" regulation, but also the prohibition on overtaking at highway intersections.
Consequently, negligence can be attributed only to him, which negligence was the proximate cause
of the injury sustained by petitioner. This prima facie finding of negligence was not sufficiently
rebutted or contradicted by Dimayuga. Therefore, a finding that he is liable for damages to petitioner
is warranted.1avvphi1

The liability of Dimayuga is solidary with JAM, pursuant to Article 2176, in relation to Article 2180 of
the Civil Code of the Philippines, which provides—

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

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.

Whenever an employee’s negligence causes damage or injury to another, there instantly arises a
presumption juris tantum that the employer failed to exercise diligentissimi patris families in the
section (culpa in eligiendo) or supervision (culpa in vigilando) of its employees.27 To avoid liability for
a quasi-delict committed by its employee, an employer must overcome the presumption, by
presenting convincing proof that he exercised the care and diligence of a good father of a family in
the selection and supervision of his employee.28

In this case, aside from the testimony of Dimayuga, JAM did not present any other evidence,
whether documentary or testimonial, in its favor. Inevitably, the presumption of its negligence as
Dimayuga’s employer stands and it is, thus, solidarily liable for the damages sustained by petitioner.

As regards the award for actual damages, we, however, concur with respondent that the award
of P400,000.00 for the damage to the jitney is not warranted, considering that the evidence
submitted to support this claim was merely an estimate made by A. Plantilla Motors. The same
reason holds true with respect to the amount of damages for the destroyed cargo of eggs,
considering that the document submitted by petitioner to support the claim of P142,210.00 was
merely a Certification,29 as the information found thereon was supplied by petitioner herself per the
number of pieces of the different eggs and the corresponding price per piece.

To warrant an award of actual or compensatory damages for repair to damage sustained, the best
evidence should be the receipts or other documentary proofs of the actual amount
expended.30 However, considering that it was duly proven that the jitney was damaged and had to be
repaired, as it was repaired, and that the cargo of eggs was indeed destroyed, but the actual
amounts expended or lost were not proven, we deem it appropriate to award P250,000.00 by way of
temperate damages. Under Article 2224 of the Civil Code, temperate damages may be recovered
when pecuniary loss has been suffered but its amount cannot be proved with certainty.31 We,
however, sustain the trial court’s award of P1,327.00 as regards the medical expenses incurred by
petitioner, the same being duly supported by receipts.32

The award of P10,000.00 as moral damages, P10,000.00 as attorney’s fees, and the costs of suit
are sustained, the same being in order and authorized by law. Although the basis for the award of
attorney’s fees was not indicated in the trial court’s Decision, we deem it justified as petitioner was
compelled to litigate before the courts and incur expenses in order to vindicate her rights under the
premises.33

WHEREFORE, the petition is GRANTED. The Decision dated June 2, 2008 of the Court of Appeals
in CA-G.R. CV No. 89046 is REVERSED and SET ASIDE. The Decision dated December 20, 2006
of the Regional Trial Court, Branch 27, Sta. Cruz, Laguna in Civil Case No. SC-3838 is
REINSTATED with the MODIFICATION that the award of actual damages is reduced to P1,327.00,
and, in lieu of actual damages with respect to the damage or loss sustained with respect to the
passenger jitney and the cargo of eggs, the amount of P250,000.00 is awarded by way of temperate
damages.

SO ORDERED.

SECOND DIVISION

[G.R. No. 130547. October 3, 2000]

LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD

and KRISTINE, all surnamed REYES, represented by their
 mother, LEAH ALESNA REYES, petitioners, vs. SISTERS OF
MERCY HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE
BLANES, and DR. MARLYN RICO,respondents.

DECISION
MENDOZA, J.:

This is a petition for review of the decision[1] of the Court of Appeals in CA-
G.R. CV No. 36551 affirming the decision of the Regional Trial Court, Branch
IX, Cebu City which dismissed a complaint for damages filed by petitioners
against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The
other petitioners, namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all
surnamed Reyes, were their children. Five days before his death on January
8, 1987, Jorge had been suffering from a recurring fever with chills. After he
failed to get relief from some home medication he was taking, which consisted
of analgesic, antipyretic, and antibiotics, he decided to see the doctor.
On January 8, 1987, he was taken to the Mercy Community Clinic by his
wife. He was attended to by respondent Dr. Marlyn Rico, resident physician
and admitting physician on duty, who gave Jorge a physical examination and
took his medical history. She noted that at the time of his admission, Jorge
was conscious, ambulatory, oriented, coherent, and with respiratory
distress.[2] Typhoid fever was then prevalent in the locality, as the clinic had
been getting from 15 to 20 cases of typhoid per month.[3] Suspecting that
Jorge could be suffering from this disease, Dr. Rico ordered a Widal Test, a
standard test for typhoid fever, to be performed on Jorge. Blood count, routine
urinalysis, stool examination, and malarial smear were also made.[4]After about
an hour, the medical technician submitted the results of the test from which
Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was
only up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie
Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the evening. She also
took Jorges history and gave him a physical examination. Like Dr. Rico, her
impression was that Jorge had typhoid fever. Antibiotics being the accepted
treatment for typhoid fever, she ordered that a compatibility test with the
antibiotic chloromycetin be done on Jorge. Said test was administered by
nurse Josephine Pagente who also gave the patient a dose of triglobe. As she
did not observe any adverse reaction by the patient to chloromycetin, Dr.
Blanes ordered the first five hundred milligrams of said antibiotic to be
administered on Jorge at around 9:00 p.m. A second dose was administered
on Jorge about three hours later just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges
temperature rose to 41C. The patient also experienced chills and exhibited
respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him
under oxygen, used a suction machine, and administered hydrocortisone,
temporarily easing the patients convulsions. When he regained
consciousness, the patient was asked by Dr. Blanes whether he had a
previous heart ailment or had suffered from chest pains in the past. Jorge
replied he did not.[5] After about 15 minutes, however, Jorge again started to
vomit, showed restlessness, and his convulsions returned. Dr. Blanes re-
applied the emergency measures taken before and, in addition, valium was
administered. Jorge, however, did not respond to the treatment and slipped
into cyanosis, a bluish or purplish discoloration of the skin or mucous
membrane due to deficient oxygenation of the blood. At around 2:00 a.m.,
Jorge died. He was forty years old. The cause of his death was Ventricular
Arrythemia Secondary to Hyperpyrexia and typhoid fever.
On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu
City a complaint[6]for damages against respondents Sisters of Mercy, Sister
Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine
Pagente. On September 24, 1987, petitioners amended their complaint to
implead respondent Mercy Community Clinic as additional defendant and to
drop the name of Josephine Pagente as defendant since she was no longer
connected with respondent hospital. Their principal contention was that Jorge
did not die of typhoid fever.[7]Instead, his death was due to the wrongful
administration of chloromycetin. They contended that had respondent doctors
exercised due care and diligence, they would not have recommended and
rushed the performance of the Widal Test, hastily concluded that Jorge was
suffering from typhoid fever, and administered chloromycetin without first
conducting sufficient tests on the patients compatibility with said drug. They
charged respondent clinic and its directress, Sister Rose Palacio, with
negligence in failing to provide adequate facilities and in hiring negligent
doctors and nurses.[8]
Respondents denied the charges. During the pre-trial conference, the
parties agreed to limit the issues on the following: (1) whether the death of
Jorge Reyes was due to or caused by the negligence, carelessness,
imprudence, and lack of skill or foresight on the part of defendants; (2)
whether respondent Mercy Community Clinic was negligent in the hiring of its
employees; and (3) whether either party was entitled to damages. The case
was then heard by the trial court during which, in addition to the testimonies of
the parties, the testimonies of doctors as expert witnesses were presented.
Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief
Pathologist at the Northern Mindanao Training Hospital, Cagayan de Oro
City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge
Reyes to determine the cause of his death. However, he did not open the skull
to examine the brain. His findings[9] showed that the gastro-intestinal tract was
normal and without any ulceration or enlargement of the nodules. Dr.
Vacalares testified that Jorge did not die of typhoid fever. He also stated that
he had not seen a patient die of typhoid fever within five days from the onset
of the disease.
For their part, respondents offered the testimonies of Dr. Peter Gotiong
and Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in internal medicine whose
expertise is microbiology and infectious diseases. He is also a consultant at
the Cebu City Medical Center and an associate professor of medicine at the
South Western University College of Medicine in Cebu City. He had treated
over a thousand cases of typhoid patients. According to Dr. Gotiong, the
patients history and positive Widal Test results ratio of 1:320 would make him
suspect that the patient had typhoid fever. As to Dr. Vacalares observation
regarding the absence of ulceration in Jorges gastro-intestinal tract, Dr.
Gotiong said that such hyperplasia in the intestines of a typhoid victim may be
microscopic. He noted that since the toxic effect of typhoid fever may lead to
meningitis, Dr. Vacalares autopsy should have included an examination of the
brain.[10]
The other doctor presented was Dr. Ibarra Panopio, a member of the
American Board of Pathology, examiner of the Philippine Board of Pathology
from 1978 to 1991, fellow of the Philippine Society of Pathologist, associate
professor of the Cebu Institute of Medicine, and chief pathologist of the
Andres Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopio stated that
although he was partial to the use of the culture test for its greater reliability in
the diagnosis of typhoid fever, the Widal Test may also be used. Like Dr.
Gotiong, he agreed that the 1:320 ratio in Jorges case was already the
maximum by which a conclusion of typhoid fever may be made. No additional
information may be deduced from a higher dilution.[11] He said that Dr.
Vacalares autopsy on Jorge was incomplete and thus inconclusive.
On September 12, 1991, the trial court rendered its decision absolving
respondents from the charges of negligence and dismissing petitioners action
for damages. The trial court likewise dismissed respondents counterclaim,
holding that, in seeking damages from respondents, petitioners were impelled
by the honest belief that Jorges death was due to the latters negligence.
Petitioners brought the matter to the Court of Appeals. On July 31, 1997,
the Court of Appeals affirmed the decision of the trial court.
Hence this petition.
Petitioners raise the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR
WHEN IT RULED THAT THE DOCTRINE OF RES IPSA LOQUITUR IS NOT
APPLICABLE IN THE INSTANT CASE.
II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR
WHEN IT MADE AN UNFOUNDED ASSUMPTION THAT THE LEVEL OF
MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.
III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED
FOR A LESSER STANDARD OF CARE AND DEGREE OF DILIGENCE FOR
MEDICAL PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D] NO DOCTORS
NEGLIGENCE IN THE TREATMENT OF JORGE REYES.

Petitioners action is for medical malpractice. This is a particular form of

negligence which consists in the failure of a physician or surgeon to apply to
his practice of medicine that degree of care and skill which is ordinarily
employed by the profession generally, under similar conditions, and in like
surrounding circumstances.[12] In order to successfully pursue such a claim, a
patient must prove that the physician or surgeon either failed to do something
which a reasonably prudent physician or surgeon would have done, or that he
or she did something that a reasonably prudent physician or surgeon would
not have done, and that the failure or action caused injury to the
patient.[13] There are thus four elements involved in medical negligence cases,
namely: duty, breach, injury, and proximate causation.
In the present case, there is no doubt that a physician-patient relationship
existed between respondent doctors and Jorge Reyes. Respondents were
thus duty-bound to use at least the same level of care that any reasonably
competent doctor would use to treat a condition under the same
circumstances. It is breach of this duty which constitutes actionable
malpractice.[14]As to this aspect of medical malpractice, the determination of
the reasonable level of care and the breach thereof, expert testimony is
essential. Inasmuch as the causes of the injuries involved in malpractice
actions are determinable only in the light of scientific knowledge, it has been
recognized that expert testimony is usually necessary to support the
conclusion as to causation.[15]
 Res Ipsa Loquitur

There is a case when expert testimony may be dispensed with, and that is
under the doctrine of res ipsa loquitur. As held in Ramos v. Court of
Appeals:[16]

Although generally, expert medical testimony is relied upon in malpractice suits to

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

Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an operation,
injuries sustained on a healthy part of the body which was not under, or in the area, of
treatment, removal of the wrong part of the body when another part was intended,
knocking out a tooth while a patients jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient was under the influence of anesthetic,
during or following an operation for appendicitis, among others.[17]
 Petitioners asserted in the Court of Appeals that the doctrine of res ipsa
loquitur applies to the present case because Jorge Reyes was merely
experiencing fever and chills for five days and was fully conscious, coherent,
and ambulant when he went to the hospital. Yet, he died after only ten hours
from the time of his admission.
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the application of res ipsa
loquitur were present, namely: (1) the accident was of a kind which does not
ordinarily occur unless someone is negligent; (2) the instrumentality or agency
which caused the injury was under the exclusive control of the person in
charge; and (3) the injury suffered must not have been due to any voluntary
action or contribution of the person injured.[18]
The contention is without merit. We agree with the ruling of the Court of
Appeals. In the Ramos case, the question was whether a surgeon, an
anesthesiologist, and a hospital should be made liable for the comatose
condition of a patient scheduled for cholecystectomy.[19] In that case, the
patient was given anesthesia prior to her operation. Noting that the patient
was neurologically sound at the time of her operation, the Court applied the
doctrine of res ipsa loquitur as mental brain damage does not normally occur in a
gallblader operation in the absence of negligence of the
anesthesiologist. Taking judicial notice that anesthesia procedures had
become so common that even an ordinary person could tell if it was
administered properly, we allowed the testimony of a witness who was not an
expert. In this case, while it is true that the patient died just a few hours after
professional medical assistance was rendered, there is really nothing unusual
or extraordinary about his death. Prior to his admission, the patient already
had recurring fevers and chills for five days unrelieved by the analgesic,
antipyretic, and antibiotics given him by his wife. This shows that he had been
suffering from a serious illness and professional medical help came too late
for him.
Respondents alleged failure to observe due care was not immediately
apparent to a layman so as to justify application of res ipsa loquitur. The
question required expert opinion on the alleged breach by respondents of the
standard of care required by the circumstances. Furthermore, on the issue of
the correctness of her diagnosis, no presumption of negligence can be applied
to Dr. Marlyn Rico. As held in Ramos:

. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a
rule to be cautiously applied, depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases where a layman is able to say, as
a matter of common knowledge and observation, that the consequences of
professional care were not as such as would ordinarily have followed if due care had
been exercised. A distinction must be made between the failure to secure results, and
the occurrence of something more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or a surgeon which involves the merits of a
diagnosis or of a scientific treatment. The physician or surgeon is not required at his
peril to explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result.[20]

Specific Acts of Negligence

We turn to the question whether petitioners have established specific acts

of negligence allegedly committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied
upon the Widal test, diagnosed Jorges illness as typhoid fever, and
immediately prescribed the administration of the antibiotic
chloromycetin; and (2) Dr. Marvie Blanes erred in ordering the
[21]

administration of the second dose of 500 milligrams of chloromycetin barely

three hours after the first was given.[22] Petitioners presented the testimony of
Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao Training
Hospital, Cagayan de Oro City, who performed an autopsy on the body of
Jorge Reyes. Dr. Vacalares testified that, based on his findings during the
autopsy, Jorge Reyes did not die of typhoid fever but of shock undetermined,
which could be due to allergic reaction or chloromycetin overdose. We are not
persuaded.
First. While petitioners presented Dr. Apolinar Vacalares as an expert
witness, we do not find him to be so as he is not a specialist on infectious
diseases like typhoid fever.Furthermore, although he may have had extensive
experience in performing autopsies, he admitted that he had yet to do one on
the body of a typhoid victim at the time he conducted the postmortem on
Jorge Reyes. It is also plain from his testimony that he has treated only about
three cases of typhoid fever. Thus, he testified that:[23]
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid
fever?
 A In autopsy. But, that was when I was a resident physician yet.
Q But you have not performed an autopsy of a patient who died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen a patient who died of typhoid fever within five
days?
A I have not seen one.
Q How many typhoid fever cases had you seen while you were in the general practice of
medicine?
A In our case we had no widal test that time so we cannot consider that the typhoid fever is
like this and like that. And the widal test does not specify the time of the typhoid fever.
Q The question is: how many typhoid fever cases had you seen in your general practice
regardless of the cases now you practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico erred in her
diagnosis. Both lower courts were therefore correct in discarding his
testimony, which is really inadmissible.
In Ramos, the defendants presented the testimony of a pulmonologist to
prove that brain injury was due to oxygen deprivation after the patient had
bronchospasms[24] triggered by her allergic response to a drug,[25] and not due
to faulty intubation by the anesthesiologist. As the issue was whether the
intubation was properly performed by an anesthesiologist, we rejected the
opinion of the pulmonologist on the ground that he was not: (1) an
anesthesiologist who could enlighten the court about anesthesia practice,
procedure, and their complications; nor (2) an allergologist who could properly
advance expert opinion on allergic mediated processes; nor (3) a
pharmacologist who could explain the pharmacologic and toxic effects of the
drug allegedly responsible for the bronchospasms.
Second. On the other hand, the two doctors presented by respondents
clearly were experts on the subject. They vouched for the correctness of Dr.
Marlyn Ricos diagnosis. Dr. Peter Gotiong, a diplomate whose specialization
is infectious diseases and microbiology and an associate professor at the
Southwestern University College of Medicine and the Gullas College of
Medicine, testified that he has already treated over a thousand cases of
typhoid fever.[26] According to him, when a case of typhoid fever is suspected,
the Widal test is normally used,[27]and if the 1:320 results of the Widal test on
Jorge Reyes had been presented to him along with the patients history, his
impression would also be that the patient was suffering from typhoid
fever.[28] As to the treatment of the disease, he stated that chloromycetin was
the drug of choice.[29] He also explained that despite the measures taken by
respondent doctors and the intravenous administration of two doses of
chloromycetin, complications of the disease could not be discounted. His
testimony is as follows:[30]
ATTY. PASCUAL:
Q If with that count with the test of positive for 1 is to 320, what treatment if any would be
given?
A If those are the findings that would be presented to me, the first thing I would consider
would be typhoid fever.
Q And presently what are the treatments commonly used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after you have administered chloramphenical about 3
1/2 hours later, the patient associated with chills, temperature - 41oC, what could
possibly come to your mind?
A Well, when it is change in the clinical finding, you have to think of complication.
Q And what will you consider on the complication of typhoid?
A One must first understand that typhoid fever is toximia. The problem is complications are
caused by toxins produced by the bacteria . . . whether you have suffered complications
to think of -- heart toxic myocardities; then you can consider a toxic meningitis and other
complications and perforations and bleeding in the ilium.
Q Even that 40-year old married patient who received medication of chloromycetin of 500
milligrams intravenous, after the skin test, and received a second dose of chloromycetin
of 500 miligrams, 3 hours later, the patient developed chills . . . rise in temperature to
41oC, and then about 40 minutes later the temperature rose to 100oF, cardiac rate of 150
per minute who appeared to be coherent, restless, nauseating, with seizures: what
significance could you attach to these clinical changes?
A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis
because of the high cardiac rate.
Q Even if the same patient who, after having given intramuscular valium, became conscious
and coherent about 20 minutes later, have seizure and cyanosis and rolling of eyeballs
and vomitting . . . and death: what significance would you attach to this development?
A We are probably dealing with typhoid to meningitis.
Q In such case, Doctor, what finding if any could you expect on the post-mortem
examination?
A No, the finding would be more on the meninges or covering of the brain.
 Q And in order to see those changes would it require opening the skull?
A Yes.

As regards Dr. Vacalares finding during the autopsy that the deceaseds
gastro-intestinal tract was normal, Dr. Rico explained that, while
hyperplasia[31] in the payers patches or layers of the small intestines is present
in typhoid fever, the same may not always be grossly visible and a
microscope was needed to see the texture of the cells.[32]
Respondents also presented the testimony of Dr. Ibarra T. Panopio who is
a member of the Philippine and American Board of Pathology, an examiner of
the Philippine Board of Pathology, and chief pathologist at the MetroCebu
Community Hospital, Perpetual Succor Hospital, and the Andres Soriano Jr.
Memorial Medical Center. He stated that, as a clinical pathologist, he
recognized that the Widal test is used for typhoid patients, although he did not
encourage its use because a single test would only give a presumption
necessitating that the test be repeated, becoming more conclusive at the
second and third weeks of the disease.[33] He corroborated Dr. Gotiongs
testimony that the danger with typhoid fever is really the possible
complications which could develop like perforation, hemorrhage, as well as
liver and cerebral complications.[34] As regards the 1:320 results of the Widal
test on Jorge Reyes, Dr. Panopio stated that no additional information
could be obtained from a higher ratio.[35] He also agreed with Dr. Gotiong that
hyperplasia in the payers patches may be microscopic.[36]
Indeed, the standard contemplated is not what is actually the average
merit among all known practitioners from the best to the worst and from the
most to the least experienced, but the reasonable average merit among the
ordinarily good physicians.[37] Here, Dr. Marlyn Rico did not depart from the
reasonable standard recommended by the experts as she in fact observed the
due care required under the circumstances. Though the Widal test is not
conclusive, it remains a standard diagnostic test for typhoid fever and, in the
present case, greater accuracy through repeated testing was rendered
unobtainable by the early death of the patient. The results of the Widal test
and the patients history of fever with chills for five days, taken with the fact
that typhoid fever was then prevalent as indicated by the fact that the clinic
had been getting about 15 to 20 typhoid cases a month, were sufficient to give
upon any doctor of reasonable skill the impression that Jorge Reyes had
typhoid fever.
Dr. Rico was also justified in recommending the administration of the drug
chloromycetin, the drug of choice for typhoid fever. The burden of proving that
Jorge Reyes was suffering from any other illness rested with the
petitioners. As they failed to present expert opinion on this, preponderant
evidence to support their contention is clearly absent.
Third. Petitioners contend that respondent Dr. Marvie Blanes, who took
over from Dr. Rico, was negligent in ordering the intravenous administration of
two doses of 500 milligrams of chloromycetin at an interval of less than three
hours. Petitioners claim that Jorge Reyes died of anaphylactic shock [38] or
possibly from overdose as the second dose should have been administered
five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by
the Court of Appeals, however:

That chloromycetin was likewise a proper prescription is best established by medical

authority. Wilson, et. al., in Harrisons Principle of Internal Medicine, 12th ed. write
that chlorampenicol (which is the generic of chloromycetin) is the drug of choice for
typhoid fever and that no drug has yet proven better in promoting a favorable clinical
response. Chlorampenicol (Chloromycetin) is specifically indicated for bacterial
meningitis, typhoid fever, rickettsial infections, bacteriodes infections, etc. (PIMS
Annual, 1994, p. 211) The dosage likewise including the first administration of five
hundred milligrams (500 mg.) at around nine oclock in the evening and the second
dose at around 11:30 the same night was still within medically acceptable limits,
since the recommended dose of chloromycetin is one (1) gram every six (6)
hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society, Committee
on Therapeutics and Toxicology, 1996). The intravenous route is likewise correct.
(Mansser, ONick, Pharmacology and Therapeutics) Even if the test was not
administered by the physician-on-duty, the evidence introduced that it was Dra.
Blanes who interpreted the results remain uncontroverted. (Decision, pp. 16-17) Once
more, this Court rejects any claim of professional negligence in this regard.

....

As regards anaphylactic shock, the usual way of guarding against it prior to the
administration of a drug, is the skin test of which, however, it has been observed: Skin
testing with haptenic drugs is generally not reliable. Certain drugs cause nonspecific
histamine release, producing a weal-and-flare reaction in normal
individuals. Immunologic activation of mast cells requires a polyvalent allergen, so a
negative skin test to a univalent haptenic drug does not rule out anaphylactic
sensitivity to that drug. (Terr, Anaphylaxis and Urticaria in Basic and Clinical
Immunology, p. 349) What all this means legally is that even if the deceased suffered
from an anaphylactic shock, this, of itself, would not yet establish the negligence of
the appellee-physicians for all that the law requires of them is that they perform the
standard tests and perform standard procedures. The law cannot require them to
predict every possible reaction to all drugs administered. The onus probandi was on
the appellants to establish, before the trial court, that the appellee-physicians ignored
standard medical procedure, prescribed and administered medication with
recklessness and exhibited an absence of the competence and skills expected of
general practitioners similarly situated.[39]

Fourth. Petitioners correctly observe that the medical profession is one

which, like the business of a common carrier, is affected with public
interest. Moreover, they assert that since the law imposes upon common
carriers the duty of observing extraordinary diligence in the vigilance over the
goods and for the safety of the passengers,[40] physicians and surgeons should
have the same duty toward their patients.[41] They also contend that the Court
of Appeals erred when it allegedly assumed that the level of medical practice
is lower in Iligan City, thereby reducing the standard of care and degree of
diligence required from physicians and surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to common
carriers. The Civil Code provides:

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 the
circumstances of each case. . . .

The practice of medicine is a profession engaged in only by qualified

individuals. It is a right earned through years of education, training, and by first
obtaining a license from the state through professional board
examinations. Such license may, at any time and for cause, be revoked by the
government. In addition to state regulation, the conduct of doctors is also
strictly governed by the Hippocratic Oath, an ancient code of discipline and
ethical rules which doctors have imposed upon themselves in recognition and
acceptance of their great responsibility to society. Given these safeguards,
there is no need to expressly require of doctors the observance of
extraordinary diligence. As it is now, the practice of medicine is already
conditioned upon the highest degree of diligence. And, as we have already
noted, the standard contemplated for doctors is simply the reasonable
average merit among ordinarily good physicians. That is reasonable diligence
for doctors or, as the Court of Appeals called it, the reasonable skill and
competence . . . that a physician in the same or similar locality . . . should
apply.
WHEREFORE, the instant petition is DENIED and the decision of the
Court of Appeals is AFFIRMED.
 SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

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

Ross, Selph, Carrascoso and Janda for the respondents.

Bernabe Africa, etc. for the petitioners.

MAKALINTAL., J.:

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

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

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

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

1. Police Department report: —

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

2. The Fire Department report: —

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

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

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

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

On the second point, although Detective Capacillo did take the witness stand, he was not examined
and he did not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta).
All he said was that he was one of those who investigated "the location of the fire and, if possible,
gather witnesses as to the occurrence, and that he brought the report with him. There was nothing,
therefore, on which he need be cross-examined; and the contents of the report, as to which he did
not testify, did not thereby become competent evidence. And even if he had testified, his testimony
would still have been objectionable as far as information gathered by him from third persons was
concerned.

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

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

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

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

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

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

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

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

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

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

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

Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was
leased to the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934,
during the term of the lease, while gasoline was being transferred from the tank wagon, also
operated by the Shell Petroleum Corporation, to the underground tank of the station, a fire
started with resulting damages to the building owned by Jones. Alleging that the damages to
his building amounted to $516.95, Jones sued the Shell Petroleum Corporation for the
recovery of that amount. The judge of the district court, after hearing the testimony,
concluded that plaintiff was 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. 1äwphï1.ñët

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

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

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

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

Predicated on these circumstances and the further circumstance of defendant's failure to

explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff has
evoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.

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

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

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

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

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

until

gasoline

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

Furthermore, aside from precautions already taken by its operator the concrete walls south
and west adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid
the flames from leaping over it in case of fire.
 Records show that there have been two cases of fire which caused not only material
damages but desperation and also panic in the neighborhood.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 73998 November 14, 1988

PEDRO T. LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS MULTI-
INDEMNITY CORPORATION, respondents.

Edralin S. Mateo for petitioner.

