V.
ENFORCEMENT OF LIABILITY Petitioners opposed the motion to dismiss contending,
AVAILABLE REMEDIES
G.R. No. 151452. July 29, 2005
SPS. ANTONIO C. SANTOS and ESPERANZA C.
SANTOS, NORA BARNALO, BELINDA LUMACTAD,
MARIENELA DY, NIKKA SANTOS and LEONARDO
FERRER, Petitioners,
vs.
HON. NORMANDIE B. PIZARDO, as Presiding Judge,
RTC of Quezon City, Branch 101, DIONISIO M SIBAYAN,
and VIRON TRANSPORTATION COMPANY, INC.,
represented by VIRGILIO Q. RONDARIS,
President/Chairman, Respondent.
DECISION
TINGA, J.:
In this Petition for Review on Certiorari 1 dated March 1,
2002, petitioners assail the Resolutions of the Court of
Appeals dated September 10, 2001 and January 9, 2002,
respectively dismissing their petition for certiorari and
denying their motion for reconsideration, arising from the
dismissal of their complaint to recover civil indemnity for the
death and physical injuries of their kin.
The following facts are matters of record.
In an Information dated April 25, 1994, Dionisio M. Sibayan
(Sibayan) was charged with Reckless Imprudence Resulting
to Multiple Homicide and Multiple Physical Injuries in
connection with a vehicle collision between a southbound
Viron Transit bus driven by Sibayan and a northbound Lite
Ace Van, which claimed the lives of the vans driver and
three (3) of its passengers, including a two-month old baby,
and caused physical injuries to five (5) of the vans
passengers. After trial, Sibayan was convicted and
sentenced to suffer the penalty of imprisonment for two (2)
years, four (4) months and one (1) day to four (4) years and
two (2) months. However, as there was a reservation to file a
separate civil action, no pronouncement of civil liability was
made by the municipal circuit trial court in its decision
promulgated on December 17, 1998.2
On October 20, 2000, petitioners filed a complaint for
damages against Sibayan, Viron Transit and its
President/Chairman, Virgilio Q. Rondaris, with the Regional
Trial Court of Quezon City, pursuant to their reservation to
file a separate civil action. 3 They cited therein the judgment
convicting Sibayan.
Viron Transit moved to dismiss the complaint on the grounds
of improper service of summons, prescription and laches,
and defective certification of non-forum shopping. It also
sought the dropping of Virgilio Q. Rondaris as defendant in
view of the separate personality of Viron Transit from its
officers.4
Assuming that their petition with the appellate court was
among others, that the right to file a separate action in this
case prescribes in ten (10) years reckoned from the finality
of the judgment in the criminal action. As there was no
appeal of the decision convicting Sibayan, the complaint
which was filed barely two (2) years thence was clearly filed
within the prescriptive period.
The trial court dismissed the complaint on the principal
ground that the cause of action had already prescribed.
According to the trial court, actions based on quasi delict, as
it construed petitioners cause of action to be, prescribe four
(4) years from the accrual of the cause of action. Hence,
notwithstanding the fact that petitioners reserved the right to
file a separate civil action, the complaint ought to be
dismissed on the ground of prescription.5
Improper service of summons was likewise cited as a ground
for dismissal of the complaint as summons was served
through a certain Jessica Ubalde of the legal department
without mentioning her designation or position.
Petitioners filed a motion for reconsideration pointing out yet
again that the complaint is not based on quasi delictbut on
the final judgment of conviction in the criminal case which
prescribes ten (10) years from the finality of the
judgment.6 The trial court denied petitioners motion for
reconsideration reiterating that petitioners cause of action
was based on quasi delict and had prescribed under Article
1146 of the Civil Code because the complaint was filed more
than four (4) years after the vehicular accident. 7 As regards
the improper service of summons, the trial court
reconsidered its ruling that the complaint ought to be
dismissed on this ground.
Petitioners filed a petition for certiorari with the Court of
Appeals which dismissed the same for error in the choice or
mode of appeal.8 The appellate court also denied petitioners
motion for reconsideration reasoning that even if the
respondent trial court judge committed grave abuse of
discretion in issuing the order of dismissal, certiorari is still
not the permissible remedy as appeal was available to
petitioners and they failed to allege that the petition was
brought within the recognized exceptions for the allowance
of certiorari in lieu of appeal.9
In this petition, petitioners argue that a rigid application of the
rule that certiorari cannot be a substitute for appeal will result
in a judicial rejection of an existing obligation arising from the
criminal liability of private respondents. Petitioners insist that
the liability sought to be enforced in the complaint arose ex
delicto and is not based on quasi delict. The trial court
allegedly committed grave abuse of discretion when it
insisted that the cause of action invoked by petitioners is
based on quasi delict and concluded that the action had
prescribed. Since the action is based on the criminal liability
of private respondents, the cause of action accrued from the
finality of the judgment of conviction.
procedurally flawed, petitioners implore the Court to exempt
this case from the rigid operation of the rules as they
allegedly have a legitimate grievance to
vindicate,i.e., damages for the deaths and physical injuries
caused by private respondents for which no civil liability had
been adjudged by reason of their reservation of the right to
file a separate civil action.
In their Comment10 dated June 13, 2002, private
respondents insist that the dismissal of the complaint on the
ground of prescription was in order. They point out that the
averments in the complaint make out a cause of action
for quasi delict under Articles 2176 and 2180 of the Civil
Code. As such, the prescriptive period of four (4) years
should be reckoned from the time the accident took place.
Viron Transit also alleges that its subsidiary liability cannot
be enforced since Sibayan was not ordered to pay damages
in the criminal case. It is Viron Transits contention that the
subsidiary liability of the employer contemplated in Article
103 of the Revised Penal Code presupposes a situation
where the civil aspect of the case was instituted in the
criminal case and no reservation to file a separate civil case
was made.
Private respondents likewise allege that the recourse to the
Court of Appeals via certiorari was improper as petitioners
should have appealed the adverse order of the trial court.
Moreover, they point out several other procedural lapses
allegedly committed by petitioners, such as lack of
certification against forum-shopping; lack of duplicate
original or certified true copy of the assailed order of the trial
court; and non-indication of the full names and addresses of
petitioners in the petition.
Petitioners filed a Reply11 dated September 14, 2002, while
private respondents filed a Rejoinder12 dated October 14,
2002, both in reiteration of their arguments.
We grant the petition.
Our Revised Penal Code provides that every person
criminally liable for a felony is also civilly liable. 13 Such civil
liability may consist of restitution, reparation of the damage
caused and indemnification of consequential
damages.14 When a criminal action is instituted, the civil
liability arising from the offense is impliedly instituted with the
criminal action, subject to three notable
exceptions: first, when the injured party expressly waives the
right to recover damages from the accused; second, when
the offended party reserves his right to have the civil
damages determined in a separate action in order to take full
control and direction of the prosecution of his cause;
andthird, when the injured party actually exercises the right
to maintain a private suit against the offender by instituting a
civil action prior to the filing of the criminal case.
Notably, it was the 1985 Rules on Criminal Procedure, as
amended in 1988, which governed the institution of the
criminal action, as well as the reservation of the right to file a
separate civil action. Section 1, Rule 111 thereof states:
Section 1. Institution of criminal and civil actions.When a
criminal action is instituted, the civil action for the recovery of
civil liability is impliedly instituted with the criminal action,
unless the offended party waives the civil action, reserves
his right to institute it separately, or institutes the civil action
prior to the criminal action.
Such civil action includes recovery of indemnity under the
Revised Penal Code, and damages under Articles 32, 33, 34
and 2176 of the Civil Code of the Philippines arising from the
same act or omission of the accused.
A waiver of any of the civil actions extinguishes the others.
The institution of, or the reservation of the right to file, any of
said civil actions separately waives the others.
The reservation of the right to institute the separate civil
actions shall be made before the prosecution starts to
present its evidence and under circumstances affording the
offended party a reasonable opportunity to make such
reservation.
In no case may the offended party recover damages twice
for the same act or omission of the accused.
When the offended party seeks to enforce civil liability
against the accused by way of moral, nominal, temperate or
exemplary damages, the filing fees for such action as
provided in these Rules shall constitute a first lien on the
judgment except in an award for actual damages.
In cases wherein the amount of damages, other than actual,
is alleged in the complaint or information, the corresponding
filing fees shall be paid by the offended party upon filing
thereof in court for trial.
Petitioners expressly made a reservation of their right to file
a separate civil action as a result of the crime committed by
Sibayan. On account of this reservation, the municipal circuit
trial court, in its decision convicting Sibayan, did not make
any pronouncement as to the latters civil liability.
Predicating their claim on the judgment of conviction and
their reservation to file a separate civil action made in the
criminal case, petitioners filed a complaint for damages
against Sibayan, Viron Transit and its President/Chairman.
Petitioners assert that by the institution of the complaint, they
seek to recover private respondents civil liability arising from
crime. Unfortunately, based on its misreading of the
allegations in the complaint, the trial court dismissed the
same, declaring that petitioners cause of action was based
on quasi delictand should have been brought within four (4)
years from the time the cause of action accrued, i.e., from
the time of the accident.
A reading of the complaint reveals that the allegations
therein are consistent with petitioners claim that the action
was brought to recover civil liability arising from crime.
Although there are allegations of negligence on the part of
Sibayan and Viron Transit, such does not necessarily mean
that petitioners were pursuing a cause of action based
on quasi delict, considering that at the time of the filing of the
complaint, the cause of action ex quasi delicto had already
prescribed. Besides, in cases of negligence, the offended
party has the choice between an action to enforce civil
liability arising from crime under the Revised Penal Code
and an action for quasi delictunder the Civil Code.
An act or omission causing damage to another may give rise
to two separate civil liabilities on the part of the
offender, i.e., (1) civil liability ex delicto, under Article 100 of
the Revised Penal Code; and (2) independent civil liabilities,
such as those (a) not arising from an act or omission
complained of as a felony, e.g., culpa contractualor
obligations arising from law under Article 31 of the Civil
Code, intentional torts under Articles 32 and 34, andculpa
aquiliana under Article 2176 of the Civil Code; or (b) where
the injured party is granted a right to file an action
independent and distinct from the criminal action under
Article 33 of the Civil Code.15 Either of these liabilities may
be enforced against the offender subject to the caveat under
Article 2177 of the Civil Code that the plaintiff cannot recover
damages twice for the same act or omission of the
defendant and the similar proscription against double
recovery under the Rules above-quoted.
At the time of the filing of the complaint for damages in this
case, the cause of action ex quasi delicto had already
prescribed. Nonetheless, petitioners can pursue the
remaining avenue opened for them by their
reservation, i.e.,the surviving cause of action ex delicto. This
is so because the prescription of the action ex quasi
delicto does not operate as a bar to an action to enforce the
civil liability arising from crime especially as the latter action
had been expressly reserved.
The case of Mendoza v. La Mallorca Bus Company16 was
decided upon a similar set of facts. Therein, the driver of La
Mallorca Bus Company was charged with reckless
imprudence resulting to damage to property. The plaintiff
made an express reservation for the filing of a separate civil
action. The driver was convicted which conviction was
affirmed by this Court. Later, plaintiff filed a separate civil
action for damages based on quasi delict which was ordered
dismissed by the trial court upon finding that the action was
instituted more than six (6) years from the date of the
accident and thus, had already prescribed. Subsequently,
plaintiff instituted another action, this time based on the
subsidiary liability of the bus company. The trial court
dismissed the action holding that the dismissal of the earlier
civil case operated as a bar to the filing of the action to
enforce the bus companys subsidiary liability.
We held that the dismissal of the action based on culpa
aquiliana is not a bar to the enforcement of the subsidiary
liability of the employer. Once there is a conviction for a
felony, final in character, the employer becomes subsidiarily
liable if the commission of the crime was in the discharge of
the duties of the employees. This is so because Article 103
of the Revised Penal Code operates with controlling force to
obviate the possibility of the aggrieved party being deprived
of indemnity even after the rendition of a final judgment
convicting the employee.
Seen in this light, the trial court should not have dismissed
the complaint on the ground of prescription, but instead
allowed the complaint for damages ex delicto to be
prosecuted on the merits, considering petitioners allegations
in their complaint, opposition to the motion to dismiss17 and
motion for reconsideration 18 of the order of dismissal,
insisting that the action was to recover civil liability arising
from crime.
This does not offend the policy that the reservation or
institution of a separate civil action waives the other civil
actions. The rationale behind this rule is the avoidance of
multiple suits between the same litigants arising out of the
same act or omission of the offender.19 However, since the
stale action for damages based on quasi delictshould be
considered waived, there is no more occasion for petitioners
to file multiple suits against private respondents as the only
recourse available to them is to pursue damages ex
delicto. This interpretation is also consistent with the bar
against double recovery for obvious reasons.
Now the procedural issue. Admittedly, petitioners should
have appealed the order of dismissal of the trial court
instead of filing a petition for certiorari with the Court of
Appeals. Such procedural misstep, however, should be
exempted from the strict application of the rules in order to
promote their fundamental objective of securing substantial
justice.20 We are loathe to deprive petitioners of the
indemnity to which they are entitled by law and by a final
judgment of conviction based solely on a technicality. It is
our duty to prevent such an injustice.21
WHEREFORE, judgment is hereby rendered SETTING
ASIDE the resolutions of the Court of Appeals dated
September 10, 2001 and January 9, 2002, respectively
dismissing the present action and denying petitioners motion
for reconsideration, as well as the orders of the lower court
dated February 26, 2001 and July 16, 2001. Let the case be
REMANDED to the trial court for further proceedings. SO
ORDERED.
RULES GOVERNING RESERVATION
G.R. No. 129282 November 29, 2001
DMPI EMPLOYEES CREDIT COOPERATIVE, INC., (DMPI-
ECCI), petitioner,
vs.
HON. ALEJANDRO M. VELEZ, as Presiding Judge of the
RTC, Misamis Oriental, Br. 20, and ERIBERTA
VILLEGAS, respondents.
PARDO, J.:
The Case
In this special civil action for certiorari, petitioner DMPI
Employees Credit Cooperative, Inc. (DMPI-ECCI) seeks the
annulment of the order1 of the Regional Trial Court, Misamis
Oriental, Branch 20, granting the motion for reconsideration
of respondent Eriberta Villegas, and thus reversing the
previous dismissal of Civil Case No. CV-94-214.
The Facts
On February 18, 1994, the prosecuting attorney filed with the
Regional Trial Court, Misamis Oriental, Branch 37, an
information for estafa2 against Carmen Mandawe for alleged
failure to account to respondent Eriberta Villegas the amount
of P608,532.46. Respondent Villegas entrusted this amount
to Carmen Mandawe, an employee of petitioner DMPI-ECCI,
for deposit with the teller of petitioner.
Subsequently, on March 29, 1994, respondent Eriberta
Villegas filed with the Regional Trial Court, Misamis Oriental,
Branch 20, a complaint3 against Carmen Mandawe and
petitioner DMPI-ECCI for a sum of money and damages with
preliminary attachment arising out of the same transaction.
In time, petitioner sought the dismissal of the civil case on
the following grounds: (1) that there is a pending criminal
case in RTC Branch 37, arising from the same facts, and (2)
that the complaint failed to contain a certification against
forum shopping as required by Supreme Court Circular No.
28-91.4
On December 12, 1996, the trial court issued an
order5 dismissing Civil Case No. CV-94-214. On January 21,
1997, respondent filed a motion for reconsideration 6 of the
order.
On February 21, 1997, the trial court issued an
order7 granting respondent's motion for reconsideration,
thereby recalling the dismissal of the case.
Hence, this petition.8
The Issues
The issues raised are: (1) whether the plaintiff's failure to
attach a certification against forum shopping in the complaint
is a ground to dismiss the case; 9 and, (2) whether the civil
case could proceed independently of the criminal case for
estafa without having reserved the filing of the civil action.
The Court's Ruling
On the first issue, Circular No. 28-9110 of the Supreme Court
requires a certificate of non-forum shopping to be attached
to petitions filed before the Supreme Court and the Court of
Appeals. This circular was revised on February 8, 1994 11 by
extending the requirement to all initiatory pleadings filed in
all courts and quasi-judicial agencies other than the
Supreme Court and the Court of Appeals.
Respondent Villegas' failure to attach a certificate of non-
forum shopping in her complaint did not violate Circular No.
28-91, because at the time of filing, the requirement applied
only to petitions filed with the Supreme Court and the Court
of Appeals.12 Likewise, Administrative Circular No. 04-94 is
inapplicable for the reason that the complaint was filed on
March 29, 1994, three days before April 1, 1994, the date of
effectivity of the circular.13
On the second issue, as a general rule, an offense causes
two (2) classes of injuries. The first is the social injury
produced by the criminal act which is sought to be repaired
thru the imposition of the corresponding penalty, and the
second is the personal injury caused to the victim of the
crime which injury is sought to be compensated through
indemnity which is civil in nature.14
Thus, "every person criminally liable for a felony is also civilly
liable."15 This is the law governing the recovery of civil
liability arising from the commission of an offense. Civil
liability includes restitution, reparation for damage caused,
and indemnification of consequential damages.16
The offended party may prove the civil liability of an accused
arising from the commission of the offense in the criminal
case since the civil action is either deemed instituted with the
criminal action or is separately instituted.
Rule 111, Section 1 of the Revised Rules of Criminal
Procedure, which became effective on December 1, 2000,
provides that:
"(a) When a criminal action is instituted, the civil
action for the recovery of civil liability arising from
the offense charged shall be deemed instituted
with the criminal action unless the offended party
waives the civil action, reserves the right to
institute it separately or institutes the civil action
prior to the criminal action." [Emphasis supplied]
Rule 111, Section 2 further provides that
"After the criminal action has been
commenced, the separate civil action arising
therefrom cannot be instituted until final judgment
has been entered in the criminal action."
[Emphasis supplied]
However, with respect to civil actions for recovery of civil
liability under Articles 32, 33, 34 and 2176 of the Civil Code
arising from the same act or omission, the rule has been
changed.
Under the present rule, only the civil liability arising from the
offense charged is deemed instituted with the criminal action
unless the offended party waives the civil action, reserves
his right to institute it separately, or institutes the civil action
prior to the criminal action.17
There is no more need for a reservation of the right to file the
independent civil actions under Articles 32, 33, 34 and 2176
of the Civil Code of the Philippines. "The reservation and
waiver referred to refers only to the civil action for the
recovery of the civil liability arising from the offense charged.
This does not include recovery of civil liability under Articles
32, 33, 34 and 2176 of the Civil Code of the Philippines
arising from the same act or omission which may be
prosecuted separately even without a reservation."18
Rule 111, Section 3 reads:
"Sec. 3. When civil action may proceed
independently. In the cases provided in Articles
32, 33, 34 and 2176 of the Civil Code of the
Philippines, the independent civil action may be
brought by the offended party. It shall proceed
independently of the criminal action and shall
require only a preponderance of evidence. In no
case, however, may the offended party recover
damages twice for the same act or omission
charged in the criminal action."
The changes in the Revised Rules on Criminal Procedure
pertaining to independent civil actions which became
effective on December 1, 2000 are applicable to this case.
Procedural laws may be given retroactive effect to actions
pending and undetermined at the time of their passage.
There are no vested rights in the rules of procedure.19
Thus, Civil Case No. CV-94-214, an independent civil action
for damages on account of the fraud committed against
respondent Villegas under Article 33 of the Civil Code, may
proceed independently even if there was no reservation as
to its filing.
The Fallo
WHEREFORE, the Court DENIES the petition. The Court
AFFIRMS the order dated February 21, 1997.20
No costs. SO ORDERED.
G.R. No. 160286. July 30, 2004
SPOUSES FRANCISCO M. HERNANDEZ and ANICETA
ABEL-HERNANDEZ and JUAN
GONZALES, petitioners, vs. SPOUSES
LORENZO DOLOR and MARGARITA DOLOR,
FRED PANOPIO, JOSEPH SANDOVAL, RENE
CASTILLO, SPOUSES FRANCISCO
VALMOCINA and VIRGINIA VALMOCINA,
SPOUSES VICTOR PANOPIO and MARTINA
PANOPIO, and HON. COURT OF
APPEALS, respondents.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for review under Rule 45 of the Rules
of Court seeking the reversal of the decision [1] of the Court of
Appeals, dated April 29, 2003, in CA-G.R. CV No. 60357,
which affirmed with modification the amount of damages
awarded in the November 24, 1997 decision [2] of the
Regional Trial Court of Batangas City, Branch IV.
The undisputed facts are as follows:
At about 3:00 p.m. of December 19, 1986, Lorenzo
Menard Boyet Dolor, Jr. was driving an owner-type jeepney
with plate no. DEB 804 owned by her mother, Margarita,
towards Anilao, Batangas. As he was traversing the road at
Barangay Anilao East, Mabini, Batangas, his vehicle collided
with a passenger jeepney bearing plate no. DEG 648, driven
by petitioner Juan Gonzales and owned by his co-petitioner
Francisco Hernandez, which was travelling towards
Batangas City.
Boyet Dolor and his passenger, Oscar Valmocina, died
as a result of the collision. Fred Panopio, Rene Castillo and
Joseph Sandoval, who were also on board the owner-type
jeep, which was totally wrecked, suffered physical
injuries. The collision also damaged the passenger jeepney
of Francisco Hernandez and caused physical injuries to its
passengers, namely, Virgie Cadavida, Fiscal Artemio Reyes
and Francisca Corona.[3]
Consequently, respondents commenced an action[4] for
damages against petitioners before the Regional Trial Court
of Batangas City, alleging that driver Juan Gonzales was
guilty of negligence and lack of care and that the Hernandez
spouses were guilty of negligence in the selection and
supervision of their employees.[5]
Petitioners countered that the proximate cause of the
death and injuries sustained by the passengers of both
vehicles was the recklessness of Boyet Dolor, the driver of
the owner-type jeepney, who was driving in a zigzagging
manner under the influence of alcohol. Petitioners also
alleged that Gonzales was not the driver-employee of the
Hernandez spouses as the former only leased the
passenger jeepney on a daily basis. The Hernandez
spouses further claimed that even if an employer-employee
relationship is found to exist between them, they cannot be
held liable because as employers they exercised due care in b) P25,000.00 for hospitalization and medical expenses they
the selection and supervision of their employee. incurred for the treatment of their son, Fred Panopio.
During the trial of the case, it was established that the 4) To Fred Panopio:
drivers of the two vehicles were duly licensed to drive and
that the road where the collision occurred was asphalted and a) P25,000.00 for the loss of his
in fairly good condition.[6] The owner-type jeep was travelling right leg;
uphill while the passenger jeepney was going downhill. It b) P10,000.00 as moral damages.
was further established that the owner-type jeep was 5) To Joseph Sandoval:
moderately moving and had just passed a road bend when
its passengers, private respondents Joseph Sandoval and
a) P4,000.00 for medical treatment.
Rene Castillo, saw the passenger jeepney at a distance of
three meters away. The passenger jeepney was traveling
The defendants are further directed to pay the costs of this
fast when it bumped the owner type jeep. [7] Moreover, the
proceedings.
evidence presented by respondents before the trial court
showed that petitioner Juan Gonzales obtained his
professional drivers license only on September 24, 1986, or SO ORDERED.[9]
three months before the accident. Prior to this, he was
holder of a student drivers permit issued on April 10, 1986.[8] Petitioners appealed[10] the decision to the Court of
Appeals, which affirmed the same with modifications as to
On November 24, 1997, the trial court rendered a the amount of damages, actual expenses and attorneys fees
decision in favor of respondents, the dispositive portion of awarded to the private respondents. The decretal portion of
which states: the decision of the Court of Appeals reads:
Premises duly considered and the plaintiffs having WHEREFORE, the foregoing premises considered, the
satisfactorily convincingly and credibly presented evidence appealed decision is AFFIRMED. However, the award for
clearly satisfying the requirements of preponderance of damages, actual expenses and attorneys fees shall be
evidence to sustain the complaint, this Court hereby MODIFIED as follows:
declares judgment in favor of the plaintiffs and against the
defendants. Defendants-spouses Francisco Hernandez and 1) To spouses Lorenzo Dolor and Margarita Dolor:
Aniceta Abel Hernandez and Juan Gonzales are therefore
directed to pay jointly and severally, the following: a) P50,000.00 civil indemnity for their son Lorenzo Menard
Dolor, Jr.;
1) To spouses Lorenzo Dolor and Margarita Dolor: b) P58,703.00 as actual and
necessary funeral expenses;
a) P50,000.00 for the death of their son, Lorenzo Menard c) P25,000,00 as temperate
Boyet Dolor, Jr.; damages;
b) P142,000.00 as actual and d) P100,000.00 as moral damages;
necessary funeral expenses; e) P20,000.00 as reasonable litigation expenses and
c) P50,000.00 reasonable value of attorneys fees.
the totally wrecked owner-type jeep
with plate no. DEB 804 Phil 85; 2) To Spouses Francisco Valmocina and Virginia Valmocina:
d) P20,000.00 as moral damages;
e) P20,000.00 as reasonable litigation expenses and a) P50,000.00 civil indemnity for
attorneys fees. the death of their son, Oscar Valmocina;
b) P100,000.00 as moral damages;
2) To spouses Francisco Valmocina and Virginia Valmocina: c) P10,000.00 as temperate
damages;
a) P50,000.00 for the death of their d) P10,000.00 as reasonable
son, Oscar Balmocina (sic); litigation expenses and attorneys fees.
b) P20,000.00 as moral damages; 3) To Spouses Victor Panopio and Martina Panopio:
c) P18,400.00 for funeral expenses;
d) P10,000.00 for litigation a) P10,352.59 as actual hospitalization and medical
expenses and attorneys fees. expenses;
3) To spouses Victor Panopio and Martina Panopio: b) P5,000.00 as temperate damages.
a) P10,450.00 for the cost of the artificial leg and crutches 4) To Fred Panopio:
being used by their son Fred Panopio;
a) P50,000.00 as moral damages.
5) To Joseph Sandoval:
a) P3,000.00 as temperate damages.
SO ORDERED.[11]
Hence the present petition raising the following issues:
1. Whether the Court of Appeals was correct when it
pronounced the Hernandez spouses as solidarily liable with
Juan Gonzales, although it is of record that they were not in
the passenger jeepney driven by latter when the accident
occurred;
2. Whether the Court of Appeals was correct in awarding
temperate damages to private respondents namely the
Spouses Dolor, Spouses Valmocina and Spouses Panopio
and to Joseph Sandoval, although the grant of temperate
damages is not provided for in decision of the court a quo;
3. Whether the Court of Appeals was correct in increasing
the award of moral damages to respondents, Spouses Dolor,
Spouses Valmocina and Fred Panopio;
4. Whether the Court of Appeals was correct in affirming the
grant of attorneys fees to Spouses Dolor and to Spouses
Valmocina although the lower court did not specify the fact
and the law on which it is based.
Petitioners contend that the absence of the Hernandez
spouses inside the passenger jeepney at the time of the
collision militates against holding them solidarily liable with
their co-petitioner, Juan Gonzales, invoking Article 2184 of
the Civil Code, which provides:
ARTICLE 2184. In motor vehicle mishaps, the owner is
solidarily liable with his driver, if the former, who was in the
vehicle, could have, by the use of the due diligence,
prevented the misfortune. It is disputably presumed that a
driver was negligent, if he had been found guilty of reckless
driving or violating traffic regulations at least twice within the
next preceding two months.
If the owner was not in the motor vehicle, the provisions of
article 2180 are applicable.
The Hernandez spouses argues that since they were
not inside the jeepney at the time of the collision, the
provisions of Article 2180 of the Civil Code, which does not
provide for solidary liability between employers and
employees, should be applied.
We are not persuaded.
Article 2180 provides:
ARTICLE 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.
The father and, in case of his death or incapacity, the
mother, are responsible for the damages caused by the
minor children who live in their company.
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and live
in their company.
The owners and managers of an establishment or enterprise
are likewise responsible for damages caused by their
employees in the service of the branches in which the latter
are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by
their employees and household helpers acting within
the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
The State is responsible in like manner when it acts through
a special agent; but not when the damage has been caused
by the official to whom the task done properly pertains, in
which case what is provided in article 2176 shall be
applicable.
Lastly, teachers or heads of establishments of arts and
trades shall be liable for damages caused by their pupils and
students or apprentices, so long as they remain in their
custody.
The responsibility treated of in this article shall cease when
the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent
damage. (Underscoring supplied)
On the other hand, Article 2176 provides
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.
While the above provisions of law do not expressly
provide for solidary liability, the same can be inferred from
the wordings of the first paragraph of Article 2180 which
states 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.
Moreover, Article 2180 should be read with Article
2194 of the same Code, which categorically states that the
responsibility of two or more persons who are liable for
quasi-delict is solidary. In other words, the liability of joint
tortfeasors is solidary.[12] Verily, under Article 2180 of the Civil
Code, an employer may be held solidarily liable for the
negligent act of his employee.[13]
The solidary liability of employers with their employees
for quasi-delicts having been established, the next question
is whether Julian Gonzales is an employee of the Hernandez
spouses. An affirmative answer will put to rest any issue on
the solidary liability of the Hernandez spouses for the acts of
Julian Gonzales. The Hernandez spouses maintained that
Julian Gonzales is not their employee since their relationship
relative to the use of the jeepney is that of a lessor and a
lessee. They argue that Julian Gonzales pays them a daily
rental of P150.00 for the use of the jeepney. [14] In essence,
petitioners are practicing the boundary system of jeepney
operation albeit disguised as a lease agreement between
them for the use of the jeepney.
We hold that an employer-employee relationship exists
between the Hernandez spouses and Julian Gonzales.
Indeed to exempt from liability the owner of a public
vehicle who operates it under the boundary system on the
ground that he is a mere lessor would be not only to abet
flagrant violations of the Public Service Law, but also to
place the riding public at the mercy of reckless and
irresponsible drivers reckless because the measure of their
earnings depends largely upon the number of trips they
make and, hence, the speed at which they drive; and
irresponsible because most if not all of them are in no
position to pay the damages they might cause.[15]
Anent the award of temperate damages to the private
respondents, we hold that the appellate court committed no
reversible error in awarding the same to the respondents.
Temperate or moderate damages are damages which
are more than nominal but less than compensatory which
may be recovered when the court finds that some pecuniary
loss has been suffered but its amount cannot, from the
nature of the case, be proved with certainty.[16] Temperate
damages are awarded for those cases where, from the
nature of the case, definite proof of pecuniary loss cannot be
offered, although the court is convinced that there has been
such loss. A judge should be empowered to calculate
moderate damages in such cases, rather than the plaintiff
should suffer, without redress, from the defendants wrongful
act.[17] The assessment of temperate damages is left to the
sound discretion of the court provided that such an award is
reasonable under the circumstances.[18]
We have gone through the records of this case and we
find that, indeed, respondents suffered losses which cannot
be quantified in monetary terms. These losses came in the
form of the damage sustained by the owner type jeep of the
Dolor spouses; the internment and burial of Oscar
Valmocina; the hospitalization of Joseph Sandoval on
account of the injuries he sustained from the collision and
the artificial leg and crutches that respondent Fred Panopio
had to use because of the amputation of his right leg.
Further, we find that the amount of temperate damages
awarded to the respondents were reasonable under the
circumstances.
As to the amount of moral damages which was
awarded to respondents, a review of the records of this case
shows that there exists no cogent reason to overturn the
action of the appellate court on this aspect.
Under Article 2206, the spouse, legitimate and
illegitimate descendants and ascendants of the deceased
may demand moral damages for mental anguish for the
death of the deceased. The reason for the grant of moral
damages has been explained, thus:
. . . the award of moral damages is aimed at a restoration,
within the limits possible, of the spiritual status quo ante; and
therefore, it must be proportionate to the suffering
inflicted. The intensity of the pain experienced by the
relatives of the victim is proportionate to the intensity of
affection for him and bears no relation whatsoever with the
wealth or means of the offender.[19]
Moral damages are emphatically not intended to
enrich a plaintiff at the expense of the defendant. They are
awarded to allow the former to obtain means, diversion or
amusements that will serve to alleviate the moral suffering
he has undergone due to the defendants culpable action and
must, perforce, be proportional to the suffering inflicted.[20]
Truly, the pain of the sudden loss of ones offspring,
especially of a son who was in the prime of his youth, and
who holds so much promise waiting to be fulfilled is indeed a
wellspring of intense pain which no parent should be made
to suffer. While it is true that there can be no exact or
uniform rule for measuring the value of a human life and the
measure of damages cannot be arrived at by a precise
mathematical calculation,[21] we hold that the Court of
Appeals award of moral damages of P100,000.00 each to
the Spouses Dolor and Spouses Valmocina for the death of
their respective sons, Boyet Dolor and Oscar Valmocina, is
in full accord with prevailing jurisprudence.[22]
With respect to the award of attorneys fees to
respondents, no sufficient basis was established for the
grant thereof.
It is well settled that attorneys fees should not be
awarded in the absence of stipulation except under the
instances enumerated in Article 2208 of the Civil Code. As
we have held in Rizal Surety and Insurance Company v.
Court of Appeals:[23]
Article 2208 of the Civil Code allows attorneys fees to be
awarded by a court when its claimant is compelled to litigate
with third persons or to incur expenses to protect his interest
by reason of an unjustified act or omission of the party from
whom it is sought. While judicial discretion is here extant, an
award thereof demands, nevertheless, a factual, legal or
equitable justification. The matter cannot and should not be
left to speculation and conjecture (Mirasol vs. De la Cruz, 84 (Simon) with a violation of BP 22, docketed as Criminal Case
SCRA 337; Stronghold Insurance Company, Inc. vs. Court of No. 275381 entitled People v. Eduardo Simon. The
Appeals, 173 SCRA 619). accusatory portion reads:
In the case at bench, the records do not show enough basis That sometime in December
for sustaining the award for attorneys fees and to adjudge its 1996 in the City of Manila, Philippines,
payment by petitioner. x x x. the said accused, did then and there
willfully, unlawfully and feloniously make
Likewise, this Court held in Stronghold Insurance Company, or draw and issue to Elvin Chan to apply
Inc. vs. Court of Appeals that: on account or for value Landbank Check
No. 0007280 dated December 26, 1996
In Abrogar v. Intermediate Appellate Court [G.R. No. 67970, payable to cash in the amount
January 15, 1988, 157 SCRA 57], the Court had occasion to of P336,000.00 said accused well
state that [t]he reason for the award of attorneys fees must knowing that at the time of issue
be stated in the text of the courts decision, otherwise, if it is she/he/they did not have sufficient funds
stated only in the dispositive portion of the decision, the in or credit with the drawee bank for
same must be disallowed on appeal. x x x.[24] payment of such check in full upon its
presentment, which check when
WHEREFORE, the petition is DENIED. The assailed presented for payment within ninety (90)
decision of the Court of Appeals is AFFIRMED with the days from the date thereof was
MODIFICATION that the grant of attorneys fees is DELETED subsequently dishonored by the drawee
for lack of basis. bank for Account Closed and despite
receipt of notice of such dishonor, said
Costs against petitioners. SO ORDERED. accused failed to pay said Elvin Chan
the amount of the check or to make
arrangement for full payment of the
same within five (5) banking days after
HEIRS OF EDUARDO G.R. No. 157547 receiving said notice.