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

Roberto T. Vallarta for respondent Godofredo Isidro.

SARMIENTO, J.:

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

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

xxx xxx xxx

Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that
on May 15, 1979 while at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a
companion were repairing the tire of their cargo truck with Plate No. SU-730 which
was parked along the right side of the National Highway; that defendant's truck
bearing Plate No. PW-583, driven recklessly by Daniel Serrano bumped the plaintiff,
that as a result, plaintiff was injured and hospitalized at Dr. Paulino J. Garcia
Research and Medical Center and the Our Lady of Lourdes Hospital; that he spent
TEN THOUSAND PESOS (Pl0,000.00) and will incur more expenses as he
recuperates from said injuries; that because of said injuries he would be deprived of
a lifetime income in the sum of SEVENTY THOUSAND PESOS (P70,000.00); and
that he agreed to pay his lawyer the sum of TEN THOUSAND PESOS (Pl0,000.00).

As prayed for by the plaintiffs counsel, the Court declared the defendant in default on
October 12, 1979, and plaintiff's evidence was received ex-parte on January 11,
1978 and February 19, 1980. The decision on behalf of the plaintiff was set aside to
give a chance to the defendant to file his answer and later on, a third-party complaint.

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

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

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

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

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

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

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

xxx xxx xxx

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

WHEREFORE, premises considered, the defendant is hereby ordered:

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

compensatory damages;

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

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

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

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

compensatory damages; and

b) The costs of this suit.

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

Hence, this petition.

The petitioner alleges the following errors. 8

1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE APPELLATE

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

2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN

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

The crux of the controversy lies in the correctness or error of the decision of the respondent court
finding the petitioner negligent under the doctrine of Res ipsa loquitur (The thing speaks for
itself). Corollary thereto, is the question as to who is negligent, if the doctrine is inapplicable.
<äre||anº•1àw>

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

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

1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2) the
inference made is manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment is
based on misapprehension of facts; 5) the Court of Appeals went beyond the issues of the case if
the findings are contrary to the admission of both the appellant and the appellee; 6) the findings of
the Court of Appeals are contrary to those of the trial court; 7) the said findings of fact are
conclusions without citation of specific evidence on which they are based; 8) the facts set forth in the
petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and
9) when the findings of fact of the Court of Appeals are premised on the absence of evidence and
are contradicted on record.

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

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

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

We now come to the merits of this petition.

The question before us is who was negligent? Negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent and reasonable man would not do 24 or
as Judge Cooley defines it, "(T)he failure to observe for the protection of the interests of another person,
that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such
other person suffers injury. 25
In Picart vs. Smith, 26 decided more than seventy years ago but still a sound rule, we held:

The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the situation before him. The
Law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that.

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

Respondent Isidro's contention is untenable.

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

Question No. 8 (by Patrolman Josefino Velasco)—Will you narrate to me in brief how
the accident happens (sic) if you can still remember?

Answer: (by Daniel Serrano)

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

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

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

The respondent court ruled: 32

xxx xxx xxx

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

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

xxx xxx xxx

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

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

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

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

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

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

The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil
Code. In the latter, when an injury is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on the part of the master or employer
either in the selection of the servant or employee, or in supervision over him after selection, or both.
Such presumption is juris tantum and not juris et de jure and consequently, may be rebutted. If
follows necessarily that if the employer shows to the satisfaction of the court that in the selection and
in the supervision he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability. 45 In disclaiming liability for the incident, the
private respondent stresses that the negligence of his employee has already been adequately overcome
by his driver's statement that he knew his responsibilities as a driver and that the truck owner used to
instruct him to be careful in driving. 46

We do not agree with the private respondent in his submission. In the first place, it is clear that the
driver did not know his responsibilities because he apparently did not check his vehicle before he
took it on the road. If he did he could have discovered earlier that the brake fluid pipe on the right
was cut, and could have repaired it and thus the accident could have been avoided. Moveover, to
our mind, the fact that the private respondent used to intruct his driver to be careful in his driving,
that the driver was licensed, and the fact that he had no record of any accident, as found by the
respondent court, are not sufficient to destroy the finding of negligence of the Regional Trial Court
given the facts established at the trial 47 The private respondent or his mechanic, who must be
competent, should have conducted a thorough inspection of his vehicle before allowing his driver to drive
it. In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove that the
diligence of a good father of a family in the supervision of his employees which would exculpate him from
solidary liability with his driver to the petitioner. But even if we concede that the diligence of a good father
of a family was observed by Isidro in the supervision of his driver, there is not an iota of evidence on
record of the observance by Isidro of the same quantum of diligence in the supervision of his mechanic, if
any, who would be directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is
not all. There is paucity of proof that Isidro exercised the diligence of a good father of a family in the
selection of his driver, Daniel Serrano, as well as in the selection of his mechanic, if any, in order to insure
the safe operation of his truck and thus prevent damage to others. Accordingly, the responsibility of Isidro
as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased.

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

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 104408 June 21, 1993

METRO MANILA TRANSIT CORPORATION, petitioner,

vs.
THE COURT OF APPEALS AND NENITA CUSTODIA, respondents.

Office of the Government Corporate Counsel for petitioner.

Renato P. Decena and Restituto Abjero for private respondent.

REGALADO, J.:

This appeal calls for a review of the legal validity and sufficiency of petitioner's invocation of due
diligence in the selection and supervision of employees as its defense against liability resulting from
a vehicular collision. With the facility by which such a defense can be contrived and our country
having reputedly the highest traffic accident rate in its geographical region, it is indeed high time for
us to once again address this matter which poses not only a litigation issue for the courts but affects
the very safety of our streets.

The facts of the case at bar are recounted for us by respondent court, thus —

At about six o'clock in the morning of August 28, 1979, plaintiff-appellant Nenita
Custodio boarded as a paying passenger a public utility jeepney with plate No. D7
305 PUJ Pilipinas 1979, then driven by defendant Agudo Calebag and owned by his
co-defendant Victorino Lamayo, bound for her work at Dynetics Incorporated located
in Bicutan, Taguig, Metro Manila, where she then worked as a machine operator
earning P16.25 a day. While the passenger jeepney was travelling at (a) fast clip
along DBP Avenue, Bicutan, Taguig, Metro Manila another fast moving vehicle, a
 Metro Manila Transit Corp. (MMTC, for short) bus bearing plate no. 3Z 307 PUB
(Philippines) "79 driven by defendant Godofredo C. Leonardo was negotiating
Honeydew Road, Bicutan, Taguig, Metro Manila bound for its terminal at Bicutan. As
both vehicles approached the intersection of DBP Avenue and Honeydew Road they
failed to slow down and slacken their speed; neither did they blow their horns to warn
approaching vehicles. As a consequence, a collision between them occurred, the
passenger jeepney ramming the left side portion of the MMTC bus. The collision
impact caused plaintiff-appellant Nenita Custodio to hit the front windshield of the
passenger jeepney and (she) was thrown out therefrom, falling onto the pavement
unconscious with serious physical injuries. She was brought to the Medical City
Hospital where she regained consciousness only after one (1) week. Thereat, she
was confined for twenty-four (24) days, and as a consequence, she was unable to
work for three and one half months (31/2). 1

A complaint for damages 2 was filed by herein private respondent, who being then a minor was assisted
by her parents, against all of therein named defendants following their refusal to pay the expenses
incurred by the former as a result of the collision.

Said defendants denied all the material allegations in the complaint and pointed an accusing finger
at each other as being the party at fault. Further, herein petitioner Metro Manila Transit Corporation
(MMTC), a government-owned corporation and one of the defendants in the court a quo, along with
its driver, Godofredo Leonardo, contrarily averred in its answer with cross-claim and
counterclaim 3 that the MMTC bus was driven in a prudent and careful manner by driver Leonardo and
that it was the passenger jeepney which was driven recklessly considering that it hit the left middle portion
of the MMTC bus, and that it was defendant Lamayo, the owner of the jeepney and employer of driver
Calebag, who failed to exercise due diligence in the selection and supervision of employees and should
thus be held solidarily liable for damages caused to the MMTC bus through the fault and negligence of its
employees.

Defendant Victorino Lamayo, for his part, alleged in his answer with cross-claim and
counterclaim 4 that the damages suffered by therein plaintiff should be borne by defendants MMTC and
its driver, Godofredo Leonardo, because the latter's negligence was the sole and proximate cause of the
accident and that MMTC failed to exercise due diligence in the selection and supervision of its
employees.

By order of the trial court, defendant Calebag was declared in default for failure to file an
answer. 5 Thereafter, as no amicable settlement was reached during the pre-trial conference, 6 trial on the
merits ensued with the opposing parties presenting their respective witnesses and documentary
evidence.

Herein private respondent Nenita Custodia, along with her parents, were presented as witnesses for
the prosecution. In addition, Dr. Edgardo del Mundo, the attending physician, testified on the cause,
nature and extent of the injuries she sustained as a result of the vehicular mishap. 7 On the other
hand, defendant MMTC presented as witnesses Godofredo Leonardo, Christian Bautista and Milagros
Garbo. Defendant Lamayo, however, failed to present any witness.

Milagros Garbo testified that, as a training officer of MMTC, she was in charge of the selection of the
company's bus drivers, conducting for this purpose a series of training programs and examinations.
According to her, new applicants for job openings at MMTC are preliminarily required to submit
certain documents such as National Bureau of Investigation (NBI) clearance, birth or residence
certificate, ID pictures, certificate or diploma of highest educational attainment, professional driver's
license, and work experience certification. Re-entry applicants, aside from the foregoing
requirements, are additionally supposed to submit company clearance for shortages and damages
and revenue performance for the preceding year. Upon satisfactory compliance with said requisites,
applicants are recommended for and subjected to a Preliminary interview, followed by a record
check to find out whether they are included in the list of undesirable employees given by other
companies.

Thereafter, she continued, if an applicant is found to be acceptable, a final interview by the Chief
Supervisor is scheduled and followed by a training program which consists of seminars and actual
driving and Psycho-physical tests and X-ray examinations. The seminars, which last for a total of
eighteen (18) days, include familiarization with assigned routes, existing traffic rules and regulations,
Constabulary Highway Patrol Group (CHPG) seminar on defensive driving, preventive maintenance,
proper vehicle handling, interpersonal relationship ,and administrative rules on discipline and on-the-
job training. Upon completion of all the seminars and tests, a final clearance is issued, an
employment contract is executed and the driver is ready to report for duty. 8

MMTC's Transport Supervisor, Christian Bautista, testified that it was his duty to monitor the daily
operation of buses in the field, to countercheck the dispatcher on duty prior to the operation of the
buses in the morning and to see to it that the bus crew follow written guidelines of the company,
which include seeing to it that its employees are in proper uniform, briefed in traffic rules and
regulations before the start of duty, fit to drive and, in general, follow other rules and regulations of
the Bureau of Land Transportation as well as of the company. 9

The reorganized trial court, in its decision of August 1, 1989, 10 found both drivers of the colliding
vehicles concurrently negligent for non-observance of appropriate traffic rules and regulations and for
failure to take the usual precautions when approaching an intersection. As joint tortfeasors, both drivers,
as well as defendant Lamayo, were held solidarily liable for damages sustained by plaintiff Custodio.
Defendant MMTC, on the bases of the evidence presented was, however, absolved from liability for the
accident on the ground that it was not only careful and diligent in choosing and screening applicants for
job openings but was also strict and diligent in supervising its employees by seeing to it that its
employees were in proper uniforms, briefed in traffic rules and regulations before the start of duty, and
that it checked its employees to determine whether or not they were positive for alcohol and followed
other rules and regulations and guidelines of the Bureau of Land Transportation and of the company.

The trial court accordingly ruled:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered dismissing

the complaint against the Metro Manila Transit Corporation and ordering defendants
Agudo P. Calebag, Victorino Lamayo and Godofredo C. Leonardo to pay plaintiffs,
jointly and severally, the following:

a) the sum of P10,000.00 by way of medical expenses;

b) the sum of P5,000.00 by way of expenses of litigation;

c) the sum of P15,000.00 by way of moral damages;

d) the sum of P2,672.00 by way of loss of earnings;

e) the sum of P5,000.00 by way of exemplary damages;

f) the sum of P6,000.00 by way of attorney's fees; and

g) costs of suit.
 SO ORDERED. 11

Plaintiff's motion to have that portion of the trial court's decision absolving MMTC from liability
reconsidered 12having been denied for lack of merit, 13 an appeal was filed by her with respondent
appellate court. After consideration of the appropriate pleadings on appeal and finding the appeal
meritorious, the Court of Appeals modified the trial court's decision by holding MMTC solidarily liable with
the other defendants for the damages awarded by the trial court because of their concurrent negligence,
concluding that while there is no hard and fast rule as to what constitutes sufficient evidence to prove that
an employer has exercised the due diligence required of it in the selection and supervision of its
employees, based on the quantum of evidence adduced the said appellate court was not disposed to say
that MMTC had exercised the diligence required of a good father of a family in the selection and
supervision of its driver, Godofredo Leonardo. 14

The Court of Appeals was resolute in its conclusion and denied the motions for reconsideration of
appellee Custodio and appellant MMTC in a resolution dated February 17, 1982, 15 thus prompting
MMTC to file the instant petition invoking the review powers of this Court over the decision of the Court of
Appeals, raising as issues for resolution whether or not (1) the documentary evidence to support the
positive testimonies of witnesses Garbo and Bautista are still necessary; (2) the testimonies of witnesses
Garbo and Bautista may still be disturbed on appeal; and (3) the evidence presented during the trial with
respect to the proof of due diligence of petitioner MMTC in the selection and supervision of its employees,
particularly driver Leonardo, is sufficient.

Prefatorily, private respondent questions the timeliness of the filing of the petition at bar in view of
the procedural stricture that the timely perfection of an appeal is both a mandatory and jurisdictional
requirement. This is a legitimate concern on the part of private respondent and presents an
opportune occasion to once again clarify this point as there appears to be some confusion in the
application of the rules and interpretative rulings regarding the computation of reglementary periods
at this stage of the proceedings.

The records of this case reveal that the decision of respondent Court of Appeals, dated October 31,
1991, was received by MMTC on November 18, 1991 16 and it seasonably filed a motion for the
reconsideration thereof on November 28, 1991. 17 Said motion for reconsideration was denied by
respondent court in its resolution dated February 17, 1992, which in turn was received by MMTC on
March 9, 1992. 18 Therefore, it had, pursuant to Section 1, Rule 45 of the Rules of Court, fifteen (15) days
therefrom or up to March 24, 1992 within which to file its petition, for review on certiorari. Anticipating,
however, that it may not be able to file said petition before the lapse of the reglementary period therefor,
MMTC filed a motion on March 19, 1992 for an extension of thirty (30) days to file the present petition,
with proof of service of copies thereof to respondent court and the adverse parties. The Court granted
said motion, with the extended period to be counted from the expiration of the reglementary
period. 19 Consequently, private respondent had thirty (30) days from March 24, 1992 within which to file
its petition, or up to April 23, 1992, and the eventual filing of said petition on April 14, 1992 was well within
the period granted by the Court.

We digress to reiterate, in view of erroneous submissions that we continue to receive, that in the
case of a petition for review on certiorari from a decision rendered by the Court of Appeals, Section
1, Rule 45 of the Rules of Court, which has long since been clarified in Lacsamana vs. The Hon.
Second Special Cases Division of the Intermediate Appellate Court, et al., 20 allows the same to be
filed "within fifteen (15) days from notice of judgment or of the denial of the motion for reconsideration
filed in due time, and paying at the same time to the corresponding docket fee." In other words, in the
event a motion for reconsideration is filed and denied, the period of fifteen (15) days begins to run all over
again from notice of the denial resolution. Otherwise put, if a motion for reconsideration is filed, the
reglementary period within which to appeal the decision of the Court of Appeals to the Supreme Court is
reckoned from the date the party who intends to appeal received the order denying the motion for
reconsideration. 21 Furthermore, a motion for extension of time to file a petition for review may be filed
with this Court within said reglementary period, paying at the same time the corresponding docket fee.

1. The first two issues raised by petitioner shall be correlatively discussed in view of their
interrelation.

In its present petition, MMTC insists that the oral testimonies of its employees were presented as
witnesses in its behalf sufficiently prove, even without the presentation documentary evidence, that
driver Leonardo had complied with all the hiring and clearance requirements and had undergone all
trainings, tests and examinations preparatory to actual employment, and that said positive
testimonies spell out the rigid procedure for screening of job applicants and the supervision of its
employees in the field. It underscored the fact that it had indeed complied with the measure of
diligence in the selection and supervision of its employees as enunciated in Campo, et al. vs.
Camarote, et al. 22 requiring an employer, in the exercise of the diligence of a good father of a family, to
carefully examine the applicant for employment as to his qualifications, experience and record service,
and not merely be satisfied with the possession of a professional driver's license.

It goes on to say since the testimonies of these witnesses were allegedly neither discredited nor
impeached by the adverse party, they should be believed and not arbitrarily disregarded or rejected
nor disturbed on appeal. It assiduously argues that inasmuch as there is no law requiring that facts
alleged by petitioner be established by documentary evidence, the probative force and weight of
their testimonies should not be discredited, with the further note that the lower court having passed
upon the relevancy of the oral testimonies and considered the same as unrebutted, its consideration
should no longer be disturbed on appeal. 23

Private respondent, on the other hand, retorts that the factual findings of respondent court are
conclusive upon the High Court which cannot be burdened with the task of analyzing and weighing
the evidence all over again. 24

At this juncture, it suffices to note that factual findings of the trial court may be reversed by the Court
of Appeals, which is vested by law with the power to review both legal and factual issues, if on the
evidence of record, it appears that the trial court may have been mistaken 25 particularly in the
appreciation of evidence, which is within the domain of the Court of Appeals. 26 The general rule laid
down in a plethora of cases is that such findings of fact by the Court of Appeals are conclusive upon and
beyond the power of review of the Supreme Court. 27 However, it is now well-settled that while the
findings of fact of the Court of Appeals are entitled to great respect, and even finality at times, that rule is
not inflexible and is subject to well established exceptions, to wit: (1) when the conclusion is a finding
grounded entirely on speculation, surmises and conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) where there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of
Appeals, in making its findings, went beyond the issues of the case and the same are contrary to the
admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to
those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence
on which they are based; (9) when the facts set forth in the petition, as well as in the petitioner's main and
reply briefs are not disputed by the respondents and (10) when the findings of fact of the Court of Appeals
are premised on the supposed absence of evidence and are contradicted by the evidence on record. 28

When as in this case, the findings of the Court of Appeals and the trial court are contrary to each
other, this court may scrutinize the evidence on record, 29 in order to arrive at a correct finding based
thereon. 30

A perusal of the same shows that since there is no dispute as to the finding of concurrent negligence
on the part of the defendant Calebag, the driver of the passenger jeepney, and co-defendant
Leonardo, the bus driver of petitioner MMTC, both of whom were solidarily held liable with defendant
Lamayo, the owner of the jeepney, we are spared the necessity of determining the sufficiency of
evidence establishing the fact of negligence. 31 The contrariety is in the findings of the two lower courts,
and which is the subject of this present controversy, with regard to the liability of MMTC as employer of
one the erring drivers.

The trial court, in absolving MMTC from liability ruled that —

On the question as to whether defendant MMTC was successful in proving its

defense that indeed it had exercised the due diligence of a good father of a family in
the selection and supervision of defendant Leonardo, this Court finds that based on
the evidence presented during the trial, defendant MMTC was able to prove that it
was not only careful and diligent in choosing and screening applicants for job
openings but also strict (and) diligent in supervising its employees by seeing to it that
its employees were in proper uniforms, briefed in traffic rules and regulations before
the start of duty, checked employees to determine whether they were positive for
alcohol and followed other rules and regulations and guidelines of the Bureau of
Land Transportation as well as its company. Having successfully proven such
defense, defendant MMTC therefore, cannot be held liable for the accident.

Having reached this conclusion, the Court now, holds that defendant MMTC be
totally absolved from liability and that the complaint against it be dismissed. . . . 32

whereas respondent court was of the opinion that —

It is surprising though that witness Milagros Garbo did not testify nor present any
evidence that defendant-appellee's driver, defendant Godofredo Leonardo has
complied with or has undergone all clearances and trainings she referred to. The
clearances, result of seminars and tests which Godofredo Leonardo submitted and
complied with, if any, were not presented in court despite the fact that they are
obviously in the possession and control of defendant-appellee. Instead, it resorted to
generalities. The Court has ruled that due diligence in (the) selection and supervision
of employee(s) are not proved by mere testimonies to the effect that its applicant has
complied with all the company requirements before one is admitted as an employee
but without proof thereof. . . .

On the part of Christian Bautista, the transport supervisor of defendant-appellee, he

testified that it is his duty to monitor the operation of buses in the field; to
countercheck the dispatchers' duty prior to the operation of the buses in the morning;
to see to it that bus crew follows written guidelines of the company (t.s.n., April 29,
1988, pp. 4-5), but when asked to present in court the alleged written guidelines of
the company he merely stated that he brought with him a "wrong document" and
defendant-appellee's counsel asked for reservation to present such written guidelines
in the next hearing but the same was (sic) never presented in court. 33

A thorough and scrupulous review of the records of this case reveals that the conclusion of
respondent Court of Appeals is more firmly grounded on jurisprudence and amply supported by the
evidence of record than that of the court below.

It is procedurally required for each party in a case to prove his own affirmative assertion by the
degree of evidence required by law. 34 In civil cases, the degree of evidence required of a party in order
to support his claim is preponderance of evidence, or that evidence adduced by one party which is more
conclusive and credible than that of the other party. It is, therefore, incumbent on the plaintiff who is
claiming a right to prove his case. Corollarily, defendant must likewise prove own allegation to buttress its
claim that it is not liable. 35

In fine, the party, whether plaintiff or defendant, who asserts the affirmative of the issue has the
burden of presenting at the trial such amount of evidence required by law to obtain a favorable
judgment. 36 It is entirely within each of the parties discretion, consonant with the theory of the case it or
he seeks to advance and subject to such procedural strategy followed thereby, to present all available
evidence at its or his disposal in the manner which may be deemed necessary and beneficial to prove its
or his position, provided only that the same shall measure up to the quantum of evidence required by law.
In making proof in its or his case, it is paramount that the best and most complete evidence be formally
entered. 37

Coming now to the case at bar, while there is no rule which requires that testimonial evidence, to
hold sway, must be corroborated by documentary evidence, or even subject evidence for that
matter, inasmuch as the witnesses' testimonies dwelt on mere generalities, we cannot consider the
same as sufficiently persuasive proof that there was observance of due diligence in the selection
and supervision of employees. 38 Petitioner's attempt to prove its diligentissimi patris familias in the
selection and supervision of employees through oral evidence must fail as it was unable to buttress the
same with any other evidence, object or documentary, which might obviate the apparent biased nature of
the testimony. 39

Our view that the evidence for petitioner MMTC falls short of the required evidentiary quantum as
would convincingly and undoubtedly prove its observance of the diligence of a good father of a
family has its precursor in the underlying rationale pronounced in the earlier case of Central Taxicab
Corp. vs. Ex-Meralco Employees Transportation Co., et al., 40 set amidst an almost identical factual
setting, where we held that:

. . . . This witness spoke of an "affidavit of experience" which a driver-applicant must

accomplish before he is employed by the company, a written "time schedule" for
each bus, and a record of the inspections and thorough checks pertaining to each
bus before it leaves the car barn; yet no attempt was ever made to present in
evidence any of these documents, despite the fact that they were obviously in the
possession and control of the defendant company.

xxx xxx xxx

Albert also testified that he kept records of the preliminary and final tests given him
as well as a record of the qualifications and experience of each of the drivers of the
company. It is rather strange, therefore, that he failed to produce in court the all
important record of Roberto, the driver involved in this case.

The failure of the defendant company to produce in court any "record" or other
documentary proof tending to establish that it had exercised all the diligence of a
good father of a family in the selection and supervision of its drivers and buses,
notwithstanding the calls therefor by both the trial court and the opposing counsel,
argues strongly against its pretensions.

We are fully aware that there is no hard-and-fast rule on the quantum of evidence
needed to prove due observance of all the diligence of a good father of a family as
would constitute a valid defense to the legal presumption of negligence on the part of
an employer or master whose employee has by his negligence, caused damage to
 another. . . . (R)educing the testimony of Albert to its proper proportions, we do not
have enough trustworthy evidence left to go by. We are of the considered opinion,
therefore, that the believable evidence on the degree of care and diligence that has
been exercised in the selection and supervision of Roberto Leon y Salazar, is not
legally sufficient to overcome the presumption of negligence against the defendant
company.

Whether or not the diligence of a good father of a family has been observed by petitioner is a matter
of proof which under the circumstances in the case at bar has not been clearly established. It is not
felt by the Court that there is enough evidence on record as would overturn the presumption of
negligence, and for failure to submit all evidence within its control, assuming the putative existence
thereof, petitioner MMTC must suffer the consequences of its own inaction and indifference.

2. In any event, we do not find the evidence presented by petitioner sufficiently convincing to prove
the diligence of a good father of a family, which for an employer doctrinally translates into its
observance of due diligence in the selection and supervision of its employees but which mandate, to
use an oft-quoted phrase, is more often honored in the breach than in the observance.

Petitioner attempted to essay in detail the company's procedure for screening job applicants and
supervising its employees in the field, through the testimonies of Milagros Garbo, as its training
officer, and Christian Bautista, as its transport supervisor, both of whom naturally and expectedly
testified for MMTC. It then concluded with its sweeping pontifications that "thus, there is no doubt
that considering the nature of the business of petitioner, it would not let any applicant-drivers to be
(sic) admitted without undergoing the rigid selection and training process with the end (in) view of
protecting the public in general and its passengers in particular; . . . thus, there is no doubt that
applicant had fully complied with the said requirements otherwise Garbo should not have allowed
him to undertake the next set of requirements . . . and the training conducted consisting of seminars
and actual driving tests were satisfactory otherwise he should have not been allowed to drive the
subject vehicle. 41

These statements strike us as both presumptuous and in the nature of petitio principii, couched in
generalities and shorn of any supporting evidence to boost their verity. As earlier observed,
respondent court could not but express surprise, and thereby its incredulity, that witness Garbo
neither testified nor presented any evidence that driver Leonardo had complied with or had
undergone all the clearances and trainings she took pains to recite and enumerate. The supposed
clearances, results of seminars and tests which Leonardo allegedly submitted and complied with
were never presented in court despite the fact that, if true, then they were obviously in the
possession and control of petitioner. 42

The case at bar is clearly within the coverage of Article 2176 and 2177, in relation to Article 2180, of
the Civil Code provisions on quasi-delicts as all the elements thereof are present, to wit: (1)
damages suffered by the plaintiff, (2) fault or negligence of the defendant or some other person for
whose act he must respond, and (3) the connection of cause and effect between fault or negligence
of the defendant and the damages incurred by plaintiff. 43 It is to be noted that petitioner was originally
sued as employer of driver Leonardo under Article 2180, the pertinent parts of which provides that:

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

xxx xxx xxx

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

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.