SIMON,
Petitioners, Present: CONTRARY TO LAW. [1]
BRION, Acting Chairperson,**
BERSAMIN, More than three years later, or on August 3, 2000,
-versus - ABAD,*** respondent Elvin Chan commenced in the MeTC
VILLARAMA, JR., and in Pasay City a civil action for the collection of the principal
SERENO, JJ. amount of P336,000.00, coupled with an application for a
writ of preliminary attachment (docketed as Civil Case No.
Promulgated: 915-00).[2] He alleged in his complaint the following:
ELVIN* CHAN AND THE
COURT OF APPEALS, February 23, 2011 xxx
Respondent. 2. Sometime in December 1996
defendant employing fraud, deceit, and
x------------------------------------------------------------------------------- misrepresentation encashed a check
----------x dated December 26, 1996 in the amount
of P336,000.00 to the plaintiff assuring
DECISION the latter that the check is duly funded
and that he had an existing account with
BERSAMIN, J.: the Land Bank of the Philippines, xerox
copy of the said check is hereto
There is no independent civil action to recover the attached as Annex A;
civil liability arising from the issuance of an unfunded check
prohibited and punished under Batas Pambansa Bilang 3. However, when said check
22 (BP 22). was presented for payment the same
was dishonored on the ground that the
Antecedents account of the defendant with the Land
Bank of the Philippines has been closed
On July 11, 1997, the Office of the City Prosecutor contrary to his representation that he
of Manila filed in the Metropolitan Trial Court of Manila has an existing account with the said
(MeTC) an information charging the late Eduardo Simon
 bank and that the said check was duly
funded and will be honored when
presented for payment;
4. Demands had been made to
the defendant for him to make good the
payment of the value of the check, xerox
copy of the letter of demand is hereto
attached as Annex B, but despite such
demand defendant refused and
continues to refuse to comply with
plaintiffs valid demand;
5. Due to the unlawful failure of
the defendant to comply with the
plaintiffs valid demands, plaintiff has
been compelled to retain the services of
counsel for which he agreed to pay as
reasonable attorneys fees the amount
ofP50,000.00 plus additional amount
of P2,000.00 per appearance.
ALLEGATION IN SUPPORT OF
PRAYER
FOR PRELIMINARY ATTACHMENT
6. The defendant as previously
alleged has been guilty of fraud in
contracting the obligation upon which
this action is brought and that there is
no sufficient security for the claims
sought in this action which fraud consist
in the misrepresentation by the
defendant that he has an existing
account and sufficient funds to cover the
check when in fact his account was
already closed at the time he issued a
check;
7. That the plaintiff has a
sufficient cause of action and this action
is one which falls under Section 1, sub-
paragraph (d), Rule 57 of the Revised
Rules of Court of the Philippines and the
amount due the plaintiff is as much as
the sum for which the plaintiff seeks the
writ of preliminary attachment;
8. That the plaintiff is willing and
able to post a bond conditioned upon
the payment of damages should it be
finally found out that the plaintiff is not
entitled to the issuance of a writ of
preliminary attachment.[3]
On August 9, 2000, the MeTC
in Pasay City issued a writ of preliminary attachment, which
was implemented on August 17, 2000 through the sheriff
attaching a Nissan vehicle of Simon.[4]
On August 17, 2000, Simon filed an urgent motion
to dismiss with application to charge plaintiffs attachment
bond for damages,[5] pertinently averring:
xxx
On the ground of litis pendentia,
that is, as a consequence of the
pendency of another action between the
instant parties for the same cause
before the Metropolitan Trial Court of
Manila, Branch X (10) entitled People of
the Philippines vs. Eduardo Simon,
docketed thereat as Criminal Case No.
275381-CR, the instant action is
dismissable under Section 1, (e), Rule
16, 1997 Rules of Civil Procedure, xxx
xxx
While the instant case is civil in
nature and character as
contradistinguished from the said
Criminal Case No. 915-00 in the
Metropolitan Trial Court of Manila,
Branch X (10), the basis of the instant
civil action is the herein plaintiffs criminal
complaint against defendant arising
from a charge of violation of Batas
Pambansa Blg. 22 as a consequence of
the alleged dishonor in plaintiffs hands
upon presentment for payment with
drawee bank a Land Bank Check No.
0007280 dated December 26, 1996 in
the amount of P336,000- drawn
allegedly issued to plaintiff by defendant
who is the accused in said case, a
photocopy of the Criminal information
filed by the Assistant City Prosecutor of
Manila on June 11, 1997 hereto
attached and made integral part hereof
as Annex 1.
It is our understanding of the law
and the rules, that, when a criminal
action is instituted, the civil action for
recovery of civil liability arising from the
offense charged is impliedly instituted
with the criminal action, unless the
offended party expressly waives the civil
action or reserves his right to institute it
separately xxx.
On August 29, 2000, Chan opposed
Simons urgent motion to dismiss with application to charge
plaintiffs attachment bond for damages, stating:
1. The sole ground upon which
defendant seeks to dismiss plaintiffs
complaint is the alleged pendency of
another action between the same
parties for the same cause, contending
among others that the pendency of
Criminal Case No. 275381-CR entitled
People of the Philippines vs. Eduardo
Simon renders this case dismissable;
2. The defendant further
contends that under Section 1, Rule 111
of the Revised Rules of Court, the filing
of the criminal action, the civil action for
recovery of civil liability arising from the
offense charged is impliedly instituted
with the criminal action which the
plaintiff does not contest; however, it is
the submission of the plaintiff that an
implied reservation of the right to file a
civil action has already been made, first,
by the fact that the information for
violation of B.P. 22 in Criminal Case No.
2753841 does not at all make any
allegation of damages suffered by the
plaintiff nor is there any claim for
recovery of damages; on top of this the
plaintiff as private complainant in the
criminal case, during the presentation of
the prosecution evidence was not
represented at all by a private
prosecutor such that no evidence has
been adduced by the prosecution on
the criminal case to prove damages; all
of these we respectfully submit
demonstrate an effective implied
reservation of the right of the plaintiff to
file a separate civil action for damages;
3. The defendant relies on
Section 3 sub-paragraph (a) Rule 111 of
the Revised Rules of Court which
mandates that after a criminal action
has been commenced the civil action
cannot be instituted until final judgment
has been rendered in the criminal
action; however, the defendant
overlooks and conveniently failed to
consider that under Section 2, Rule 111
which provides as follows:
In the cases provided
for in Articles 31, 32, 33, 34
and 2177 of the Civil Code
of the Philippines, an
independent civil action
entirely separate and
distinct from the criminal
 action, may be brought by
the injured party during the
pendency of criminal case
provided the right is
reserved as required in the
preceding section. Such
civil action shall proceed
independently of the
criminal prosecution, and
shall require only a damages against the bond is totally
preponderance of
evidence.
In as much as the case is one that falls
under Art. 33 of the Civil Code of
the Philippines as it is based on fraud,
this action therefore may be prosecuted
independently of the criminal action;
4. In fact we would even venture
to state that even without any
reservation at all of the right to file a
separate civil action still the plaintiff is
authorized to file this instant case
because the plaintiff seeks to enforce an
obligation which the defendant owes to
the plaintiff by virtue of the negotiable
instruments law. The plaintiff in this case
sued the defendant to enforce his
liability as drawer in favor of the plaintiff
as payee of the check. Assuming the
allegation of the defendant of the
alleged circumstances relative to the
issuance of the check, still when he
delivered the check payable to bearer to
that certain Pedro Domingo, as it was
payable to cash, the same may be
negotiated by delivery by who ever was
the bearer of the check and such
negotiation was valid and effective
against the drawer;
5. Indeed, assuming as true the
allegations of the defendant regarding
the circumstances relative to the
issuance of the check it would be
entirely impossible for the plaintiff to
have been aware that such check was
intended only for a definite person and
was not negotiable considering that the
said check was payable to bearer and
was not even crossed;
6. We contend that what cannot
be prosecuted separate and apart from
the criminal case without a reservation
is a civil action arising from the criminal
offense charged. However, in this instant
case since the liability of the defendant
are imposed and the rights of the
plaintiff are created by the negotiable
instruments law, even without any
reservation at all this instant action may
still be prosecuted;
7. Having this shown, the merits
of plaintiffs complaint the application for
without any legal support and perforce
should be dismissed outright.[6]
On October 23, 2000, the MeTC
in Pasay City granted Simons urgent motion to dismiss with
application to charge plaintiffs attachment bond for
damages,[7] dismissing the complaint of Chan because:
xxx
After study of the arguments of
the parties, the court resolves to GRANT
the Motion to Dismiss and the
application to charge plaintiffs bond for
damages.
For litis pendentia to be a
ground for the dismissal of an action,
the following requisites must concur: (a)
identity of parties or at least such as to
represent the same interest in both
actions; (b) identity of rights asserted
and relief prayed for, the relief being
founded on the same acts; and (c) the
identity in the two (2) cases should be
such that the judgment, which may be
rendered in one would, regardless of
which party is successful, amount to res
judicata in the other. xxx
A close perusal of the herein
complaint denominated as Sum of
Money and the criminal case for
violation of BP Blg. 22 would readily
show that the parties are not only
identical but also the cause of action
being asserted, which is the recovery of
the value of Landbank Check No.
0007280 in the amount of P336,000.00.
In both civil and criminal cases, the
rights asserted and relief prayed for, the
reliefs being founded on the same facts,
are identical.
Plaintiffs claim that there is an
effective implied waiver of his right to
pursue this civil case owing to the fact
that there was no allegation of damages
in BP Blg. 22 case and that there was
no private prosecutor during the
presentation of prosecution evidence is
unmeritorious. It is basic that when a
complaint or criminal Information is filed,
even without any allegation of damages
and the intention to prove and claim
them, the offended party has the right to
prove and claim for them, unless a
waiver or reservation is made or unless
in the meantime, the offended party has
instituted a separate civil action. xxx The
over-all import of the said provision
conveys that the waiver which includes
indemnity under the Revised Penal
Code, and damages arising under
Articles 32, 33, and 34 of the Civil Code
must be both clear and express. And
this must be logically so as the
primordial objective of the Rule is to
prevent the offended party from
recovering damages twice for the same
act or omission of the accused.
Indeed, the evidence discloses
that the plaintiff did not waive or made a
reservation as to his right to pursue the
civil branch of the criminal case for
violation of BP Blg. 22 against the
defendant herein. To the considered
view of this court, the filing of the instant
complaint for sum of money is indeed
legally barred. The right to institute a
separate civil action shall be made
before the prosecution starts to present
its evidence and under circumstances
affording the offended party a
reasonable opportunity to make such
reservation. xxx
Even assuming the correctness
of the plaintiffs submission that the
herein case for sum of money is one
based on fraud and hence falling under
Article 33 of the Civil Code, still prior
reservation is required by the Rules, to
wit:
In the cases provided
for in Articles 31, 32, 33, 34
and 2177 of the Civil Code
of the Philippines, an
independent civil action
entirely separate and
distinct from the criminal
action, may be brought by
the injured party during the
pendency of criminal case
 provided the right is
reserved as required in the
preceding section. Such
civil action shall proceed
independently of the
criminal prosecution, and
shall require only a On July 31, 2001, the Regional Trial Court (RTC)
preponderance of
evidence.
xxx
WHEREFORE, premises
considered, the court resolves to:
1. Dismiss the instant
complaint on the ground
of litis pendentia;
2. Dissolve/Lift the Writ of
Attachment issued by this
court on August 14, 2000;
3. Charge the plaintiffs bond
the amount of P336,000.00
in favor of the defendant for
the damages sustained by
the latter by virtue of the
implementation of the writ
of attachment;
4. Direct the Branch Sheriff of
this Court to RESTORE
with utmost dispatch to the
defendants physical
possession the vehicle
seized from him on August
16, 2000; and
5. Direct the plaintiff to pay
the defendant the sum
of P5,000.00 by way of
attorneys fees.
SO ORDERED.
Chans motion for reconsideration was
on December 20, 2000,[8] viz:
Considering that the plaintiffs
arguments appear to be a mere
repetition of his previous submissions,
and which submissions this court have
already passed upon; and taking into
account the inapplicability of the ratio
decidendi in the Tactaquin vs. Palileo
case which the plaintiff cited as clearly in
that case, the plaintiff therein expressly
made a reservation to file a separate
civil action, the Motion for
Reconsideration is DENIED for lack of (a) When a criminal
merit. action is instituted,
the civil action for
SO ORDERED. the recovery of civil
liability arising from
the offense charged
in Pasay City upheld the dismissal of Chans complaint, shall be deemed
disposing:[9] instituted with the
criminal action
WHEREFORE, finding no error unless the offended
in the appealed decision, the same is party waives the
hereby AFFIRMED in toto. civil action,
reserves the right to
SO ORDERED. institute it
separately or
On September 26, 2001, Chan appealed to the institute the civil
Court of Appeals (CA) by petition for review,[10] challenging action prior to the
the propriety of the dismissal of his complaint on the ground criminal action.
of litis pendentia.
Rule 111, Section 2 further
In his comment, [11] Simon countered that Chan states:
was guilty of bad faith and malice in prosecuting his alleged
civil claim twice in a manner that caused him (Simon) utter After the criminal
embarrassment and emotional sufferings; and that the action has been
dismissal of the civil case because of the valid ground of litis commenced, the
pendentia based on Section 1 (e), Rule 16 of the 1997 Rules separate civil action
of Civil Procedure was warranted. arising therefrom
cannot be instituted
On June 25, 2002, the CA promulgated its until final judgment
assailed decision,[12] overturning the RTC, viz: has been entered in
the criminal action.
xxx
As a general rule, an offense However, with respect to civil
causes two (2) classes of injuries. The actions for recovery of civil liability under
first is the social injury produced by the Articles 32, 33, 34 and 2176 of the Civil
criminal act which is sought to be Code arising from the same act or
repaired through the imposition of the omission, the rule has been changed.
corresponding penalty, and the second
is the personal injury caused to the In DMPI Employees Credit
victim of the crime which injury is sought Association vs. Velez, the Supreme
to be compensated through indemnity Court pronounced that only the civil
which is also civil in nature. Thus, every liability arising from the offense charged
person criminally liable for a felony is is deemed instituted with the criminal
also civilly liable. action unless the offended party waives
denied the civil action, reserves his right to
The offended party may prove institute it separately, or institutes the
the civil liability of an accused arising civil action prior to the criminal action.
from the commission of the offense in Speaking through Justice Pardo, the
the criminal case since the civil action is Supreme Court held:
either deemed instituted with the
criminal action or is separately There is no more
instituted. need for a reservation
of the right to file the
Rule 111, Section 1 of the independent civil
Revised Rules of Criminal Procedure, action under Articles
which became effective on December 1, 32, 33, 34 and 2176 of
2000, provides that: the Civil Code of
the Philippines. The effective on December WHEREFORE, the petition is
reservation and waiver 1, 2000 are applicable hereby GRANTED. The Decision
referred to refers only to this case. dated July 13, 2001 rendered by
to the civil action for the Regional Trial Court of Pasay City,
the recovery of the Procedural laws Branch 108 affirming the dismissal of
civil liability arising may be given the complaint filed by petitioner is
from the offense retroactive effect to hereby REVERSED and SET ASIDE.
charged. This does actions pending and The case is hereby REMANDED to the
not include recovery of undetermined at the trial court for further proceedings.
civil liability under time of their passage.
Articles 32, 33, 34, There are no vested SO ORDERED.
and 2176 of the Civil rights in the rules of
Code of procedure. xxx On March 14, 2003, the CA denied Simons motion
the Philippines arising for reconsideration.[13]
from the same act or Thus, Civil Case
omission which may No. CV-94-124, an Hence, this appeal, in which the petitioners submit
be prosecuted independent civil that the CA erroneously premised its decision on the
separately without a action for damages on assessment that the civil case was an independent civil
reservation. account of the fraud action under Articles 32, 33, 34, and 2176 of the Civil Code;
committed against that the CAs reliance on the ruling in DMPI Employees
Rule 111, Section 3 reads: respondent Villegas Credit Cooperative Inc. v. Velez[14] stretched the meaning
under Article 33 of the and intent of the ruling, and was contrary to Sections 1 and 2
Sec. 3. Civil Code, may of Rule 111 of the Rules of Criminal Procedure; that this case
When civil action proceed independently was a simple collection suit for a sum of money, precluding
may proceed even if there was no the application of Section 3 of Rule 111 of the Rules of
independently. In reservation as to its Criminal Procedure.[15]
the cases filing. In his comment,[16] Chan counters that the petition for
provided in review should be denied because the petitioners used the
Articles 32, 33, It must be pointed that the wrong mode of appeal; that his cause of action, being based
34, and 2176 of abovecited case is similar with the on fraud, was an independent civil action; and that the
the Civil Code of instant suit. The complaint was also appearance of a private prosecutor in the criminal case did
the Philippines, brought on allegation of fraud under not preclude the filing of his separate civil action.
the independent Article 33 of the Civil Code and
civil action may committed by the respondent in the Issue
be brought by the issuance of the check which later
offended party. It bounced. It was filed before the trial The lone issue is whether or not Chans civil action to recover
shall proceed court, despite the pendency of the the amount of the unfunded check (Civil Case No. 915-00)
independently of criminal case for violation of BP 22 was an independent civil action.
the criminal against the respondent. While it may be
action and shall true that the changes in the Revised Ruling
require only a Rules on Criminal Procedure pertaining
preponderance of to independent civil action became The petition is meritorious.
evidence. In no effective on December 1, 2000, the
case, however, same may be given retroactive A
may the offended application and may be made to apply to Applicable Law and Jurisprudence on the
party recover the case at bench, since procedural Propriety of filing a separate civil action based on BP 22
damages twice rules may be given retroactive
for the same act application. There are no vested rights The Supreme Court has settled the issue of
or omission in the rules of procedure. whether or not a violation of BP 22 can give rise to civil
charged in the liability in Banal v. Judge Tadeo, Jr.,[17] holding:
criminal action.
xxx
The changes in In view of the ruling on the first Article 20 of the New Civil Code
the Revised Rules on assigned error, it is therefore an error to provides:
Criminal Procedure adjudge damages in favor of the
pertaining to petitioner. Every person who, contrary
independent civil to law, wilfully or negligently
actions which became causes damage to another,
 shall indemnify the latter for
the same.
Regardless, therefore, of whether or
not a special law so provides,
indemnification of the offended party
may be had on account of the
damage, loss or injury directly
suffered as a consequence of the
wrongful act of another. The indemnity
which a person is sentenced to pay
forms an integral part of the penalty
imposed by law for the commission of
a crime (Quemel v. Court of Appeals,
22 SCRA 44, citing Bagtas v. Director
of Prisons, 84 Phil 692).Every crime
gives rise to a penal or criminal action
for the punishment of the guilty party,
and also to civil action for the
restitution of the thing, repair of the
damage, and indemnification for the
losses (United States v. Bernardo, 19
Phil 265).
xxx
Civil liability to the offended party
cannot thus be denied. The payee of
the check is entitled to receive the
payment of money for which the
worthless check was issued. Having
been caused the damage, she is
entitled to recompense.
Surely, it could not have been the
intendment of the framers of Batas
Pambansa Blg. 22 to leave the
offended private party defrauded and
empty-handed by excluding the civil
liability of the offender, giving her only
the remedy, which in many cases
results in a Pyrrhic victory, of having to
file a separate civil suit. To do so may
leave the offended party unable to
recover even the face value of the
check due her, thereby unjustly
enriching the errant drawer at the
expense of the payee. The protection
which the law seeks to provide would,
therefore, be brought to naught.
xxx
However, there is no independent civil action to recover the
value of a bouncing check issued in contravention of BP 22.
This is clear from Rule 111 of the Rules of
Court, effective December 1, 2000, which relevantly
provides:
Section 1. Institution of criminal
and civil actions. - (a) When a criminal
action is instituted, the civil action for the
recovery of civil liability arising from the
offense charged shall be deemed
instituted with the criminal action unless
the offended party waives the civil
action, reserves the right to institute it
separately or institutes the civil action
prior to the criminal action.
The reservation of the right to
institute separately the civil action shall
be made before the prosecution starts
presenting its evidence and under
circumstances affording the offended
party a reasonable opportunity to make
such reservation.
When the offended party seeks
to enforce civil liability against the
accused by way of moral, nominal,
temperate, or exemplary damages
without specifying the amount thereof in
the complaint or information, the filing
fees therefor shall constitute a first lien
on the judgment awarding such
damages.
Where the amount of damages,
other than actual, is specified in the
complaint or information, the
corresponding filing fees shall be paid
by the offended party upon the filing
thereof in court.
Except as otherwise provided in
these Rules, no filing fees shall be
required for actual damages.
No counterclaim, cross-claim or
third-party complaint may be filed by the
accused in the criminal case, but any
cause of action which could have been
the subject thereof may be litigated in a
separate civil action. (1a)
(b) The criminal action for
violation of Batas Pambansa Blg. 22
shall be deemed to include the
corresponding civil action. No
reservation to file such civil action
separately shall be allowed.[18]
Upon filing of the aforesaid joint
criminal and civil actions, the offended
party shall pay in full the filing fees
based on the amount of the check
involved, which shall be considered as
the actual damages claimed. Where the
complaint or information also seeks to
recover liquidated, moral, nominal,
temperate or exemplary damages, the
offended party shall pay the filing fees
based on the amounts alleged therein. If
the amounts are not so alleged but any
of these damages are subsequently
awarded by the court, the filing fees
based on the amount awarded shall
constitute a first lien on the judgment.
Where the civil action has been
filed separately and trial thereof has not
yet commenced, it may be consolidated
with the criminal action upon application
with the court trying the latter case. If
the application is granted, the trial of
both actions shall proceed in
accordance with section 2 of the Rule
governing consolidation of the civil and
criminal actions.
Section 3. When civil action may
proceed independently. In the cases
provided in Articles 32, 33, 34 and 2176
of the Civil Code of the Philippines, the
independent civil action may be brought
by the offended party. It shall proceed
independently of the criminal action and
shall require only a preponderance of
evidence. In no case, however, may the
offended party recover damages twice
for the same act or omission charged in
the criminal action.
The aforequoted provisions of the Rules of Court,
even if not yet in effect when Chan commenced Civil Case
No. 915-00 on August 3, 2000, are nonetheless applicable. It
is axiomatic that the retroactive application of procedural
laws does not violate any right of a person who may feel
adversely affected, nor is it constitutionally objectionable.
The reason is simply that, as a general rule, no vested right
may attach to, or arise from, procedural laws. [19] Any new
rules may validly be made to apply to cases pending at the
time of their promulgation, considering that no party to an
action has a vested right in the rules of procedure, [20] except
that in criminal cases, the changes do not retroactively apply
if they permit or require a lesser quantum of evidence to
convict than what is required at the time of the commission
of the offenses, because such retroactivity would be
unconstitutional for being ex post facto under the
Constitution.[21]
Moreover, the application of the rule would not be
precluded by the violation of any assumed vested right,
because the new rule was adopted from Supreme Court
Circular 57-97 that took effect on November 1, 1997.
Supreme Court Circular 57-97 states:
Any provision of law or Rules of
Court to the contrary notwithstanding,
the following rules and guidelines shall
henceforth be observed in the filing and
prosecution of all criminal cases under
Batas Pambansa Blg. 22 which
penalizes the making or drawing and
issuance of a check without funds or
credit:
1. The criminal action for
violation of Batas Pambansa Blg. 22
shall be deemed to necessarily
include the corresponding civil
action, and no reservation to file
such civil action separately shall be
allowed or recognized.[22]
2. Upon the filing of the
aforesaid joint criminal and civil actions,
the offended party shall pay in full the
filing fees based upon the amount of the
check involved which shall be
considered as the actual damages
claimed, in accordance with the
schedule of fees in Section 7 (a) and
Section 8 (a), Rule 141 of the Rules of
Court as last amended by Administrative
Circular No. 11-94 effective August 1,
1994. Where the offended party further
seeks to enforce against the accused
civil liability by way of liquidated, moral,
nominal, temperate or exemplary
damages, he shall pay the
corresponding filing fees therefor based
on the amounts thereof as alleged either
in the complaint or information. If not so
alleged but any of these damages are
subsequently awarded by the court, the
amount of such fees shall constitute a
first lien on the judgment.
3. Where the civil action has
heretofore been filed separately and trial
thereof has not yet commenced, it may
be consolidated with the criminal action
upon application with the court trying the
latter case. If the application is granted,
the trial of both actions shall proceed in
accordance with the pertinent procedure
outlined in Section 2 (a) of Rule 111
governing the proceedings in the actions
as thus consolidated.
4. This Circular shall be
published in two (2) newspapers of
general circulation and shall take effect
on November 1, 1997.
The reasons for issuing Circular 57-97 were amply
explained in Hyatt Industrial Manufacturing Corporation v.
Asia Dynamic Electrix Corporation,[23] thus:
xxx
We agree with the ruling of the
Court of Appeals that upon filing of the
criminal cases for violation of B.P. 22,
the civil action for the recovery of the
amount of the checks was also impliedly
instituted under Section 1(b) of Rule 111
of the 2000 Rules on Criminal
Procedure. Under the present revised
Rules, the criminal action for violation of
B.P. 22 shall be deemed to include the
corresponding civil action. The
reservation to file a separate civil action
is no longer needed. The Rules provide:
Section 1. Institution
of criminal and civil actions.
(a) xxx
(b) The criminal
action for violation of Batas
Pambansa Blg. 22 shall be
deemed to include the
corresponding civil action.
No reservation to file such
civil action separately shall
be allowed.
Upon filing of the
aforesaid joint criminal and
civil actions, the offended
party shall pay in full the
filing fees based on the
amount of the check
involved, which shall be
considered as the actual
damages claimed. Where
the complaint or information
also seeks to recover
liquidated, moral, nominal,
temperate or exemplary
damages, the offended
party shall pay additional
filing fees based on the
amounts alleged therein. If
the amounts are not so
alleged but any of these
damages are subsequently
awarded by the court, the
filing fees based on the
amount awarded shall
constitute a first lien on the
judgment.
Where the civil action
has been filed separately
and trial thereof has not yet
commenced, it may be
consolidated with the
criminal action upon
application with the court
trying the latter case. If the
application is granted, the
trial of both actions shall
proceed in accordance with
section 2 of this Rule
governing consolidation of
the civil and criminal
actions.
The foregoing rule was adopted
from Circular No. 57-97 of this Court. It
specifically states that the criminal
action for violation of B.P. 22 shall be
deemed to include the corresponding
civil action. It also requires the
complainant to pay in full the filing fees
based on the amount of the check
involved. Generally, no filing fees are
required for criminal cases, but because
of the inclusion of the civil action in
complaints for violation of B.P. 22, the
Rules require the payment of docket
fees upon the filing of the complaint.
This rule was enacted to help declog
court dockets which are filled with
B.P. 22 cases as creditors actually
use the courts as collectors.
Because ordinarily no filing fee is
charged in criminal cases for actual
damages, the payee uses the
intimidating effect of a criminal
charge to collect his credit gratis and
sometimes, upon being paid, the trial
court is not even informed thereof.
The inclusion of the civil action in the
criminal case is expected to
significantly lower the number of
cases filed before the courts for
collection based on dishonored
checks. It is also expected to
expedite the disposition of these
cases. Instead of instituting two
separate cases, one for criminal and
 another for civil, only a single suit
shall be filed and tried. It should be
stressed that the policy laid down by
the Rules is to discourage the
separate filing of the civil action. The
Rules even prohibit the reservation of
a separate civil action, which means
that one can no longer file a separate
civil case after the criminal complaint
is filed in court. The only instance
when separate proceedings are
allowed is when the civil action is
filed ahead of the criminal case.
Even then, the Rules encourage the
consolidation of the civil and criminal
cases. We have previously observed
that a separate civil action for the
purpose of recovering the amount of
the dishonored checks would only
prove to be costly, burdensome and
time-consuming for both parties and
would further delay the final
disposition of the case. This
multiplicity of suits must be avoided.
Where petitioners rights may be fully
adjudicated in the proceedings
before the trial court, resort to a
separate action to recover civil
liability is clearly unwarranted. In
view of this special rule governing
actions for violation of B.P. 22, Article
31 of the Civil Code cited by the trial
court will not apply to the case at bar.
[24]
The CAs reliance on DMPI Employees Credit
Association v. Velez[25] to give due course to the civil action
of Chan independently and separately of Criminal Case No.
275381 was unwarranted. DMPI Employees, which involved
a prosecution for estafa, is not on all fours with this case,
which is a prosecution for a violation of BP 22. Although the
Court has ruled that the issuance of a bouncing check may
result in two separate and distinct crimes of estafa and
violation of BP 22,[26] the procedures for the recovery of the
civil liabilities arising from these two distinct crimes are
different and non-interchangeable. In prosecutions of estafa,
the offended party may opt to reserve his right to file a
separate civil action, or may institute an independent action
based on fraud pursuant to Article 33 of the Civil Code,
[27]
asDMPI Employees has allowed. In prosecutions of
violations of BP 22, however, the Court has adopted a policy
to prohibit the reservation or institution of a separate civil
action to claim the civil liability arising from the issuance of
the bouncing check upon the reasons delineated in Hyatt
Industrial Manufacturing Corporation, supra.
To repeat, Chans separate civil action to recover the amount
of the check involved in the prosecution for the violation of
BP 22 could not be independently maintained under both
Supreme Court Circular 57-97 and the aforequoted
provisions of Rule 111 of the Rules of Court, notwithstanding
the allegations of fraud and deceit.
B DECISION
Aptness of the dismissal of the civil action
on the ground of litis pendentia
Did the pendency of the civil action in the MeTC
in Manila (as the civil aspect in Criminal Case No. 275381)
bar the filing of Civil Case No. 915-00 in the MeTC
in Pasay City on the ground of litis pendentia?
For litis pendentia to be successfully invoked as a
bar to an action, the concurrence of the following requisites
is necessary, namely: (a) there must be identity of parties or
at least such as represent the same interest in both actions;
(b) there must be identity of rights asserted and reliefs
prayed for, the reliefs being founded on the same facts; and,
(c) the identity in the two cases should be such that the
judgment that may be rendered in one would, regardless of
which party is successful, amount to res judicata in respect
of the other. Absent the first two requisites, the possibility of
the existence of the third becomes nil.[28]
A perusal of Civil Case No. 01-0033 and Criminal
Case No. 275381 ineluctably shows that all the elements
of litis pendentia are attendant. First of all, the parties in the
civil action involved in Criminal Case No. 275381 and in Civil
Case No. 915-00, that is, Chan and Simon, are the same.
Secondly, the information in Criminal Case No. 275381 and
the complaint in Civil Case No. 915-00 both alleged that
Simon had issued Landbank Check No. 0007280
worth P336,000.00 payable to cash, thereby indicating that
the rights asserted and the reliefs prayed for, as well as the
facts upon which the reliefs sought were founded, were
identical in all respects. And, thirdly, any judgment rendered
in one case would necessarily bar the other by res judicata;
otherwise, Chan would be recovering twice upon the same
claim.
It is clear, therefore, that the MeTC
in Pasay City properly dismissed Civil Case No. 915-00 on
the ground of litis pendentia through its decision
dated October 23, 2000; and that the RTC in Pasay Citydid
not err in affirming the MeTC.
WHEREFORE, we grant the petition for review on certiorari,
and, accordingly, we reverse and set aside the decision
promulgated by the Court of Appeals on June 25, 2002. We
reinstate the decision rendered on October 23, 2000 by the
Metropolitan Trial Court, Branch 45, in Pasay City.
Costs of suit to be paid by the respondent. SO ORDERED.
G.R. No. 181084 June 16, 2009
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
BARTOLOME TAMPUS1 and IDA
MONTESCLAROS, Defendants.
IDA MONTESCLAROS, Appellant.
PUNO, C.J.:
On appeal is the decision2 of the Court of Appeals, Visayas
Station, dated September 29, 2006 in CA-G.R. CR-HC No.
00215. The Court of Appeals affirmed, with modification, the
decision3 of the Regional Trial Court of Lapu-lapu City in
Criminal Case No. 013324-L, finding appellant Ida
Montesclaros (Ida) guilty as an accomplice in the
commission of rape.
The present appeal stems from two criminal cases: (1)
Criminal Case No. 013324-L charging Bartolome Tampus
(Tampus) and Ida as conspirators in the rape of ABC 4 on
April 1, 1995 at 4:30 p.m.; and (2) Criminal Case No.
013325-L charging Tampus of raping ABC on April 4, 1995 at
1:00 a.m.
The Information5 in each case reads as follows:
CRIM. CASE NO. 013324-L6
That on the 1st day of April 1995, at about 4:30 oclock [sic]
in the afternoon, in Looc, Lapulapu City, Philippines, within
the jurisdiction of this Honorable Court, accused Bartolome
Tampus, taking advantage that [ABC] was in deep slumber
due to drunkenness, did then and there willfully, unlawfully
and feloniously have carnal knowledge with [sic] the latter,
who was at that time thirteen (13) years old, against her will,
in conspiracy with the accused Ida Montesclaros who gave
permission to Bartolome Tampus to rape [ABC].
CONTRARY TO LAW.
CRIM. CASE NO. 013325-L7
That on the 3rd day of April, 1995, 8 at about 1:00 oclock [sic]
dawn, in Looc, Lapulapu City, Philippines, within the
jurisdiction of this Honorable Court, the above-named
accused, armed with a wooden club (poras), by means of
threat and intimidation, did then and there willfully, unlawfully
and feloniously have carnal knowledge with [sic] [ABC], who
was at that time thirteen (13) years old, against her will.
CONTRARY TO LAW.
The offended party, ABC, is the daughter of appellant Ida,
and was 13 years old at the time of the incident. Ida worked
as a waitress in Bayanihan Beer House in Mabini, Cebu City.
On February 19, 1995, Ida and ABC started to rent a room in
a house owned by Tampus, a barangay tanod. On April 1,
1995, about 4:30 p.m., ABC testified that she was in the
house with Ida and Tampus9 who were both drinking beer at
that time. They forced her to drink beer 10 and after
consuming three and one-half (3 ) glasses of beer, she
became intoxicated and very sleepy.11 While ABC was lying
on the floor of their room, she overheard Tampus requesting
her mother, Ida, that he be allowed to "remedyo"12 or have
sexual intercourse with her.13 Appellant Ida agreed and
instructed Tampus to leave as soon as he finished having
sexual intercourse with ABC. Ida then went to work, leaving
Tampus alone with ABC. ABC fell asleep and when she
woke up, she noticed that the garter of her panties was loose
and rolled down to her knees. She suffered pain in her head,
thighs, buttocks, groin and vagina, and noticed that her
panties and short pants were stained with blood which was
coming from her vagina.14 When her mother arrived home
from work the following morning, she kept on crying but
appellant Ida ignored her.15
ABC testified that on April 4, 1995 around 1:00 a.m., she
was left alone in the room since her mother was at work at
the beer house.16 Tampus went inside their room and
threatened to kill her if she would report the previous sexual
assault to anyone.17 He then forcibly removed her panties.