The basis of the employer's vicarious liability has been explained under this ratiocination:

The responsibility imposed by this article arises by virtue of a presumption juris

tantum of negligence on the part of the persons made responsible under the article,
derived from their failure to exercise due care and vigilance over the acts of
subordinates to prevent them from causing damage. Negligence is imputed to them
by law, unless they prove the contrary. Thus, the last paragraph of the article says
that such responsibility ceases if is proved that the persons who might be held
responsible under it exercised the diligence of a good father of a family (diligentissimi
patris familias) to prevent damage. It is clear, therefore, that it is not representation,
nor interest, nor even the necessity of having somebody else answer for the
damages caused by the persons devoid of personality, but it is the non-performance
of certain duties of precaution and prudence imposed upon the persons who become
responsible by civil bond uniting the actor to them, which forms the foundation of
such responsibility. 44

The above rule is, of course, applicable only where there is an employer-employee relationship,
although it is not necessary that the employer be engaged in business or industry. Whether or not
engaged in any business or industry, the employer under Article 2180 is liable for torts committed by
his employees within the scope of their assigned tasks. But, it is necessary first to establish the
employment relationship. Once this is done, the plaintiff must show, to hold the employer liable, that
the employee was acting within the scope of his assigned task when the tort complained of was
committed. It is only then that the defendant, as employer, may find it necessary to interpose the
defense of due diligence in the selection and supervision of employees. 45 The diligence of a good
father of a family required to be observed by employers to prevent damages under Article 2180 refers to
due diligence in the selection and supervision of employees in order to protect the public. 46

With the allegation and subsequent proof of negligence against the defendant driver and of an
employer-employee relation between him and his co-defendant MMTC in this instance, the case in
undoubtedly based on a quasi-delict under Article 2180 47 When the employee causes damage due to
his own negligence while performing his own duties, there arises the juris tantum presumption that the
employer is negligent, 48 rebuttable only by proof of observance of the diligence of a good father of a
family. For failure to rebut such legal presumption of negligence in the selection and supervision of
employees, the employer is likewise responsible for damages, 49 the basis of the liability being the
relationship of pater familias or on the employer's own negligence. 50

As early as the case of Gutierrez vs. Gutierrez, 51 and thereafter, we have consistently held that where
the injury is due to the concurrent negligence of the drivers of the colliding vehicles, the drivers and
owners of the said vehicles shall be primarily, directly and solidarily liable for damages and it is immaterial
that one action is based on quasi-delict and the other on culpa contractual, as the solidarily of the
obligation is justified by the very nature thereof. 52
It should be borne in mind that the legal obligation of employers to observe due diligence in the
selection and supervision of employees is not to be considered as an empty play of words or a mere
formalism, as appears to be the fashion of the times, since the non-observance thereof actually
becomes the basis of their vicarious liability under Article 2180.

On the matter of selection of employees, Campo vs. Camarote, supra, lays down this admonition:

. . . . In order tat the owner of a vehicle may be considered as having exercised all
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 experience and
record of service. These steps appellant failed to observe; he has therefore, failed to
exercise all due diligence required of a good father of a family in the choice or
selection of driver.

Due diligence in the supervision of employees, on the other hand, includes the formulation of
suitable rules and regulations for the guidance of employees and the issuance of proper instructions
intended for the protection of the public and persons with whom the employer has relations through
his or its employees and the imposition of necessary disciplinary measures upon employees in case
of breach or as may be warranted to ensure the performance of acts indispensable to the business
of and beneficial to their employer. 53 To this, we add that actual implementation and monitoring of
consistent compliance with said rules should be the constant concern of the employer, acting through
dependable supervisors who should regularly report on their supervisory functions.

In order that the defense of due diligence in the selection and supervision of employees may be
deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company
guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to
the presumption of negligence on the part of the employer, the latter has the burden of proving that it
has been diligent not only in the selection of employees but also in the actual supervision of their
work. The mere allegation of the existence of hiring procedures and supervisory policies, without
anything more, is decidedly not sufficient to overcome presumption.

We emphatically reiterate our holding, as a warning to all employers, that "(t)he mere formulation of
various company policies on safety without showing that they were being complied with is not
sufficient to exempt petitioner from liability arising from negligence of its employees. It is incumbent
upon petitioner to show that in recruiting and employing the erring driver the recruitment procedures
and company policies on efficiency and safety were followed." 54 Paying lip-service to these injunctions
or merely going through the motions of compliance therewith will warrant stern sanctions from the Court.

These obligations, imposed by the law and public policy in the interests and for the safety of the
commuting public, herein petitioner failed to perform. Respondent court was definitely correct in
ruling that ". . . due diligence in the selection and supervision of employee (is) not proved by mere
testimonies to the effect that its applicant has complied with all the company requirements before
one is admitted as an employee but without proof thereof." 55 It is further a distressing commentary on
petitioner that it is a government-owned public utility, maintained by public funds, and organized for the
public welfare.

The Court it is necessary to once again stress the following rationale behind these all-important
statutory and jurisprudential mandates, for it has been observed that despite its pronouncement
in Kapalaran Bus Line vs. Coronado, et al., supra, there has been little improvement in the transport
situation in the country:
 In requiring the highest possible degree of diligence from common carriers and
creating a presumption of negligence against them, the law compels them to curb the
recklessness of their drivers. While the immediate beneficiaries of the standard of
extraordinary diligence are, of course, the passengers and owners of the cargo
carried by a common carrier, they are not the only persons that the law seeks to
benefit. For if common carriers carefully observe the statutory standard of
extraordinary diligence in respect of their own passengers, they cannot help but
simultaneously benefit pedestrians and the owners and passengers of other vehicles
who are equally entitled to the safe and convenient use of our roads and highways.
The law seeks to stop and prevent the slaughter and maiming of people (whether
passengers or not) and the destruction of property (whether freight or not) on our
highways by buses, the very size and power of which seem often to inflame the
minds of their drivers. . . .

Finally, we believe that respondent court acted in the exercise of sound discretion when it affirmed
the trial court's award, without requiring the payment of interest thereon as an item of damages just
because of delay in the determination thereof, especially since private respondent did not specifically
pray therefor in her complaint. Article 2211 of the Civil Code provides that in quasi-delicts, interest as
a part of the damages may be awarded in the discretion of the court, and not as a matter of right. We
do not perceive that there have been international dilatory maneuvers or any special circumstances
which would justify that additional award and, consequently, we find no reason to disturb said ruling.

WHEREFORE, the impugned decision of respondent Court of Appeals is hereby AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-29640 June 10, 1971

GUILLERMO AUSTRIA, petitioner,

vs.
THE COURT OF APPEALS (Second Division), PACIFICO ABAD and MARIA G.
ABAD, respondents.

Antonio Enrile Inton for petitioner.

Jose A. Buendia for respondents.

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

Guillermo Austria petitions for the review of the decision rendered by the Court of Appeal (in CA-
G.R. No. 33572-R), on the sole issue of whether in a contract of agency (consignment of goods for
sale) it is necessary that there be prior conviction for robbery before the loss of the article shall
exempt the consignee from liability for such loss.

In a receipt dated 30 January 1961, Maria G. Abad acknowledged having received from Guillermo
Austria one (1) pendant with diamonds valued at P4,500.00, to be sold on commission basis or to be
returned on demand. On 1 February 1961, however, while walking home to her residence in
Mandaluyong, Rizal, Abad was said to have been accosted by two men, one of whom hit her on the
face, while the other snatched her purse containing jewelry and cash, and ran away. Among the
pieces of jewelry allegedly taken by the robbers was the consigned pendant. The incident became
the subject of a criminal case filed in the Court of First Instance of Rizal against certain persons
(Criminal Case No. 10649, People vs. Rene Garcia, et al.).

As Abad failed to return the jewelry or pay for its value notwithstanding demands, Austria brought in
the Court of First Instance of Manila an action against her and her husband for recovery of the
pendant or of its value, and damages. Answering the allegations of the complaint, defendants
spouses set up the defense that the alleged robbery had extinguished their obligation.

After due hearing, the trial court rendered judgment for the plaintiff, and ordered defendants
spouses, jointly and severally, to pay to the former the sum of P4,500.00, with legal interest thereon,
plus the amount of P450.00 as reasonable attorneys' fees, and the costs. It was held that defendants
failed to prove the fact of robbery, or, if indeed it was committed, that defendant Maria Abad was
guilty of negligence when she went home without any companion, although it was already getting
dark and she was carrying a large amount of cash and valuables on the day in question, and such
negligence did not free her from liability for damages for the loss of the jewelry.

Not satisfied with his decision, the defendants went to the Court of Appeals, and there secured a
reversal of the judgment. The appellate court overruling the finding of the trial court on the lack of
credibility of the two defense witnesses who testified on the occurrence of the robbery, and holding
that the facts of robbery and defendant Maria Abad's possesion of the pendant on that unfortunate
day have been duly published, declared respondents not responsible for the loss of the jewelry on
account of a fortuitous event, and relieved them from liability for damages to the owner. Plaintiff
thereupon instituted the present proceeding.

It is now contended by herein petitioner that the Court of Appeals erred in finding that there was
robbery in the case, although nobody has been found guilty of the supposed crime. It is petitioner's
theory that for robbery to fall under the category of a fortuitous event and relieve the obligor from his
obligation under a contract, pursuant to Article 1174 of the new Civil Code, there ought to be prior
finding on the guilt of the persons responsible therefor. In short, that the occurrence of the robbery
should be proved by a final judgment of conviction in the criminal case. To adopt a different view,
petitioner argues, would be to encourage persons accountable for goods or properties received in
trust or consignment to connive with others, who would be willing to be accused in court for the
robbery, in order to be absolved from civil liability for the loss or disappearance of the entrusted
articles.

We find no merit in the contention of petitioner.

It is recognized in this jurisdiction that to constitute a caso fortuito that would exempt a person from
responsibility, it is necessary that (1) the event must be independent of the human will (or rather, of
the debtor's or obligor's); (2) the occurrence must render it impossible for the debtor to fulfill the
obligation in a normal manner; and that (3) the obligor must be free of participation in or aggravation
of the injury to the creditor. 1 A fortuitous event, therefore, can be produced by nature, e.g., earthquakes,
storms, floods, etc., or by the act of man, such as war, attack by bandits, robbery, 2etc., provided that the
event has all the characteristics enumerated above.

It is not here disputed that if respondent Maria Abad were indeed the victim of robbery, and if it were
really true that the pendant, which she was obliged either to sell on commission or to return to
petitioner, were taken during the robbery, then the occurrence of that fortuitous event would have
extinguished her liability. The point at issue in this proceeding is how the fact of robbery is to be
established in order that a person may avail of the exempting provision of Article 1174 of the new
Civil Code, which reads as follows:

ART. 1174. Except in cases expressly specified by law, or when it is otherwise

declared by stipulation, or when the nature of the obligation requires the assumption
of risk, no person shall be responsible for those events which could not be foreseen,
or which, though foreseen, were inevitable.

It may be noted the reform that the emphasis of the provision is on the events, not on the agents or
factors responsible for them. To avail of the exemption granted in the law, it is not necessary that the
persons responsible for the occurrence should be found or punished; it would only be sufficient to
established that the enforceable event, the robbery in this case did take place without any
concurrent fault on the debtor's part, and this can be done by preponderant evidence. To require in
the present action for recovery the prior conviction of the culprits in the criminal case, in order to
establish the robbery as a fact, would be to demand proof beyond reasonable doubt to prove a fact
in a civil case.

It is undeniable that in order to completely exonerate the debtor for reason of a fortutious event, such
debtor must, in addition to the cams itself, be free of any concurrent or contributory fault or
negligence. 3 This is apparent from Article 1170 of the Civil Code of the Philippines, providing that:

ART. 1170. Those who in the performance of their obligations are guilty of fraud,
negligence, or delay, and those who in any manner contravene the tenor thereof, are
liable for damages.

It is clear that under the circumstances prevailing at present in the City of Manila and its suburbs,
with their high incidence of crimes against persons and property that renders travel after nightfall a
matter to be sedulously avoided without suitable precaution and protection, the conduct of
respondent Maria G. Abad, in returning alone to her house in the evening, carrying jewelry of
considerable value would be negligent per se and would not exempt her from responsibility in the
case of a robbery. We are not persuaded, however, that the same rule should obtain ten years
previously, in 1961, when the robbery in question did take place, for at that time criminality had not
by far reached the levels attained in the present day.

There is likewise no merit in petitioner's argument that to allow the fact of robbery to be recognized
in the civil case before conviction is secured in the criminal action, would prejudice the latter case, or
would result in inconsistency should the accused obtain an acquittal or should the criminal case be
dismissed. It must be realized that a court finding that a robbery has happened would not
necessarily mean that those accused in the criminal action should be found guilty of the crime; nor
would a ruling that those actually accused did not commit the robbery be inconsistent with a finding
that a robbery did take place. The evidence to establish these facts would not necessarily be the
same.

WHEREFORE, finding no error in the decision of the Court of Appeals under review, the petition in
this case is hereby dismissed with costs against the petitioner.
 THIRD DIVISION

[G.R. No. 126389. July 10, 1998]

SOUTHEASTERN COLLEGE, INC., petitioner, vs. COURT OF

APPEALS, JUANITA DE JESUS VDA. DE DIMAANO, EMERITA
DIMAANO, REMEDIOS DIMAANO, CONSOLACION DIMAANO
and MILAGROS DIMAANO, respondents.