ABC shouted but Tampus covered her mouth and again
threatened to kill her if she shouted. 18 He undressed himself,
spread ABCs legs, put saliva on his right hand and he
applied this to her vagina; he then inserted his penis into
ABCs vagina and made a push and pull movement. 19 After
consummating the sexual act, he left the house. When ABC
told appellant Ida about the incident, the latter again ignored
her.20
On May 4, 1995, after being maltreated by her mother, ABC
sought the help of her aunt, Nellie Montesclaros (Nellie). She
told Nellie about the rape and that her mother sold
her.21 ABC, together with Nellie and Norma Andales, a traffic
enforcer, reported the incident of rape to the police. On May
9, 1995, Nestor A. Sator , M.D. (Dr. Sator), head of the
Medico-Legal Branch of the Philippine National Crime
Laboratory Services, Regional Unit 7, conducted a physical
examination of ABC and issued a Medico-Legal Report. 22 Dr.
Sator testified that the result of his examination of ABC
revealed a deep healed laceration at the seven (7) oclock
position and a shallow healed laceration at the one (1)
oclock position on ABCs hymen.
On September 22, 1995, ABC filed two Complaints. She
accused Tampus of taking advantage of her by having carnal
knowledge of her, against her will, while she was intoxicated
and sleeping on April 1, 1995 at 4:30 p.m. She declared in
her Complaint that this was done in conspiracy with accused
Ida who gave permission to Tampus to rape her. And again,
she stated that on April 3, 1995, she was threatened with a
wooden club by Tampus, who then succeeded in having
sexual intercourse with her, against her will.
Tampus denied raping ABC on April 1, 1995. He claimed that
at 4:00 p.m. of April 1, 1995, he left the house to go to the
public market of Lapu-lapu City. When he arrived home at
6:00 p.m., ABC and Ida were not there as they usually go to
the beer house at 4:00 p.m. or 5:00 p.m. 23 He denied forcing
ABC to drink beer. He also denied asking Ida to allow him to
have sexual intercourse with ABC.24 Appellant Ida also
testified that she and ABC left for the beer house at 4:00
p.m. of April 1, 1995 and they came back at 6:00 a.m. the
following day.25 She said that she always brought her
daughter to the beer house with her and there was never an
instance when she left her daughter alone in the
house.26 She denied forcing ABC to drink beer at 4:30 p.m.
of April 1, 1995, and she denied giving permission to Tampus
to have sexual intercourse with ABC.27
Tampus also denied raping ABC on April 4, 1995. He
testified that he arrived at the Barangay Tanod Headquarters
between 7:00 p.m. and 8:00 p.m. of April 3, 1995 28 and that
his actual duty time shift was from midnight to 5:00 a.m. of
April 4, 1995. Guillermo Berdin (Berdin), a defense witness,
testified that on April 3, 1995, Tampus reported for duty at
the police outpost at 8:00 p.m. and left at 5:00 a.m. of April 4,
1995, as reflected in the attendance logbook. However, on
cross-examination, Berdin could not tell whether the
signature appearing on the logbook really belonged to
Tampus. It was noted by the trial court that the handwriting
used by Tampus in the logbook entry on April 2, 1995 is
different from his handwriting appearing on April 3, 1995. 29 It
was also revealed that the house of Tampus is just 500
meters away or just a three-minute walk from the barangay
tanod outpost and that the barangay tanod on duty could
leave the outpost unnoticed or without permission.30
Agustos B. Costas, M.D.31 (Dr. Costas), the Head of the
Department of Psychiatry of the Vicente Sotto Memorial
Medical Center, issued a Medical Certification, 32 which
showed that appellant Ida was treated as an outpatient at
the Vicente Sotto Memorial Medical Center Psychiatry
Department from November 11, 1994 to January 12, 1995
and was provisionally diagnosed with Schizophrenia,
paranoid type.
The trial court convicted Tampus of two counts of rape, as
principal in Criminal Case No. 013324-L and Criminal Case
No. 013325-L. Appellant Ida was found guilty as an
accomplice in Criminal Case No. 013324-L. The trial court
appreciated in Idas favor the mitigating circumstance of
illness which would diminish the exercise of will-power
without depriving her of the consciousness of her acts,
pursuant to Article 13(9) of the Revised Penal Code. 33 The
dispositive portion of the trial courts decision states, viz.:
WHEREFORE, in the light of the foregoing considerations,
the Court finds accused Bartolome Tampus GUILTY
BEYOND REASONABLE DOUBT of two counts of rape, as
principals [sic], in Criminal Case No. 013324-L and Criminal
Case No. 013325-L and he is hereby sentenced to suffer the
penalty of Reclusion Perpetua in each of the aforementioned
cases.
The Court also finds accused Ida Montesclaros GUILTY
BEYOND REASONABLE DOUBT as an accomplice in
Criminal Case No. 013324-L, and she is hereby sentenced
to suffer the penalty of twelve (12) years and one (1) day to
fourteen (14) years, and eight (8) months of Reclusion
Temporal.
Both accused are hereby ordered, jointly and severally, to
indemnify the offended party, [ABC], the sum of P50,000.00
in Criminal Case No. 013324-L.
With costs against the accused.
SO ORDERED. 34
Pending resolution of the appeal before the Court of
Appeals, accused Tampus died on November 16, 2000 35and
his appeal was dismissed by the Third Division of this
Court.36 Thus, the appeal before the Court of Appeals dealt
only with that of appellant Ida. The appellate court gave
credence to the testimony of ABC and affirmed the trial
courts decision with modification. It appreciated the
mitigating circumstance of illness in favor of Ida, but found
that Ida failed to prove that she was completely deprived of
intelligence on April 1, 1995. On the basis of the medical
report and the testimony of the attending physician, Idas
schizophrenia was determined by both the trial court and the
Court of Appeals to have diminished the exercise of her will-
power though it did not deprive her of the consciousness of
her acts. The dispositive portion of the decision of the Court
of Appeals states:
WHEREFORE, the instant appeal is DISMISSED for lack of
merit. The assailed decision is AFFIRMED with
MODIFICATION. Appellant Ida Montesclaros is guilty beyond
reasonable doubt as accomplice in the commission of rape
and hereby sentenced to suffer the indeterminate penalty of
ten (10) years and one (1) day of prision mayor as minimum,
to twelve (12) years and one (1) day of reclusion temporal as
maximum. Further, she is ORDERED to pay moral damages
in the amount of fifty thousand pesos (Php 50,000.00) and
exemplary damages in the amount of twenty-five thousand
pesos (Php 25,000.00).37
We find the findings of the lower courts to be well-taken.
The finding of guilt of Ida as an accomplice in the rape of
ABC is dependent on proving the guilt of the principal
accused. Upon examination of the records of the case, we
agree with the ruling of the trial and appellate courts that the
testimony of ABC is clear and straightforward, and is
sufficient to conclude that Tampus is guilty beyond
reasonable doubt as principal in the rape of ABC, in Criminal
Case No. 013324-L, as well as to convict appellant Ida as an
accomplice in the same criminal case.
The findings of the trial courts carry great weight and respect
and, generally, appellate courts will not overturn said findings
unless the trial court overlooked, misunderstood or
misapplied some facts or circumstances of weight and
substance which will alter the assailed decision or affect the
result of the case.38 The rule finds an even more stringent
application where the said findings are sustained by the
Court of Appeals.39
The trial court has carefully scrutinized the testimony of
complainant ABC and has given full faith and credence to
her testimony. Both the trial and appellate courts found that
the rape of ABC by Tampus on April 1, 1995 has been
established beyond reasonable doubt. Indeed, it is highly
inconceivable for a young girl to impute the crime of rape,
implicate her own mother in such a vile act, allow an
examination of her private parts and subject herself to public
trial if she has not been a victim of rape and was impelled to
seek justice for the defilement of her person. Testimonies of
child-victims are normally given full credit.40
Tampus was positively identified by ABC as the person who
had carnal knowledge of her against her will on April 1, 1995.
The denial of Tampus cannot prevail over the positive and
direct identification by the victim, ABC. Although ABC was
asleep and unconscious at the time the sexual debasement
was committed by Tampus, circumstantial evidence
established beyond doubt that it is Tampus who raped ABC.
Circumstantial evidence is sufficient for conviction if: (a)
there is more than one circumstance; (b) the facts from
which the inferences are derived are proven; and (c) the
combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.41 In cases like the one
at bar, the Court takes into consideration the events that
transpired before and after the victim lost consciousness in
order to establish the commission of the act of coitus.42
The trial court correctly determined, thus:
The prosecution has clearly established by its evidence that
accused Bartolome Tampus had carnal knowledge of [ABC]
on April 1, 1995 under the circumstance set forth in Article
335 (2) of the Revised Penal Code, as amended; that is,
when the woman is deprived of reason or otherwise
unconscious.
xxxx
The Court cannot accept accused Bartolome Tampus
defense of denial and alibi. His denial pales in effect against
the positive evidence given by [ABC] that he ravished her
[on] two occasions.
xxxx
It is true that in the first incident on April 1, 1995, [ABC] did
not see Tampus lie down with her. What she saw was the
aftermath of her deflowering upon waking up. Nevertheless,
the Court has taken note of the following circumstances: (1)
The drinking session where the complainant was forced to
drink beer by both accused; (2) The conversation between
the two accused when accused Tampus requested accused
Ida Montesclaros, and was granted by the latter, permission
to have sexual intercourse with the complainant; (3) Accused
Tampus and the complainant were the only persons left in
the house when Ida Montesclaros went to work after
acceding to the request of Tampus; (4) The bloodstained
pants, the pain and blood in complainants vagina and the
pain in her head, groin and buttocks; (5) The threat made by
accused Tampus on the complainant in the dawn of April 4,
1995 that he would kill her if she would tell about the
previous incident on April 1, 1995; and (6) The second
incident of rape that immediately ensued. These
circumstances form a chain that points to accused
Bartolome Tampus as the person who had carnal knowledge
of [ABC] when she was asleep in an inebriated condition. 43
After establishing the guilt of Tampus as principal, the trial
court then determined the guilt of Ida. Although Ida was
charged as a conspirator, the trial court found her liable as
an accomplice. The trial court ruled that her act of forcing or
intimidating ABC to drink beer and then acceding to the
request of co-accused Tampus to be allowed to have sexual
intercourse with ABC did not prove their conspiracy. 44 Hence,
it held that, "[u]ndoubtedly, Ida Montesclaros participated in
the commission of the crime by previous acts but her
participation, not being indispensable, was not that of a
principal. She is liable as an accomplice."45
In her appeal, appellant Ida argued that it is against human
nature for a mother to allow her daughter to be raped. She
maintained that there was no instance when she left ABC
alone in the house. The Court of Appeals dismissed
appellant Idas appeal as it also gave credence to the
testimony of ABC.
In her appeal brief filed before this Court, Ida raises the
following assignment of errors:
I
THE TRIAL COURT ERRED IN CONVICTING
THE ACCUSED BARTOLOME TAMPUS OF THE
CRIMES OF RAPE DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
II
THE TRIAL COURT ERRED IN CONVICTING IDA
MONTESCLAROS AS ACCOMPLICE TO THE
CRIME OF RAPE DESPITE FAILURE OF THE
PROSECUTION TO PROVE HER GUILT
BEYOND REASONABLE DOUBT.46
We affirm the trial and appellate courts in ruling that Ida is
liable as an accomplice in the rape of her daughter, ABC.
Accomplices are persons who, not being included in Article
17 of the Revised Penal Code, cooperate in the execution of
the offense by previous or simultaneous acts.47 The following
requisites must be proved in order that a person can be
considered an accomplice:
(a) community of design, i.e., knowing that criminal
design of the principal by direct participation, he
concurs with the latter in his purpose;
(b) he cooperates in the execution of the offense
by previous or simultaneous acts; and,
(c) there must be a relation between the acts done
by the principal and those attributed to the person
charged as accomplice.48
The testimony of ABC establishes that Ida cooperated in the
execution of the rape by Tampus when prior to the act of
rape by Tampus, she forced ABC to drink beer and she
agreed to Tampus request for him to have sexual
intercourse with ABC. Idas acts show that she had
knowledge of and even gave her permission to the plan of
Tampus to have sexual intercourse with her
daughter.1avvphi1
During the cross-examination by the defense counsel, Atty.
Paulito Cabrera, of witness ABC, she testified that:
Q Before this date, April 1, 1995, did you already
usually drink beer?
A No, sir.
Q So, you are telling the Honorable Court that it
was only on April 1, 1995 that you first drank beer?
A Yes, sir.
Q What did you say, you were forced to drink
beer?
A Yes, sir.
Q Who forced you to drink beer in that afternoon
of April 1, 1995?
A Bartolome Tampus and "Nanay", my mother.49
xxxx
Q By the way, your mother proposed to you to
drink beer?
A Yes, sir.
Q Before you concede to her proposition, did you
not complain that you had not been used to
drinking beer and then, why suddenly, she would
let you drink beer at that time?
A No, sir.
Q Did you not tell her that, "I am not used to
drinking beer, so, I would not drink beer"?
A Because the beer was mixed with Coke.
Q So, you mean that you also agreed to drink beer
at that time?
A I just agreed to the proposal of my mother.
Q But you never voiced any complaint or any
refusal to her at that time?
A No, sir because I was afraid that she might
maltreat me.
Q At that time when she proposed to you to drink
beer, was she already threatening to maltreat you
if you would not drink that beer?
A Not yet.
Q And how were you able to conclude that she
might maltreat you if you would not drink that beer
that she proposed for you to drink?
A Because "Nanay" stared at me sharply and she
had a wooden stick prepared.
Q Are you sure that she was doing that while she
was offering the glass of beer to you?
A Yes, sir.50
xxxx
Q While you were drinking beer, your mother and
Bartolome went out of the house and you
overheard Bartolome asking or proposing to your
mother that he would have sexual intercourse with
you which you term in the Visayan dialect
"remedyo", Bartolome would want to have a
"remedyo" with you. When [sic], particular moment
did you allegedly hear this statement, while you
were drinking beer or after you had finished
drinking beer?
A When I was already lying on the floor of the
room we were renting.51
xxxx
Q And, of course, as you have stated now, it was
you, you were quite sure that it was you who was
being referred by Bartolome Tampus when he said
to your mother in the Visayan dialect that "gusto
siya moremedyo nimo", he wants to have sexual
intercourse with you?
A Yes, sir, but I dont know the meaning of
"remedyo".
Q At that time, you did not know the meaning of
"remedyo"?
A Not yet, sir.52
xxxx
Q Was that the very first time that you ever heard
of the word "remedyo"?
A Yes, sir53
xxxx
Q And when your mother came back from work at
about 7:00 oclock [sic] in the morning of April 2,
1995, did you not also bother to tell her of what
you suspected that something serious or bad had
happened to you in the previous day?
A Because she already knew, sir.
Q How did you know that she already knew?
A Because I heard her telling Omeng, 54 "After you
have sexual intercourse with her, leave her
immediately!"55
xxxx
Q Considering that you never knew what is the
meaning of the word, "remedyo", when your
mother arrived in the morning of April 2, 1995, did
you not confront your mother, did you not tell her
that, "Is this what you mean by "remedyo", as what
you had agreed with Bartolome Tampus that he
would do something to my genitals?
A No sir, because when she arrived, she kept on
laughing.56
All the requisites concur in order to find Ida guilty as an
accomplice to Tampus in the rape of ABC. The testimony of
ABC shows that there was community of design between Ida
and Tampus to commit the rape of ABC. Ida had knowledge
of and assented to Tampus intention to have sexual
intercourse with her daughter. She forced ABC to drink beer,
and when ABC was already drunk, she left ABC alone with
Tampus, with the knowledge and even with her express
consent to Tampus plan to have sexual intercourse with her
daughter.
It is settled jurisprudence that the previous acts of
cooperation by the accomplice should not be indispensable
to the commission of the crime; otherwise, she would be
liable as a principal by indispensable cooperation. The
evidence shows that the acts of cooperation by Ida are not
indispensable to the commission of rape by Tampus. First,
because it was both Ida and Tampus who forced ABC to
drink beer, and second because Tampus already had the
intention to have sexual intercourse with ABC and he could
have consummated the act even without Idas consent.
The acts of Ida are closely related to the eventual
commission of rape by Tampus. They both forced ABC to
drink beer; when ABC was already drunk, Tampus asked Ida
if he could have sexual intercourse with ABC and Ida gave
her consent; and lastly, Ida left ABC alone with Tampus so
that he proceed with his plan to rape ABC.
Circumstances affecting the liability of the Appellant as an
Accomplice
We agree with both the trial and appellate courts in their
appreciation of the mitigating circumstance of illness as
would diminish the exercise of willpower of Ida without
depriving her of the consciousness of her acts, pursuant to
Article 13(9) of the Revised Penal Code.
Dr. Costas testified that Ida was provisionally treated for
schizophrenia a few months before the incident, from
November 11, 1994 to January 12, 1995. Based on his
expert opinion, Ida was not totally deprived of intelligence at
the time of the incident; but, she may have poor judgment.
On Direct Examination of Dr. Costas by City Prosecutor
Celso V. Espinosa, he testified as follows:
Q Doctor, taking into consideration your diagnosis,
as you said, is provisional, would you say that the
patient [sic] totally deprived of intelligence or
reason?
A Not totally.
Q She will be conscious of her acts?
A She may be, that is possible, for certain cause.
Q And there will be loss of intelligence?
A There could be.
Q Now, Doctor, she is charged her [sic] as one of
the principals in the commission of the crime of
rape for having given her daughter to be sexually
abused by her co-accused, allegedly convinced by
her co-accused on the first day of April, 1995.
Now, if she was then under treatment, Doctor,
from November 11, 1994 to January 12, 1995,
would you say, Doctor, that having taken this
diagnosis for [sic] schizophrenic patient, at the
time, after January 12, 1995, she must have acted
with discernment?
A It is possible because you are this kind of mental
illness even with the treatment, and even without
any medication, it may be what we called
spontaneous, really it will get back.
Q At that time it will loss the intelligence? [sic]
A I think because it might be back, the treatment
should be yearly.
Q Doctor, in your opinion, since our office is very
much concern [sic] on this, if a person is totally
deprived of intelligence, he has still discernment,
she is unconscious of her act, she or he may be
exempted from any criminal liability, please tell,
Doctor, in your personal opinion for the purpose of
this proceedings she may be acting with
discernment and with certain degree of
intelligence?
A It is possible but I think of a mother feeding her
own daughter to somebody, I think there is a
motive, she wants to gain financial or material
things from the daughter if no material gain, then
perhaps it was borne out of her illness. This is my
opinion.57
xxxx
Q Doctor, is this schizophrenic person can
distinguish the right or wrong? [sic]
A If they are in the [sic] state of illness, judgment is
impaired to discern between right or wrong.
Q In the case of this particular accused, what
would you say at the state of her ailment?
A When she was brought to the hospital, Your
Honor, I think, although the mother alleged that the
sickness could be more than one year duration, it
is in acute stage because she was allegedly
destroying everything in the house according to
the mother, so she was in acute stage.58
On cross-examination by Atty. Paulito Cabrera, Dr.
Costas testified thus:
Q Would you say, Doctor, that that particular
ailment of Ida Montesclaros affected her sense of
judgment?
A I think, so.
Q And that being scizophronic [sic] somehow, it
has, while in that stage, the patient lost contact
with reality?
A Yes, that is possible.
Q In your opinion, Doctor, granting, for the sake of
argument, the alleged accusation against her is
true, being an expert on scizophrania, could you
tell the Honorable Court as a mother, who would
allegedly do such an offense to her daughter, is it
still in her sound mind or proper mental sane [sic]?
A I think, as I said, one thing to be considered is
the motivation if she want [sic] to gain some
material things, if not, it is because of her
judgment.
Q If she would not gain anything from allowing her
daughter allegedly to be rubbished by another
person, then there must be something wrong?
A There must be something wrong and it came up
from scizpphrania.
A It is the judgment, in the case of the
schizophrenic.59
We have previously held that Schizophrenia may be
considered mitigating under Art. 13(9) if it diminishes the
exercise of the willpower of the accused.60 In this case, the
testimony of Dr. Costas shows that even though Ida was
diagnosed with schizophrenia, she was not totally deprived
of intelligence but her judgment was affected. Thus, on the
basis of the Medical Certification that Ida suffered from and
was treated for schizophrenia a few months prior to the
incident, and on the testimony of Dr. Costas, Idas
schizophrenia could be considered to have diminished the
exercise of her willpower although it did not deprive her of
the consciousness of her acts.
We note that in the case at bar, the undisputed fact that Ida
is the mother of ABCwho was 13 years old at the time of
the incidentcould have been considered as a special
qualifying circumstance which would have increased the
imposable penalty to death, under Article 266-B of the
Revised Penal Code, viz.:
ARTICLE 266-B. Penalties.
xxxx
The death penalty shall also be imposed if the crime of rape
is committed with any of the following aggravating/qualifying
circumstances:
1) When the victim is under eighteen (18) years of age and
the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the
victim;
xxxx
Both the circumstances of the minority and the relationship
of the offender to the victim, either as the victims parent,
ascendant, step-parent, guardian, relative by consanguinity
or affinity within the third civil degree, or the common-law
spouse of the parent of the victim, must be alleged in the
information and proved during the trial in order for them to
serve as qualifying circumstances under Article 266-B of the
Revised Penal Code.61
In the case at bar, although the victim's minority was alleged
and established, her relationship with the accused as the
latter's daughter was not properly alleged in the Information,
and even though this was proven during trial and not refuted
by the accused, it cannot be considered as a special
qualifying circumstance that would serve to increase the
penalty of the offender. Under the 2000 Rules of Criminal
Procedure, which should be given retroactive effect following
the rule that statutes governing court proceedings will be
construed as applicable to actions pending and
undetermined at the time of their passage, 62 every
Information must state the qualifying and the aggravating
circumstances attending the commission of the crime for
them to be considered in the imposition of the
penalty.63 Since in the case at bar, the Information in Criminal
Case No. 013324-L did not state that Ida is the mother of
ABC, this circumstance could not be appreciated as a
special qualifying circumstance. Ida may only be convicted
as an accomplice in the crime of simple rape, which is
punishable by reclusion perpetua. In any event, Republic Act
No. 9346, entitled an "An Act Prohibiting the Imposition of
Death Penalty in the Philippines," which was signed into law
on June 24, 2006 prohibits the imposition of the death
penalty.
Civil indemnity imposed against the appellant
The dispositive portion of the trial court's decision ordered
Tampus and Ida "jointly and severally, to indemnify the
offended party, [ABC], the sum of P50,000.00 in Criminal
Case No. 013324-L."64 The Court of Appeals, however, did
not award any civil indemnity to ABC, and only awarded
moral and exemplary damages. We deem it necessary and
proper to award ABC civil indemnity of P50,000.00. Civil
indemnity ex delicto is mandatory upon finding of the fact of
rape. This is distinct from moral damages awarded upon
such finding without need of further proof, because it is
assumed that a rape victim has actually suffered moral
injuries entitling the victim to such award.65
Consistent with prevailing jurisprudence, the victim in simple
rape cases is entitled to an award of P50,000.00 as civil
indemnity ex delicto and another P50,000.00 as moral
damages. 66 However, Tampus civil indemnity ex delicto has
been extinguished by reason of his death before the final
judgment, in accordance with Article 89 of the Revised Penal
Code.67 Thus, the amount of civil indemnity which remains
for accomplice Ida to pay is put at issue.
It becomes relevant to determine the particular amount for
which each accused is liable when they have different
degrees of responsibility in the commission of the crime and,
consequently, differing degrees of liability. When a crime is
committed by many, each one has a distinct part in the
commission of the crime and though all the persons who
took part in the commission of the crime are liable, the
liability is not equally shared among them. Hence, an
accused may be liable either as principal, accomplice or
accessory.
The particular liability that each accused is responsible for
depends on the nature and degree of his participation in the
commission of the crime. The penalty prescribed by the
Revised Penal Code for a particular crime is imposed upon
the principal in a consummated felony. 68 The accomplice is
only given the penalty next lower in degree than that
prescribed by the law for the crime committed 69 and an
accessory is given the penalty lower by two
degrees.70 However, a felon is not only criminally liable, he is
likewise civilly liable. 71 Apart from the penalty of
imprisonment imposed on him, he is also ordered to
indemnify the victim and to make whole the damage caused
by his act or omission through the payment of civil indemnity
and damages.
Civil liability arising from the crime is shared by all the
accused. Although, unlike criminal liabilityin which the
Revised Penal Code specifically states the corresponding
penalty imposed on the principal, accomplice and accessory
the share of each accused in the civil liability is not
specified in the Revised Penal Code. The courts have the
discretion to determine the apportionment of the civil
indemnity which the principal, accomplice and accessory are
respectively liable for, without guidelines with respect to the
basis of the allotment.
Article 109 of the Revised Penal Code provides that "[i]f
there are two or more persons civilly liable for a felony, the
courts shall determine the amount for which each must
respond." Notwithstanding the determination of the
respective liability of the principals, accomplices and
accessories within their respective class, they shall also be
subsidiarily liable for the amount of civil liability adjudged in
the other classes. Article 110 of the Revised Penal Code
provides that "[t]he principals, accomplices, and accessories,
each within their respective class, shall be liable severally (in
solidum) among themselves for their quotas, and subsidiarily
for those of the other persons liable."72
As courts are given a free hand in determining the
apportionment of civil liability, previous decisions dealing with
this matter have been grossly inconsistent.
In People v. Galapin,73 People v. Continente,74 United States
v. Lasada,75 People v. Mobe,76 People v. Irinea,77People v.
Rillorta,78 People v. Cagalingan,79 People v.
Villanueva,80 People v. Magno,81 People v. del
Rosario,82People v. Yrat,83 People v. Saul,84 and People v.
Tamayo,85 the principal and accomplice were ordered to pay
jointly and severally the entire amount of the civil indemnity
awarded to the victim. In People v. Sotto,86 the accomplice
was ordered to pay half of the amount of civil indemnity
imposed by the trial court, while the principal was liable for
the other half. In People v. Toring, 87 the principal, accomplice
and the accessory were made jointly and severally liable for
the entire amount of the civil indemnity.
In the cases mentioned above, the principal and accomplice
were made to pay equal shares of the civil indemnity. This
makes the accomplice who had less participation in the
commission of the crime equally liable with the principal for
the civil indemnity. The degree of their participation in the
crime was not taken into account in the apportionment of the
amount of the civil indemnity. This is contrary to the principle
behind the treble division of persons criminally responsible
for felonies, i.e., that the liability must be commensurate with
the degree of participation of the accused in the crime
committed. In such a situation, the accomplice who just
cooperated in the execution of the offense but whose
participation is not indispensable to the commission of the
crime is made to pay the same amount of civil indemnity as
the principal by direct participation who took a direct part in
the execution of the criminal act. It is an injustice when the
penalty and liability imposed are not commensurate to the
actual responsibility of the offender; for criminal responsibility
is individual and not collective, and each of the participants
should be liable only for the acts actually committed by
him.88 The proportion of this individual liability must be
graduated not only according to the nature of the crime
committed and the circumstances attending it, but also the
degree and nature of participation of the individual offender.
In Garces v. People,89 People v. Flores,90 People v.
Barbosa,91 People v. Ragundiaz,92 People v. Bato,93 and
People v. Garalde,94 the accomplice was held to be solidarily
liable with the principal for only one-half (1/2) of the amount
adjudged as civil indemnity. In Garces, the accomplice was
held solidarily liable for half of the civil indemnity ex delicto
but was made to pay the moral damages of P50,000.00
separately from the principal. In Flores, Ragundiaz, Bato,
and Garalde, the accomplice was held solidarily liable for
half of the combined amounts of the civil indemnity ex delicto
and moral damages. In Ragundiaz, the accomplice was also
made solidarily liable with the principal for half of the actual
damages, and in Garalde the accomplice was also held
solidarily liable with the principal for half of the exemplary
damages, aside from the civil and moral damages.
In these cases, the accomplice was made jointly and
severally liable with the principal for only half of the amount
of the civil indemnity and moral damages, only for purposes
of the enforcement of the payment of civil indemnity to the
offended party. When the liability in solidum has been
enforced, as when payment has been made, the person by
whom payment has been made shall have a right of action
against the other persons liable for the amount of their
respective shares.95 As against each other, whoever made
the payment may claim from his co-debtors only the share
that corresponds to each, with interest for the payment
already made.96 In these cases, therefore, payment is made
by either the principal or the accomplice, the one who made
the payment to the victim could demand payment of the part
of the debt corresponding to his co-debtor. If for example the
principal paid the victim the entire amount of the civil
indemnity, he could go against the accomplice for one-fourth
(1/4) of the total amount of civil indemnity and damages. The
principal was primarily liable for only one-half (1/2) of the
total amount of civil indemnity and he was solidarily liable
with the accomplice for the other half. Since the principal
paid for the half which the accomplice is solidarily liable with,
he could claim one-half (1/2) of that amount from the
accomplice. Thus, the principal would have become
ultimately liable for three-fourths (3/4) of the total amount of
the civil indemnity and damages, while the accomplice would
have become liable for one-fourth (1/4) of such amount.
In People v. Cortes,97 People v. Budol,98 People v.
Nulla,99 and People v. Madali,100 the principal was ordered to
pay twice the share of the accomplice in the civil indemnity.
In Nulla, the Court determined the respective amounts for
which the principal, accomplice and accessory were liable
for. The principal was ordered to pay P20,000.00, the
accomplice was ordered to pay P10,000.00, and the
accessory was ordered to pay P2,000.00. Unlike the cases
cited above where the principal and accomplice were held
solidarily liable for the entire amount of the civil indemnity or
half of it, in Nulla, the court particularly determined the
amount for which each shall respond. This is consistent with
Article 109 and Article 110 of the Revised Penal Code, which
require that the courts should determine the amount for
which the principals, accomplices and accessories must
respond to and upon specifying this amount, the principals
are solidarily liable within their class for their quota, the
accomplices are solidarily liable among themselves for their
quota and the accessories are solidarily liable for their quota.
If any one of the classes is unable to pay for its respective
quota, it becomes subsidiarily liable for the quota of the other
classes, which shall be enforced first against the property of
the principals; next, against that of the accomplices; and
lastly, against that of the accessories.101
There are also cases where the principal was ordered to pay
more than double the amount that the accomplice is liable
for. In Lumiguis v. People,102 the civil liability of P6,000.00
was apportioned as follows: the sole principal was primarily
liable for P3,000.00, the four accomplices were primarily
liable in solidum among themselves for the other half of the
indemnity, or P3,000.00. Thus, each accomplice was
answerable for one-fourth (1/4) of P3,000.00 or one-eighth
(1/8) of the entire amount of civil indemnity, which is
P750.00.
Similarly in People v. Bantagan,103 the principal was required
to indemnify the heirs of the deceased in the amount of
P500.00. In case of his insolvency, his three accomplices
should be jointly and severally liable. The three accomplices
were jointly and severally liable for the other P500 and in
case of their insolvency the principal was secondarily liable
for such amount.
In People v. Castillo,104 the accomplice was ordered to pay
one-fourth (1/4) of the amount of the civil indemnity, while
the principal was liable for the remaining three-fourths (3/4).
In People v. Cariaga,105 the total amount of indemnity and
damages due to the heirs of the victim amounted to
P601,000.00. The sole accomplice was ordered to pay
P101,000.00 which is roughly one-sixth (1/6) of the entire
civil indemnity, while the two principals were ordered to pay
the rest of the indemnity and damages amounting to
P500,000.00.
The cases cited above demonstrate the ad hoc method by
which the ratio of shares of the civil indemnity and damages
among the principal, accomplice and accessory is
determined. Though the responsibility to decide the
respective shares of persons liable for a felony is left to the
courts, this does not mean that this amount can be decided
arbitrarily or upon conjecture. The power of the courts to
grant indemnity and damages demands factual, legal and
equitable justification, and cannot be left to speculation and
caprice.
The entire amount of the civil indemnity, together with the
moral and actual damages, should be apportioned among
the persons who cooperated in the commission of the crime
according to the degree of their liability, respective
responsibilities and actual participation in the criminal act.
Salvador Viada, an authority in criminal law, is of the opinion
that there are no fixed rules which are applicable in all cases
in order to determine the apportionment of civil liability
among two or more persons civilly liable for a felony, either
because there are different degrees of culpability of
offenders, or because of the inequality of their financial
capabilities.106 On this note, he states in his commentaries
on the 1870 Penal Code of Spain that the law should leave
the determination of the amount of respective liabilities to the
discretion of the courts.107 The courts have the competence
to determine the exact participation of the principal,
accomplice, and accessory in the commission of the crime
relative to the other classes because they are able to directly
consider the evidence presented and the unique opportunity
to observe the witnesses.
We must stress, however, that the courts discretion should
not be untrammelled and must be guided by the principle
behind differing liabilities for persons with varying roles in the
commission of the crime. The person with greater
participation in the commission of the crime should have a
greater share in the civil liability than those who played a
minor role in the crime or those who had no participation in
the crime but merely profited from its effects. Each principal
should shoulder a greater share in the total amount of
indemnity and damages than every accomplice, and each
accomplice should also be liable for a greater amount as
against every accessory. Care should also be taken in
considering the number of principals versus that of
accomplices and accessories. If for instance, there are four
principals and only one accomplice and the total of the civil
indemnity and damages is P6,000.00, the court cannot
assign two-thirds (2/3) of the indemnity and damages to the
principals and one-third (1/3) to the accomplice. Even though
the principals, as a class, have a greater share in the liability
as against the accomplice-- since one-third (1/3) of
P6,000.00 is P2,000.00, while two-thirds (2/3) of P6,000.00
is P4,000.00-- when the civil liability of every person is
computed, the share of the accomplice ends up to be greater
than that of each principal. This is so because the two-thirds
(2/3) share of the principalsor P4,000.00is still divided
among all the four principals, and thus every principal is
liable for only P1,000.00.
In the case at bar, the trial court ruled that the accomplice is
solidarily liable with the principal for the entire amount of the
civil indemnity of P50,000.00. This is an erroneous
apportionment of the civil indemnity. First, because it does
not take into account the difference in the nature and degree
of participation between the principal, Tampus, versus the
accomplice, Ida. Idas previous acts of cooperation include
her acts of forcing ABC to drink beer and permitting Tampus
to have sexual intercourse with her daughter. But even
without these acts, Tampus could have still raped ABC. It
was Tampus, the principal by direct participation, who should
have the greater liability, not only in terms of criminal liability,
but also with respect to civil liability. Second, Article 110 of
the Revised Penal Code states that the apportionment
should provide for a quota amount for every class for which
members of such class are solidarily liable within their
respective class, and they are only subsidiarily liable for the
share of the other classes. The Revised Penal Code does
not provide for solidary liability among the different classes,
as was held by the trial court in the case at bar.lavvphi1
Thus, taking into consideration the difference in participation
of the principal and accomplice, the principal, Tampus,
should be liable for two-thirds (2/3) of the total amount of the
civil indemnity and moral damages and appellant Ida should
be ordered to pay one-third (1/3) of the amount. Civil
indemnity for simple rape was correctly set at P50,000.00
and moral damages at P50,000.00. The total amount of
damages to be divided between Tampus and Ida is
P100,000.00, where Tampus is liable for P66,666.67 (which
is two-thirds [2/3] of P100,000.00) and Ida is liable for
P33,333.33 (which is one-third [1/3] of P100,000.00). This is
broken down into civil indemnity of P16,666.67 and moral
damages of P16,666.67. However, since the principal,
Tampus, died while the case was pending in the Court of
Appeals, his liability for civil indemnity ex delicto is
extinguished by reason of his death before the final
judgment.108 His share in the civil indemnity and damages
cannot be passed over to the accomplice, Ida, because
Tampus share of the civil liability has been extinguished.
And even if Tampus were alive upon the promulgation of this
decision, Ida would only have been subsidiarily liable for his
share of the civil indemnity of P66,666.67. However, since
Tampus civil liability ex delicto is extinguished, Idas
subsidiary liability with respect to this amount is also
eliminated, following the principle that the accessory follows
the principal. Tampus obligation to pay P66,666.67 his
quota of the civil indemnity is the principal obligation, for
which Ida is only subsidiarily liable. Upon the extinguishment
of the principal obligation, there is no longer any accessory
obligation which could attach to it; thus, the subsidiary
liability of Ida is also extinguished.
On the matter of exemplary damages, we find that
exemplary damages were incorrectly awarded by the Court
of Appeals.
In criminal cases, exemplary damages are imposed on the
offender as part of the civil liability when the crime was
committed with one or more aggravating
circumstances.109 Also known as "punitive" or "vindictive"
damages, exemplary or corrective damages are intended to
serve as a deterrent to serious wrongdoings, and as a
vindication of undue sufferings and wanton invasion of the
rights of an injured or a punishment for those guilty of
outrageous conduct.110 Exemplary damages may be
awarded only when one or more aggravating circumstances
are alleged in the information and proved during the trial. 111
In the case at bar, no qualifying or aggravating circumstance
was appreciated against Ida. Although, the minority of the
victim coupled with the fact that the offender is the parent of
the victim could have served to qualify the crime of rape, the
presence of these concurring circumstances cannot justify
the award of exemplary damages since the relationship of
the offender, Ida, to the victim, ABC, was not alleged in the
Information.112 The minority of the rape victim and her
relationship with the offender must both be alleged in the
information and proved during the trial in order to be

appreciated as an aggravating/qualifying
circumstance.113 While the information in the instant case
alleged that ABC was a minor during the incident, there was
no allegation that Ida was her parent. Since the relationship
between ABC and appellant was not duly established, the
award of exemplary damages is not warranted.
IN VIEW WHEREOF, the Decision of the Court of Appeals,
Visayas Station, dated September 29, 2006, in CA-G.R. CR-
HC No. 00215, finding appellant Ida Montesclaros guilty
beyond reasonable doubt as accomplice in the crime of rape
and sentencing her to suffer the indeterminate penalty of ten
(10) years and one (1) day of prision mayor, as minimum, to
twelve (12) years and one (1) day of reclusion temporal, as
maximum, is AFFIRMED with MODIFICATION. Appellant Ida
Montesclaros is ORDERED to pay civil indemnity in the
amount of sixteen thousand, six hundred sixty-six pesos and
sixty-seven centavos (P16,666.67), and moral damages in
the amount of sixteen thousand, six hundred sixty-six pesos
and sixty-seven centavos (P16,666.67). The award of
exemplary damages is DELETED. SO ORDERED.
VI. SPECIAL TORTS
A. VIOLATION OF CIVIL AND POLITICAL RIGHTS
B. DEFAMATION, FRAUD, PHYSICAL INJURIES
C. NEGLECT OF DUTY
D. ABUSE OF RIGHTS
G.R. No. 154259. February 28, 2005
NIKKO HOTEL MANILA GARDEN and RUBY
LIM, petitioners, vs. ROBERTO REYES, a.k.a. AMAY
BISAYA, respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari, petitioners Nikko Hotel
Manila Garden (Hotel Nikko)[1] and Ruby Lim assail the
Decision[2] of the Court of Appeals dated 26 November 2001
reversing the Decision[3] of the Regional Trial Court (RTC) of
Quezon City, Branch 104, as well as the Resolution [4] of the
Court of Appeals dated 09 July 2002 which denied
petitioners motion for reconsideration.
The cause of action before the trial court was one for
damages brought under the human relations provisions of
the New Civil Code. Plaintiff thereat (respondent herein)
Roberto Reyes, more popularly known by the screen name
Amay Bisaya, alleged that at around 6:00 oclock in the
evening of 13 October 1994, while he was having coffee at
the lobby of Hotel Nikko, [5] he was spotted by his friend of
several years, Dr. Violeta Filart, who then approached him.
[6]
Mrs. Filart invited him to join her in a party at the hotels
penthouse in celebration of the natal day of the hotels
manager, Mr. Masakazu Tsuruoka.[7] Mr. Reyes asked if she
could vouch for him for which she replied: of course. [8] Mr.
Reyes then went up with the party of Dr. Filart carrying the
basket of fruits which was the latters present for the
celebrant.[9] At the penthouse, they first had their picture
taken with the celebrant after which Mr. Reyes sat with the
party of Dr. Filart.[10] After a couple of hours, when the buffet
dinner was ready, Mr. Reyes lined-up at the buffet table but,
to his great shock, shame and embarrassment, he was
stopped by petitioner herein, Ruby Lim, who claimed to
speak for Hotel Nikko as Executive Secretary thereof.[11] In a
loud voice and within the presence and hearing of the other
guests who were making a queue at the buffet table, Ruby
Lim told him to leave the party (huwag ka nang kumain,
hindi ka imbitado, bumaba ka na lang).[12] Mr. Reyes tried to
explain that he was invited by Dr. Filart.[13] Dr. Filart, who was
within hearing distance, however, completely ignored him
thus adding to his shame and humiliation. [14] Not long after,
while he was still recovering from the traumatic experience,
a Makati policeman approached and asked him to step out
of the hotel.[15] Like a common criminal, he was escorted out
of the party by the policeman.[16] Claiming damages, Mr.
Reyes asked for One Million Pesos actual damages, One
Million Pesos moral and/or exemplary damages and Two
Hundred Thousand Pesos attorneys fees.[17]
Ruby Lim, for her part, admitted having asked Mr. Reyes to
leave the party but not under the ignominious circumstance
painted by the latter. Ms. Lim narrated that she was the
Hotels Executive Secretary for the past twenty (20) years.
[18]
One of her functions included organizing the birthday
party of the hotels former General Manager, Mr. Tsuruoka.
[19]
The year 1994 was no different. For Mr. Tsuruokas party,
Ms. Lim generated an exclusive guest list and extended
invitations accordingly.[20] The guest list was limited to
approximately sixty (60) of Mr. Tsuruokas closest friends and
some hotel employees and that Mr. Reyes was not one of
those invited.[21] At the party, Ms. Lim first noticed Mr. Reyes
at the bar counter ordering a drink.[22] Mindful of Mr.
Tsuruokas wishes to keep the party intimate, Ms. Lim
approached Mr. Boy Miller, the captain waiter, to inquire as
to the presence of Mr. Reyes who was not invited. [23] Mr.
Miller replied that he saw Mr. Reyes with the group of Dr.
Filart.[24] As Dr. Filart was engaged in conversation with
another guest and as Ms. Lim did not want to interrupt, she
inquired instead from the sister of Dr. Filart, Ms. Zenaida
Fruto, who told her that Dr. Filart did not invite Mr. Reyes.
[25]
Ms. Lim then requested Ms. Fruto to tell Mr. Reyes to
leave the party as he was not invited.[26] Mr. Reyes, however,
lingered prompting Ms. Lim to inquire from Ms. Fruto who
said that Mr. Reyes did not want to leave. [27] When Ms. Lim
turned around, she saw Mr. Reyes conversing with a Captain
Batung whom she later approached.[28] Believing that
Captain Batung and Mr. Reyes knew each other, Ms. Lim
requested from him the same favor from Ms. Fruto, i.e., for
Captain Batung to tell Mr. Reyes to leave the party as he
was not invited.[29] Still, Mr. Reyes lingered. When Ms. Lim
spotted Mr. Reyes by the buffet table, she decided to speak
to him herself as there were no other guests in the
immediate vicinity.[30] However, as Mr. Reyes was already
helping himself to the food, she decided to wait. [31] When Mr.
Reyes went to a corner and started to eat, Ms. Lim
approached him and said: alam ninyo, hindo ho kayo dapat
nandito. Pero total nakakuha na ho kayo ng pagkain, ubusin
na lang ninyo at pagkatapos kung pwede lang po umalis na
kayo.[32] She then turned around trusting that Mr. Reyes
would show enough decency to leave, but to her surprise, he
began screaming and making a big scene, and even
threatened to dump food on her.[33]
Dr. Violeta Filart, the third defendant in the complaint before
the lower court, also gave her version of the story to the
effect that she never invited Mr. Reyes to the party.
[34]
According to her, it was Mr. Reyes who volunteered to
carry the basket of fruits intended for the celebrant as he
was likewise going to take the elevator, not to the penthouse
but to Altitude 49.[35] When they reached the penthouse, she
reminded Mr. Reyes to go down as he was not properly
dressed and was not invited.[36] All the while, she thought that
Mr. Reyes already left the place, but she later saw him at the
bar talking to Col. Batung.[37] Then there was a commotion
and she saw Mr. Reyes shouting. [38] She ignored Mr. Reyes.
[39]
She was embarrassed and did not want the celebrant to
think that she invited him.[40]
After trial on the merits, the court a quo dismissed the
complaint,[41] giving more credence to the testimony of Ms.
Lim that she was discreet in asking Mr. Reyes to leave the
party. The trial court likewise ratiocinated that Mr. Reyes
assumed the risk of being thrown out of the party as he was
uninvited:
Plaintiff had no business being at the party because he was
not a guest of Mr. Tsuruoka, the birthday celebrant. He
assumed the risk of being asked to leave for attending a
party to which he was not invited by the host. Damages are
pecuniary consequences which the law imposes for the
breach of some duty or the violation of some right. Thus, no
recovery can be had against defendants Nikko Hotel and
Ruby Lim because he himself was at fault (Garciano v. Court
of Appeals, 212 SCRA 436). He knew that it was not the
party of defendant Violeta Filart even if she allowed him to
join her and took responsibility for his attendance at the
party. His action against defendants Nikko Hotel and Ruby
Lim must therefore fail.[42]
On appeal, the Court of Appeals reversed the ruling of the
trial court as it found more commanding of belief the
testimony of Mr. Reyes that Ms. Lim ordered him to leave in
a loud voice within hearing distance of several guests:
In putting appellant in a very embarrassing situation, telling
him that he should not finish his food and to leave the place
within the hearing distance of other guests is an act which is
contrary to morals, good customs . . ., for which appellees
should compensate the appellant for the damage suffered by
the latter as a consequence therefore (Art. 21, New Civil
Code). The liability arises from the acts which are in
themselves legal or not prohibited, but contrary to morals or
good customs. Conversely, even in the exercise of a formal
right, [one] cannot with impunity intentionally cause damage
to another in a manner contrary to morals or good customs.
[43]
The Court of Appeals likewise ruled that the actuation of Ms.
Lim in approaching several people to inquire into the
presence of Mr. Reyes exposed the latter to ridicule and was
uncalled for as she should have approached Dr. Filart first
and both of them should have talked to Mr. Reyes in private:
Said acts of appellee Lim are uncalled for. What should have
been done by appellee Lim was to approach appellee Mrs.
Filart and together they should have told appellant Reyes in
private that the latter should leave the party as the celebrant
only wanted close friends around. It is necessary that Mrs.
Filart be the one to approach appellant because it was she
who invited appellant in that occasion. Were it not for Mrs.
Filarts invitation, appellant could not have suffered such
humiliation. For that, appellee Filart is equally liable.
...
The acts of [appellee] Lim are causes of action which are
predicated upon mere rudeness or lack of consideration of
one person, which calls not only protection of human dignity
but respect of such dignity. Under Article 20 of the Civil
Code, every person who violates this duty becomes liable for
damages, especially if said acts were attended by malice or
bad faith. Bad faith does not simply connote bad judgment or
simple negligence. It imports a dishonest purpose or some
moral obliquity and conscious doing of a wrong, a breach of
a known duty to some motive or interest or ill-will that
partakes of the nature of fraud (Cojuangco, Jr. v. CA, et al.,
309 SCRA 603).[44]
Consequently, the Court of Appeals imposed upon Hotel
Nikko, Ruby Lim and Dr. Violeta Filart the solidary obligation
to pay Mr. Reyes (1) exemplary damages in the amount of
Two Hundred Thousand Pesos (P200,000); (2) moral
damages in the amount of Two Hundred Thousand Pesos
(P200,000); and (3) attorneys fees in the amount of Ten
Thousand Pesos (P10,000).[45] On motion for
reconsideration, the Court of Appeals affirmed its earlier
decision as the argument raised in the motion had been
amply discussed and passed upon in the decision sought to
be reconsidered.[46]
Thus, the instant petition for review. Hotel Nikko and Ruby
Lim contend that the Court of Appeals seriously erred in
I.
NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT
INJURIA CONSIDERING THAT BY ITS OWN FINDINGS,
AMAY BISAYA WAS A GATE-CRASHER
II.
HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND
SEVERALLY LIABLE WITH DR. FILART FOR DAMAGES
SINCE BY ITS OWN RULING, AMAY BISAYA COULD NOT
HAVE SUFFERED SUCH HUMILIATION, WERE IT NOT
FOR DR. FILARTS INVITATION
III.
DEPARTING FROM THE FINDINGS OF FACT OF THE
TRIAL COURT AS REGARDS THE CIRCUMSTANCES
THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY
BISAYA
IV.
IN CONCLUDING THAT AMAY BISAYA WAS TREATED
UNJUSTLY BECAUSE OF HIS POVERTY, CONSIDERING
THAT THIS WAS NEVER AN ISSUE AND NO EVIDENCE
WAS PRESENTED IN THIS REGARD
V.
IN FAILING TO PASS UPON THE ISSUE ON THE
DEFECTS OF THE APPELLANTS BRIEF, THEREBY
DEPARTING FROM THE ACCEPTED AND USUAL
COURSE OF JUDICIAL PROCEEDINGS
Petitioners Lim and Hotel Nikko contend that pursuant to the
doctrine of volenti non fit injuria, they cannot be made liable
for damages as respondent Reyes assumed the risk of being
asked to leave (and being embarrassed and humiliated in
the process) as he was a gate-crasher.
The doctrine of volenti non fit injuria (to which a person
assents is not esteemed in law as injury [47]) refers to self-
inflicted injury[48] or to the consent to injury [49] which precludes
the recovery of damages by one who has knowingly and
voluntarily exposed himself to danger, even if he is not
negligent in doing so.[50] As formulated by petitioners,
however, this doctrine does not find application to the case
at bar because even if respondent Reyes assumed the risk
of being asked to leave the party, petitioners, under Articles
19 and 21 of the New Civil Code, were still under obligation
to treat him fairly in order not to expose him to unnecessary
ridicule and shame.
Thus, the threshold issue is whether or not Ruby Lim acted
abusively in asking Roberto Reyes, a.k.a. Amay Bisaya, to
leave the party where he was not invited by the celebrant
thereof thereby becoming liable under Articles 19 and 21 of
the Civil Code. Parenthetically, and if Ruby Lim were so
liable, whether or not Hotel Nikko, as her employer, is
solidarily liable with her.
As the trial court and the appellate court reached divergent
and irreconcilable conclusions concerning the same facts
and evidence of the case, this Court is left without choice but
to use its latent power to review such findings of facts.
Indeed, the general rule is that we are not a trier of facts as
our jurisdiction is limited to reviewing and revising errors of
law.[51] One of the exceptions to this general rule, however,
obtains herein as the findings of the Court of Appeals are
contrary to those of the trial court.[52] The lower court ruled
that Ms. Lim did not abuse her right to ask Mr. Reyes to
leave the party as she talked to him politely and discreetly.
The appellate court, on the other hand, held that Ms. Lim is
liable for damages as she needlessly embarrassed Mr.
Reyes by telling him not to finish his food and to leave the
place within hearing distance of the other guests. Both
courts, however, were in agreement that it was Dr. Filarts
invitation that brought Mr. Reyes to the party.
The consequential question then is: Which version is
credible?
From an in depth review of the evidence, we find more
credible the lower courts findings of fact.
First, let us put things in the proper perspective.
We are dealing with a formal party in a posh, five-star hotel,
[53]
for-invitation-only, thrown for the hotels former Manager, a
Japanese national. Then came a person who was clearly
uninvited (by the celebrant)[54] and who could not just
disappear into the crowd as his face is known by many,
being an actor. While he was already spotted by the
organizer of the party, Ms. Lim, the very person who
generated the guest list, it did not yet appear that the
celebrant was aware of his presence. Ms. Lim, mindful of the
celebrants instruction to keep the party intimate, would
naturally want to get rid of the gate-crasher in the most hush-
hush manner in order not to call attention to a glitch in an
otherwise seamless affair and, in the process, risk the
displeasure of the celebrant, her former boss. To
unnecessarily call attention to the presence of Mr. Reyes
would certainly reflect badly on Ms. Lims ability to follow the
instructions of the celebrant to invite only his close friends
and some of the hotels personnel. Mr. Reyes, upon whom
the burden rests to prove that indeed Ms. Lim loudly and
rudely ordered him to leave, could not offer any satisfactory
explanation why Ms. Lim would do that and risk ruining a
formal and intimate affair. On the contrary, Mr. Reyes, on
cross-examination, had unwittingly sealed his fate by
admitting that when Ms. Lim talked to him, she was very
close. Close enough for him to kiss:
Q: And, Mr. Reyes, you testified that Miss Lim
approached you while you were at the buffet table?
How close was she when she approached you?
A: Very close because we nearly kissed each other.
Q: And yet, she shouted for you to go down? She was
that close and she shouted?
A: Yes. She said, wag kang kumain, hindi ka imbitado
dito, bumaba ka na lang.
Q: So, you are testifying that she did this in a loud
voice?
...
A: Yes. If it is not loud, it will not be heard by many.[55]
In the absence of any proof of motive on the part of Ms. Lim
to humiliate Mr. Reyes and expose him to ridicule and
shame, it is highly unlikely that she would shout at him from
a very close distance. Ms. Lim having been in the hotel
business for twenty years wherein being polite and discreet
are virtues to be emulated, the testimony of Mr. Reyes that
she acted to the contrary does not inspire belief and is
indeed incredible. Thus, the lower court was correct in
observing that
Considering the closeness of defendant Lim to plaintiff when
the request for the latter to leave the party was made such
that they nearly kissed each other, the request was meant to
be heard by him only and there could have been no intention
on her part to cause embarrassment to him. It was plaintiffs
reaction to the request that must have made the other
guests aware of what transpired between them. . .
Had plaintiff simply left the party as requested, there was no
need for the police to take him out.[56]
Moreover, another problem with Mr. Reyess version of the
story is that it is unsupported. It is a basic rule in civil cases
that he who alleges proves. Mr. Reyes, however, had not
presented any witness to back his story up. All his witnesses
Danny Rodinas, Pepito Guerrero and Alexander Silva -
proved only that it was Dr. Filart who invited him to the party.
[57]
Ms. Lim, not having abused her right to ask Mr. Reyes to
leave the party to which he was not invited, cannot be made
liable to pay for damages under Articles 19 and 21 of the
Civil Code. Necessarily, neither can her employer, Hotel
Nikko, be held liable as its liability springs from that of its
employee.[58]
Article 19, known to contain what is commonly referred to as
the principle of abuse of rights,[59] is not a panacea for all
human hurts and social grievances. Article 19 states:
Art. 19. Every person must, in the exercise of his rights and
in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.
Elsewhere, we explained that when a right is exercised in a
manner which does not conform with the norms enshrined in
Article 19 and results in damage to another, a legal wrong is
thereby committed for which the wrongdoer must be
responsible.[60] The object of this article, therefore, is to set
certain standards which must be observed not only in the
exercise of ones rights but also in the performance of ones
duties.[61] These standards are the following: act with justice,
give everyone his due and observe honesty and good faith.
[62]
Its antithesis, necessarily, is any act evincing bad faith or
intent to injure. Its elements are the following: (1) There is a
legal right or duty; (2) which is exercised in bad faith; (3) for
the sole intent of prejudicing or injuring another. [63] When
Article 19 is violated, an action for damages is proper under
Articles 20 or 21 of the Civil Code. Article 20 pertains to
damages arising from a violation of law[64] which does not
obtain herein as Ms. Lim was perfectly within her right to ask
Mr. Reyes to leave. Article 21, on the other hand, states:
Art. 21. Any person who willfully causes loss or injury to
another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.
Article 21[65] refers to acts contra bonus mores and has the
following elements: (1) There is an act which is legal; (2) but
which is contrary to morals, good custom, public order, or
public policy; and (3) it is done with intentto injure.[66]
A common theme runs through Articles 19 and 21, [67] and
that is, the act complained of must be intentional.[68]
As applied to herein case and as earlier discussed, Mr.
Reyes has not shown that Ms. Lim was driven by animosity
against him. These two people did not know each other
personally before the evening of 13 October 1994, thus, Mr.
Reyes had nothing to offer for an explanation for Ms. Lims
alleged abusive conduct except the statement that Ms. Lim,
being single at 44 years old, had a very strong bias and
prejudice against (Mr. Reyes) possibly influenced by her
associates in her work at the hotel with foreign businessmen.
[69]
The lameness of this argument need not be belabored.
Suffice it to say that a complaint based on Articles 19 and 21
of the Civil Code must necessarily fail if it has nothing to
recommend it but innuendos and conjectures.
Parenthetically, the manner by which Ms. Lim asked Mr.
Reyes to leave was likewise acceptable and humane under
the circumstances. In this regard, we cannot put our
imprimatur on the appellate courts declaration that Ms. Lims
act of personally approaching Mr. Reyes (without first
verifying from Mrs. Filart if indeed she invited Mr. Reyes)
gave rise to a cause of action predicated upon mere
rudeness or lack of consideration of one person, which calls
not only protection of human dignity but respect of such
dignity.[70] Without proof of any ill-motive on her part, Ms.
Lims act of by-passing Mrs. Filart cannot amount to abusive
conduct especially because she did inquire from Mrs. Filarts
companion who told her that Mrs. Filart did not invite Mr.
Reyes.[71] If at all, Ms. Lim is guilty only of bad judgment
which, if done with good intentions, cannot amount to bad
faith.
Not being liable for both actual and moral damages, neither
can petitioners Lim and Hotel Nikko be made answerable for
exemplary damages[72] especially for the reason stated by
the Court of Appeals. The Court of Appeals held
Not a few of the rich people treat the poor with contempt
because of the latters lowly station in life. This has to be
limited somewhere. In a democracy, such a limit must be
established. Social equality is not sought by the legal
provisions under consideration, but due regard for decency
and propriety (Code Commission, pp. 33-34). And by way of
example or correction for public good and to avert further
commission of such acts, exemplary damages should be
imposed upon appellees.[73]
The fundamental fallacy in the above-quoted findings is that
it runs counter with the very facts of the case and the
evidence on hand. It is not disputed that at the time of the
incident in question, Mr. Reyes was an actor of long
standing; a co-host of a radio program over DZRH; a Board
Member of the Music Singer Composer (MUSICO) chaired
by popular singer Imelda Papin; a showbiz Coordinator of
Citizen Crime Watch; and 1992 official candidate of the KBL
Party for Governor of Bohol; and an awardee of a number of
humanitarian organizations of the Philippines. [74] During his
direct examination on rebuttal, Mr. Reyes stressed that he
had income[75] and nowhere did he say otherwise. On the
other hand, the records are bereft of any information as to
the social and economic standing of petitioner Ruby Lim.
Consequently, the conclusion reached by the appellate court
cannot withstand scrutiny as it is without basis.
All told, and as far as Ms. Lim and Hotel Nikko are
concerned, any damage which Mr. Reyes might have
suffered through Ms. Lims exercise of a legitimate right done
within the bounds of propriety and good faith, must be his to
bear alone.
WHEREFORE, premises considered, the petition filed by
Ruby Lim and Nikko Hotel Manila Garden is GRANTED. The
Decision of the Court of Appeals dated 26 November 2001
and its Resolution dated 09 July 2002 are hereby
REVERSED and SET ASIDE. The Decision of the Regional
Trial Court of Quezon City, Branch 104, dated 26 April 1999
is hereby AFFIRMED. No costs. SO ORDERED.
TITUS B. VILLANUEVA, G.R. No. 180764
Petitioner,
Present:
Carpio, J., Chairperson,
- versus - Brion,
Del Castillo,
Abad, and
Perez, JJ.
EMMA M. ROSQUETA,
Respondent. Promulgated:
January 19, 2010
x displayed at the Bureaus main gate included Valeras picture
---------------------------------------------------------------------------------
------ x
DECISION
ABAD, J.:
This case is about the right to recover damages for alleged
abuse of right committed by a superior public officer in
preventing a subordinate from doing her assigned task and
being officially recognized for it.
The Facts and the Case
Respondent Emma M. Rosqueta (Rosqueta),
formerly Deputy Commissioner of the Revenue Collection
and Monitoring Group of the Bureau of Customs (the
Bureau), tendered her courtesy resignation from that post on
January 23, 2001, shortly after President Gloria Macapagal-
Arroyo assumed office. But five months later on June 5,
2001, she withdrew her resignation, claiming that she
enjoyed security of tenure and that she had resigned against
her will on orders of her superior.[1]
Meantime, on July 13, 2001 President Arroyo
appointed Gil Valera (Valera) to respondent Rosquetas
position. Challenging such appointment, Rosqueta filed a
petition for prohibition, quo warranto, and injunction against
petitioner Titus B. Villanueva (Villanueva), then
Commissioner of Customs, the Secretary of Finance, and
Valera with the Regional Trial Court[2] (RTC) of Manila in Civil
Case 01-101539.On August 27, 2001 the RTC issued a
temporary restraining order (TRO), enjoining Villanueva and
the Finance Secretary[3] from implementing Valeras
appointment. On August 28, 2001 the trial court superseded
the TRO with a writ of preliminary injunction.[4]
Petitioner Villanueva, Valera, and the Secretary of
Finance challenged the injunction order before the Court of
Appeals (CA) in CA-G.R. SP 66070. On September 14, 2001
the CA issued its own TRO, enjoining the implementation of
the RTCs injunction order. But the TRO lapsed after 60 days
and the CA eventually dismissed the petition before it.
On November 22, 2001 while the preliminary
injunction in the quo warranto case was again in force,
petitioner Villanueva issued Customs Memorandum Order
40-2001, authorizing Valera to exercise the powers and
functions of the Deputy Commissioner.
During the Bureaus celebration of its centennial
anniversary in February 2002, its special Panorama
magazine edition featured all the customs deputy
commissioners, except respondent Rosqueta. The souvenir
program, authorized by the Bureaus Steering Committee
headed by petitioner Villanueva to be issued on the
occasion, had a space where Rosquetas picture was
supposed to be but it instead stated that her position was
under litigation. Meanwhile, the commemorative billboard
but not Rosquetas.
On February 28, 2002 respondent Rosqueta filed
a complaint[5] for damages before the RTC of Quezon City
against petitioner Villanueva in Civil Case Q-02-46256,
alleging that the latter maliciously excluded her from the
centennial anniversary memorabilia. Further, she claimed
that he prevented her from performing her duties as Deputy
Commissioner, withheld her salaries, and refused to act on
her leave applications. Thus, she asked the RTC to award
her P1,000,000.00 in moral damages, P500,000.00 in
exemplary damages, and P300,000.00 in attorneys fees and
costs of suit.
But the RTC dismissed[6] respondent Rosquetas
complaint, stating that petitioner Villanueva committed no
wrong and incurred no omission that entitled her to
damages. The RTC found that Villanueva had validly and
legally replaced her as Deputy Commissioner seven months
before the Bureaus centennial anniversary.
But the CA reversed the RTCs decision, [7] holding
instead that petitioner Villanuevas refusal to comply with the
preliminary injunction order issued in the quo warranto case
earned for Rosqueta the right to recover moral damages
from him.[8] Citing the abuse of right principle, the RTC said
that Villanueva acted maliciously when he prevented
Rosqueta from performing her duties, deprived her of
salaries and leaves, and denied her official recognition as
Deputy Commissioner by excluding her from the centennial
anniversary memorabilia. Thus, the appellate court ordered
Villanueva to pay P500,000.00 in moral
damages, P200,000.00 in exemplary damages
and P100,000.00 in attorneys fees and litigation
expenses. With the denial of his motion for reconsideration,
Villanueva filed this petition for review oncertiorari under
Rule 45.
The Issue Presented
The key issue presented in this case is whether or
not the CA erred in holding petitioner Villanueva liable in
damages to respondent Rosqueta for ignoring the
preliminary injunction order that the RTC issued in the quo
warranto case (Civil Case 01-101539), thus denying her of
the right to do her job as Deputy Commissioner of the
Bureau and to be officially recognized as such public officer.
The Courts Ruling
Under the abuse of right principle found in Article
19 of the Civil Code,[9] a person must, in the exercise of his
legal right or duty, act in good faith. He would be liable if he
instead acts in bad faith, with intent to prejudice
another. Complementing this principle are Articles 20 [10] and
21[11] of the Civil Code which grant the latter indemnity for the
injury he suffers because of such abuse of right or duty.[12]
Petitioner Villanueva claims that he merely acted
on advice of the Office of the Solicitor General (OSG) when
he allowed Valera to assume the office as Deputy
Commissioner since respondent Rosqueta held the position
merely in a temporary capacity and since she lacked the
Career Executive Service eligibility required for the job.
But petitioner Villanueva cannot seek shelter in the
alleged advice that the OSG gave him. Surely, a government
official of his rank must know that a preliminary injunction
order issued by a court of law had to be obeyed, especially
since the question of Valeras right to replace respondent
Rosqueta had not yet been properly resolved.
That petitioner Villanueva ignored the injunction
shows bad faith and intent to spite Rosqueta who remained
in the eyes of the law the Deputy Commissioner. His
exclusion of her from the centennial anniversary memorabilia
was not an honest mistake by any reckoning. Indeed, he
withheld her salary and prevented her from assuming the
duties of the position. As the Court said in Amonoy v.
Spouses Gutierrez,[13] a partys refusal to abide by a court
order enjoining him from doing an act, otherwise lawful,
constitutes an abuse and an unlawful exercise of right.
That respondent Rosqueta was later appointed
Deputy Commissioner for another division of the Bureau is
immaterial. While such appointment, when accepted,
rendered the quo warranto case moot and academic, it did
not have the effect of wiping out the injuries she suffered on
account of petitioner Villanuevas treatment of her. The
damage suit is an independent action.
The CA correctly awarded moral damages to
respondent Rosqueta. Such damages may be awarded
when the defendants transgression is the immediate cause
of the plaintiffs anguish [14] in the cases specified in Article
2219[15] of the Civil Code.[16]
Here, respondent Rosquetas colleagues and
friends testified that she suffered severe anxiety on account
of the speculation over her employment status. [17] She had to
endure being referred to as a squatter in her workplace. She
had to face inquiries from family and friends about her
exclusion from the Bureaus centennial anniversary
memorabilia. She did not have to endure all these affronts
and the angst and depression they produced had Villanueva
abided in good faith by the courts order in her favor. Clearly,
she is entitled to moral damages.
The Court, however, finds the award
of P500,000.00 excessive. As it held in Philippine
Commercial International Bank v. Alejandro,[18] moral
damages are not a bonanza. They are given to ease the
defendants grief and suffering. Moral damages should
reasonably approximate the extent of hurt caused and the
gravity of the wrong done. Here, that would be P200,000.00.

The Court affirms the grant of exemplary damages
by way of example or correction for the public good but, in
line with the same reasoning, reduces it
to P50,000.00. Finally, the Court affirms the award of
attorneys fees and litigation expenses but reduces it
to P50,000.00.
WHEREFORE, the Court DENIES the petition
and AFFIRMS the decision of the Court of Appeals dated
April 30, 2007 in CA-G.R. CV 85931 with MODIFICATION in
that petitioner Titus B. Villanueva is ORDERED to pay
respondent Emma M. Rosqueta the sum of P200,000.00 in
moral damages, P50,000.00 in exemplary damages,
and P50,000.00 in attorneys fees and litigation expenses.
SO ORDERED.
G.R. No. 171428 November 11, 2013
ALEJANDRO V. TANKEH, Petitioner,
vs.
DEVELOPMENT BANK OF THE PHILIPPINES, STERLING
SHIPPING LINES, INC., RUPERTO V. TANKEH, VICENTE
ARENAS, and ASSET PRIVATIZATION
TRUST, Respondents.
DECISION
LEONEN, J.:
This is a Petition for Review on Certiorari praying that the
assailed October 25, 2005 Decision and the February 9,
2006 Resolution of the Court of Appeals 1 be reversed, and
that the January 4, 1996 Decision of the Regional Trial Court
of Manila Branch 32 be affirmed. Petitioner prays that this
Court grant his claims for moral damages and attorneys
fees, as proven by the evidence.
Respondent Ruperto V. Tankeh is the president of Sterling
Shipping Lines, Inc. It was incorporated on April 23, 1979 to
operate ocean-going vessels engaged primarily in foreign
trade.2 Ruperto V. Tankeh applied for a $3.5 million loan from
public respondent Development Bank of the Philippines for
the partial financing of an ocean-going vessel named the
M/V Golden Lilac. To authorize the loan, Development Bank
of the Philippines required that the following conditions be
met:
1) A first mortgage must be obtained over the vessel, which
by then had been renamed the M/V Sterling Ace;
2) Ruperto V. Tankeh, petitioner Dr. Alejandro V. Tankeh,
Jose Marie Vargas, as well as respondents Sterling Shipping
Lines, Inc. and Vicente Arenas should become liable jointly
and severally for the amount of the loan;
3) The future earnings of the mortgaged vessel, including
proceeds of Charter and Shipping Contracts, should be
assigned to Development Bank of the Philippines; and
4) Development Bank of the Philippines should be assigned
no less than 67% of the total subscribed and outstanding
voting shares of the company. The percentage of shares
assigned should be maintained at all times, and the
assignment was to subsist as long as the assignee,
Development Bank of the Philippines, deemed it necessary
during the existence of the loan.3
According to petitioner Dr. Alejandro V. Tankeh, Ruperto V.
Tankeh approached him sometime in 1980.4 Ruperto
informed petitioner that he was operating a new shipping line
business. Petitioner claimed that respondent, who is also
petitioners younger brother, had told him that petitioner
would be given one thousand (1,000) shares to be a director
of the business. The shares were worth P1,000,000.00.5
On May 12, 1981, petitioner signed the Assignment of
Shares of Stock with Voting Rights. 6 Petitioner then signed
the May 12, 1981 promissory note in December 1981. He
was the last to sign this note as far as the other signatories
were concerned.7 The loan was approved by respondent
Development Bank of the Philippines on March 18, 1981.