DECISION
PURISIMA, J.:

Petition for review under Rule 45 of the Rules of Court seeking to set
aside the Decision promulgated on July 31, 1996, and Resolution dated
[1] [2]

September 12, 1996 of the Court of Appeals in CA-G.R. No. 41422, entitled
[3]

Juanita de Jesus vda. de Dimaano, et al. vs. Southeastern College, Inc.,

which reduced the moral damages awarded below from P1,000,000.00
to P200,000.00. The Resolution under attack denied petitioners motion for
[4]

reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay
City, while petitioner owns a four-storey school building along the same
College Road. On October 11, 1989, at about 6:30 in the morning, a powerful
typhoon Saling hit Metro Manila. Buffeted by very strong winds, the roof of
petitioners building was partly ripped off and blown away, landing on and
destroying portions of the roofing of private respondents house. After the
typhoon had passed, an ocular inspection of the destroyed buildings was
conducted by a team of engineers headed by the city building official, Engr.
Jesus L. Reyna. Pertinent aspects of the latters Report dated October 18,
[5]

1989 stated, as follows:

5. One of the factors that may have led to this calamitous event is the formation of the
buildings in the area and the general direction of the wind. Situated in the peripheral
lot is an almost U-shaped formation of 4-storey building. Thus, with the strong winds
having a westerly direction, the general formation of the buildings becomes a big
funnel-like structure, the one situated along College Road, receiving the heaviest
impact of the strong winds. Hence, there are portions of the roofing, those located on
both ends of the building, which remained intact after the storm.
6. Another factor and perhaps the most likely reason for the dislodging of the roofings
structural trusses is the improper anchorage of the said trusses to the roof beams. The
1/2 diameter steel bars embedded on the concrete roof beams which serve as truss
anchorage are not bolted nor nailed to the trusses. Still, there are other steel bars
which were not even bent to the trusses, thus, those trusses are not anchored at all to
the roof beams.

It then recommended that to avoid any further loss and damage to lives, limbs
and property of persons living in the vicinity, the fourth floor of subject school
building be declared as astructural hazard.
In their Complaint before the Regional Trial Court of Pasay City, Branch
[6]

117, for damages based on culpa aquiliana, private respondents alleged that
the damage to their house rendered the same uninhabitable, forcing them to
stay temporarily in others houses. And so they sought to recover from
petitioner P117,116.00, as actual damages, P1,000,000.00, as moral
damages, P300,000.00, as exemplary damages and P100,000.00, for and as
attorneys fees; plus costs.
In its Answer, petitioner averred that subject school building had withstood
several devastating typhoons and other calamities in the past, without its
roofing or any portion thereof giving way; that it has not been remiss in its
responsibility to see to it that said school building, which houses school
children, faculty members, and employees, is in tip-top condition; and
furthermore, typhoon Saling was an act of God and therefore beyond human
control such that petitioner cannot be answerable for the damages wrought
thereby, absent any negligence on its part.
The trial court, giving credence to the ocular inspection report to the effect
that subject school building had a defective roofing structure, found that, while
typhoon Saling was accompanied by strong winds, the damage to private
respondents house could have been avoided if the construction of the roof of
[petitioners] building was not faulty. The dispositive portion of the lower courts
decision reads thus:
[7]

WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in favor of
the plaintiff (sic) and against the defendants, (sic) ordering the latter to pay jointly
and severally the former as follows:

a) P117,116.00, as actual damages, plus litigation expenses;

b) P1,000,000.00 as moral damages;

c) P100,000.00 as attorneys fees;

d) Costs of the instant suit.

The claim for exemplary damages is denied for the reason that the defendants (sic)
did not act in a wanton fraudulent, reckless, oppressive or malevolent manner.

In its appeal to the Court of Appeals, petitioner assigned as errors, that:

[8]

I
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON SALING, AS AN ACT
OF GOD, IS NOT THE SOLE AND ABSOLUTE REASON FOR THE RIPPING-OFF
OF THE SMALL PORTION OF THE ROOF OF SOUTHEASTERNS FOUR (4)
STOREY SCHOOL BUILDING.
II
THE TRIAL COURT ERRED IN HOLDING THAT THE CONSTRUCTION OF THE
ROOF OF DEFENDANTS SCHOOL BUILDING WAS FAULTY NOTWITHSTANDING
THE ADMISSION THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE
AS TYPHOON SALING WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE
INCIDENT.
III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES AS
WELL AS ATTORNEYS FEES AND LITIGATION EXPENSES AND COSTS OF SUIT
TO DIMAANOS WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES AT ALL
AS DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN INTERVENING
EVENT THAT RENDERS THIS CASE MOOT AND ACADEMIC.
IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF
EXECUTION INSPITE OF THE PERFECTION OF SOUTHEASTERNS APPEAL
WHEN THERE IS NO COMPELLING REASON FOR THE ISSUANCE THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with
modification the trial courts disposition by reducing the award of moral
damages from P1,000,000.00 to P200,000.00.Hence, petitioners resort to this
Court, raising for resolution the issues of:

1. Whether or not the award of actual damage [sic] to respondent Dimaanos on the
basis of speculation or conjecture, without proof or receipts of actual
damage, [sic] legally feasible or justified.

2. Whether or not the award of moral damages to respondent Dimaanos, without the
latter having suffered, actual damage has legal basis.
3. Whether or not respondent Dimaanos who are no longer the owner of the property,
subject matter of the case, during its pendency, has the right to pursue their complaint
against petitioner when the case was already rendered moot and academic by the sale
of the property to third party.

4. Whether or not the award of attorneys fees when the case was already moot and
academic [sic] legally justified.

5. Whether or not petitioner is liable for damage caused to others by typhoon Saling
being an act of God.

6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or

without hearing, has support in law.

The pivot of inquiry here, determinative of the other issues, is whether the
damage on the roof of the building of private respondents resulting from the
impact of the falling portions of the school buildings roof ripped off by the
strong winds of typhoon Saling, was, within legal contemplation, due to
fortuitous event? If so, petitioner cannot be held liable for the damages
suffered by the private respondents. This conclusion finds support in Article
1174 of the Civil Code, which provides:

Art 1174. Except in cases expressly specified by the law, or when it is otherwise
declared by stipulation, or when the nature of the obligation requires the assumption
of risk, no person shall be responsible for those events which could not be foreseen, or
which, though foreseen, were inevitable.

The antecedent of fortuitous event or caso fortuito is found in

the Partidas which defines it as an event which takes place by accident and
could not have been foreseen. Escriche elaborates it as an unexpected event
[9]

or act of God which could neither be foreseen nor resisted. Civilist Arturo M.
[10]

Tolentino adds that [f]ortuitous events may be produced by two general

causes: (1) by nature, such as earthquakes, storms, floods, epidemics, fires,
etc. and (2) by the act of man, such as an armed invasion, attack by bandits,
governmental prohibitions, robbery, etc. [11]

In order that a fortuitous event may exempt a person from liability, it is

necessary that he be free from any previous negligence or misconduct by
reason of which the loss may have been occasioned. An act of God cannot
[12]

be invoked for the protection of a person who has been guilty of gross
negligence in not trying to forestall its possible adverse consequences.When
a persons negligence concurs with an act of God in producing damage or
injury to another, such person is not exempt from liability by showing that the
immediate or proximate causeof the damage or injury was a fortuitous
event. When the effect is found to be partly the result of the participation of
man whether it be from active intervention, or neglect, or failure to act the
whole occurrence is hereby humanized, and removed from the rules
applicable to acts of God.[13]

In the case under consideration, the lower court accorded full credence to
the finding of the investigating team that subject school buildings roofing had
no sufficient anchorage to hold it in position especially when battered by
strong winds. Based on such finding, the trial court imputed negligence to
petitioner and adjudged it liable for damages to private respondents.
After a thorough study and evaluation of the evidence on record, this Court
believes otherwise, notwithstanding the general rule that factual findings by
the trial court, especially when affirmed by the appellate court, are binding and
conclusive upon this Court. After a careful scrutiny of the records and the
[14]

pleadings submitted by the parties, we find exception to this rule and hold that
the lower courts misappreciated the evidence proffered.
There is no question that a typhoon or storm is a fortuitous event, a natural
occurrence which may be foreseen but is unavoidable despite any amount of
foresight, diligence or care. In order to be exempt from liability arising from
[15]

any adverse consequence engendered thereby, there should have been no

human participation amounting to a negligent act. In other words, the person
[16]

seeking exoneration from liability must not be guilty of

negligence. Negligence, as commonly understood, is conduct which naturally
or reasonably creates undue risk or harm to others. It may be the failure to
observe that degree of care, precaution, and vigilance which the
circumstances justly demand, or the omission to do something which a
[17]

prudent and reasonable man, guided by considerations which ordinarily

regulate the conduct of human affairs, would do. From these premises, we
[18]

proceed to determine whether petitioner was negligent, such that if it were not,
the damage caused to private respondents house could have been avoided?
At the outset, it bears emphasizing that a person claiming damages for the
negligence of another has the burden of proving the existence of fault or
negligence causative of his injury or loss. The facts constitutive of negligence
must be affirmatively established by competent evidence, not merely by
[19]

presumptions and conclusions without basis in fact. Private respondents, in

establishing the culpability of petitioner, merely relied on the aforementioned
report submitted by a team which made an ocular inspection of petitioners
school building after the typhoon. As the term imparts, an ocular inspection is
one by means of actual sight or viewing. What is visual to the eye though, is
[20]

not always reflective of the real cause behind. For instance, one who hears a
gunshot and then sees a wounded person, cannot always definitely conclude
that a third person shot the victim. It could have been self-inflicted or caused
accidentally by a stray bullet. The relationship of cause and effect must be
clearly shown.
In the present case, other than the said ocular inspection, no investigation
was conducted to determine the real cause of the partial unroofing of
petitioners school building. Private respondents did not even show that the
plans, specifications and design of said school building were deficient and
defective. Neither did they prove any substantial deviation from the approved
plans and specifications. Nor did they conclusively establish that the
construction of such building was basically flawed. [21]

On the other hand, petitioner elicited from one of the witnesses of private
respondents, city building official Jesus Reyna, that the original plans and
design of petitioners school building were approved prior to its
construction. Engr. Reyna admitted that it was a legal requirement before the
construction of any building to obtain a permit from the city building official
(city engineer, prior to the passage of the Building Act of 1977). In like
manner, after construction of the building, a certification must be secured from
the same official attesting to the readiness for occupancy of the
edifice. Having obtained both building permit and certificate of occupancy,
these are, at the very least, prima facie evidence of the regular and proper
construction of subject school building. [22]

Furthermore, when part of its roof needed repairs of the damage inflicted
by typhoon Saling, the same city official gave the go-signal for such repairs
without any deviation from the original design and subsequently, authorized
the use of the entire fourth floor of the same building. These only prove that
subject building suffers from no structural defect, contrary to the report that its
U-shaped form was structurally defective. Having given his
unqualified imprimatur, the city building official is presumed to have properly
performed his duties in connection therewith.
[23]

In addition, petitioner presented its vice president for finance and

administration who testified that an annual maintenance inspection and repair
of subject school building were regularly undertaken. Petitioner was even
willing to present its maintenance supervisor to attest to the extent of such
regular inspection but private respondents agreed to dispense with his
testimony and simply stipulated that it would be corroborative of the vice
presidents narration.
 Moreover, the city building official, who has been in the city government
service since 1974, admitted in open court that no complaint regarding any
defect on the same structure has ever been lodged before his office prior to
the institution of the case at bench. It is a matter of judicial notice that
typhoons are common occurrences in this country. If subject school buildings
roofing was not firmly anchored to its trusses, obviously, it could not have
withstood long years and several typhoons even stronger than Saling.
In light of the foregoing, we find no clear and convincing evidence to
sustain the judgment of the appellate court. We thus hold that petitioner has
not been shown negligent or at fault regarding the construction and
maintenance of its school building in question and that typhoon Saling was the
proximate cause of the damage suffered by private respondents house.
With this disposition on the pivotal issue, private respondents claim for
actual and moral damages as well as attorneys fees must fail. Petitioner
[24]

cannot be made to answer for a purely fortuitous event. More so because no

[25]

bad faith or willful act to cause damage was alleged and proven to warrant
moral damages.
Private respondents failed to adduce adequate and competent proof of the
pecuniary loss they actually incurred. It is not enough that the damage be
[26]

capable of proof but must be actually proved with a reasonable degree of

certainty, pointing out specific facts that afford a basis for measuring whatever
compensatory damages are borne. Private respondents merely submitted an
[27]

estimated amount needed for the repair of the roof of their subject
building. What is more, whether the necessary repairs were caused ONLY by
petitioners alleged negligence in the maintenance of its school building, or
included the ordinary wear and tear of the house itself, is an essential
question that remains indeterminable.
The Court deems unnecessary to resolve the other issues posed by
petitioner.
As regards the sixth issue, however, the writ of execution issued on April
1, 1993 by the trial court is hereby nullified and set aside. Private respondents
are ordered to reimburse any amount or return to petitioner any property
which they may have received by virtue of the enforcement of said writ.
WHEREFORE, the petition is GRANTED and the challenged Decision is
REVERSED. The complaint of private respondents in Civil Case No. 7314
before the trial court a quo is ordered DISMISSED and the writ of execution
issued on April 1, 1993 in said case is SET ASIDE. Accordingly, private
respondents are ORDERED to return to petitioner any amount or property
received by them by virtue of said writ. Costs against the private respondents.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-42926 September 13, 1985

PEDRO VASQUEZ, SOLEDAD ORTEGA, CLETO B. BAGAIPO, AGUSTINA VIRTUDES, ROMEO

VASQUEZ and MAXIMINA CAINAY, petitioners,
vs.
THE COURT OF APPEALS and FILIPINAS PIONEER LINES, INC., respondents.

Emilio D. Castellanes for petitioners.

Apolinario A. Abantao for private respondents.

MELENCIO-HERRERA, J.:

This litigation involves a claim for damages for the loss at sea of petitioners' respective children after
the shipwreck of MV Pioneer Cebu due to typhoon "Klaring" in May of 1966.

The factual antecedents, as summarized by the trial Court and adopted by respondent Court, and
which we find supported by the record, read as follows:

When the inter-island vessel MV "Pioneer Cebu" left the Port of Manila in the early
morning of May 15, 1966 bound for Cebu, it had on board the spouses Alfonso
Vasquez and Filipinas Bagaipo and a four-year old boy, Mario Marlon Vasquez,
among her passengers. The MV "Pioneer Cebu" encountered typhoon "Klaring" and
struck a reef on the southern part of Malapascua Island, located somewhere north of
the island of Cebu and subsequently sunk. The aforementioned passengers were
unheard from since then.

Plaintiffs Pedro Vasquez and Soledad Ortega are the parents of Alfonso Vasquez;
plaintiffs Cleto Bagaipo and Agustina Virtudes are the parents of Filipinas Bagaipo;
and plaintiffs Romeo Vasquez and Maxima Cainay are the parents of the child, Mario
Marlon Vasquez. They seek the recovery of damages due to the loss of Alfonso
Vasquez, Filipinas Bagaipo and Mario Marlon Vasquez during said voyage.

At the pre-trial, the defendant admitted its contract of carriage with Alfonso Vasquez,
Filipinas Bagaipo and Mario Marlon Vasquez, and the fact of the sinking of the MV
"Pioneer Cebu". The issues of the case were limited to the defenses alleged by the
defendant that the sinking of the vessel was caused by force majeure, and that the
defendant's liability had been extinguished by the total loss of the vessel.
 The evidence on record as to the circumstances of the last voyage of the MV
"Pioneer Cebu" came mainly, if not exclusively, from the defendant. The MV "Pioneer
Cebu" was owned and operated by the defendant and used in the transportation of
goods and passengers in the inter-island shipping. Scheduled to leave the Port of
Manila at 9:00 p.m. on May 14, 1966, it actually left port at 5:00 a.m. the following
day, May 15, 1966. It had a passenger capacity of three hundred twenty-two (322)
including the crew. It undertook the said voyage on a special permit issued by the
Collector of Customs inasmuch as, upon inspection, it was found to be without an
emergency electrical power system. The special permit authorized the vessel to carry
only two hundred sixty (260) passengers due to the said deficiency and for lack of
safety devices for 322 passengers (Exh. 2). A headcount was made of the
passengers on board, resulting on the tallying of 168 adults and 20 minors, although
the passengers manifest only listed 106 passengers. It has been admitted, however,
that the headcount is not reliable inasmuch as it was only done by one man on board
the vessel.

When the vessel left Manila, its officers were already aware of the typhoon Klaring
building up somewhere in Mindanao. There being no typhoon signals on the route
from Manila to Cebu, and the vessel having been cleared by the Customs authorities,
the MV "Pioneer Cebu" left on its voyage to Cebu despite the typhoon. When it
reached Romblon Island, it was decided not to seek shelter thereat, inasmuch as the
weather condition was still good. After passing Romblon and while near Jintotolo
island, the barometer still indicated the existence of good weather condition
continued until the vessel approached Tanguingui island. Upon passing the latter
island, however, the weather suddenly changed and heavy rains felt Fearing that due
to zero visibility, the vessel might hit Chocolate island group, the captain ordered a
reversal of the course so that the vessel could 'weather out' the typhoon by facing the
winds and the waves in the open. Unfortunately, at about noontime on May 16, 1966,
the vessel struck a reef near Malapascua island, sustained leaks and eventually
sunk, bringing with her Captain Floro Yap who was in command of the vessel.

Due to the loss of their children, petitioners sued for damages before the Court of First Instance of
Manila (Civil Case No. 67139). Respondent defended on the plea of force majeure, and the
extinction of its liability by the actual total loss of the vessel.

After proper proceedings, the trial Court awarded damages, thus:

WHEREFORE, judgment is hereby rendered ordering the defendant to pay:

(a) Plaintiffs Pedro Vasquez and Soledad Ortega the sums of P15,000.00 for the loss
of earning capacity of the deceased Alfonso Vasquez, P2,100.00 for support, and
P10,000.00 for moral damages;

(b) Plaintiffs Cleto B. Bagaipo and Agustina Virtudes the sum of P17,000.00 for loss
of earning capacity of deceased Filipinas Bagaipo, and P10,000.00 for moral
damages; and

(c) Plaintiffs Romeo Vasquez and Maximina Cainay the sum of P10,000.00 by way of
moral damages by reason of the death of Mario Marlon Vasquez.

On appeal, respondent Court reversed the aforementioned judgment and absolved private
respondent from any and all liability.
Hence, this Petition for Review on Certiorari, the basic issue being the liability for damages of private
respondent for the presumptive death of petitioners' children.

The trial Court found the defense of caso fortuito untenable due to various decisive factors, thus:

... It is an admitted fact that even before the vessel left on its last voyage, its officers
and crew were already aware of the typhoon brewing somewhere in the same
general direction to which the vessel was going. The crew of the vessel took a
calculated risk when it proceeded despite the typhoon advisory. This is quite evident
from the fact that the officers of the vessel had to conduct conferences amongst
themselves to decide whether or not to proceed. The crew assumed a greater risk
when, instead of seeking shelter in Romblon and other islands the vessel passed en
route, they decided to take a change on the expected continuation of the good
weather the vessel was encountering, and the possibility that the typhoon would veer
to some other directions. The eagerness of the crew of the vessel to proceed on its
voyage and to arrive at its destination is readily understandable. It is undeniably
lamentable, however, that they did so at the risk of the lives of the passengers on
board.

Contrariwise, respondent Appellate Court believed that the calamity was caused solely and
proximately by fortuitous event which not even extraordinary diligence of the highest degree could
have guarded against; and that there was no negligence on the part of the common carrier in the
discharge of its duties.

Upon the evidence and the applicable law, we sustain the trial Court. "To constitute a caso
fortuito that would exempt a person from responsibility, it is necessary that (1) the event must be
independent of the human will; (2) the occurrence must render it impossible for the debtor to fulfill
the obligation in a normal manner; and that (3) the obligor must be free of participation in, or
aggravation of, the injury to the creditor." 1 In the language of the law, the event must have been
impossible to foresee, or if it could be foreseen, must have been impossible to avoid. 2 There must be an
entire exclusion of human agency from the cause of injury or loss. 3

Turning to this case, before they sailed from the port of Manila, the officers and crew were aware of
typhoon "Klaring" that was reported building up at 260 kms. east of Surigao. In fact, they had lashed
all the cargo in the hold before sailing in anticipation of strong winds and rough waters. 4 They
proceeded on their way, as did other vessels that day. Upon reaching Romblon, they received the
weather report that the typhoon was 154 kms. east southeast of Tacloban and was moving west
northwest. 5 Since they were still not within the radius of the typhoon and the weather was clear, they
deliberated and decided to proceed with the course. At Jintotolo Island, the typhoon was already reported
to be reaching the mainland of Samar. 6 They still decided to proceed noting that the weather was still
"good" although, according to the Chief Forecaster of the Weather Bureau, they were already within the
typhoon zone. 7 At Tanguingui Island, about 2:00 A.M. of May 16, 1966, the typhoon was in an area quite
close to Catbalogan, placing Tanguingui also within the typhoon zone. Despite knowledge of that fact,
they again decided to proceed relying on the forecast that the typhoon would weaken upon crossing the
mainland of Samar. 8 After about half an hour of navigation towards Chocolate Island, there was a sudden
fall of the barometer accompanied by heavy downpour, big waves, and zero visibility. The Captain of the
vessel decided to reverse course and face the waves in the open sea but because the visibility did not
improve they were in total darkness and, as a consequence, the vessel ran aground a reef and sank on
May 16, 1966 around 12:45 P.M. near Malapascua Island somewhere north of the island of Cebu.

Under the circumstances, while, indeed, the typhoon was an inevitable occurrence, yet, having been
kept posted on the course of the typhoon by weather bulletins at intervals of six hours, the captain
and crew were well aware of the risk they were taking as they hopped from island to island from
Romblon up to Tanguingui. They held frequent conferences, and oblivious of the utmost diligence
required of very cautious persons, 9 they decided to take a calculated risk. In so doing, they failed to
observe that extraordinary diligence required of them explicitly by law for the safety of the passengers
transported by them with due regard for an circumstances 10 and unnecessarily exposed the vessel and
passengers to the tragic mishap. They failed to overcome that presumption of fault or negligence that
arises in cases of death or injuries to passengers. 11

While the Board of Marine Inquiry, which investigated the disaster, exonerated the captain from any
negligence, it was because it had considered the question of negligence as "moot and academic,"
the captain having "lived up to the true tradition of the profession." While we are bound by the
Board's factual findings, we disagree with its conclusion since it obviously had not taken into account
the legal responsibility of a common carrier towards the safety of the passengers involved.

With respect to private respondent's submission that the total loss of the vessel extinguished its
liability pursuant to Article 587 of the Code of Commerce 12 as construed in Yangco vs. Laserna, 73
Phil. 330 [1941], suffice it to state that even in the cited case, it was held that the liability of a shipowner is
limited to the value of the vessel or to the insurance thereon. Despite the total loss of the vessel therefore,
its insurance answers for the damages that a shipowner or agent may be held liable for by reason of the
death of its passengers.

WHEREFORE, the appealed judgment is hereby REVERSED and the judgment of the then Court of
First Instance of Manila, Branch V, in Civil Case No. 67139, is hereby reinstated. No costs.

SO ORDERED.

FIRST DIVISION

[G.R. No. 147349. February 13, 2004]

MANILA INTERNATIONAL AIRPORT AUTHORITY

(MIAA), petitioner, vs. ALA INDUSTRIES
CORPORATION, respondent.
DECISION
PANGANIBAN, J.:

Foreseeable difficulties that occur during the Christmas season and cause
a delay do not constitute a fortuitous event. The difficulties in processing
claims during that period are not acts of God that would excuse
noncompliance with judicially approved obligations.

The Case
 Before us is a Petition for Review under Rule 45 of the Rules of Court,
[1]

assailing the February 28, 2001 Decision of the Court of Appeals (CA) in CA-
[2]

GR CV No. 59518. The dispositive part of the Decision reads:

WHEREFORE, the appealed final order is hereby REVERSED. The Court a quo is
ordered to issue a Writ of Execution directing the branch sheriff to enforce
[Respondent] ALA Industries unpaid claim against [Petitioner] Manila International
Airport Authority (MIAA) in the total amount of P7,171,835.53. [3]

The Facts

The facts of the case are narrated by the CA as follows:

[Petitioner] MIAA conducted a public bidding for a contract involving the structural
repair and waterproofing of the International Passenger Terminal (IPT) and
International Container Terminal (ICT) buildings of the Ninoy Aquino International
Airport (NAIA). Out of eleven bidders, [Respondent] ALA submitted the second
lowest and most advantageous bid. The contract was awarded to [respondent] in the
amount of P32,000,000.00 when it agreed to reduce the price from P36,000.00. On [4]

June 28, 1993, the contract was executed providing, inter alia, the following terms:

ARTICLE I

SCOPE OF WORK

1.1 The CONTRACTOR shall furnish all materials, labor, tools, plans, equipment and
other services and [perform] all operations necessary to complete the structural repair
and waterproofing of IPT and ICT buildings, all in accordance with the plans and
specifications and subject to the terms and conditions of the Bid Documents. The
CONTRACTOR shall likewise be responsible for the removal, hauling, disposal of
materials used in the work area including cleaning thereof during and after completion
of the work.

1.2 The CONTRACTOR guarantees and warrants the availability, quality and
genuineness of all the materials it will supply, deliver and use in the construction.

1.3 The CONTRACTOR warrants further that all works stipulated in the Contract
shall be done in good and acceptable condition and to make good at the
CONTRACTORs expense any imperfections or defects which the MIAA or its
representative may discover during the progress of the work within one (1) year from
and after acceptance in writing of the said work by the MIAA, as provided in the
General Conditions and Specifications.

xxxxxxxxx

ARTICLE IV

CONTRACT PRICE/MANNER OF PAYMENT

4.1 In consideration of the full, satisfactory and faithful performance by the

CONTRACTOR of all its undertakings and obligations defined in and provided for
under this agreement, the MIAA agrees to pay the CONTRACTOR the total amount
of PESOS: THIRTY TWO MILLION [AND] 00/100 (P32,000,000.00) Philippine
Currency, payable as follows:

4.1.1 Initial payment shall be made upon submission of work accomplishment of not
less than 15%;

4.1.2 Subsequent payments shall be for work accomplished as measured, verified and
approved by MIAA. Such progress billings shall indicate actual work
accomplishments and shall be subject to the approval of MIAA, which approval shall
not be unreasonably withheld.

4.1.3 Progress billings shall be paid by the MIAA periodically but not more than once
a month within 30 calendar days from receipt hereof.

The contract contains escalation clauses and price adjustments. [Respondent] made
the necessary repairs and waterproofing. After submission of its progress billings to
[petitioner], [respondent] received partial payments. Progress billing No. 6 remained
unpaid despite repeated demands by [respondent].

On June 30, 1994, [petitioner] unilaterally rescinded the contract on the ground that
[respondent] failed to complete the project within the agreed completion date. On
September 16, 1994, [petitioner] advised [respondent] of a committee formed to
determine the extent of the work done which was given until September 30, 1994 to
submit its findings. Just the same, [respondent] was not fully paid.

On October 20, 1994, [respondent] objected to the rescission made by [petitioner] and
reiterated its claims. As of the filing of the complaint for sum of money and damages
on July 18, 1995, [respondent] was seeking to recover from
[petitioner] P10,376,017.00 as the latters outstanding obligation and P1,642,112.84
due from the first to [the] fifth progress billings.
With the filing of [respondents] sur-rejoinder to [petitioners] rejoinder, the trial Court
directed the parties to proceed to arbitration on July 16, 1996. The Court a quos ruling
is based on Article XXVII of the contract that provides for arbitration.

Both parties executed a compromise agreement, assisted by their counsels, and jointly
filed in court a motion for judgment based on compromise agreement.