The vessel was acquired on September 29, 1981 for $5.3
million.8 On December 3, 1981, respondent corporation
Sterling Shipping Lines, Inc. through respondent Ruperto V.
Tankeh executed a Deed of Assignment in favor of
Development Bank of the Philippines. The deed stated that
the assignor, Sterling Shipping Lines, Inc.:
x x x does hereby transfer and assign in favor of the
ASSIGNEE (DBP), its successors and assigns, future
earnings of the mortgaged M/V "Sterling Ace," including
proceeds of charter and shipping contracts, it being
understood that this assignment shall continue to subsist for
as long as the ASSIGNORS obligation with the herein
ASSIGNEE remains unpaid.9
On June 16, 1983, petitioner wrote a letter to respondent
Ruperto V. Tankeh saying that he was severing all ties and
terminating his involvement with Sterling Shipping Lines,
Inc.10 He required that its board of directors pass a resolution
releasing him from all liabilities, particularly the loan contract
with Development Bank of the Philippines. In addition,
petitioner asked that the private respondents notify
Development Bank of the Philippines that he had severed
his ties with Sterling Shipping Lines, Inc.11
The accounts of respondent Sterling Shipping Lines, Inc. in
the Development Bank of the Philippines were transferred to
public respondent Asset Privatization Trust on June 30,
1986.12
Presently, respondent Asset Privatization Trust is known as
the Privatization and Management Office. Asset Privatization
Trust was a government agency created through Presidential
Proclamation No. 50, issued in 1986. Through Administrative
Order No. 14, issued by former President Corazon Aquino
dated February 3, 1987, assets including loans in favor of
Development Bank of the Philippines were ordered to be
transferred to the national government. In turn, the
management and facilitation of these assets were delegated
to Asset Privatization Trust, pursuant to Presidential
Proclamation No. 50. In 1999, Republic Act No. 8758 was
signed into law, and it provided that the corporate term of
Asset Privatization Trust would end on December 31, 2000.
The same law empowered the President of the Philippines to
determine which office would facilitate the management of
assets held by Asset Privatization Trust. Thus, on December
6, 2000, former President Joseph E. Estrada signed
Executive Order No. 323, creating the Privatization
Management Office. Its present function is to identify
disposable assets, monitor the progress of privatization
activities, and approve the sale or divestment of assets with
respect to price and buyer.13
On January 29, 1987, the M/V Sterling Ace was sold in
Singapore for $350,000.00 by Development Bank of the
Philippines legal counsel Atty. Prospero N. Nograles. When
petitioner came to know of the sale, he wrote respondent
Development Bank of the Philippines to express that the final
price was inadequate, and therefore, the transaction was
irregular. At this time, petitioner was still bound as a debtor
because of the promissory note dated May 12, 1981, which
petitioner signed in December of 1981. The promissory note
subsisted despite Sterling Shipping Lines, Inc.s assignment
of all future earnings of the mortgaged M/V Sterling Ace to
Development Bank of the Philippines. The loan also
continued to bind petitioner despite Sterling Shipping Lines,
Inc.s cash equity contribution of P13,663,200.00 which was
used to cover part of the acquisition cost of the vessel, pre-
operating expenses, and initial working capital.14
Petitioner filed several Complaints15 against respondents,
praying that the promissory note be declared null and void
and that he be absolved from any liability from the mortgage
of the vessel and the note in question.
In the Complaints, petitioner alleged that respondent
Ruperto V. Tankeh, together with Vicente L. Arenas, Jr. and
Jose Maria Vargas, had exercised deceit and fraud in
causing petitioner to bind himself jointly and severally to pay
respondent Development Bank of the Philippines the amount
of the mortgage loan.16 Although he had been made a
stockholder and director of the respondent corporation
Sterling Shipping Lines, Inc., petitioner alleged that he had
never invested any amount in the corporation and that he
had never been an actual member of the board of
directors.17 He alleged that all the money he had supposedly
invested was provided by respondent Ruperto V.
Tankeh.18 He claimed that he only attended one meeting of
the board. In that meeting, he was introduced to two
directors representing Development Bank of the Philippines,
namely, Mr. Jesus Macalinag and Mr. Gil Corpus. Other than
that, he had never been notified of another meeting of the
board of directors.
Petitioner further claimed that he had been excluded
deliberately from participating in the affairs of the corporation
and had never been compensated by Sterling Shipping
Lines, Inc. as a director and stockholder.19According to
petitioner, when Sterling Shipping Lines, Inc. was organized,
respondent Ruperto V. Tankeh had promised him that he
would become part of the administration staff and oversee
company operations. Respondent Ruperto V. Tankeh had
also promised petitioner that the latters son would be given
a position in the company.20 However, after being designated
as vice president, petitioner had not been made an officer
and had been alienated from taking part in the respondent
corporation.21
Petitioner also alleged that respondent Development Bank of
the Philippines had been inexcusably negligent in the
performance of its duties.22 He alleged that Development
Bank of the Philippines must have been fully aware of
Sterling Shipping Lines, Inc.s financial situation. Petitioner
claimed that Sterling Shipping Lines, Inc. was controlled by
the Development Bank of the Philippines because 67% of
voting shares had been assigned to the latter. 23 Furthermore,
the mortgage contracts had mandated that Sterling Shipping
Lines, Inc. "shall furnish the DBP with copies of the minutes
of each meeting of the Board of Directors within one week
after the meeting. Sterling Shipping Lines Inc. shall likewise
furnish DBP its annual audited financial statements and
other information or data that may be needed by DBP as its
accommodations [sic] with DBP are outstanding."24Petitioner
further alleged that the Development Bank of the Philippines
had allowed "highly questionable acts"25 to take place,
including the gross undervaluing of the M/V Sterling
Aces.26 Petitioner alleged that one day after Development
Bank of the Philippines Atty. Nograles sold the vessel, the
ship was re-sold by its buyer for double the amount that the
ship had been bought.27
As for respondent Vicente L. Arenas, Jr., petitioner alleged
that since Arenas had been the treasurer of Sterling
Shipping Lines, Inc. and later on had served as its vice
president, he was also responsible for the financial situation
of Sterling Shipping Lines, Inc.
Lastly, in the Amended Complaint dated April 16, 1991,
petitioner impleaded respondent Asset Privatization Trust for
being the agent and assignee of the M/V Sterling Ace.
In their Answers28 to the Complaints, respondents raised the
following defenses against petitioner: Respondent
Development Bank of the Philippines categorically denied
receiving any amount from Sterling Shipping Lines, Inc.s
future earnings and from the proceeds of the shipping
contracts. It maintained that equity contributions could not be
deducted from the outstanding loan obligation that stood
at P245.86 million as of December 31, 1986. Development
Bank of the Philippines also maintained that it is immaterial
to the case whether the petitioner is a "real stockholder" or
merely a "pseudo-stockholder" of the corporation. 29 By
affixing his signature to the loan agreement, he was liable for
the obligation. According to Development Bank of the
Philippines, he was in pari delicto and could not be
discharged from his obligation. Furthermore, petitioner had
no cause of action against Development Bank of the
Philippines since this was a case between family members,
and earnest efforts toward compromise should have been
complied with in accordance with Article 222 of the Civil
Code of the Philippines.30
Respondent Ruperto V. Tankeh stated that petitioner had
voluntarily signed the promissory note in favor of
Development Bank of the Philippines and with full knowledge
of the consequences. Respondent Tankeh also alleged that
he did not employ any fraud or deceit to secure petitioners
involvement in the company, and petitioner had been fully
aware of company operations. Also, all that petitioner had to
do to avoid liability had been to sell his shareholdings in the
company.31
Respondent Asset Privatization Trust raised that petitioner
had no cause of action against them since Asset
Privatization Trust had been mandated under Proclamation
No. 50 to take title to and provisionally manage and dispose
the assets identified for privatization or deposition within the
shortest possible period. Development Bank of the
Philippines had transferred and conveyed all its rights, titles,
and interests in favor of the national government in
accordance with Administrative Order No. 14. In line with
that, Asset Privatization Trust was constituted as trustee of
the assets transferred to the national government to effect
privatization of these assets, including respondent Sterling
Shipping Lines, Inc.32 Respondent Asset Privatization Trust
also filed a compulsory counterclaim against petitioner and
its co-respondents Sterling Shipping Lines, Inc., Ruperto V.
Tankeh, and Vicente L. Arenas, Jr. for the amount
of P264,386,713.84.
Respondent Arenas did not file an Answer to any of the
Complaints of petitioner but filed a Motion to Dismiss that the
Regional Trial Court denied. Respondent Asset Privatization
Trust filed a Cross Claim against Arenas. In his Answer 33 to
Asset Privatization Trusts Cross Claim, Arenas claimed that
he had been released from any further obligation to
Development Bank of the Philippines and its successor
Asset Privatization Trust because an extension had been
granted by the Development Bank of the Philippines to the
debtors of Sterling Shipping Lines, Inc. and/or Ruperto V.
Tankeh, which had been secured without Arenas consent.
The trial proceeded with the petitioner serving as a sole
witness for his case. In a January 4, 1996 Decision, 34 the
Regional Trial Court ruled:
Here, we find
1. Plaintiff being promised by his younger brother,
Ruperto V. Tankeh, 1,000 shares with par value
of P1 Million with all the perks and privileges of
being stockholder and director of SSLI, a new
international shipping line;
2. That plaintiff will be part of the administration
and operation of the business, so with his son who
is with the law firm Romulo Ozaeta Law Offices;
3. But this was merely the come-on or appetizer
for the Real McCoy or the primordial end of
congregating the incorporators proposed - - that
he sign the promissory note (Exhibit "C"), the
mortgage contract (Exhibit "A"), and deed of
assignment so SSLI could get the US $3.5 M loan
from DBP to partially finance the importation of
vessel M.V. "Golden Lilac" renamed M.V. "Sterling
ACE";
4. True it is, plaintiff was made a stockholder and
director and Vice-President in 1979 but he was
never notified of any meeting of the Board except
only once, and only to be introduced to the two (2)
directors representing no less than 67% of the
total subscribed and outstanding voting shares of
the company. Thereafter, he was excluded from
any board meeting, shorn of his powers and duties
as director or Vice-President, and was altogether
deliberately demeaned as an outsider.
5. What kind of a company is SSLI who treated
one of their incorporators, one of their Directors
and their paper Vice-President in 1979 by
preventing him access to corporate books, to
corporate earnings, or losses, and to any
compensation or remuneration whatsoever?
Whose President and Treasurer did not submit the
required SEC yearly report? Who did not remit to
DBP the proceeds on charter mortgage contracts
on M/V Sterling Ace?
6. The M/V Sterling Ace was already in the Davao
Port when it was then diverted to Singapore to be
disposed on negotiated sale, and not by public
bidding contrary to COA Circular No. 86-264 and
without COAs approval. Sterling Ace was
seaworthy but was sold as scrap in Singapore. No
foreclosure with public bidding was made in
contravention of the Promissory Note to recover
any deficiency should DBP seeks [sic] to recover it
on the outstanding mortgage loan. Moreover the
sale was done after the account and asset (nay,
now only a liability) were transferred to APT. No
approval of SSLI Board of Directors to the
negotiated sale was given.
7. Plaintiffs letter to his brother President, Ruperto
V. Tankeh, dated June 15, 1983 (Exhibit "D") his
letter thru his lawyer to DBP (Exhibit "J") and
 another letter to it (Exhibit "K") show no estoppel
on his part as he consistently and continuously
assailed the several injurious acts of defendants
while assailing the Promissory Note itself x x x
(Citations omitted) applying the maxim:
Rencintiatio non praesumitur. By this Dr. Tankeh
never waived the right to question the Promissory
Note contract terms. He did not ratify, by
concurring acts, express or tacit, after the reasons
had surfaced entitling him to render the contract
voidable, defendants acts in implementing or not
the conditions of the mortgage, the promissory
note, the deed of assignment, the lack of audit and
accounting, and the negotiated sale of MV Sterling
Ace. He did not ratify defendants [sic] defective
acts (Art. 1396, New Civil Code (NCC).
The foregoing and the following essays, supported by
evidence, the fraud committed by plaintiffs brother before
the several documents were signed (SEC documents,
Promissory Note, Mortgage (MC) Contract, assignment
(DA)), namely:
1. Ruperto V. Tankeh approaches his brother
Alejandro to tell the latter of his new shipping
business. The project was good business proposal
[sic].
2. Ruperto tells Alejandro hes giving him shares
worth P1 Million and hes going to be a Director.
3. He tells his brother that he will be part of the
companys Administration and Operations and his
eldest son will be in it, too.
4. Ruperto tells his brother they need a ship, they
need to buy one for the business, and they
therefore need a loan, and they could secure a
loan from DBP with the vessel brought to have a
first mortgage with DBP but anyway the other two
directors and comptroller will be from DBP with a
67% SSLI shares voting rights.
Without these insidious, devastating and alluring words,
without the machinations used by defendant Ruperto V.
Tankeh upon the doctor, without the inducement and
promise of ownership of shares and the exercise of
administrative and operating functions, and the partial
financing by one of the best financial institutions, the DBP,
plaintiff would not have agreed to join his brother; and the
safeguarding of the Banks interest by its nominated two (2)
directors in the Board added to his agreeing to the new
shipping business. His consent was vitiated by the fraud
before the several contracts were consummated.
This alone convenes [sic] this Court to annul the Promissory
Note as it relates to plaintiff himself.
Plaintiff also pleads annulment on ground of equity. Article
19, NCC, provides him the way as it requires every person,
in the exercise of his rights and performance of his duties, to
act with justice, give everyone his due, and observe honesty
and good faith (Velayo vs. Shell Co. of the Phils., G.R. L-
7817, October 31, 1956). Not to release him from the clutch
of the Promissory Note when he was never made a part of
the operation of the SSLI, when he was not notified of the
Board Meetings, when the corporation nary remitted
earnings of M/V Sterling Ace from charter or shipping
contracts to DBP, when the SSLI did not comply with the
deed of assignment and mortgage contract, and when the
vessel was sold in Singapore (he, learning of the sale only
from the newspapers) in contravention of the Promissory
Note, and which he questioned, will be an injustice,
inequitable, and even iniquitous to plaintiff. SSLI and the
private defendants did not observe honesty and good faith to
one of their incorporators and directors. As to DBP, the Court
cannot put demerits on what plaintiffs memorandum has
pointed out:
While defendant DBP did not exercise the caution and
prudence in the discharge of their functions to protect its
interest as expected of them and worst, allowed the
perpetuation of the illegal acts committed in contrast to the
virtues they publicly profess, namely: "palabra de honor,
delicadeza, katapatan, kaayusan, pagkamasinop at
kagalingan" Where is the vision banking they have for our
country?
Had DBP listened to a cry in the wilderness that of the
voice of the doctor the doctor would not have allowed the
officers and board members to defraud DBP and he would
demand of them to hew and align themselves to the deed of
assignment.
Prescinding from the above, plaintiffs consent to be with
SSLI was vitiated by fraud. The fact that defendant Ruperto
Tankeh has not questioned his liability to DBP or that Jose
Maria Vargas has been declared in default do not detract
from the fact that there was attendant fraud and that there
was continuing fraud insofar as plaintiff is concerned.
Ipinaglaban lang ni Doctor ang karapatan niya. Kung wala
siyang sense of righteous indignation and fairness, tatahimik
na lang siya, sira naman ang pinangangalagaan niyang
pangalan, honor and family prestige [sic] (Emphasis
provided).35
xxxx
All of the defendants counterclaims and cross-claims x x x
including plaintiffs and the other defendants prayer for
damages are not, for the moment, sourced and proven by
substantial evidence, and must perforce be denied and
dismissed.
WHEREFORE, this Court, finding and declaring the
Promissory Note (Exhibit "C") and the Mortgage Contract
(Exhibit "A") null and void insofar as plaintiff DR.
ALEJANDRO V. TANKEH is concerned, hereby ANNULS
and VOIDS those documents as to plaintiff, and it is hereby
further ordered that he be released from any obligation or
liability arising therefrom.
All the defendants counterclaims and cross-claims and
plaintiffs and defendants prayer for damages are hereby
denied and dismissed, without prejudice.
SO ORDERED.36
Respondents Ruperto V. Tankeh, Asset Privatization Trust,
and Arenas immediately filed their respective Notices of
Appeal with the Regional Trial Court. The petitioner filed a
Motion for Reconsideration with regard to the denial of his
prayer for damages. After this Motion had been denied, he
then filed his own Notice of Appeal.
In a Decision37 promulgated on October 25, 2005, the Third
Division of the Court of Appeals reversed the trial courts
findings. The Court of Appeals held that petitioner had no
cause of action against public respondent Asset Privatization
Trust. This was based on the Court of Appeals assessment
of the case records and its findings that Asset Privatization
Trust did not commit any act violative of the right of petitioner
or constituting a breach of Asset Privatization Trusts
obligations to petitioner. The Court of Appeals found that
petitioners claim for damages against Asset Privatization
Trust was based merely on his own self-serving
allegations.38
As to the finding of fraud, the Court of Appeals held that:
xxxx
In all the complaints from the original through the first,
second and third amendments, the plaintiff imputes fraud
only to defendant Ruperto, to wit:
4. That on May 12, 1981, due to the deceit and fraud
exercised by Ruperto V. Tankeh, plaintiff, together with
Vicente L. Arenas, Jr. and Jose Maria Vargas signed a
promissory note in favor of the defendant, DBP, wherein
plaintiff bound himself to jointly and severally pay the DBP
the amount of the mortgage loan. This document insofar as
plaintiff is concerned is a simulated document considering
that plaintiff was never a real stockholder of Sterling
Shipping Lines, Inc. (Emphasis provided)
More allegations of deceit were added in the Second
Amended Complaint, but they are also attributed against
Ruperto:
6. That THE DECEIT OF DEFENDANT RUPERTO V.
TANKEH IS SHOWN BY THE FACT THAT when the Sterling
Shipping Lines, Inc. was organized in 1980, Ruperto V.
Tankeh promised plaintiff that he would be a part of the
administration staff so that he could oversee the operation of
the company. He was also promised that his son, a lawyer,
would be given a position in the company. None of these
promsies [sic] was complied with. In fact he was not even
allowed to find out the data about the income and expenses
of the company.
7. THAT THE DECEIT OF RUPERTO V. TANKEH IS ALSO
SHOWN BY THE FACT THAT PLAINTIFF WAS INVITED TO
ATTEND THE BOARD MEETING OF THE STERLING
SHIPPING LINES INC. ONLY ONCE, WHICH WAS FOR
THE SOLE PURPOSE OF INTRODUCING HIM TO THE
TWO DIRECTORS OF THE DBP IN THE BOARD OF THE
STERLING SHIPPING LINES, INC., NAMELY, MR. JESUS
MACALINAG AND MR. GIL CORPUS. THEREAFTER HE
WAS NEVER INVITED AGAIN. PLAINTIFF WAS NEVER
COMPENSATED BY THE STERLING SHIPPING LINES,
INC. FOR HIS BEING A SO-CALLED DIRECTOR AND
STOCKHOLDER.
xxxx
8-A THAT A WEEK AFTER SENDING THE ABOVE LETTER
PLAINTIFF MADE EARNEST EFFORTS TOWARDS A
COMPROMISE BETWEEN HIM AND HIS BROTHER
RUPERTO V. TANKEH, WHICH EFFORTS WERE
SPURNED BY RUPERTO V. TANKEH, AND ALSO AFTER
THE NEWS OF THE SALE OF THE STERLING ACE WAS
PUBLISHED AT THE NEWSPAPER, PLAINTIFF TRIED ALL
EFFORTS TO CONTACT RUPERTO V. TANKEH FOR THE
PURPOSE OF ARRIVING AT SOME COMPROMISE, BUT
DEFENDANT RUPERTO V. TANKEH AVOIDED ALL
CONTACTS WITH THE PLAINTIFF UNTIL HE WAS
FORCED TO SEEK LEGAL ASSISTANCE FROM HIS
LAWYER.
In the absence of any allegations of fraud and/or deceit
against the other defendants, namely, the DBP, Vicente
Arenas, Sterling Shipping Lines, Inc., and the Asset
Privatization Trust, the plaintiffs evidence thereon should
only be against Ruperto, since a plaintiff is bound to prove
only the allegations of his complaint. In any case, no
evidence of fraud or deceit was ever presented against
defendants DBP, Arenas, SSLI and APT.
As to the evidence against Ruperto, the same consists only
of the testimony of the plaintiff. None of his documentary
evidence would prove that Ruperto was guilty of fraud or
deceit in causing him to sign the subject promissory note.39
xxxx
Analyzing closely the foregoing statements, we find no
evidence of fraud or deceit. The mention of a new shipping
lines business and the promise of a free 1,000-share and
directorship in the corporation do not amount to insidious
words or machinations. In any case, the shipping business
was indeed established, with the plaintiff himself as one of
the incorporators and stockholders with a share of 4,000,
worth P4,000,000.00 of whichP1,000,000.00 was reportedly
paid up. As such, he signed the Articles of Incorporation and
the corporations By-Laws which were registered with the
Securities and Exchange Commission in April 1979. It was
not until May 12, 1981 that he signed the questioned
promissory note. From his own declaration at the witness
stand, the plaintiff signed the promissory note voluntarily. No
pressure, force or intimidation was made to bear upon him.
In fact, according to him, only a messenger brought the
paper to him for signature. The promised shares of stock
were given and recorded in the plaintiffs name. He was
made a director and Vice-President of SSLI. Apparently, only
the promise that his son would be given a position in the
company remained unfulfilled. However, the same should
have been threshed out between the plaintiff and his brother,
defendant Ruperto, and its non-fulfillment did not amount to
fraud or deceit, but was only an unfulfilled promise.
It should be pointed out that the plaintiff is a doctor of
medicine and a seasoned businessman. It cannot be said
that he did not understand the import of the documents he
signed. Certainly he knew what he was signing. He should
have known that being an officer of SSLI, his signing of the
promissory note together with the other officers of the
corporation was expected, as the other officers also did. It
cannot therefore be said that the promissory note was
simulated. The same is a contract validly entered into, which
the parties are obliged to comply with.40(Citations omitted)
The Court of Appeals ruled that in the absence of any
competent proof, Ruperto V. Tankeh did not commit any
fraud. Petitioner Alejandro V. Tankeh was unable to prove by
a preponderance of evidence that fraud or deceit had been
employed by Ruperto to make him sign the promissory note.
The Court of Appeals reasoned that:
Fraud is never presumed but must be proved by clear and
convincing evidence, mere preponderance of evidence not
even being adequate. Contentions must be proved by
competent evidence and reliance must be had on the
strength of the partys evidence and not upon the weakness
of the opponents defense. The plaintiff clearly failed to
discharge such burden.41 (Citations omitted)
With that, the Court of Appeals reversed and set aside the
judgment and ordered that plaintiffs Complaint be
dismissed. Petitioner filed a Motion for Reconsideration
dated October 25, 2005 that was denied in a
Resolution42promulgated on February 9, 2006.
Hence, this Petition was filed.
In this Petition, Alejandro V. Tankeh stated that the Court of
Appeals seriously erred and gravely abused its discretion in
acting and deciding as if the evidence stated in the Decision
of the Regional Trial Court did not exist. He averred that the
ruling of lack of cause of action had no leg to stand on, and
the Court of Appeals had unreasonably, whimsically, and
capriciously ignored the ample evidence on record proving
the fraud and deceit perpetrated on the petitioner by the
respondent. He stated that the appellate court failed to
appreciate the findings of fact of the lower court, which are
generally binding on appellate courts. He also maintained
that he is entitled to damages and attorney's fees due to the
deceit and machinations committed by the respondent.
In his Memorandum, respondent Ruperto V. Tankeh averred
that petitioner had chosen the wrong remedy. He ought to
have filed a special civil action of certiorari and not a Petition
for Review. Petitioner raised questions of fact, and not
questions of law, and this required the review or evaluation
of evidence. However, this is not the function of this Court,
as it is not a trier of facts. He also contended that petitioner
had voluntarily entered into the loan agreement and the
position with Sterling Shipping Lines, Inc. and that he did not
fraudulently induce the petitioner to enter into the contract.
Respondents Development Bank of the Philippines and
Asset Privatization Trust also contended that petitioner's
mode of appeal had been wrong, and he had actually sought
a special civil action of certiorari. This alone merited its
dismissal.
The main issue in this case is whether the Court of Appeals
erred in finding that respondent Rupert V. Tankeh did not
commit fraud against the petitioner.
The Petition is partly granted.
Before disposing of the main issue in this case, this Court
needs to address a procedural issue raised by respondents.
Collectively, respondents argue that the Petition is actually
one of certiorari under Rule 65 of the Rules of Court 43 and
not a Petition for Review on Certiorari under Rule 45. 44 Thus,
petitioners failure to show that there was neither appeal nor
any other plain, speedy or adequate remedy merited the
dismissal of the Complaint.
Contrary to respondents imputation, the remedy
contemplated by petitioner is clearly that of a Rule 45
Petition for Review. In Tagle v. Equitable PCI Bank,45 this
Court made the distinction between a Rule 45 Petition for
Review on Certiorari and a Rule 65 Petition for Certiorari:
Certiorari is a remedy designed for the correction of errors of
jurisdiction, not errors of judgment.1wphi1 In Pure Foods
Corporation v. NLRC, we explained the simple reason for the
rule in this light: When a court exercises its jurisdiction, an
error committed while so engaged does not deprive it of the
jurisdiction being exercised when the error is committed x x
x. Consequently, an error of judgment that the court may
commit in the exercise of its jurisdiction is not correctable
through the original civil action of certiorari.
xxxx
Even if the findings of the court are incorrect, as long as it
has jurisdiction over the case, such correction is normally
beyond the province of certiorari. Where the error is not one
of jurisdiction, but of an error of law or fact a mistake of
judgment, appeal is the remedy.
In this case, what petitioner seeks to rectify may be
construed as errors of judgment of the Court of Appeals.
These errors pertain to the petitioners allegation that the
appellate court failed to uphold the findings of facts of the
lower court. He does not impute any error with respect to the
Court of Appeals exercise of jurisdiction. As such, this
Petition is simply a continuation of the appellate process
where a case is elevated from the trial court of origin, to the
Court of Appeals, and to this Court via Rule 45.
Contrary to respondents arguments, the allegations of
petitioner that the Court of Appeals "committed grave abuse
of discretion"46 did not ipso facto render the intended remedy
that of certiorari under Rule 65 of the Rules of Court.47
In any case, even if the Petition is one for the special civil
action of certiorari, this Court has the discretion to treat a
Rule 65 Petition for Certiorari as a Rule 45 Petition for
Review on Certiorari. This is allowed if (1) the Petition is filed
within the reglementary period for filing a Petition for review;
(2) when errors of judgment are averred; and (3) when there
is sufficient reason to justify the relaxation of the
rules.48 When this Court exercises this discretion, there is no
need to comply with the requirements provided for in Rule
65.
In this case, petitioner filed his Petition within the
reglementary period of filing a Petition for Review. 49 His
Petition assigns errors of judgment and appreciation of facts
and law on the part of the Court of Appeals. Thus, even if the
Petition was designated as one that sought the remedy of
certiorari, this Court may exercise its discretion to treat it as
a Petition for Review in the interest of substantial justice.
We now proceed to the substantive issue, that of petitioners
imputation of fraud on the part of respondents. We are
required by the circumstances of this case to review our
doctrines of fraud that are alleged to be present in
contractual relations.
Types of Fraud in Contracts
Fraud is defined in Article 1338 of the Civil Code as:
x x x fraud when, through insidious words or machinations of
one of the contracting parties, the other is induced to enter
into a contract which, without them, he would not have
agreed to.
This is followed by the articles which provide legal examples
and illustrations of fraud.
Art. 1339. Failure to disclose facts, when there is a duty to
reveal them, as when the parties are bound by confidential
relations, constitutes fraud. (n)
Art. 1340. The usual exaggerations in trade, when the other
party had an opportunity to know the facts, are not in
themselves fraudulent. (n)
Art. 1341. A mere expression of an opinion does not signify
fraud, unless made by an expert and the other party has
relied on the former's special knowledge. (n)
Art. 1342. Misrepresentation by a third person does not
vitiate consent, unless such misrepresentation has created
substantial mistake and the same is mutual. (n)
Art. 1343. Misrepresentation made in good faith is not
fraudulent but may constitute error. (n)
The distinction between fraud as a ground for rendering a
contract voidable or as basis for an award of damages is
provided in Article 1344:
In order that fraud may make a contract voidable, it should
be serious and should not have been employed by both
contracting parties.
Incidental fraud only obliges the person employing it to pay
damages. (1270)
There are two types of fraud contemplated in the
performance of contracts: dolo incidente or incidental fraud
and dolo causante or fraud serious enough to render a
contract voidable.
In Geraldez v. Court of Appeals,50 this Court held that:
This fraud or dolo which is present or employed at the time
of birth or perfection of a contract may either be dolo
causante or dolo incidente. The first, or causal fraud referred
to in Article 1338, are those deceptions or
misrepresentations of a serious character employed by one
party and without which the other party would not have
entered into the contract. Dolo incidente, or incidental fraud
which is referred to in Article 1344, are those which are not
serious in character and without which the other party would
still have entered into the contract. Dolo causante
determines or is the essential cause of the consent, while
dolo incidente refers only to some particular or accident of
the obligation. The effects of dolo causante are the nullity of
the contract and the indemnification of damages, and dolo
incidente also obliges the person employing it to pay
damages.51
In Solidbank Corporation v. Mindanao Ferroalloy
Corporation, et al.,52 this Court elaborated on the distinction
between dolo causante and dolo incidente:
Fraud refers to all kinds of deception -- whether through
insidious machination, manipulation, concealment or
misrepresentation -- that would lead an ordinarily prudent
person into error after taking the circumstances into account.
In contracts, a fraud known as dolo causante or causal fraud
is basically a deception used by one party prior to or
simultaneous with the contract, in order to secure the
consent of the other. Needless to say, the deceit employed
must be serious. In contradistinction, only some particular or
accident of the obligation is referred to by incidental fraud or
dolo incidente, or that which is not serious in character and
without which the other party would have entered into the
contract anyway.53
Under Article 1344, the fraud must be serious to annul or
avoid a contract and render it voidable. This fraud or
deception must be so material that had it not been present,
the defrauded party would not have entered into the
contract. In the recent case of Spouses Carmen S. Tongson
and Jose C. Tongson, et al., v. Emergency Pawnshop Bula,
Inc.,54 this Court provided some examples of what
constituted dolo causante or causal fraud:
Some of the instances where this Court found the existence
of causal fraud include: (1) when the seller, who had no
intention to part with her property, was "tricked into believing"
that what she signed were papers pertinent to her
application for the reconstitution of her burned certificate of
title, not a deed of sale; (2) when the signature of the
authorized corporate officer was forged; or (3) when the
seller was seriously ill, and died a week after signing the
deed of sale raising doubts on whether the seller could have
read, or fully understood, the contents of the documents he
signed or of the consequences of his act.55 (Citations
omitted)
However, Article 1344 also provides that if fraud is incidental,
it follows that this type of fraud is not serious enough so as
to render the original contract voidable.
A classic example of dolo incidente is Woodhouse v.
Halili.56 In this case, the plaintiff Charles Woodhouse entered
into a written agreement with the defendant Fortunato Halili
to organize a partnership for the bottling and distribution of
soft drinks. However, the partnership did not come into
fruition, and the plaintiff filed a Complaint in order to execute
the partnership. The defendant filed a Counterclaim, alleging
that the plaintiff had defrauded him because the latter was
not actually the owner of the franchise of a soft drink bottling
operation. Thus, defendant sought the nullification of the
contract to enter into the partnership. This Court concluded
that:
x x x from all the foregoing x x x plaintiff did actually
represent to defendant that he was the holder of the
exclusive franchise. The defendant was made to believe,
and he actually believed, that plaintiff had the exclusive
franchise. x x x The record abounds with circumstances
indicative that the fact that the principal consideration, the
main cause that induced defendant to enter into the
partnership agreement with plaintiff, was the ability of plaintiff
to get the exclusive franchise to bottle and distribute for the
defendant or for the partnership. x x x The defendant was,
therefore, led to the belief that plaintiff had the exclusive
franchise, but that the same was to be secured for or
transferred to the partnership. The plaintiff no longer had the
exclusive franchise, or the option thereto, at the time the
contract was perfected. But while he had already lost his
option thereto (when the contract was entered into), the
principal obligation that he assumed or undertook was to
secure said franchise for the partnership, as the bottler and
distributor for the Mission Dry Corporation. We declare,
therefore, that if he was guilty of a false representation, this
was not the causal consideration, or the principal
inducement, that led plaintiff to enter into the partnership
agreement.
But, on the other hand, this supposed ownership of an
exclusive franchise was actually the consideration or price
plaintiff gave in exchange for the share of 30 percent granted
him in the net profits of the partnership business. Defendant
agreed to give plaintiff 30 per cent share in the net profits
because he was transferring his exclusive franchise to the
partnership. x x x.
Plaintiff had never been a bottler or a chemist; he never had
experience in the production or distribution of beverages. As
a matter of fact, when the bottling plant being built, all that he
suggested was about the toilet facilities for the laborers.
We conclude from the above that while the representation
that plaintiff had the exclusive franchise did not vitiate
defendant's consent to the contract, it was used by plaintiff to
get from defendant a share of 30 per cent of the net profits;
in other words, by pretending that he had the exclusive
franchise and promising to transfer it to defendant, he
obtained the consent of the latter to give him (plaintiff) a big
slice in the net profits. This is the dolo incidente defined in
article 1270 of the Spanish Civil Code, because it was used
to get the other party's consent to a big share in the profits,
an incidental matter in the agreement.57
Thus, this Court held that the original agreement may not be
declared null and void. This Court also said that the plaintiff
had been entitled to damages because of the refusal of the
defendant to enter into the partnership. However, the plaintiff
was also held liable for damages to the defendant for the
misrepresentation that the former had the exclusive
franchise to soft drink bottling operations.
To summarize, if there is fraud in the performance of the
contract, then this fraud will give rise to damages. If the fraud
did not compel the imputing party to give his or her consent,
it may not serve as the basis to annul the contract, which
exhibits dolo causante. However, the party alleging the
existence of fraud may prove the existence of dolo incidente.
This may make the party against whom fraud is alleged
liable for damages.
Quantum of Evidence to Prove the Existence of Fraud and
the Liability of the Parties
The Civil Code, however, does not mandate the quantum of
evidence required to prove actionable fraud, either for
purposes of annulling a contract (dolo causante) or
rendering a party liable for damages (dolo incidente). The
definition of fraud is different from the quantum of evidence
needed to prove the existence of fraud. Article 1338 provides
the legal definition of fraud. Articles 1339 to 1343 constitute
the behavior and actions that, when in conformity with the
legal provision, may constitute fraud.