RTC Disposition

On November 4, 1997, the Court a quo rendered judgment approving the compromise
agreement. The pertinent portions of the compromise read as follows:

1. As full and complete payment of its claims against [petitioner] arising from their
waterproofing contract subject of this case, [respondent] accepts [petitioner]s offer of
payment in the amount of FIVE MILLION NINE HUNDRED FORTY SIX
THOUSAND TWO HUNDRED NINETY FOUR AND 31/100 (P5,946,294.31).

2. [Petitioner] shall pay [respondent] said amount of FIVE MILLION NINE

HUNDRED FORTY SIX THOUSAND TWO HUNDRED NINETY FOUR AND
31/100 (P5,946,294.31) within a period of thirty (30) days from receipt of a copy of
the Order of the Court approving this Compromise Agreement.

3. Failure of the [petitioner] to pay said amount to [respondent] within the period
above stipulated shall entitle the [respondent] to a writ of execution from this
Honorable Court to enforce all its claims pleaded in the Complaint.
[5]

4. In consideration of the Implementation of this Compromise Agreement,

[respondent] agrees to waive all its claims against the [petitioner] as pleaded in the
Complaint, and [petitioner] also agrees to waive all its claims, rights and interests
pleaded in the answer, and all such other claims that it has or may have in connection
with, related to or arising from the Waterproofing Contract subject of this case with
[respondent].

Finding the aforesaid COMPROMISE AGREEMENT not to be contrary to law,

moral[s], good customs, public order, and public policy, the Court hereby approves
the same and renders judgment in conformity with the terms and conditions of the said
COMPROMISE AGREEMENT, enjoining the parties to comply with the provisions
thereof strictly and in good faith without pronouncement as to costs.

SO ORDERED.
For [petitioners] failure to pay within the period above stipulated, [respondent] filed a
motion for execution to enforce its claim in the total amount
of P13,118,129.84. [Petitioner] filed a comment and attributed the delays to its being a
government agency. In its effort to render [respondents] motion for execution moot
and academic, [petitioner] paid [respondent] P5,946,294.31 on February 2, 1998.

On February 16, 1998, the trial court denied [respondents] motion for execution. It
also denied the motion for reconsideration, ruling as follows:

The delay in complying with the Compromise Agreement having been satisfactorily
explained by the Office of the Government Counsel, the Motion for Reconsideration
of the order denying [respondents] Motion for Execution is denied.

SO ORDERED. [6]

Ruling of the Court of Appeals

Reversing the trial court, the CA ordered it to issue a writ of execution to

enforce respondents claim to the extent of petitioners remaining balance. The
appellate court ratiocinated that a judgment rendered in accordance with a
compromise agreement was immediately executory, and that a delay of
almost two months was not substantial compliance therewith.
Hence this Petition. [7]

Issues

Petitioner raises the following issues for our consideration:

I.

Whether or not the slight delay of petitioner in complying with its obligation under
the Compromise Agreement is a valid ground for the enforcement of private
respondents claim under the Complaint.

II.

Whether or not the delay of petitioner in complying with its obligation under the
Compromise Agreement is justified under the principle that no person shall be
responsible for those events which could not be foreseen, or which though foreseen,
were inevitable.
 III.

Whether or not private respondent is estopped from enforcing its claim under the
Complaint considering that it already enjoyed the benefits of the Compromise
Agreement. [8]

The foregoing may be summed up in one issue: Whether there was a

fortuitous event that excused petitioner from complying with the terms and
conditions of the judicially approved Compromise Agreement.

The Courts Ruling

The Petition has no merit.

Sole Issue:
Delay in Payment by Reason
of a Fortuitous Event

A compromise agreement is a contract whereby the parties make

reciprocal concessions to resolve their differences, thus avoiding [9]

litigation or putting an end to one that has already commenced. Generally

[10] [11]

favored in law, such agreement is a bilateral act or transaction that is binding

[12]

on the contracting parties and is expressly acknowledged by the Civil Code as

a juridical agreement between them. Provided it is not contrary to law,
[13]

morals, good customs, public order or public policy, it is immediately [14]

executory. [15]

Judicial Compromise
Final and Executory

In a long line of cases, we have consistently held that x x x a compromise

once approved by final orders of the court has the force of res
judicata between the parties and should not be disturbed except for vices of
[16]

consent or forgery. Hence, a decision on a compromise agreement is final and

executory x x x. Such agreement has the force of law and is conclusive
[17] [18]

between the parties. It transcends its identity as a mere contract binding only
[19]

upon the parties thereto, as it becomes a judgment that is subject to execution

in accordance with the Rules. Judges therefore have the ministerial and
[20]

mandatory duty to implement and enforce it. [21]

To be valid, a compromise agreement is merely required by law, first, to

be based on real claims; second, to be actually agreed upon in good
faith. Both conditions are present in this case. The claims of the parties are
[22]

valid, and the agreement done without any fraud or vice of consent.
Without a doubt, each of the parties herein entered into Compromise
Agreement freely and voluntarily. When they carefully negotiated the terms
and provisions thereof, they were adequately assisted by their respective
counsels -- petitioner, no less than by the Office of the Government Corporate
Counsel (OGCC). Each party agreed to something that neither might have
[23]

actually wanted, except for the peace that would be brought by the avoidance
of a protracted litigation. Hence, the Agreement must govern their relations.

The Christmas Season

Not a Fortuitous Event

The failure to pay on the date stipulated was clearly a violation of the
Agreement. Within thirty days from receipt of the judicial Order approving it --
on December 20, 1997 -- payment should have been made, but was
not. Thus, nonfulfillment of the terms of the compromise justified execution. It [24]

is the height of absurdity for petitioner to attribute to a fortuitous event its

delayed payment. Petitioners explanation is clearly a gratuitous assertion that
borders on callousness. The Christmas season cannot be cited as an act of
[25]

God that would excuse a delay in the processing of claims by a government

entity that is subject to routine accounting and auditing rules.
A fortuitous event is one that cannot be foreseen or, though foreseen, is
inevitable. It has the following characteristics:
[26]

x x x (a) [T]he cause of the unforeseen and unexpected occurrence, or the failure of
the debtor to comply with his obligations, must be independent of human will; (b) it
must be impossible to foresee the event which constitutes the caso fortuito, or if it can
be foreseen, it must be impossible to avoid; (c) the occurrence must be such as to
render it impossible for the debtor to fulfill his obligation in a normal manner; and (d)
the obligor must be free from any participation in the aggravation of the injury
resulting to the creditor. [27]

None of these elements appears in this case.

 First, processing claims against the government and subjecting these to
the usual accounting and auditing procedures are certainly not only
foreseeable and expectable, but also dependent upon the human
will. Liquidation and payment resulting therefrom can be deliberately delayed
or speeded up.
Second, the Christmas season is not a caso fortuito, but a regularly
occurring event. It is in fact foreseeable, and its occurrence has absolutely
nothing to do with the processing of claims.
Further, in order to claim exemption from liability by reason of a fortuitous
event, such event should be the sole and proximate cause of the injury to or
the loss or destruction of the object of the contract or compromise, which
[28]

was the payment to be made by petitioner. Certainly, this payment was not
lost or destroyed, but merely delayed, thus causing injury to
respondent. Granting arguendo such loss or destruction, the Christmas
season could not have been the sole and proximate cause thereof.
Third, the occurrence of the Christmas season did not at all render
impossible the normal fulfillment of the obligation of petitioner; otherwise, few
claims would ever be paid during this period. It ought to have taken
appropriate measures to ensure that a delay would be avoided. When it
entered into the Agreement, it knew fully well that the 30-day period for it to
pay its obligation would end during the Christmas season. Thus, it cannot now
be allowed to renege on its commitment.
Fourth, petitioner cannot argue that it is free from any participation in the
delay. It should have laid out on the compromise table the problems that
would be caused by a deadline falling during the Christmas
season. Furthermore, it should have explained to respondent that government
accounts would be examined carefully and thoroughly to the last detail, in
strict compliance with accounting and auditing rules issued by and pursuant
[29]

to the constitutional mandate of the Commission on Audit. [30]

Indeed, the liquidation of government obligations involves a long process

beginning with the preparation of disbursement vouchers; followed by the
processing of requests for allotment as supported by vouchers, job orders and
requisitions; and ending with the issuance of the corresponding
checks. Without first securing the necessary certification as to the availability
[31]

of funds and allotment against which expenditures may be properly

charged, no funds shall be disbursed; and no expenditures chargeable
[32]

against any authorized allotments shall be incurred or authorized by agency

heads.
 Moreover, it is important to note that under government accounting
principles, no contract involving the expenditure of public funds shall be made
until there is an appropriation therefor, the unexpended balance of which, free
of other obligations, is sufficient to cover the proposed expenditure. In the
[33]

present case, there was already an antecedent appropriation for the contract
when petitioner entered into it. Obviously, prior planning had not taken into
account the liquidation process in the conduct of the compromise.
The sheer neglect shown by petitioner in failing to consider these matters
aggravated the resulting injury suffered by respondent. The former cannot be
allowed to hide now behind its government cloak.

Fortuitous Event
Negated by Negligence

The act-of-God doctrine requires all human agencies to be excluded from

creating the cause of the mischief. Such doctrine cannot be invoked to
[34]

protect a person who has failed to take steps to forestall the possible adverse
consequences of loss or injury. Since the delay in payment in the present
[35]

case was partly a result of human participation -- whether from active

intervention or neglect -- the whole occurrence was humanized and was
therefore outside the ambit of a caso fortuito.
Furthermore, none of the requisites we have earlier mentioned are present
in this case, a fact that clearly prevents petitioner from being excused from
liability. Under the rules of evidence, the burden of proving that a loss is due
[36]

to a caso fortuito rests upon the party invoking it. This responsibility, it failed
[37]

to discharge.
Verily, an assiduous scrutiny of the records convinces us that it was
negligent, and that it thereby incurred a delay in the performance of its
[38]

contractual obligation under the judicial compromise. It thus created an undue

risk or injury to respondent by failing to exercise that reasonable degree of
care, precaution or vigilance that the circumstances justly demanded, and [39]

that an ordinarily prudent person would have done. [40]

Court Without Power to Alter

a Judicial Compromise
 The principle of autonomy of contracts must be respected. The [41]

Compromise Agreement was a contract perfected by mere consent; hence, it [42]

should have been respected. Item 3 thereof provided that failure of petitioner
to pay within the stipulated period would entitle respondent to a writ of
execution to enforce all the claims that had been pleaded by the latter in the
Complaint. This provision must be upheld, because the Agreement
supplanted the Complaint itself. Although judicial approval was not required
for the perfection of that Agreement once it was granted, it could not and must
not be disturbed except for vices of consent or forgery. [43]

No such infirmity can be found in the subject Compromise Agreement. Its

terms are clear and leave no doubt as to their intention. Thus, the literal
meaning of its stipulations must control. It must be strictly interpreted and x x
[44]

x understood as including only matters specifically determined therein or

which, by necessary inference from its wording, must be deemed included. [45]

The lower court was without power to relieve petitioner from an obligation
it had voluntarily assumed, simply because the Agreement later turned out to
be unwise, disastrous or foolish. It had no authority to impose upon the
[46]

parties a judgment different from or against the terms and conditions of their
Compromise Agreement. It could not alter a contract by construction or
[47]

make a new one for the parties; its duty is confined to the interpretation of the
one which they have made for themselves without regard to its wisdom or folly
as the court cannot supply material stipulations or read into the contract words
which it does not contain. It could not even set aside its judgment without
[48]

declaring in an incidental hearing that the Agreement was vitiated by any of

the grounds enumerated in Article 2038 of the Civil Code. Above all, neither
[49]

the Agreement nor the courts approval of it was ever questioned or assailed
by the parties.
Basic is the rule that if a party fails or refuses to abide by a compromise
agreement, the other may either enforce it or regard it as rescinded and insist
upon the original demand. For failure of petitioner to abide by the judicial
[50]

compromise, respondent chose to enforce it. The latters course of action was
in accordance with the very stipulations in the Agreement that the lower court
could not change. [51]

Respondent is thus entitled to a writ of execution for the total amount

contained in the Compromise Agreement. The Court cannot reduce it. The
partial payment made by petitioner does not at all contravene Article 1229 of
the Civil Code, which is applicable only to contracts that are the subjects of
[52]

litigation, not to final and executory judgments. [53]

Estoppel Inapplicable

Petitioners attempt to put respondent in estoppel must be struck down. In

estoppel, a person, who by his act or conduct has induced another to act in a
particular manner, is barred from adopting an inconsistent position, attitude or
course of conduct that thereby causes loss or injury to another. No such[54]

inconsistency is present here. From the very start, respondent was already
asking the courts to enforce all its claims, pursuant to the Agreement. It has
not shown any act or conduct that would leads us to believe that by accepting
petitioners partial payment, it has dropped all claims to which it is entitled.
Certainly, an obligation may be extinguished by payment, but this rule
[55]

applies when the creditor receives and acknowledges full payment from the
[56]

debtor. Respondent has neither acknowledged full payment nor led petitioner
to believe that it has. Lack of reservation or protest does not ipso
facto constitute a waiver of claims. Because estoppel should be applied with
caution, the action that gives rise to it must be deliberate and unequivocal. [57]

In the present case, respondent continued to pursue the execution of its

total demand of P13,118,129.84, even after receiving P5,946,294.31 from
petitioner. This continued pursuit signified the formers intent not to waive its
total claim. Hence, it cannot be considered estopped from enforcing such
claim.
The appellate court was correct in strictly following the Agreement by
deducting the amount received by respondent from the latters total
claim. Besides, questions raised on appeal must be within the issues framed
by the parties and, consequently, issues not raised in the trial court cannot be
raised for the first time on appeal. Any assertion of equity must finally be
[58]

struck down when dilatory schemes exist. [59]

WHEREFORE, the Petition is hereby DENIED, and the assailed

Decision AFFIRMED. Costs against petitioner.
SO ORDERED.