Jurisprudence has shown that in order to constitute fraud
that provides basis to annul contracts, it must fulfill two
conditions. First, the fraud must be dolo causante or it must
be fraud in obtaining the consent of the party. Second, this
fraud must be proven by clear and convincing evidence. In
Viloria v. Continental Airlines,58 this Court held that:
Under Article 1338 of the Civil Code, there is fraud when,
through insidious words or machinations of one of the
contracting parties, the other is induced to enter into a
contract which, without them, he would not have agreed to.
In order that fraud may vitiate consent, it must be the causal
(dolo causante), not merely the incidental (dolo incidente),
inducement to the making of the contract. In Samson v.
Court of Appeals, causal fraud was defined as "a deception
employed by one party prior to or simultaneous to the
contract in order to secure the consent of the other." Also,
fraud must be serious and its existence must be established
by clear and convincing evidence. (Citations omitted)59
In Viloria, this Court cited Sierra v. Court of Appeals 60 stating
that mere preponderance of evidence will not suffice in
proving fraud.
Fraud must also be discounted, for according to the Civil
Code:
Art. 1338. There is fraud when, through insidious words or
machinations of one of the contracting parties, the other is
induced to enter into a contract which without them, he
would not have agreed to.
Art. 1344. In order that fraud may make a contract voidable,
it should be serious and should not have been employed by
both contracting parties.
To quote Tolentino again, the "misrepresentation constituting
the fraud must be established by full, clear, and convincing
evidence, and not merely by a preponderance thereof. The
deceit must be serious. The fraud is serious when it is
sufficient to impress, or to lead an ordinarily prudent person
into error; that which cannot deceive a prudent person
cannot be a ground for nullity. The circumstances of each
case should be considered, taking into account the personal
conditions of the victim."61
Thus, to annul a contract on the basis of dolo causante, the
following must happen: First, the deceit must be serious or
sufficient to impress and lead an ordinarily prudent person to
error. If the allegedly fraudulent actions do not deceive a
prudent person, given the circumstances, the deceit here
cannot be considered sufficient basis to nullify the contract.
In order for the deceit to be considered serious, it is
necessary and essential to obtain the consent of the party
imputing fraud. To determine whether a person may be
sufficiently deceived, the personal conditions and other
factual circumstances need to be considered.
Second, the standard of proof required is clear and
convincing evidence. This standard of proof is derived from
American common law. It is less than proof beyond
reasonable doubt (for criminal cases) but greater than
preponderance of evidence (for civil cases). The degree of
believability is higher than that of an ordinary civil case. Civil
cases only require a preponderance of evidence to meet the
required burden of proof. However, when fraud is alleged in
an ordinary civil case involving contractual relations, an
entirely different standard of proof needs to be satisfied. The
imputation of fraud in a civil case requires the presentation of
clear and convincing evidence. Mere allegations will not
suffice to sustain the existence of fraud. The burden of
evidence rests on the part of the plaintiff or the party alleging
fraud. The quantum of evidence is such that fraud must be
clearly and convincingly shown.
The Determination of the Existence of Fraud in the Present
Case
We now determine the application of these doctrines
regarding fraud to ascertain the liability, if any, of the
respondents.
Neither law nor jurisprudence distinguishes whether it is dolo
incidente or dolo causante that must be proven by clear and
convincing evidence. It stands to reason that both dolo
incidente and dolo causante must be proven by clear and
convincing evidence. The only question is whether this fraud,
when proven, may be the basis for making a contract
voidable (dolo causante), or for awarding damages (dolo
incidente), or both.
Hence, there is a need to examine all the circumstances
thoroughly and to assess the personal circumstances of the
party alleging fraud. This may require a review of the case
facts and the evidence on record.
In general, this Court is not a trier of facts. It makes its
rulings based on applicable law and on standing
jurisprudence. The findings of the Court of Appeals are
generally binding on this Court provided that these are
supported by the evidence on record. In the recent case of
Medina v. Court of Appeals,62 this Court held that:
It is axiomatic that a question of fact is not appropriate for a
petition for review on certiorari under Rule 45. This rule
provides that the parties may raise only questions of law,
because the Supreme Court is not a trier of facts. Generally,
we are not duty-bound to analyze again and weigh the
evidence introduced in and considered by the tribunals
below. When supported by substantial evidence, the findings
of fact of the Court of Appeals are conclusive and binding on
the parties and are not reviewable by this Court, unless the
case falls under any of the following recognized exceptions:
(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 a 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 is contrary to the
admissions of both appellant and appellee; (7) When the
findings 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 petitioners 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
contradicted by the evidence on record. (Emphasis
provided)63
The trial court and the Court of Appeals had appreciated the
facts of this case differently.
The Court of Appeals was not correct in saying that
petitioner could only raise fraud as a ground to annul his
participation in the contract as against respondent Rupert V.
Tankeh, since the petitioner did not make any categorical
allegation that respondents Development Bank of the
Philippines, Sterling Shipping Lines, Inc., and Asset
Privatization Trust had acted fraudulently. Admittedly, it was
only in the Petition before this Court that the petitioner had
made the allegation of a "well-orchestrated fraud" 64 by the
respondents. However, Rule 10, Section 5 of the Rules of
Civil Procedure provides that:
Amendment to conform to or authorize presentation of
evidence. When issues not raised by the pleadings are
tried with the express or implied consent of the parties they
shall be treated in all respects as if they had been raised in
the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at
any time, even after judgment; but failure to amend does not
effect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the
pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court may
grant a continuance to enable the amendment to be made.
(5a)
In this case, the commission of fraud was an issue that had
been tried with the implied consent of the respondents,
particularly Sterling Shipping Lines, Inc., Asset Privatization
Trust, Development Bank of the Philippines, and Arenas.
Hence, although there is a lack of a categorical allegation in
the pleading, the courts may still be allowed to ascertain
fraud.
The records will show why and how the petitioner agreed to
enter into the contract with respondent Ruperto V. Tankeh:
ATTY. VELAYO: How did you get involved in the business of
the Sterling Shipping Lines, Incorporated" [sic]
DR. TANKEH: Sometime in the year 1980, I was approached
by Ruperto Tankeh mentioning to me that he is operating a
new shipping lines business and he is giving me free one
thousand shares (1,000) to be a director of this new
business which is worth one million pesos (P1,000,000.00.),
that his son, a lawyer, would be given a position in
ATTY. VELAYO: Are you related to Ruperto V. Tankeh?
DR. TANKEH: Yes, sir. He is my younger brother.
ATTY. VELAYO: Did you accept the offer?
DR. TANKEH: I accepted the offer based on his promise to
me that I will be made a part of the administration staff so
that I can oversee the operation of the business plus my son,
the eldest one who is already a graduate lawyer with a
couple of years of experience in the law firm of Romulo
Ozaeta Law Offices (TSN, April 28, 1988, pp. 10-11.).65
The Second Amended Complaint of petitioner is substantially
reproduced below to ascertain the claim:
xxxx
2. That on May 12, 1981, due to the deceit and
fraud exercised by Ruperto V. Tankeh, plaintiff,
together with Vicente L. Arenas, Jr. and Jose
Maria Vargas, signed a promissory note in favor of
the defendant DBP, wherein plaintiff bound himself
to jointly and severally pay the DBP the amount of
the mortgage loan. This document insofar as
plaintiff is concerned is a simulated document
considering that plaintiff was never a real
stockholder of the Sterling Shipping Lines, Inc.
3. That although plaintiffs name appears in the
records of Sterling Shipping Lines, Inc. as one of
its incorporators, the truth is that he had never
invested any amount in said corporation and that
he had never been an actual member of said
corporation. All the money supposedly invested by
him were put by defendant Ruperto V. Tankeh.
Thus, all the shares of stock under his name in
fact belongs to Ruperto V. Tankeh. Plaintiff was
invited to attend the board meeting of the Sterling
Shipping Lines, Inc. only once, which was for the
sole purpose of introducing him to the two
directors of the DBP, namely, Mr. Jesus Macalinag
and Mr. Gil Corpus. Thereafter he was never
invited again. Plaintiff was never compensated by
the Sterling Shipping Lines, Inc. for his being a so-
called director and stockholder. It is clear therefore
that the DBP knew all along that plaintiff was not a
true stockholder of the company.
4. That THE DECEIT OF DEFENDANT RUPERTO
V. TANKEH IS SHOWN BY THE FACT THAT
when the Sterling Shipping Lines, Inc. was
organized in 1980, Ruperto V. Tankeh promised
plaintiff that he would be a part of the
administration staff so that he could oversee the
operation of the company. He was also promised
the company. None of these promises was
complied with. In fact, he was not even allowed to
find out the data about the income and expenses
of the company.
5. THAT THE DECEIT OF RUPERTO V. TANKEH
IS ALSO SHOWN BY THE FACT THAT
PLAINTIFF WAS INVITED TO ATTEND THE
BOARD MEETING OF THE STERLING
SHIPPING LINES, INC. ONLY ONCE, WHICH
WAS FOR THE SOLE PUPOSE OF
INTRODUCING HIM TO THE TWO DIRECTORS
OF THE DBP IN THE BOARD OF THE
STERLING SHIPPING LINES, INC., NAMELY,
MR. JESUS MACALINAG AND MR. GIL
CORPUS. THEREAFTER HE WAS NEVER
INVITED AGAIN. PLAINTIFF WAS NEVER
COMPENSATED BY THE STERLING SHIPPING
LINES, INC. FOR HIS BEING A SO-CALLED
DIRECTOR AND STOCKHOLDER.
6. That in 1983, upon realizing that he was only
being made a tool to realize the purposes of
 Ruperto V. Tankeh, plaintiff officially informed the
company by means of a letter dated June 15,
1983 addressed to the company that he has
severed his connection with the company, and
demanded among others, that the company board
of directors pass a resolution releasing him from
any liabilities especially with reference to the loan
mortgage contract with the DBP and to notify the
DBP of his severance from the Sterling Shipping
Lines, Inc.
8-A. THAT A WEEK AFTER SENDING THE
ABOVE LETTER, PLAINTIFF MADE EARNEST
EFFORTS TOWARDS A COMPROMISE
BETWEEN HIM AND HIS BROTHER RUPERTO
V. TANKEH, WHICH EFFORTS WERE SPURNED
BY RUPERTO V. TANKEH, AND ALSO AFTER
THE NEWS OF THE SALE OF THE "STERLING
ACE" WAS PUBLISHED AT THE NEWSPAPER
[sic], PLAINTIFF TRIED ALL EFFORTS TO
CONTACT RUPERTO V. TANKEH FOR THE
PURPOSE OF ARRIVING AT SOME
COMPROMISE, BUT DEFENDANT RUPERTO V.
TANKEH AVOIDED ALL CONTACTS [sic] WITH
THE PLAINTIFF UNTIL HE WAS FORCED TO
SEEK LEGAL ASSISTANCE FROM HIS
LAWYER.66
In his Answer, respondent Ruperto V. Tankeh stated that:
COMES NOW defendant RUPERTO V. TANKEH, through
the undersigned counsel, and to the Honorable Court, most
respectfully alleges:
xxxx
3. That paragraph 4 is admitted that herein
answering defendant together with the plaintiff
signed the promissory note in favor of DBP but
specifically denied that the same was done
through deceit and fraud of herein answering
defendant the truth being that plaintiff signed said
promissory note voluntarily and with full
knowledge of the consequences thereof; it is
further denied that said document is a simulated
document as plaintiff was never a real stockholder
of the company, the truth being those alleged in
the special and affirmative defenses;
4. That paragraphs 5,6,7,8 and 8-A are specifically
denied specially the imputation of deceit and fraud
against herein answering defendant, the truth
being those alleged in the special and affirmative
defenses;
xxxx
SPECIAL AND AFFIRMATIVE DEFENSES x x x
8. The complaint states no cause of action as
against herein answering defendant;
9. The Sterling Shipping Lines, Inc. was a
legitimate company organized in accordance with
the laws of the Republic of the Philippines with the
plaintiff as one of the incorporators;
10. Plaintiff as one of the incorporators and
directors of the board was fully aware of the by-
laws of the company and if he attended the board
meeting only once as alleged, the reason thereof
was known only to him;
11. The Sterling Shipping Lines, Inc. being a
corporation acting through its board of directors,
herein answering defendant could not have
promised plaintiff that he would be a part of the
administration staff;
12. As member of the board, plaintiff had all the
access to the data and records of the company;
further, as alleged in the complaint, plaintiff has a
son who is a lawyer who could have advised him;
13. Assuming plaintiff wrote a letter to the
company to sever his connection with the
company, he should have been aware that all he
had to do was sell all his holdings in the company;
14. Herein answering defendant came to know
only of plaintiffs alleged predicament when he
received the summons and copy of the complaint;
x x x.67
An assessment of the allegations in the pleadings and the
findings of fact of both the trial court and appellate court
based on the evidence on record led to the conclusion that
there had been no dolo causante committed against the
petitioner by Ruperto V. Tankeh.
The petitioner had given his consent to become a
shareholder of the company without contributing a single
peso to pay for the shares of stock given to him by Ruperto
V. Tankeh. This fact was admitted by both petitioner and
respondent in their respective pleadings submitted to the
lower court.
In his Amended Complaint,68 the petitioner admitted that "he
had never invested any amount in said corporation and that
he had never been an actual member of said corporation. All
the money supposedly invested by him were put up by
defendant Ruperto V. Tankeh." 69 This fact alone should have
already alerted petitioner to the gravity of the obligation that
he would be undertaking as a member of the board of
directors and the attendant circumstances that this
undertaking would entail. It also does not add any
evidentiary weight to strengthen petitioners claim of fraud. If
anything, it only strengthens the position that petitioners
consent was not obtained through insidious words or
deceitful machinations.
Article 1340 of the Civil Code recognizes the reality of some
exaggerations in trade which negates fraud. It reads:
Art. 1340. The usual exaggerations in trade, when the other
party had an opportunity to know the facts, are not in
themselves fraudulent.
Given the standing and stature of the petitioner, he was in a
position to ascertain more information about the contract.
Songco v. Sellner70 serves as one of the key guidelines in
ascertaining whether a party is guilty of fraud in obtaining the
consent of the party claiming that fraud existed. The plaintiff
Lamberto Songco sought to recover earnings from a
promissory note that defendant George Sellner had made
out to him for payment of Songcos sugar cane production.
Sellner claimed that he had refused to pay because Songco
had promised that the crop would yield 3,000 piculs of sugar,
when in fact, only 2,017 piculs of sugar had been produced.
This Court held that Sellner would still be liable to pay the
promissory note, as follows:
Notwithstanding the fact that Songco's statement as to the
probable output of his crop was disingenuous and uncandid,
we nevertheless think that Sellner was bound and that he
must pay the price stipulated. The representation in question
can only be considered matter of opinion as the cane was
still standing in the field, and the quantity of the sugar it
would produce could not be known with certainty until it
should be harvested and milled. Undoubtedly Songco had
better experience and better information on which to form an
opinion on this question than Sellner. Nevertheless the latter
could judge with his own eyes as to the character of the
cane, and it is shown that he measured the fields and
ascertained that they contained 96 1/2 hectares.
xxxx
The law allows considerable latitude to seller's statements,
or dealer's talk; and experience teaches that it is exceedingly
risky to accept it at its face value. The refusal of the seller to
warrant his estimate should have admonished the purchaser
that that estimate was put forth as a mere opinion; and we
will not now hold the seller to a liability equal to that which
would have been created by a warranty, if one had been
given.
xxxx
It is not every false representation relating to the subject
matter of a contract which will render it void. It must be as to
matters of fact substantially affecting the buyer's interest, not
as to matters of opinion, judgment, probability, or
expectation. (Long vs. Woodman, 58 Me., 52; Hazard vs.
Irwin, 18 Pick. [Mass.], 95; Gordon vs. Parmelee, 2 Allen
[Mass.], 212; Williamson vs. McFadden, 23 Fla., 143, 11 Am.
St. Rep., 345.) When the purchaser undertakes to make an
investigation of his own, and the seller does nothing to
prevent this investigation from being as full as he chooses to
make it, the purchaser cannot afterwards allege that the
seller made misrepresentations. (National Cash Register Co.
vs. Townsend, 137 N. C., 652, 70 L. R. A., 349; Williamson
vs. Holt, 147 N. C., 515.)
We are aware that where one party to a contract, having
special or expert knowledge, takes advantage of the
ignorance of another to impose upon him, the false
representation may afford ground for relief, though otherwise
the injured party would be bound. But we do not think that
the fact that Songco was an experienced farmer, while
Sellner was, as he claims, a mere novice in the business,
brings this case within that exception.71
The following facts show that petitioner was fully aware of
the magnitude of his undertaking:
First, petitioner was fully aware of the financial reverses that
Sterling Shipping Lines, Inc. had been undergoing, and he
took great pains to release himself from the obligation.
Second, his background as a doctor, as a bank organizer,
and as a businessman with experience in the textile
business and real estate should have apprised him of the
irregularity in the contract that he would be undertaking. This
meant that at the time petitioner gave his consent to become
a part of the corporation, he had been fully aware of the
circumstances and the risks of his participation. Intent is
determined by the acts.
Finally, the records showed that petitioner had been fully
aware of the effect of his signing the promissory note. The
bare assertion that he was not privy to the records cannot
counteract the fact that petitioner himself had admitted that
after he had severed ties with his brother, he had written a
letter seeking to reach an amicable settlement with
respondent Rupert V. Tankeh. Petitioners actions defied his
claim of a complete lack of awareness regarding the
circumstances and the contract he had been entering.
The required standard of proof clear and convincing
evidence was not met. There was no dolo causante or
fraud used to obtain the petitioners consent to enter into the
contract. Petitioner had the opportunity to become aware of
the facts that attended the signing of the promissory note.
He even admitted that he has a lawyer-son who the
petitioner had hoped would assist him in the administration
of Sterling Shipping Lines, Inc. The totality of the facts on
record belies petitioners claim that fraud was used to obtain
his consent to the contract given his personal circumstances
and the applicable law.
However, in refusing to allow petitioner to participate in the
management of the business, respondent Ruperto V. Tankeh
was liable for the commission of incidental fraud. In
Geraldez, this Court defined incidental fraud as "those which
are not serious in character and without which the other
party would still have entered into the contract."72
Although there was no fraud that had been undertaken to
obtain petitioners consent, there was fraud in the
performance of the contract. The records showed that
petitioner had been unjustly excluded from participating in
the management of the affairs of the corporation. This
exclusion from the management in the affairs of Sterling
Shipping Lines, Inc. constituted fraud incidental to the
performance of the obligation.
This can be concluded from the following circumstances.
First, respondent raised in his Answer that petitioner "could
not have promised plaintiff that he would be a part of the
administration staff"73 since petitioner had been fully aware
that, as a corporation, Sterling Shipping Lines, Inc. acted
through its board of directors. Respondent admitted that
petitioner had been "an incorporator and member of the
board of directors"74 and that petitioner "was fully aware of
the by-laws of the company."75 It was incumbent upon
respondent to act in good faith and to ensure that petitioner
would not be excluded from the affairs of Sterling Shipping
Lines, Inc. After all, respondent asserted that petitioner had
entered into the contract voluntarily and with full consent.
Second, respondent claimed that if petitioner was intent on
severing his connection with the company, all that petitioner
had to do was to sell all his holdings in the company. Clearly,
the respondent did not consider the fact that the sale of the
shares of stock alone did not free petitioner from his liability
to Development Bank of the Philippines or Asset
Privatization Trust, since the latter had signed the
promissory and had still been liable for the loan. A sale of
petitioners shares of stock would not have negated the
petitioners responsibility to pay for the loan.
Third, respondent Ruperto V. Tankeh did not rebuff
petitioners claim that the latter only received news about the
sale of the vessel M/V Sterling Ace through the media and
not as one of the board members or directors of Sterling
Shipping Lines, Inc.
All in all, respondent Ruperto V. Tankehs bare assertion that
petitioner had access to the records cannot discredit the fact
that the petitioner had been effectively deprived of the
opportunity to actually engage in the operations of Sterling
Shipping Lines, Inc. Petitioner had a reasonable expectation
that the same level of engagement would be present for the
duration of their working relationship. This would include an
undertaking in good faith by respondent Ruperto V. Tankeh
to be transparent with his brother that he would not
automatically be made part of the companys administration.
However, this Court finds there is nothing to support the
assertion that Sterling Shipping Lines, Inc. and Arenas
committed incidental fraud and must be held liable. Sterling
Shipping Lines, Inc. acted through its board of directors, and
the liability of respondent Tankeh cannot be imposed on
Sterling Shipping Lines, Inc. The shipping line has a
separate and distinct personality from its officers, and
petitioners assertion that the corporation conspired with the
respondent Ruperto V. Tankeh to defraud him is not
supported by the evidence and the records of the case.
As for Arenas, in Lim Tanhu v. Remolete, 76 this Court held
that:
In all instances where a common cause of action is alleged
against several defendants, some of whom answer and the
others do not, the latter or those in default acquire a vested
right not only to own the defense interposed in the answer of
their co-defendant or co-defendants not in default but also to
expect a result of the litigation totally common with them in
kind and in amount whether favorable or unfavorable. The
substantive unity of the plaintiffs cause against all the
defendants is carried through to its adjective phase as
ineluctably demanded by the homogeneity and indivisibility
of justice itself.77
As such, despite Arenas failure to submit his Answer to the
Complaint or his declaration of default, his liability or lack
thereof is concomitant with the liability attributed to his co-
defendants or co-respondents. However, unlike respondent
Ruperto V. Tankehs liability, there is no action or series of
actions that may be attributed to Arenas that may lead to an
inference that he was liable for incidental fraud. In so far as
the required evidence for both Sterling Shipping Lines, Inc.
and Arenas is concerned, there is no basis to justify the
claim of incidental fraud.
In addition, respondents Development Bank of the
Philippines and Asset Privatization Trust or Privatization and
Management Office cannot be held liable for fraud.
Incidental fraud cannot be attributed to the execution of their
actions, which were undertaken pursuant to their mandated
functions under the law. "Absent convincing evidence to the
contrary, the presumption of regularity in the performance of
official functions has to be upheld."78
The Obligation to Pay Damages
As such, respondent Ruperto V. Tankeh is liable to his older
brother, petitioner Alejandro, for damages. The obligation to
pay damages to petitioner is based on several provisions of
the Civil Code.
Article 1157 enumerates the sources of obligations.
Article 1157. Obligations arise from:
 (1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (1089a)
This enumeration does not preclude the possibility that a
single action may serve as the source of several obligations
to pay damages in accordance with the Civil Code. Thus, the
liability of respondent Ruperto V. Tankeh is based on the law,
under Article 1344, which provides that the commission of
incidental fraud obliges the person employing it to pay
damages.
In addition to this obligation as the result of the contract
between petitioner and respondents, there was also a patent
abuse of right on the part of respondent Tankeh. This abuse
of right is included in Articles 19 and 21 of the Civil Code
which provide that:
Article 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.
Article 21. Any person who willfully causes loss or injury to
another in manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.
Respondent Ruperto V. Tankeh abused his right to pursue
undertakings in the interest of his business operations. This
is because of his failure to at least act in good faith and be
transparent with petitioner regarding Sterling Shipping Lines,
Inc.s daily operations.
In National Power Corporation v. Heirs of Macabangkit
Sangkay,79 this Court held that:
When a right is exercised in a manner not conformable with
the norms enshrined in Article 19 and like provisions on
human relations in the Civil Code, and the exercise results to
[sic] the damage of [sic] another, a legal wrong is committed
and the wrongdoer is held responsible.80
The damage, loss, and injury done to petitioner are shown
by the following circumstances.
First, petitioner was informed by Development Bank of the
Philippines that it would still pursue his liability for the
payment of the promissory note. This would not have
happened if petitioner had allowed himself to be fully
apprised of Sterling Shipping Lines, Inc.s financial straits
and if he felt that he could still participate in the companys
operations. There is no evidence that respondent Ruperto V.
Tankeh showed an earnest effort to at least allow the
possibility of making petitioner part of the administration a
reality. The respondent was the brother of the petitioner and
was also the primary party that compelled petitioner
Alejandro Tankeh to be solidarily bound to the promissory
note. Ruperto V. Tankeh should have done his best to
ensure that he had exerted the diligence to comply with the
obligations attendant to the participation of petitioner.
Second, respondent Ruperto V. Tankehs refusal to enter into
an agreement or settlement with petitioner after the latters
discovery of the sale of the M/V Sterling Ace was an action
that constituted bad faith. Due to Rupertos refusal, his
brother, petitioner Alejandro, became solidarily liable for an
obligation that the latter could have avoided if he had been
given an opportunity to participate in the operations of
Sterling Shipping Lines, Inc. The simple sale of all of
petitioners shares would not have solved petitioners
problems, as it would not have negated his liability under the
terms of the promissory note.
Finally, petitioner is still bound to the creditors of Sterling
Shipping Lines, Inc., namely, public respondents
Development Bank of the Philippines and Asset Privatization
Trust. This is an additional financial burden for petitioner.
Nothing in the records suggested the possibility that
Development Bank of the Philippines or Asset Privatization
Trust through the Privatization Management Office will not
pursue or is precluded from pursuing its claim against the
petitioner. Although petitioner Alejandro voluntarily signed
the promissory note and became a stockholder and board
member, respondent should have treated him with fairness,
transparency, and consideration to minimize the risk of
incurring grave financial reverses.
In Francisco v. Ferrer,81 this Court ruled that moral damages
may be awarded on the following bases:
To recover moral damages in an action for breach of
contract, the breach must be palpably wanton, reckless,
malicious, in bad faith, oppressive or abusive.
Under the provisions of this law, in culpa contractual or
breach of contract, moral damages may be recovered when
the defendant acted in bad faith or was guilty of gross
negligence (amounting to bad faith) or in wanton disregard of
his contractual obligation and, exceptionally, when the act of
breach of contract itself is constitutive of tort resulting in
physical injuries.
Moral damages may be awarded in breaches of contracts
where the defendant acted fraudulently or in bad faith.
Bad faith does not simply connote bad judgment or
negligence, it imports a dishonest purpose or some moral
obliquity and conscious doing of a wrong, a breach of known
duty through some motive or interest or ill will that partakes
of the nature of fraud.
xxxx
The person claiming moral damages must prove the
existence of bad faith by clear and convincing evidence for
the law always presumes good faith. It is not enough that
one merely suffered sleepless nights, mental anguish,
serious anxiety as the result of the actuations of the other
party. Invariably such action must be shown to have been
willfully done in bad faith or will ill motive. Mere allegations of
besmirched reputation, embarrassment and sleepless nights
are insufficient to warrant an award for moral damages. It
must be shown that the proximate cause thereof was the
unlawful act or omission of the [private respondent]
petitioners.
An award of moral damages would require certain conditions
to be met, to wit: (1) first, there must be an injury, whether
physical, mental or psychological, clearly sustained by the
claimant; (2) second, there must be culpable act or omission
factually established; (3) third, the wrongful act or omission
of the defendant is the proximate cause of the injury
sustained by the claimant; and (4) fourth, the award of
damages is predicated on any of the cases stated in Article
2219 of the Civil Code. (Citations omitted)82
In this case, the four elements cited in Francisco are
present. First, petitioner suffered an injury due to the mental
duress of being bound to such an onerous debt to
Development Bank of the Philippines and Asset Privatization
Trust. Second, the wrongful acts of undue exclusion done by
respondent Ruperto V. Tankeh clearly fulfilled the same
requirement. Third, the proximate cause of his injury was the
failure of respondent Ruperto V. Tankeh to comply with his
obligation to allow petitioner to either participate in the
business or to fulfill his fiduciary responsibilities with candor
and good faith. Finally, Article 221983 of the Civil Code
provides that moral damages may be awarded in case of
acts and actions referred to in Article 21, which, as stated,
had been found to be attributed to respondent Ruperto V.
Tankeh.
In the Appellants Brief,84 petitioner asked the Court of
Appeals to demand from respondents, except from
respondent Asset Privatization Trust, the amount of five
million pesos (P5,000,000.00). This Court finds that the
amount of five hundred thousand pesos (P500,000.00) is a
sufficient amount of moral damages.
In addition to moral damages, this Court may also impose
the payment of exemplary damages.1wphi1 Exemplary
damages are discussed in Article 2229 of the Civil Code, as
follows:
ART. 2229. Exemplary or corrective damages are imposed,
by way of example or correction of the public good, in
addition to moral, temperate, liquidated or compensatory
damages.
Exemplary damages are further discussed in Articles 2233
and 2234, particularly regarding the pre-requisites of
ascertaining moral damages and the fact that it is
discretionary upon this Court to award them or not:
ART. 2233. Exemplary damages cannot be recovered as a
matter of right; the court will decide whether or not they
should be adjudicated.
ART. 2234. While the amount of the exemplary damages
need not be proven, the plaintiff must show that he is entitled
to moral, temperate or compensatory damages before the
court may consider the question of whether or not exemplary
damages should be awarded x x x
The purpose of exemplary damages is to serve as a
deterrent to future and subsequent parties from the
commission of a similar offense. The case of People v.
Rante85 citing People v. Dalisay86 held that:
Also known as punitive or vindictive damages, exemplary vs.
or corrective damages are intended to serve as a deterrent
to serious wrong doings, and as a vindication of undue
sufferings and wanton invasion of the rights of an injured or
a punishment for those guilty of outrageous conduct. These
terms are generally, but not always, used interchangeably. In
common law, there is preference in the use of exemplary
damages when the award is to account for injury to feelings
and for the sense of indignity and humiliation suffered by a
person as a result of an injury that has been maliciously and
wantonly inflicted, the theory being that there should be
compensation for the hurt caused by the highly
reprehensible conduct of the defendantassociated with
such circumstances as willfulness, wantonness, malice,
gross negligence or recklessness, oppression, insult or fraud
or gross fraudthat intensifies the injury. The terms punitive
or vindictive damages are often used to refer to those
species of damages that may be awarded against a person
to punish him for his outrageous conduct. In either case,
these damages are intended in good measure to deter the
wrongdoer and others like him from similar conduct in the
future.87
To justify an award for exemplary damages, the wrongful act
must be accompanied by bad faith, and an award of
damages would be allowed only if the guilty party acted in a
wanton, fraudulent, reckless or malevolent manner. 88In this
case, this Court finds that respondent Ruperto V. Tankeh
acted in a fraudulent manner through the finding of dolo
incidente due to his failure to act in a manner consistent with
propriety, good morals, and prudence.
Since exemplary damages ensure that future litigants or
parties are enjoined from acting in a similarly malevolent
manner, it is incumbent upon this Court to impose the
damages in such a way that will serve as a categorical
warning and will show that wanton actions will be dealt with
in a similar manner. This Court finds that the amount of two
hundred thousand pesos (P200,000.00) is sufficient for this
purpose.
In sum, this Court must act in the best interests of all future
litigants by establishing and applying clearly defined
standards and guidelines to ascertain the existence of fraud.
WHEREFORE, this Petition is PARTIALLY GRANTED. The
Decision of the Court of Appeals as to the assailed Decision
in so far as the finding of fraud is SUSTAINED with the
MODIFICATION that respondent RUPERTO V. TANKEH be
ordered to pay moral damages in the amount of FIVE
HUNDRED THOUSAND PESOS (P500,000.00) and the
amount of TWO HUNDRED THOUSAND PESOS
(P200,000.00) by way of exemplary damages. SO
ORDERED.
G.R. No. 175822 October 23, 2013
CALIFORNIA CLOTHING INC. and MICHELLE S.
YBAEZ, Petitioners,
said damaging letter.13 With the above experience,
SHIRLEY G. QUIONES, Respondent.
DECISION
PERALTA, J.:
Assailed in this petition for review on certiorari under Rule 45
of the ; Rules of Court are the Court of Appeals
Decision1 dated August 3, 2006 and Resolution 2 dated
November 14, 2006 in CA-G.R. CV No. 80309. The assailed
decision reversed and set aside the June 20, 2003
Decision3 of the Regional Trial Court of Cebu City (RTC),
Branch 58, in Civil Case No. CEB-26984; while the assailed
resolution denied the motion for reconsideration filed by
petitioner Michelle Ybaez (Ybaez).
The facts of the case, as culled from the records, are as
follows:
On July 25, 2001, respondent Shirley G. Quiones, a
Reservation Ticketing Agent of Cebu Pacific Air in Lapu Lapu
City, went inside the Guess USA Boutique at the second
floor of Robinsons Department Store (Robinsons) in Cebu
City. She fitted four items: two jeans, a blouse and a shorts,
then decided to purchase the black jeans
worth P2,098.00.4 Respondent allegedly paid to the cashier
evidenced by a receipt5 issued by the store.6
While she was walking through the skywalk connecting
Robinsons and Mercury Drug Store (Mercury) where she
was heading next, a Guess employee approached and
informed her that she failed to pay the item she got. She,
however, insisted that she paid and showed the employee
the receipt issued in her favor. 7 She then suggested that they
talk about it at the Cebu Pacific Office located at the
basement of the mall. She first went to Mercury then met the
Guess employees as agreed upon.8
When she arrived at the Cebu Pacific Office, the Guess
employees allegedly subjected her to humiliation in front of
the clients of Cebu Pacific and repeatedly demanded
payment for the black jeans.9 They supposedly even
searched her wallet to check how much money she had,
followed by another argument. Respondent, thereafter, went
home.10
On the same day, the Guess employees allegedly gave a
letter to the Director of Cebu Pacific Air narrating the
incident, but the latter refused to receive it as it did not
concern the office and the same took place while respondent
was off duty.11 Another letter was allegedly prepared and was
supposed to be sent to the Cebu Pacific Office in
Robinsons, but the latter again refused to receive
it.12 Respondent also claimed that the Human Resource
Department (HRD) of Robinsons was furnished said letter
and the latter in fact conducted an investigation for purposes
of canceling respondents Robinsons credit card.
Respondent further claimed that she was not given a copy of
respondent claimed to have suffered physical anxiety,
sleepless nights, mental anguish, fright, serious
apprehension, besmirched reputation, moral shock and
social humiliation.14 She thus filed the Complaint for
Damages15 before the RTC against petitioners California
Clothing, Inc. (California Clothing), Excelsis Villagonzalo
(Villagonzalo), Imelda Hawayon (Hawayon) and Ybaez.
She demanded the payment of moral, nominal, and
exemplary damages, plus attorneys fees and litigation
expenses.16
In their Answer,17 petitioners and the other defendants
admitted the issuance of the receipt of payment. They
claimed, however, that instead of the cashier (Hawayon)
issuing the official receipt, it was the invoicer (Villagonzalo)
who did it manually. They explained that there was
miscommunication between the employees at that time
because prior to the issuance of the receipt, Villagonzalo
asked Hawayon " Ok na ?," and the latter replied " Ok na ,"
which the former believed to mean that the item has already
been paid.18 Realizing the mistake, Villagonzalo rushed
outside to look for respondent and when he saw the latter,
he invited her to go back to the shop to make clarifications
as to whether or not payment was indeed made. Instead,
however, of going back to the shop, respondent suggested
that they meet at the Cebu Pacific Office. Villagonzalo,
Hawayon and Ybaez thus went to the agreed venue where
they talked to respondent.19 They pointed out that it
appeared in their conversation that respondent could not
recall whom she gave the payment. 20 They emphasized that
they were gentle and polite in talking to respondent and it
was the latter who was arrogant in answering their
questions.21As counterclaim, petitioners and the other
defendants sought the payment of moral and exemplary
damages, plus attorneys fees and litigation expenses.22
On June 20, 2003, the RTC rendered a Decision dismissing
both the complaint and counterclaim of the parties. From the
evidence presented, the trial court concluded that the
petitioners and the other defendants believed in good faith
that respondent failed to make payment. Considering that no
motive to fabricate a lie could be attributed to the Guess
employees, the court held that when they demanded
payment from respondent, they merely exercised a right
under the honest belief that no payment was made. The
RTC likewise did not find it damaging for respondent when
the confrontation took place in front of Cebu Pacific clients,
because it was respondent herself who put herself in that
situation by choosing the venue for discussion. As to the
letter sent to Cebu Pacific Air, the trial court also did not take
it against the Guess employees, because they merely asked
for assistance and not to embarrass or humiliate respondent.
In other words, the RTC found no evidence to prove bad
faith on the part of the Guess employees to warrant the
award of damages.23
On appeal, the CA reversed and set aside the RTC decision,
the dispositive portion of which reads:
WHEREFORE, the instant appeal is GRANTED. The
decision of the Regional Trial Court of Cebu City, Branch 58,
in Civil Case No. CEB-26984 (for: Damages) is hereby
REVERSED and SET ASIDE. Defendants Michelle Ybaez
and California Clothing, Inc. are hereby ordered to pay
plaintiff-appellant Shirley G. Quiones jointly and solidarily
moral damages in the amount of Fifty Thousand Pesos
(P50,000.00) and attorneys fees in the amount of Twenty
Thousand Pesos (P20,000.00).
SO ORDERED.24
While agreeing with the trial court that the Guess employees
were in good faith when they confronted respondent inside
the Cebu Pacific Office about the alleged non-payment, the
CA, however, found preponderance of evidence showing
that they acted in bad faith in sending the demand letter to
respondents employer. It found respondents possession of
both the official receipt and the subject black jeans as
evidence of payment.25Contrary to the findings of the RTC,
the CA opined that the letter addressed to Cebu Pacifics
director was sent to respondents employer not merely to ask
for assistance for the collection of the disputed payment but
to subject her to ridicule, humiliation and similar injury such
that she would be pressured to pay.26 Considering that
Guess already started its investigation on the incident, there
was a taint of bad faith and malice when it dragged
respondents employer who was not privy to the transaction.
This is especially true in this case since the purported letter
contained not only a narrative of the incident but accusations
as to the alleged acts of respondent in trying to evade
payment.27 The appellate court thus held that petitioners are
guilty of abuse of right entitling respondent to collect moral
damages and attorneys fees. Petitioner California Clothing
Inc. was made liable for its failure to exercise extraordinary
diligence in the hiring and selection of its employees; while
Ybaezs liability stemmed from her act of signing the
demand letter sent to respondents employer. In view of
Hawayon and Villagonzalos good faith, however, they were
exonerated from liability.28
Ybaez moved for the reconsideration29 of the aforesaid
decision, but the same was denied in the assailed November
14, 2006 CA Resolution.
Petitioners now come before the Court in this petition for
review on certiorari under Rule 45 of the Rules of Court
based on the following grounds:
I.
THE HONORABLE COURT OF APPEALS ERRED IN
FINDING THAT THE LETTER SENT TO THE CEBU
PACIFIC OFFICE WAS MADE TO SUBJECT HEREIN
RESPONDENT TO RIDICULE, HUMILIATION AND
SIMILAR INJURY.
II.
THE HONORABLE COURT OF APPEALS ERRED IN
AWARDING MORAL DAMAGES AND ATTORNEYS
FEES.30
The petition is without merit.
Respondents complaint against petitioners stemmed from
the principle of abuse of rights provided for in the Civil Code
on the chapter of human relations. Respondent cried foul
when petitioners allegedly embarrassed her when they
insisted that she did not pay for the black jeans she
purchased from their shop despite the evidence of payment
which is the official receipt issued by the shop. The issuance
of the receipt notwithstanding, petitioners had the right to
verify from respondent whether she indeed made payment if
they had reason to believe that she did not. However, the
exercise of such right is not without limitations. Any abuse in
the exercise of such right and in the performance of duty
causing damage or injury to another is actionable under the
Civil Code. The Courts pronouncement in Carpio v.
Valmonte31 is noteworthy:
In the sphere of our law on human relations, the victim of a
wrongful act or omission, whether done willfully or
negligently, is not left without any remedy or recourse to
obtain relief for the damage or injury he sustained.
Incorporated into our civil law are not only principles of
equity but also universal moral precepts which are designed
to indicate certain norms that spring from the fountain of
good conscience and which are meant to serve as guides for
human conduct. First of these fundamental precepts is the
principle commonly known as "abuse of rights" under Article
19 of the Civil Code. It provides that " Every person must, in
the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due and observe
honesty and good faith."x x x32The elements of abuse of
rights are as follows: (1) there is a legal right or duty; (2)
which is exercised in bad faith; (3) for the sole intent of
prejudicing or injuring another.33
In this case, petitioners claimed that there was a
miscommunication between the cashier and the invoicer
leading to the erroneous issuance of the receipt to
respondent. When they realized the mistake, they made a
cash count and discovered that the amount which is
equivalent to the price of the black jeans was missing. They,
thus, concluded that it was respondent who failed to make
such payment. It was, therefore, within their right to verify
from respondent whether she indeed paid or not and collect
from her if she did not. However, the question now is
whether such right was exercised in good faith or they went
overboard giving respondent a cause of action against them.
Under the abuse of rights principle found in Article 19 of the
Civil Code, a person must, in the exercise of legal right or
duty, act in good faith. He would be liable if he instead acted
in bad faith, with intent to prejudice another. 34 Good faith
refers to the state of mind which is manifested by the acts of
the individual concerned. It consists of the intention to
abstain from taking an unconscionable and unscrupulous
advantage of another.35Malice or bad faith, on the other
hand, implies a conscious and intentional design to do a
wrongful act for a dishonest purpose or moral obliquity.36
Initially, there was nothing wrong with petitioners asking
respondent whether she paid or not. The Guess employees
were able to talk to respondent at the Cebu Pacific Office.
The confrontation started well, but it eventually turned sour
when voices were raised by both parties. As aptly held by
both the RTC and the CA, such was the natural
consequence of two parties with conflicting views insisting
on their respective beliefs. Considering, however, that
respondent was in possession of the item purchased from
the shop, together with the official receipt of payment issued
by petitioners, the latter cannot insist that no such payment
was made on the basis of a mere speculation. Their claim
should have been proven by substantial evidence in the
proper forum.
It is evident from the circumstances of the case that
petitioners went overboard and tried to force respondent to
pay the amount they were demanding. In the guise of asking
for assistance, petitioners even sent a demand letter to
respondents employer not only informing it of the incident
but obviously imputing bad acts on the part of
respondent.1wphi1 Petitioners claimed that after receiving
the receipt of payment and the item purchased, respondent
"was noted to hurriedly left (sic) the store." They also
accused respondent that she was not completely being
honest when she was asked about the circumstances of
payment, thus:
x x x After receiving the OR and the item, Ms. Gutierrez was
noted to hurriedly left (sic) the store. x x x
When I asked her about to whom she gave the money, she
gave out a blank expression and told me, "I cant remember."
Then I asked her how much money she gave, she
answered, "P2,100; 2 pcs 1,000 and 1 pc 100 bill." Then I
told her that that would (sic) impossible since we have no
such denomination in our cash fund at that moment. Finally, I
asked her if how much change and if she received change
from the cashier, she then answered, "I dont remember."
After asking these simple questions, I am very certain that
she is not completely being honest about this. In fact, we
invited her to come to our boutique to clear these matters but
she vehemently refused saying that shes in a hurry and very
busy.37
Clearly, these statements are outrightly accusatory.
Petitioners accused respondent that not only did she fail to
pay for the jeans she purchased but that she deliberately
took the same without paying for it and later hurriedly left the
shop to evade payment. These accusations were made
despite the issuance of the receipt of payment and the
release of the item purchased. There was, likewise, no
showing that respondent had the intention to evade
payment. Contrary to petitioners claim, respondent was not
in a rush in leaving the shop or the mall. This is evidenced
by the fact that the Guess employees did not have a hard
time looking for her when they realized the supposed non-
payment.
It can be inferred from the foregoing that in sending the
demand letter to respondents employer, petitioners intended
not only to ask for assistance in collecting the disputed
amount but to tarnish respondents reputation in the eyes of
her employer. To malign respondent without substantial
evidence and despite the latters possession of enough
evidence in her favor, is clearly impermissible. A person
should not use his right unjustly or contrary to honesty and
good faith, otherwise, he opens himself to liability.38
The exercise of a right must be in accordance with the
purpose for which it was established and must not be
excessive or unduly harsh.39 In this case, petitioners
obviously abused their rights.
Complementing the principle of abuse of rights are the
provisions of Articles 20 and 2 of the Civil Code which read:40
Article 20. Every person who, contrary to law, willfully or
negligently causes damage to another, shall indemnify the
latter for the same.
Article 21. Any person who willfully causes loss or injury to
another in a manner that is contrary to morals or good
customs, or public policy shall compensate the latter for the
damage.
In view of the foregoing, respondent is entitled to an award
of moral damages and attorney s fees. Moral damages may
be awarded whenever the defendant s wrongful act or
omission is the proximate cause of the plaintiffs physical
suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation
and similar injury in the cases specified or analogous to
those provided in Article 2219 of the Civil Code. 41 Moral
damages are not a bonanza. They are given to ease the
defendant s grief and suffering. They should, thus,
reasonably approximate the extent of hurt caused and the
gravity of the wrong done.42 They are awarded not to enrich
the complainant but to enable the latter to obtain means,
diversions, or amusements that will serve to alleviate the
moral suffering he has undergone.43 We find that the amount
ofP50,000.00 as moral damages awarded by the CA is
reasonable under the circumstances. Considering that
respondent was compelled to litigate to protect her interest,
attorney s fees in the amount of ofP20,000.00 is likewise just
and proper.
WHEREFORE, premises considered, the petition is DENIED
for lack of merit. The Court of Appeals Decision dated
August 3, 2006 and Resolution dated November 14, 2006 in
CA-G.R. CV No. 80309, are AFFIRMED. SO ORDERED.
G.R. No. 161921 July 17, 2013
JOYCE V. ARDIENTE, PETITIONER,
vs.
SPOUSES JAVIER AND MA. THERESA PASTORFIDE,
CAGAYAN DE ORO WATER DISTRICT AND GASPAR
GONZALEZ,* JR., RESPONDENTS.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under
Rule 45 of the Rules of Court seeking to reverse and set
aside the Decision1 and Resolution2 of the Court of Appeals
(CA), dated August 28, 2003 and December 17, 2003,
respectively, in CA-G.R. CV No. 73000. The CA Decision
affirmed with modification the August 15, 2001 Decision 3 of
the Regional Trial Court (RTC) of Cagayan de Oro City,
Branch 24, while the CA Resolution denied petitioner's
Motion for Reconsideration.
The facts, as summarized by the CA, are as follows:
[Herein petitioner] Joyce V. Ardiente and her husband Dr.
Roberto S. Ardiente are owners of a housing unit at Emily
Homes, Balulang, Cagayan de Oro City with a lot area of
one hundred fifty-three (153) square meters and covered by
Transfer Certificate of Title No. 69905.
On June 2, 1994, Joyce Ardiente entered into a
Memorandum of Agreement (Exh. "B", pp. 470-473,
Records) selling, transferring and conveying in favor of
[respondent] Ma. Theresa Pastorfide all their rights and
interests in the housing unit at Emily Homes in consideration
of P70,000.00. The Memorandum of Agreement carries a
stipulation:
"4. That the water and power bill of the subject property shall
be for the account of the Second Party (Ma. Theresa
Pastorfide) effective June 1, 1994." (Records, p. 47)
vis-a-vis Ma. Theresa Pastorfide's assumption of the
payment of the mortgage loan secured by Joyce Ardiente
from the National Home Mortgage (Records, Exh. "A", pp.
468-469)
For four (4) years, Ma. Theresa's use of the water
connection in the name of Joyce Ardiente was never
questioned nor perturbed (T.S.N., October 31, 2000, pp. 7-8)
until on March 12, 1999, without notice, the water connection
of Ma. Theresa was cut off. Proceeding to the office of the
Cagayan de Oro Water District (COWD) to complain, a
certain Mrs. Madjos told Ma. Theresa that she was
delinquent for three (3) months corresponding to the months
of December 1998, January 1999, and February 1999. Ma.
Theresa argued that the due date of her payment was March
18, 1999 yet (T.S.N., October 31, 2000, pp. 11-12). Mrs.
Madjos later told her that it was at the instance of Joyce
Ardiente that the water line was cut off (T.S.N., February 5,
2001, p. 31).
On March 15, 1999, Ma. Theresa paid the delinquent bills
(T.S.N., October 31, 2000, p. 12). On the same date, through
her lawyer, Ma. Theresa wrote a letter to the COWD to
explain who authorized the cutting of the water line
(Records, p. 160).
On March 18, 1999, COWD, through the general manager,
[respondent] Gaspar Gonzalez, Jr., answered the letter
dated March 15, 1999 and reiterated that it was at the
instance of Joyce Ardiente that the water line was cut off
(Records, p. 161).
Aggrieved, on April 14, 1999, Ma. Theresa Pastorfide [and
her husband] filed [a] complaint for damages [against
petitioner, COWD and its manager Gaspar Gonzalez]
(Records, pp. 2-6).
In the meantime, Ma. Theresa Pastorfide's water line was
only restored and reconnected when the [trial] court issued a
writ of preliminary mandatory injunction on December 14,
1999 (Records, p. 237).4
After trial, the RTC rendered judgment holding as follows:
xxxx
In the exercise of their rights and performance of their duties,
defendants did not act with justice, gave plaintiffs their due
and observe honesty and good faith. Before disconnecting
the water supply, defendants COWD and Engr. Gaspar
Gonzales did not even send a disconnection notice to
plaintiffs as testified to by Engr. Bienvenido Batar, in-charge
of the Commercial Department of defendant COWD. There
was one though, but only three (3) days after the actual
disconnection on March 12, 1999. The due date for payment
was yet on March 15. Clearly, they did not act with justice.
Neither did they observe honesty.
They should not have been swayed by the prodding of Joyce
V. Ardiente. They should have investigated first as to the
present ownership of the house. For doing the act because
Ardiente told them, they were negligent. Defendant Joyce
Ardiente should have requested before the cutting off of the
water supply, plaintiffs to pay. While she attempted to tell
plaintiffs but she did not have the patience of seeing them.
She knew that it was plaintiffs who had been using the water
four (4) years ago and not hers. She should have been very
careful. x x x5
The dispositive portion of the trial court's Decision reads,
thus:
WHEREFORE, premises considered, judgment is hereby
rendered ordering defendants [Ardiente, COWD and
Gonzalez] to pay jointly and severally plaintiffs, the following
sums:
(a) P200,000.00 for moral damages;
(b) 200,000.00 for exemplary damages; and
(c) 50,000.00 for attorney's fee.
The cross-claim of Cagayan de Oro Water District and Engr.
Gaspar Gonzales is hereby dismissed. The Court is not
swayed that the cutting off of the water supply of plaintiffs
was because they were influenced by defendant Joyce
Ardiente. They were negligent too for which they should be
liable.
SO ORDERED.6
Petitioner, COWD and Gonzalez filed an appeal with the CA.
On August 28, 2003, the CA promulgated its assailed
Decision disposing as follows:
IN VIEW OF ALL THE FOREGOING, the appealed decision
is AFFIRMED, with the modification that the awarded
damages is reduced to P100,000.00 each for moral and
exemplary damages, while attorney's fees is lowered
toP25,000.00. Costs against appellants.
SO ORDERED.7
The CA ruled, with respect to petitioner, that she has a "legal
duty to honor the possession and use of water line by Ma.
Theresa Pastorfide pursuant to their Memorandum of
Agreement" and "that when [petitioner] applied for its
disconnection, she acted in bad faith causing prejudice and
[injury to] Ma. Theresa Pastorfide."8
As to COWD and Gonzalez, the CA held that they "failed to
give a notice of disconnection and derelicted in reconnecting
the water line despite payment of the unpaid bills by the
[respondent spouses Pastorfide]."9
Petitioner, COWD and Gonzalez filed their respective
Motions for Reconsideration, but these were denied by the
CA in its Resolution dated December 17, 2003.
COWD and Gonzalez filed a petition for review on certiorari
with this Court, which was docketed as G.R. No. 161802.
However, based on technical grounds and on the finding that
the CA did not commit any reversible error in its assailed
Decision, the petition was denied via a Resolution 10 issued
by this Court on March 24, 2004. COWD and Gonzalez filed
a motion for reconsideration, but the same was denied with
finality through this Court's Resolution11 dated June 28,
2004.
Petitioner, on the other hand, timely filed the instant petition
with the following Assignment of Errors:
7.1 HONORABLE COURT OF APPEALS
(ALTHOUGH IT HAS REDUCED THE LIABILITY
INTO HALF) HAS STILL COMMITTED GRAVE
AND SERIOUS ERROR WHEN IT UPHELD THE
JOINT AND SOLIDARY LIABILITY OF
PETITIONER JOYCE V. ARDIENTE WITH
CAGAYAN DE ORO WATER DISTRICT (COWD)
AND ENGR. GASPAR D. GONZALES FOR THE
LATTER'S FAILURE TO SERVE NOTICE UPON
RESPONDENTS SPOUSES PASTORFIDE
PRIOR TO THE ACTUAL DISCONNECTION
DESPITE EVIDENCE ADDUCED DURING TRIAL
THAT EVEN WITHOUT PETITIONER'S
REQUEST, COWD WAS ALREADY SET TO
EFFECT DISCONNECTION OF RESPONDENTS'
WATER SUPPLY DUE TO NON-PAYMENT OF
ACCOUNT FOR THREE (3) MONTHS.
7.2 THE HONORABLE COURT OF APPEALS
COMMITTED GRAVE AND SERIOUS ERROR
WHEN IT RULED TOTALLY AGAINST
PETITIONER AND FAILED TO FIND THAT
RESPONDENTS ARE GUILTY OF
CONTRIBUTORY NEGLIGENCE WHEN THEY
FAILED TO PAY THEIR WATER BILLS FOR
THREE MONTHS AND TO MOVE FOR THE
TRANSFER OF THE COWD ACCOUNT IN THEIR
NAME, WHICH WAS A VIOLATION OF THEIR
MEMORANDUM OF AGREEMENT WITH
PETITIONER JOYCE V. ARDIENTE.
RESPONDENTS LIKEWISE DELIBERATELY
FAILED TO EXERCISE DILIGENCE OF A GOOD
FATHER OF THE FAMILY TO MINIMIZE THE
DAMAGE UNDER ART. 2203 OF THE NEW CIVIL
CODE.
7.3 THE HONORABLE COURT OF APPEALS
SERIOUSLY ERRED WHEN IT DISREGARDED
THE FACT THAT RESPONDENT SPOUSES
PASTORFIDE ARE LIKEWISE BOUND TO
OBSERVE ARTICLE 19 OF THE NEW CIVIL
CODE, i.e., IN THE EXERCISE OF THEIR
RIGHTS AND IN THE PERFORMANCE OF
THEIR DUTIES TO ACT WITH JUSTICE, GIVE
EVERYONE HIS DUE AND OBSERVE HONESTY
AND GOOD FAITH.
7.4 THE HONORABLE COURT OF APPEALS
GRAVELY ERRED WHEN IT GRANTED AN
AWARD OF MORAL AND EXEMPLARY
DAMAGES AND ATTORNEY'S FEES AS
AGAINST PETITIONER ARDIENTE.12
At the outset, the Court noticed that COWD and Gonzalez,
who were petitioner's co-defendants before the RTC and her
co-appellants in the CA, were impleaded as respondents in
the instant petition. This cannot be done. Being her co-
parties before the RTC and the CA, petitioner cannot, in the
instant petition for review on certiorari, make COWD and
Gonzalez, adversary parties. It is a grave mistake on the part
of petitioner's counsel to treat COWD and Gonzalez as
respondents. There is no basis to do so, considering that, in
the first place, there is no showing that petitioner filed a
cross-claim against COWD and Gonzalez. Under Section 2,
Rule 9 of the Rules of Court, a cross-claim which is not set
up shall be barred. Thus, for failing to set up a cross-claim
against COWD and Gonzalez before the RTC, petitioner is
already barred from doing so in the present petition.
More importantly, as shown above, COWD and Gonzalez's
petition for review on certiorari filed with this Court was
already denied with finality on June 28, 2004, making the
presently assailed CA Decision final and executory insofar
as COWD and Gonzalez are concerned. Thus, COWD and
Gonzalez are already precluded from participating in the
present petition. They cannot resurrect their lost cause by
filing pleadings this time as respondents but, nonetheless,
reiterating the same prayer in their previous pleadings filed
with the RTC and the CA.
As to the merits of the instant petition, the Court likewise
noticed that the main issues raised by petitioner are factual
and it is settled that the resolution of factual issues is the
function of lower courts, whose findings on these matters are
received with respect and considered binding by the
Supreme Court subject only to certain exceptions, none of
which is present in this instant petition. 13 This is especially
true when the findings of the RTC have been affirmed by the
CA as in this case.14
In any case, a perusal of the records at hand would readily
show that the instant petition lacks merit.
Petitioner insists that she should not be held liable for the
disconnection of respondent spouses' water supply, because
she had no participation in the actual disconnection.
However, she admitted in the present petition that it was she
who requested COWD to disconnect the Spouses
Pastorfide's water supply. This was confirmed by COWD and
Gonzalez in their cross-claim against petitioner. While it was
COWD which actually discontinued respondent spouses'
water supply, it cannot be denied that it was through the
instance of petitioner that the Spouses Pastorfide's water
supply was disconnected in the first place.
It is true that it is within petitioner's right to ask and even
require the Spouses Pastorfide to cause the transfer of the
former's account with COWD to the latter's name pursuant to
their Memorandum of Agreement. However, the remedy to
enforce such right is not to cause the disconnection of the
respondent spouses' water supply. The exercise of a right
must be in accordance with the purpose for which it was
established and must not be excessive or unduly harsh;
there must be no intention to harm another. 15 Otherwise,
liability for damages to the injured party will attach. 16 In the
present case, intention to harm was evident on the part of
petitioner when she requested for the disconnection of
respondent spouses water supply without warning or
informing the latter of such request. Petitioner claims that her
request for disconnection was based on the advise of
COWD personnel and that her intention was just to compel
the Spouses Pastorfide to comply with their agreement that
petitioner's account with COWD be transferred in respondent
spouses' name. If such was petitioner's only intention, then
she should have advised respondent spouses before or
immediately after submitting her request for disconnection,
telling them that her request was simply to force them to
comply with their obligation under their Memorandum of
Agreement. But she did not. What made matters worse is
the fact that COWD undertook the disconnection also
without prior notice and even failed to reconnect the
Spouses Pastorfides water supply despite payment of their
arrears. There was clearly an abuse of right on the part of
petitioner, COWD and Gonzalez. They are guilty of bad faith.
The principle of abuse of rights as enshrined in Article 19 of
the Civil Code provides that every person must, in the
exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe honesty
and good faith.
In this regard, the Court's ruling in Yuchengco v. The Manila
Chronicle Publishing Corporation17 is instructive, to wit:
xxxx
This provision of law sets standards which must be observed
in the exercise of ones rights as well as in the performance
of its duties, to wit: to act with justice; give everyone his due;
and observe honesty and good faith.
In Globe Mackay Cable and Radio Corporation v. Court of
Appeals, it was elucidated that while Article 19 "lays down a
rule of conduct for the government of human relations and
for the maintenance of social order, it does not provide a
remedy for its violation. Generally, an action for damages
under either Article 20 or Article 21 would be proper." The
Court said:
One of the more notable innovations of the New Civil Code
is the codification of "some basic principles that are to be
observed for the rightful relationship between human beings
and for the stability of the social order." [REPORT ON THE
CODE COMMISSION ON THE PROPOSED CIVIL CODE
OF THE PHILIPPINES, p. 39]. The framers of the Code,
seeking to remedy the defect of the old Code which merely
stated the effects of the law, but failed to draw out its spirit,
incorporated certain fundamental precepts which were
"designed to indicate certain norms that spring from the
fountain of good conscience" and which were also meant to
serve as "guides for human conduct [that] should run as
golden threads through society, to the end that law may
approach its supreme ideal, which is the sway and
dominance of justice." (Id.) Foremost among these principles
is that pronounced in Article 19 x x x.
xxxx
This article, known to contain what is commonly referred to
as the principle of abuse of rights, sets certain standards
which must be observed not only in the exercise of one's
rights, but also in the performance of one's duties. These
standards are the following: to act with justice; to give
everyone his due; and to observe honesty and good faith.
The law, therefore, recognizes a primordial limitation on all
rights; that in their exercise, the norms of human conduct set
forth in Article 19 must be observed. A right, though by itself
legal because recognized or granted by law as such, may
nevertheless become the source of some illegality. When a
right is exercised in a manner which does not conform with
the norms enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for which the
wrongdoer must be held responsible. But while Article 19
lays down a rule of conduct for the government of human
relations and for the maintenance of social order, it does not
provide a remedy for its violation. Generally, an action for
damages under either Article 20 or Article 21 would be
proper.
Corollarilly, Article 20 provides that "every person who,
contrary to law, willfully or negligently causes damage to
another shall indemnify the latter for the same." It speaks of
the general sanctions of all other provisions of law which do
not especially provide for its own sanction. When a right is
exercised in a manner which does not conform to the
standards set forth in the said provision and results in
damage to another, a legal wrong is thereby committed for
which the wrongdoer must be responsible. Thus, if the
provision does not provide a remedy for its violation, an
action for damages under either Article 20 or Article 21 of the
Civil Code would be proper.
The question of whether or not the principle of abuse of
rights has been violated resulting in damages under Article
20 or other applicable provision of law, depends on the
circumstances of each case. x x x18
To recapitulate, petitioner's acts which violated the
abovementioned provisions of law is her unjustifiable act of
having the respondent spouses' water supply disconnected,
coupled with her failure to warn or at least notify respondent
spouses of such intention. On the part of COWD and
Gonzalez, it is their failure to give prior notice of the
impending disconnection and their subsequent neglect to
reconnect respondent spouses' water supply despite the
latter's settlement of their delinquent account.
On the basis of the foregoing, the Court finds no cogent
reason to depart from the ruling of both the RTC and the CA
that petitioner, COWD and Gonzalez are solidarily liable.
The Spouses Pastorfide are entitled to moral damages
based on the provisions of Article 2219, 19 in connection with
Articles 2020 and 2121 of the Civil Code.
As for exemplary damages, Article 2229 provides that
exemplary damages may be imposed by way of example or
correction for the public good. Nonetheless, exemplary
damages are imposed not to enrich one party or impoverish
another, but to serve as a deterrent against or as a negative
incentive to curb socially deleterious actions.22 In the instant
case, the Court agrees with the CA in sustaining the award
of exemplary damages, although it reduced the amount
granted, considering that respondent spouses were deprived
of their water supply for more than nine (9) months, and
such deprivation would have continued were it not for the
relief granted by the RTC.
With respect to the award of attorney's fees, Article 2208 of
the Civil Code provides, among others, that such fees may
be recovered when exemplary damages are awarded, when
the defendant's act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his
interest, and where the defendant acted in gross and evident
bad faith in refusing to satisfy the plaintiffs plainly valid, just
and demandable claim.
WHEREFORE, instant petition for review on certiorari is
DENIED. The Decision and Resolution of the Court of
Appeals, dated August 28, 2003 and December 17, 2003,
respectively, in CA-G.R. CV No. 73000 are AFFIRMED. SO
ORDERED.
G.R. No. 156448 February 23, 2011
SPS. MOISES and CLEMENCIA ANDRADA, Petitioners,
vs.
PILHINO SALES CORPORATION, represented by its
Branch Manager, JOJO S. SAET, Respondent.
DECISION
BERSAMIN, J.:
An appeal by petition for review on certiorari under Rule 45
shall raise only questions of law. Thus, the herein petition for
review must fail for raising a question essentially of fact.
Antecedents
On December 28, 1990, respondent Pilhino Sales
Corporation (Pilhino) sued Jose Andrada, Jr. and his wife,
Maxima, in the Regional Trial Court in Davao City (RTC) to
recover the principal sum of P240,863.00, plus interest and
incidental charges (Civil Case No. 20,489-90). Upon
Pilhinos application, the RTC issued a writ of preliminary
attachment, which came to be implemented against a Hino
truck and a Fuso truck both owned by Jose Andrada, Jr.
However, the levies on attachment were lifted after Jose filed
a counter-attachment bond.
In due course, the RTC rendered a decision against Jose
Andrada, Jr. and his wife. Pilhino opted to enforce the writ of
execution against the properties of the Andradas instead of
claiming against the counter-attachment bond considering
that the premium on the bond had not been paid. As a result,
the sheriff seized the Hino truck and sold it at the ensuing
public auction, with Pilhino as the highest bidder. However,
the Hino truck could not be transferred to Pilhinos name due
to its having been already registered in the name of
petitioner Moises Andrada. It appears that the Hino truck had
been meanwhile sold by Jose Andrada, Jr. to Moises
Andrada, which sale was unknown to Pilhino, and that
Moises had mortgaged the truck to BA Finance Corporation
(BA Finance) to secure his own obligation.
BA Finance sued Moises Andrada for his failure to pay the
loan (Civil Case No. 5117). After a decision was rendered in
the action in favor of BA Finance, a writ of execution issued,
by which the sheriff levied upon and seized the Hino truck
while it was in the possession of Pilhino and sold it at public
auction, with BA Finance as the highest bidder.
Consequently, Pilhino instituted this action in the RTC in
Davao City against Spouses Jose Andrada, Jr. and Maxima
Andrada, Spouses Moises Andrada and Clemencia Andrada,
Jose Andrada, Sr., BA Finance, Land Transportation Office
(in Surallah, South Cotabato), and the Registrar of Deeds of
General Santos City to annul the following: (a) the deed of
sale between Jose Andrada, Jr. and Moises Andrada; (b) the
chattel mortgage involving the Hino truck between Moises
Andrada and BA Finance; (c) the deed of conveyance
executed by Jose Andrada, Jr. in favor of his father, Jose
Andrada, Sr., involving a hard-top jeep; and (d) the certificate
of registration of the Hino truck in the name of Moises
Andrada as well as the registration of the chattel mortgage
with the Registry of Deeds of General Santos City. The
action was docketed as Civil Case No. 21,898-93.
Of the Andradas who were defendants in Civil Case No.
21,898-93, only Moises Andrada and his wife filed their
responsive pleading. Later on, Jose Andrada, Jr. and his wife
and Pilhino submitted a compromise agreement dated
August 20, 1993. They submitted a second compromise
agreement dated March 4, 1994 because the first was found
to be defective and incomplete. The RTC thereafter rendered
a partial judgment on March 21, 1994 based on the second
compromise agreement. After that, further proceedings were
taken in Civil Case No. 21,898-93 only with respect to
Moises Andrada and his wife, and BA Finance.
Moises Andrada and his wife averred as defenses that they
had already acquired the Hino truck from Jose Andrada, Jr.
free from any lien or encumbrance prior to its seizure by the
sheriff pursuant to the writ of execution issued in Civil Case
No. 20,489-90; that their acquisition had been made in good
faith, considering that at the time of the sale the preliminary
attachment had already been lifted; and that Pilhinos
recourse was to proceed against the counter-attachment
bond.
For its part, BA Finance claimed lack of knowledge of the
truth of the material allegations of the complaint of Pilhino;
and insisted that the Hino truck had been validly mortgaged
to it by Moises Andrada, the lawful owner, to secure his own
valid obligation.
On March 25, 1998, the RTC, citing the compromise
agreement between Pilhino and Jose Andrada, Jr. that had
settled all the claims of Pilhino against Jose Andrada, Jr.,
and the good faith of Pilhino and BA Finance in filing their
respective actions, rendered its decision in Civil Case No.
21,898-93,1 disposing:
WHEREFORE, judgment is rendered dismissing this case
insofar as the spouses Moises Andrada and Clemencia
Andrada, Jose Andrada, Sr. and BA Finance Corporation,
now accordingly BA Savings Bank, including the
counterclaims.
SO ORDERED.
Spouses Moises and Clemencia Andrada appealed the
decision rendered on March 25, 1998 to the extent that the
RTC thereby: (a) dismissed their counterclaim; (b) declared
that the deed of sale of the Hino truck between Jose
Andrada, Jr. and Moises Andrada had been simulated; and
(c) approved the compromise agreement between Pilhino
and Spouses Jose Andrada, Jr. and Maxima Andrada.
On December 13, 2001, the Court of Appeals (CA)
promulgated its decision, as follows:2
WHEREFORE, the judgment appealed from is AFFIRMED
with the modification that the sale of the Hino truck by
defendant Jose Andrada, Jr. in favor of defendant-appellant
Moises Andrada is declared valid, subject to the rights of BA
Finance as mortgagee and highest bidder.
SO ORDERED.
Spouses Moises and Clemencia Andrada are now before the
Court via petition for review on certiorari to pose the
following issues: 3
1. Whether or not Pilhino should be held liable for
the damages the petitioners sustained from
Pilhinos levy on execution upon the Hino truck
under Civil Case No. 20,489-90; and
2. Whether or not Pilhino was guilty of bad faith
when it proceeded with the levy on execution upon
the Hino truck owned by Moises Andrada.
Ruling
We find no merit in the petition for review.
The petitioners assail the decision promulgated by the CA to
the extent that it denied their claim for the damages they had
sought by way of counterclaim. They anchored their claim on
Article 21 of the Civil Code, which provides that "any person
who willfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy
shall compensate the latter for damage."
Article 21 of the Civil Code, in conjunction with Article 19 of
the Civil Code, is part of the cause of action known in this
jurisdiction as "abuse of rights." The elements of abuse of
rights are: (a) there is a legal right or duty; (b) exercised in
bad faith; and (c) for the sole intent of prejudicing or injuring
another.4
In its assailed decision, the CA found that Pilhino had acted
in good faith in bringing Civil Case No. 21,898-93 to annul
the deed of sale involving the Hino truck executed by Jose
Andrada, Jr. in favor of Moises Andrada, considering that
Pilhino had "believed that the sale in favor of defendants-
appellants [had been] resorted to so that Jose Andrada
[might] evade his obligations."5 The CA concluded that no
remedy was available for any damages that the petitioners
sustained from the filing of Civil Case No. 21,898-93 against
them because "the law affords no remedy for such damages
resulting from an act which does not amount to a legal injury
or wrong."6
Worthy to note is that the CAs finding and conclusion rested
on the RTCs own persuasion that the sale of the Hino truck
to Moises Andrada had been simulated.7
Yet, the petitioners still insist in this appeal that both lower
courts erred in their conclusion on the absence of bad faith
on the part of Pilhino.
We cannot side with the petitioners. Their insistence, which
represents their disagreement with the CAs declaration that
the second and third elements of abuse of rights, supra,
were not established, requires the consideration and review
of factual issues. Hence, this appeal cannot succeed, for an
appeal by petition for review on certiorari cannot determine
factual issues. In the exercise of its power of review, the
Court is not a trier of facts and does not normally undertake
the re-examination of the evidence presented by the
contending parties during the trial. Perforce, the findings of
fact by the CA are conclusive and binding on the Court. This
restriction of the review to questions of law has been
institutionalized in Section 1, Rule 45 of the Rules of Court,
viz:
Section 1. Filing of petition with Supreme Court. A party
desiring to appeal by certiorari from a judgment or final order
or resolution of the Court of Appeals, the Sandiganbayan,
the Regional Trial Court or other courts whenever authorized
by law, may file with the Supreme Court a verified petition for
review on certiorari. The petition shall raise only questions of
law which must be distinctly set forth. (1a, 2a)8
It is true that the Court has, at times, allowed exceptions
from the restriction. Among the recognized exceptions are
the following, to wit:9
(a) When the findings are grounded entirely on
speculation, surmises, or conjectures;
(b) When the inference made is manifestly
mistaken, absurd, or impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a valid, just and demandable claim.14This is a corollary of the
misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the CA went
beyond the issues of the case, or its findings are
contrary to the admissions of both the appellant
and the appellee;
(g) When the CAs findings are contrary to those
by the trial court;
(h) When the findings are conclusions without
citation of specific evidence on which they are
based;
(i) When the facts set forth in the petition as well
as in the petitioners main and reply briefs are not
disputed by the respondent;
(j) When the findings of fact are premised on the
supposed absence of evidence and contradicted
by the evidence on record; or
(k) When the CA manifestly overlooked certain
relevant facts not disputed by the parties, which, if
properly considered, would justify a different
conclusion.
However, the circumstances of this case do not warrant
reversing or modifying the findings of the CA, which are
consistent with the established facts. Verily, the petitioners
did not prove the concurrence of the elements of abuse of
rights.
The petitioners further seek attorneys fees based on Article
2208 (4) of the Civil Code, which provides that "in the
absence of stipulation, attorneys fees and expenses of
litigation, other than judicial costs, cannot be recovered,
except xxx (4) in cases of clearly unfounded civil action or
proceeding against the plaintiff xxx."
The petitioners are not entitled to attorneys fees.
It is well accepted in this jurisdiction that no premium should
be placed on the right to litigate and that not every winning
party is entitled to an automatic grant of attorneys
fees.10 Indeed, before the effectivity of the new Civil Code,
such fees could not be recovered in the absence of a
stipulation.11 It was only with the advent of the new Civil
Code that the right to collect attorneys fees in the instances
mentioned in Article 2208 was recognized,12and such fees
are now included in the concept of actual damages. 13 One
such instance is where the defendant is guilty of gross and
evident bad faith in refusing to satisfy the plaintiffs plainly
general principle expressed in Article 19 of the Civil Code
that everyone must, in the performance of his duties,
observe honesty and good faith and the rule embodied in
Article 1170 that anyone guilty of fraud (bad faith) in the
performance of his obligation shall be liable for damages.
But, as noted by the Court in Morales v. Court of
Appeals,15 the award of attorneys fees is the exception
rather than the rule. The power of a court to award attorneys
fees under Article 2208 of the Civil Code demands factual,
legal, and equitable justification; its basis cannot be left to
speculation and conjecture.16 The general rule is that
attorneys fees cannot be recovered as part of damages
because of the policy that no premium should be placed on
the right to litigate.171avvphi1
Herein, the element of bad faith on the part of Pilhino in
commencing and prosecuting Civil Case No. 21,898-93,
which was necessary to predicate the lawful grant of
attorneys fees based on Article 2208 (4) of the Civil Code,
was not established. Accordingly, the petitioners demand for
attorneys fees must fail.
WHEREFORE, we deny the petition for review on certiorari
for its lack of merit, and affirm the decision of the Court of
Appeals. SO ORDERED.
G.R. No. 174269 May 8, 2009
POLO S. PANTALEON, Petitioner,
vs.
AMERICAN EXPRESS INTERNATIONAL,
INC., Respondent.
DECISION
TINGA, J.:
The petitioner, lawyer Polo Pantaleon, his wife Julialinda,
daughter Anna Regina and son Adrian Roberto, joined an
escorted tour of Western Europe organized by Trafalgar
Tours of Europe, Ltd., in October of 1991. The tour group
arrived in Amsterdam in the afternoon of 25 October 1991,
the second to the last day of the tour. As the group had
arrived late in the city, they failed to engage in any sight-
seeing. Instead, it was agreed upon that they would start
early the next day to see the entire city before ending the
tour.
The following day, the last day of the tour, the group arrived
at the Coster Diamond House in Amsterdam around 10
minutes before 9:00 a.m. The group had agreed that the visit
to Coster should end by 9:30 a.m. to allow enough time to
take in a guided city tour of Amsterdam. The group was
ushered into Coster shortly before 9:00 a.m., and listened to
a lecture on the art of diamond polishing that lasted for
around ten minutes.1 Afterwards, the group was led to the
stores showroom to allow them to select items for purchase.
Mrs. Pantaleon had already planned to purchase even
before the tour began a 2.5 karat diamond brilliant cut, and
she found a diamond close enough in approximation that
she decided to buy.2 Mrs. Pantaleon also selected for
purchase a pendant and a chain,3 all of which totaled U.S.
$13,826.00.
To pay for these purchases, Pantaleon presented his
American Express credit card together with his passport to
the Coster sales clerk. This occurred at around 9:15 a.m., or
15 minutes before the tour group was slated to depart from
the store. The sales clerk took the cards imprint, and asked
Pantaleon to sign the charge slip. The charge purchase was
then referred electronically to respondents Amsterdam office
at 9:20 a.m.
Ten minutes later, the store clerk informed Pantaleon that his
AmexCard had not yet been approved. His son, who had
already boarded the tour bus, soon returned to Coster and
informed the other members of the Pantaleon family that the
entire tour group was waiting for them. As it was already
9:40 a.m., and he was already worried about further
inconveniencing the tour group, Pantaleon asked the store
clerk to cancel the sale. The store manager though asked
plaintiff to wait a few more minutes. After 15 minutes, the
store manager informed Pantaleon that respondent had
demanded bank references. Pantaleon supplied the names
of his depositary banks, then instructed his daughter to
return to the bus and apologize to the tour group for the
delay.
At around 10:00 a.m, or around 45 minutes after Pantaleon
had presented his AmexCard, and 30 minutes after the tour
group was supposed to have left the store, Coster decided to
release the items even without respondents approval of the
purchase. The spouses Pantaleon returned to the bus. It is
alleged that their offers of apology were met by their
tourmates with stony silence.4 The tour groups visible
irritation was aggravated when the tour guide announced
that the city tour of Amsterdam was to be canceled due to
lack of remaining time, as they had to catch a 3:00 p.m. ferry
at Calais, Belgium to London.5 Mrs. Pantaleon ended up
weeping, while her husband had to take a tranquilizer to
calm his nerves.
It later emerged that Pantaleons purchase was first
transmitted for approval to respondents Amsterdam office at
9:20 a.m., Amsterdam time, then referred to respondents
Manila office at 9:33 a.m, then finally approved at 10:19
a.m., Amsterdam time.6 The Approval Code was transmitted
to respondents Amsterdam office at 10:38 a.m., several
minutes after petitioner had already left Coster, and 78
minutes from the time the purchases were electronically
transmitted by the jewelry store to respondents Amsterdam
office.
After the star-crossed tour had ended, the Pantaleon family
proceeded to the United States before returning to Manila on
12 November 1992. While in the United States, Pantaleon
continued to use his AmEx card, several times without
hassle or delay, but with two other incidents similar to the
Amsterdam brouhaha. On 30 October 1991, Pantaleon
purchased golf equipment amounting to US $1,475.00 using
his AmEx card, but he cancelled his credit card purchase
and borrowed money instead from a friend, after more than
30 minutes had transpired without the purchase having been
approved. On 3 November 1991, Pantaleon used the card to
purchase childrens shoes worth $87.00 at a store in Boston,
and it took 20 minutes before this transaction was approved
by respondent.
On 4 March 1992, after coming back to Manila, Pantaleon
sent a letter7 through counsel to the respondent, demanding
an apology for the "inconvenience, humiliation and
embarrassment he and his family thereby suffered" for
respondents refusal to provide credit authorization for the
aforementioned purchases.8 In response, respondent sent a
letter dated 24 March 1992,9 stating among others that the
delay in authorizing the purchase from Coster was
attributable to the circumstance that the charged purchase of
US $13,826.00 "was out of the usual charge purchase
pattern established."10 Since respondent refused to accede
to Pantaleons demand for an apology, the aggrieved
cardholder instituted an action for damages with the
Regional Trial Court (RTC) of Makati City, Branch
145.11 Pantaleon prayed that he be awarded P2,000,000.00,
as moral damages; P500,000.00, as exemplary
damages; P100,000.00, as attorneys fees; and P50,000.00
as litigation expenses.12
On 5 August 1996, the Makati City RTC rendered a
decision13 in favor of Pantaleon, awarding him P500,000.00
as moral damages, P300,000.00 as exemplary
damages, P100,000.00 as attorneys fees, and P85,233.01
as expenses of litigation. Respondent filed a Notice of
Appeal, while Pantaleon moved for partial reconsideration,
praying that the trial court award the increased amount of
moral and exemplary damages he had prayed for. 14The RTC
denied Pantaleons motion for partial reconsideration, and
thereafter gave due course to respondents Notice of
Appeal.15
On 18 August 2006, the Court of Appeals rendered a
decision16 reversing the award of damages in favor of
Pantaleon, holding that respondent had not breached its
obligations to petitioner. Hence, this petition.
The key question is whether respondent, in connection with
the aforementioned transactions, had committed a breach of
its obligations to Pantaleon. In addition, Pantaleon submits
that even assuming that respondent had not been in breach
of its obligations, it still remained liable for damages under
Article 21 of the Civil Code.
The RTC had concluded, based on the testimonial
representations of Pantaleon and respondents credit
authorizer, Edgardo Jaurigue, that the normal approval time
for purchases was "a matter of seconds." Based on that
standard, respondent had been in clear delay with respect to
the three subject transactions. As it appears, the Court of
Appeals conceded that there had been delay on the part of
respondent in approving the purchases. However, it made
two critical conclusions in favor of respondent. First, the
appellate court ruled that the delay was not attended by bad
faith, malice, or gross negligence. Second, it ruled that
respondent "had exercised diligent efforts to effect the
approval" of the purchases, which were "not in accordance
with the charge pattern" petitioner had established for
himself, as exemplified by the fact that at Coster, he was
"making his very first single charge purchase of US$13,826,"
and "the record of [petitioner]s past spending with
[respondent] at the time does not favorably support his ability
to pay for such purchase."17
On the premise that there was an obligation on the part of
respondent "to approve or disapprove with dispatch the
charge purchase," petitioner argues that the failure to timely
approve or disapprove the purchase constituted mora
solvendi on the part of respondent in the performance of its
obligation. For its part, respondent characterizes the
depiction by petitioner of its obligation to him as "to approve
purchases instantaneously or in a matter of seconds."
Petitioner correctly cites that under mora solvendi, the three
requisites for a finding of default are that the obligation is
demandable and liquidated; the debtor delays performance;
and the creditor judicially or extrajudicially requires the
debtors performance.18 Petitioner asserts that the Court of
Appeals had wrongly applied the principle of mora
accipiendi, which relates to delay on the part of the obligee
in accepting the performance of the obligation by the obligor.
The requisites of mora accipiendi are: an offer of
performance by the debtor who has the required capacity;
the offer must be to comply with the prestation as it should
be performed; and the creditor refuses the performance
without just cause.19 The error of the appellate court, argues
petitioner, is in relying on the invocation by respondent of
"just cause" for the delay, since while just cause is
determinative of mora accipiendi, it is not so with the case of
mora solvendi.
We can see the possible source of confusion as to which
type of mora to appreciate. Generally, the relationship
between a credit card provider and its card holders is that of
creditor-debtor,20 with the card company as the creditor
extending loans and credit to the card holder, who as debtor
is obliged to repay the creditor. This relationship already
takes exception to the general rule that as between a bank
and its depositors, the bank is deemed as the debtor while
the depositor is considered as the creditor. 21 Petitioner is
asking us, not baselessly, to again shift perspectives and
again see the credit card company as the debtor/obligor,
insofar as it has the obligation to the customer as
creditor/obligee to act promptly on its purchases on credit.
Ultimately, petitioners perspective appears more sensible
than if we were to still regard respondent as the creditor in
the context of this cause of action. If there was delay on the
part of respondent in its normal role as creditor to the
cardholder, such delay would not have been in the
acceptance of the performance of the debtors obligation
(i.e., the repayment of the debt), but it would be delay in the
extension of the credit in the first place. Such delay would
not fall under mora accipiendi, which contemplates that the
obligation of the debtor, such as the actual purchases on
credit, has already been constituted. Herein, the
establishment of the debt itself (purchases on credit of the
jewelry) had not yet been perfected, as it remained pending
the approval or consent of the respondent credit card
company.
Still, in order for us to appreciate that respondent was in
mora solvendi, we will have to first recognize that there was
indeed an obligation on the part of respondent to act on
petitioners purchases with "timely dispatch," or for the
purposes of this case, within a period significantly less than
the one hour it apparently took before the purchase at
Coster was finally approved.
The findings of the trial court, to our mind, amply established
that the tardiness on the part of respondent in acting on
petitioners purchase at Coster did constitute culpable delay
on its part in complying with its obligation to act promptly on
its customers purchase request, whether such action be
favorable or unfavorable. We quote the trial court, thus:
As to the first issue, both parties have testified that normal
approval time for purchases was a matter of seconds.
Plaintiff testified that his personal experience with the use of
the card was that except for the three charge purchases
subject of this case, approvals of his charge purchases were
always obtained in a matter of seconds.
Defendants credit authorizer Edgardo Jaurique likewise
testified:
Q. You also testified that on normal occasions,
the normal approval time for charges would be 3
to 4 seconds?
A. Yes, Maam.
Both parties likewise presented evidence that the processing
and approval of plaintiffs charge purchase at the Coster
Diamond House was way beyond the normal approval time
of a "matter of seconds".
Plaintiff testified that he presented his AmexCard to the sales
clerk at Coster, at 9:15 a.m. and by the time he had to leave
the store at 10:05 a.m., no approval had yet been received.
In fact, the Credit Authorization System (CAS) record of
defendant at Phoenix Amex shows that defendants
Amsterdam office received the request to approve plaintiffs
charge purchase at 9:20 a.m., Amsterdam time or 01:20,
Phoenix time, and that the defendant relayed its approval to
Coster at 10:38 a.m., Amsterdam time, or 2:38, Phoenix
time, or a total time lapse of one hour and [18] minutes. And
even then, the approval was conditional as it directed in
computerese [sic] "Positive Identification of Card holder
necessary further charges require bank information due to
high exposure. By Jack Manila."
The delay in the processing is apparent to be undue as
shown from the frantic successive queries of Amexco
Amsterdam which reads: "US$13,826. Cardmember buying
jewels. ID seen. Advise how long will this take?" They were
sent at 01:33, 01:37, 01:40, 01:45, 01:52 and 02:08, all times
Phoenix. Manila Amexco could be unaware of the need for
speed in resolving the charge purchase referred to it, yet it
sat on its hand, unconcerned.
xxx
To repeat, the Credit Authorization System (CAS) record on
the Amsterdam transaction shows how Amexco Netherlands
viewed the delay as unusually frustrating. In sequence
expressed in Phoenix time from 01:20 when the charge
purchased was referred for authorization, defendants own
record shows:
01:22 the authorization is referred to Manila
Amexco
01:32 Netherlands gives information that the
identification of the cardmember has been
presented and he is buying jewelries worth US
$13,826.
01:33 Netherlands asks "How long will this
take?"
02:08 Netherlands is still asking "How long will
this take?"
The Court is convinced that defendants delay constitute[s]
breach of its contractual obligation to act on his use of the
card abroad "with special handling."22 (Citations omitted)
defendant prepared, is silent as to the amount of time it
xxx
Notwithstanding the popular notion that credit card
purchases are approved "within seconds," there really is no
strict, legally determinative point of demarcation on how long
must it take for a credit card company to approve or
disapprove a customers purchase, much less one
specifically contracted upon by the parties. Yet this is one of
those instances when "youd know it when youd see it," and
one hour appears to be an awfully long, patently
unreasonable length of time to approve or disapprove a
credit card purchase. It is long enough time for the customer
to walk to a bank a kilometer away, withdraw money over the
counter, and return to the store.
Notably, petitioner frames the obligation of respondent as "to
approve or disapprove" the purchase "in timely dispatch,"
and not "to approve the purchase instantaneously or within
seconds." Certainly, had respondent disapproved petitioners
purchase "within seconds" or within a timely manner, this
particular action would have never seen the light of day.
Petitioner and his family would have returned to the bus
without delay internally humiliated perhaps over the
rejection of his card yet spared the shame of being held
accountable by newly-made friends for making them miss
the chance to tour the city of Amsterdam.
We do not wish do dispute that respondent has the right, if
not the obligation, to verify whether the credit it is extending
upon on a particular purchase was indeed contracted by the
cardholder, and that the cardholder is within his means to
make such transaction. The culpable failure of respondent
herein is not the failure to timely approve petitioners
purchase, but the more elemental failure to timely act on the
same, whether favorably or unfavorably. Even assuming that
respondents credit authorizers did not have sufficient basis
on hand to make a judgment, we see no reason why
respondent could not have promptly informed petitioner the
reason for the delay, and duly advised him that resolving the
same could take some time. In that way, petitioner would
have had informed basis on whether or not to pursue the
transaction at Coster, given the attending circumstances.
Instead, petitioner was left uncomfortably dangling in the
chilly autumn winds in a foreign land and soon forced to
confront the wrath of foreign folk.
Moral damages avail in cases of breach of contract where
the defendant acted fraudulently or in bad faith, and the
court should find that under the circumstances, such
damages are due. The findings of the trial court are ample in
establishing the bad faith and unjustified neglect of
respondent, attributable in particular to the "dilly-dallying" of
respondents Manila credit authorizer, Edgardo
Jaurique.23 Wrote the trial court:
While it is true that the Cardmembership Agreement, which
should take defendant to grant authorization for a charge
purchase, defendant acknowledged that the normal time for
approval should only be three to four seconds. Specially so
with cards used abroad which requires "special handling",
meaning with priority. Otherwise, the object of credit or
charge cards would be lost; it would be so inconvenient to
use that buyers and consumers would be better off carrying
bundles of currency or travellers checks, which can be
delivered and accepted quickly. Such right was not accorded
to plaintiff in the instances complained off for reasons known
only to defendant at that time. This, to the Courts mind,
amounts to a wanton and deliberate refusal to comply with
its contractual obligations, or at least abuse of its rights,
under the contract.24
xxx
The delay committed by defendant was clearly attended by
unjustified neglect and bad faith, since it alleges to have
consumed more than one hour to simply go over plaintiffs
past credit history with defendant, his payment record and
his credit and bank references, when all such data are
already stored and readily available from its computer. This
Court also takes note of the fact that there is nothing in
plaintiffs billing history that would warrant the imprudent
suspension of action by defendant in processing the
purchase. Defendants witness Jaurique admits:
Q. But did you discover that he did not have any
outstanding account?
A. Nothing in arrears at that time.
Q. You were well aware of this fact on this very
date?
A. Yes, sir.
Mr. Jaurique further testified that there were no
"delinquencies" in plaintiffs account.25
It should be emphasized that the reason why petitioner is
entitled to damages is not simply because respondent
incurred delay, but because the delay, for which culpability
lies under Article 1170, led to the particular injuries under
Article 2217 of the Civil Code for which moral damages are
remunerative.26 Moral damages do not avail to soothe the
plaints of the simply impatient, so this decision should not be
cause for relief for those who time the length of their credit
card transactions with a stopwatch. The somewhat unusual
attending circumstances to the purchase at Coster that
there was a deadline for the completion of that purchase by
petitioner before any delay would redound to the injury of his
several traveling companions gave rise to the moral shock,
mental anguish, serious anxiety, wounded feelings and
social humiliation sustained by the petitioner, as concluded
by the RTC.27Those circumstances are fairly unusual, and
should not give rise to a general entitlement for damages
under a more mundane set of facts.
We sustain the amount of moral damages awarded to
petitioner by the RTC. There is no hard-and-fast rule in
determining what would be a fair and reasonable amount of
moral damages, since each case must be governed by its
own peculiar facts, however, it must be commensurate to the
loss or injury suffered.28 Petitioners original prayer
for P5,000,000.00 for moral damages is excessive under the
circumstances, and the amount awarded by the trial court
of P500,000.00 in moral damages more seemly.1avvphi1
Likewise, we deem exemplary damages available under the
circumstances, and the amount of P300,000.00 appropriate.
There is similarly no cause though to disturb the determined
award of P100,000.00 as attorneys fees, and P85,233.01 as
expenses of litigation.
WHEREFORE, the petition is GRANTED. The assailed
Decision of the Court of Appeals is REVERSED and SET
ASIDE. The Decision of the Regional Trial Court of Makati,
Branch 145 in Civil Case No. 92-1665 is hereby
REINSTATED. Costs against respondent. SO ORDERED.
E. ACTS CONTRA BONUS MORES
A. ELEMENTS
B. EXAMPLES
1. BREACH OF PROMISE TO MARRY
2. MALICIOUS PROSECUTION
3. PUBLIC HUMILIATION
4. UNJUST DISMISSAL
G.R. No. 180257 February 23, 2011
EUSEBIO GONZALES, Petitioner,
vs.
PHILIPPINE COMMERCIAL AND INTERNATIONAL BANK,
EDNA OCAMPO, and ROBERTO NOCEDA,Respondents.
DECISION
VELASCO, JR., J.:
The Case
This is an appeal via a Petition for Review on Certiorari
under Rule 45 from the Decision 1 dated October 22, 2007 of
the Court of Appeals (CA) in CA-G.R. CV No. 74466, which
denied petitioners appeal from the December 10, 2001
Decision2 in Civil Case No. 99-1324 of the Regional Trial
Court (RTC), Branch 138 in Makati City. The RTC found
justification for respondents dishonor of petitioners check
and found petitioner solidarily liable with the spouses Jose
and Jocelyn Panlilio (spouses Panlilio) for the three
promissory notes they executed in favor of respondent
Philippine Commercial and International Bank (PCIB).
The Facts
Petitioner Eusebio Gonzales (Gonzales) was a client of
PCIB for a good 15 years before he filed the instant case.
His account with PCIB was handled by respondent Edna
Ocampo (Ocampo) until she was replaced by respondent
Roberto Noceda (Noceda).
In October 1992, PCIB granted a credit line to Gonzales
through the execution of a Credit-On-Hand Loan
Agreement3 (COHLA), in which the aggregate amount of the
accounts of Gonzales with PCIB served as collateral for and
his availment limit under the credit line. Gonzales drew from
said credit line through the issuance of check. At the
institution of the instant case, Gonzales had a Foreign
Currency Deposit (FCD) of USD 8,715.72 with PCIB.
On October 30, 1995, Gonzales and his wife obtained a loan
for PhP 500,000. Subsequently, on December 26, 1995 and
January 3, 1999, the spouses Panlilio and Gonzales
obtained two additional loans from PCIB in the amounts of
PhP 1,000,000 and PhP 300,000, respectively. These three
loans amounting to PhP 1,800,000 were covered by three
promissory notes.4 To secure the loans, a real estate
mortgage (REM) over a parcel of land covered by Transfer
Certificate of Title (TCT) No. 38012 was executed by
Gonzales and the spouses Panlilio. Notably, the promissory
notes specified, among others, the solidary liability of
Gonzales and the spouses Panlilio for the payment of the
loans. However, it was the spouses Panlilio who received the
loan proceeds of PhP 1,800,000.
The monthly interest dues of the loans were paid by the
spouses Panlilio through the automatic debiting of their
account with PCIB. But the spouses Panlilio, from the month
of July 1998, defaulted in the payment of the periodic
interest dues from their PCIB account which apparently was
not maintained with enough deposits. PCIB allegedly called
the attention of Gonzales regarding the July 1998 defaults
and the subsequent accumulating periodic interest dues
which were left still left unpaid.
In the meantime, Gonzales issued a check dated September
30, 1998 in favor of Rene Unson (Unson) for PhP 250,000
drawn against the credit line (COHLA). However, on October
13, 1998, upon presentment for payment by Unson of said
check, it was dishonored by PCIB due to the termination by
PCIB of the credit line under COHLA on October 7, 1998 for
the unpaid periodic interest dues from the loans of Gonzales
and the spouses Panlilio. PCIB likewise froze the FCD
account of Gonzales.
Consequently, Gonzales had a falling out with Unson due to
the dishonor of the check. They had a heated argument in
the premises of the Philippine Columbian Association (PCA)
where they are both members, which caused great
embarrassment and humiliation to Gonzales. Thereafter, on
November 5, 1998, Unson sent a demand letter 5 to
Gonzales for the PhP 250,000. And on December 3, 1998,
the counsel of Unson sent a second demand letter 6 to
Gonzales with the threat of legal action. With his FCD
account that PCIB froze, Gonzales was forced to source out
and pay the PhP 250,000 he owed to Unson in cash.
On January 28, 1999, Gonzales, through counsel, wrote
PCIB insisting that the check he issued had been fully
funded, and demanded the return of the proceeds of his
FCD as well as damages for the unjust dishonor of the
check.7 PCIB replied on March 22, 1999 and stood its
ground in freezing Gonzales accounts due to the
outstanding dues of the loans.8 On May 26, 1999, Gonzales
reiterated his demand, reminding PCIB that it knew well that
the actual borrowers were the spouses Panlilio and he never
benefited from the proceeds of the loans, which were
serviced by the PCIB account of the spouses Panlilio.9
PCIBs refusal to heed his demands compelled Gonzales to
file the instant case for damages with the RTC, on account
of the alleged unjust dishonor of the check issued in favor of
Unson.
The Ruling of the RTC
After due trial, on December 10, 2001, the RTC rendered a
Decision in favor of PCIB. The decretal portion reads:
WHEREFORE, judgment is rendered as follows
(a) on the first issue, plaintiff is liable to pay
defendant Bank as principal under the promissory
notes, Exhibits A, B and C;
(b) on the second issue, the Court finds that there
is justification on part of the defendant Bank to
dishonor the check, Exhibit H;
(c) on the third issue, plaintiff and defendants are
not entitled to damages from each other.
No pronouncement as to costs.
SO ORDERED.10
The RTC found Gonzales solidarily liable with the spouses
Panlilio on the three promissory notes relative to the
outstanding REM loan. The trial court found no fault in the
termination by PCIB of the COHLA with Gonzales and in
freezing the latters accounts to answer for the past due PhP
1,800,000 loan. The trial court ruled that the dishonor of the
check issued by Gonzales in favor of Unson was proper
considering that the credit line under the COHLA had already
been terminated or revoked before the presentment of the
check.
Aggrieved, Gonzales appealed the RTC Decision before the
CA.
The Ruling of the CA
On September 26, 2007, the appellate court rendered its
Decision dismissing Gonzales appeal and affirming in
toto the RTC Decision. The fallo reads:
WHEREFORE, in view of the foregoing, the decision, dated
December 10, 2001, in Civil Case No. 99-1324 is hereby
AFFIRMED in toto.
SO ORDERED.11
In dismissing Gonzales appeal, the CA, first, confirmed the
RTCs findings that Gonzales was indeed solidarily liable
with the spouses Panlilio for the three promissory notes
executed for the REM loan; second, it likewise found neither
fault nor negligence on the part of PCIB in dishonoring the
check issued by Gonzales in favor of Unson, ratiocinating
that PCIB was merely exercising its rights under the
contractual stipulations in the COHLA brought about by the
outstanding past dues of the REM loan and interests for
which Gonzales was solidarily liable with the spouses
Panlilio to pay under the promissory notes.
Thus, we have this petition.
The Issues
Gonzales, as before the CA, raises again the following
assignment of errors:
I - IN NOT CONSIDERING THAT THE LIABILITY
ARISING FROM PROMISSORY NOTES
(EXHIBITS "A", "B" AND "C", PETITIONER;
EXHIBITS "1", "2" AND "3", RESPONDENT)
PERTAINED TO BORROWER JOSE MA.
PANLILIO AND NOT TO APPELLANT AS
RECOGNIZED AND ACKNOWLEDGE[D] BY
RESPONDENT PHILIPPINE COMMERCIAL &
INDUSTRIAL BANK (RESPONDENT BANK).
II - IN FINDING THAT THE RESPONDENTS
WERE NOT AT FAULT NOR GUILTY OF GROSS
NEGLIGENCE IN DISHONORING PETITIONERS
CHECK DATED 30 SEPTEMBER 1998 IN THE
AMOUNT OF P250,000.00 FOR THE REASON
"ACCOUNT CLOSED", INSTEAD OF MERELY
"REFER TO DRAWER" GIVEN THE FACT THAT
EVEN AFTER DISHONOR, RESPONDENT
SIGNED A CERTIFICATION DATED 7
DECEMBER 1998 THAT CREDIT ON HAND
(COH) LOAN AGREEMENT WAS STILL VALID
WITH A COLLATERAL OF FOREIGN CURRENCY
DEPOSIT (FCD) OF [USD] 48,715.72.
III - IN NOT AWARDING DAMAGES AGAINST
RESPONDENTS DESPITE PRESENTATION OF
CLEAR PROOF TO SUPPORT ACTION FOR
DAMAGES.12
The Courts Ruling
The core issues can be summarized, as follows: first,
whether Gonzales is liable for the three promissory notes
covering the PhP 1,800,000 loan he made with the spouses
Panlilio where a REM over a parcel of land covered by TCT
No. 38012 was constituted as security; and second, whether
PCIB properly dishonored the check of Gonzales drawn
against the COHLA he had with the bank.
The petition is partly meritorious.
First Issue: Solidarily Liability on Promissory Notes
A close perusal of the records shows that the courts a
quo correctly found Gonzales solidarily liable with the
spouses Panlilio for the three promissory notes.
The promissory notes covering the PhP 1,800,000 loan
show the following:
(1) Promissory Note BD-090-1766-95,13 dated
October 30, 1995, for PhP 500,000 was signed by
Gonzales and his wife, Jessica Gonzales;
(2) Promissory Note BD-090-2122-95,14 dated
December 26, 1995, for PhP 1,000,000 was
signed by Gonzales and the spouses Panlilio; and
(3) Promissory Note BD-090-011-96,15 dated
January 3, 1996, for PhP 300,000 was signed by
Gonzales and the spouses Panlilio.
Clearly, Gonzales is liable for the loans covered by the
above promissory notes. First, Gonzales admitted that he is
an accommodation party which PCIB did not dispute. In his
testimony, Gonzales admitted that he merely accommodated
the spouses Panlilio at the suggestion of Ocampo, who was
then handling his accounts, in order to facilitate the fast
release of the loan. Gonzales testified:
ATTY. DE JESUS:
Now in this case you filed against the bank you mentioned
there was a loan also applied for by the Panlilios in the sum
of P1.8 Million Pesos. Will you please tell this Court how this
came about?
GONZALES:
Mr. Panlilio requested his account officer . . . . at that time it
is a P42.0 Million loan and if he secures another P1.8 Million
loan the release will be longer because it has to pass to XO.
Q: After that what happened?
A: So as per suggestion since Mr. Panlilio is a good friend of
mine and we co-owned the property I agreed initially to use
my name so that the loan can be utilized immediately by Mr.
Panlilio.
Q: Who is actually the borrower of this P1.8 Million Pesos?
A: Well, in paper me and Mr. Panlilio.
Q: Who received the proceeds of said loan?
A: Mr. Panlilio.
Q: Do you have any proof that it was Mr. Panlilio who
actually received the proceeds of this P1.8 Million Pesos
loan?
A: A check was deposited in the account of Mr. Panlilio.16
xxxx
Q: By the way upon whose suggestion was the loan of Mr.
Panlilio also placed under your name initially?
A: Well it was actually suggested by the account officer at
that time Edna Ocampo.
Q: How about this Mr. Rodolfo Noceda?
A: As you look at the authorization aspect of the loan Mr.
Noceda is the boss of Edna so he has been familiar with my
account ever since its inception.
Q: So these two officers Ocampo and Noceda knew that this
was actually the account of Mr. Panlilio and not your
account?
A: Yes, sir. In fact even if there is a change of account officer
they are always informing me that the account will be
debited to Mr. Panlilios account.17
Moreover, the first note for PhP 500,000 was signed by
Gonzales and his wife as borrowers, while the two
subsequent notes showed the spouses Panlilio sign as
borrowers with Gonzales. It is, thus, evident that Gonzales
signed, as borrower, the promissory notes covering the PhP
1,800,000 loan despite not receiving any of the proceeds.
Second, the records of PCIB indeed bear out, and was
admitted by Noceda, that the PhP 1,800,000 loan proceeds
went to the spouses Panlilio, thus:
ATTY. DE JESUS: [on Cross-Examination]
Is it not a fact that as far as the records of the bank [are]
concerned the proceeds of the 1.8 million loan was received
by Mr. Panlilio?
NOCEDA:
Yes sir.18
The fact that the loans were undertaken by Gonzales when
he signed as borrower or co-borrower for the benefit of the
spouses Panlilioas shown by the fact that the proceeds
went to the spouses Panlilio who were servicing or paying
the monthly duesis beside the point. For signing as
borrower and co-borrower on the promissory notes with the
proceeds of the loans going to the spouses Panlilio,
Gonzales has extended an accommodation to said spouses.
Third, as an accommodation party, Gonzales is solidarily
liable with the spouses Panlilio for the loans. In Ang v.
Associated Bank,19 quoting the definition of an
accommodation party under Section 29 of the Negotiable
Instruments Law, the Court cited that an accommodation
party is a person "who has signed the instrument as maker,
drawer, acceptor, or indorser, without receiving value
therefor, and for the purpose of lending his name to some
other person."20 The Court further explained:
[A]n accommodation party is one who meets all the three
requisites, viz: (1) he must be a party to the instrument,
signing as maker, drawer, acceptor, or indorser; (2) he must
not receive value therefor; and (3) he must sign for the
purpose of lending his name or credit to some other person.
An accommodation party lends his name to enable the
accommodated party to obtain credit or to raise money; he
receives no part of the consideration for the instrument but
assumes liability to the other party/ies thereto. The
accommodation party is liable on the instrument to a holder
for value even though the holder, at the time of taking the
instrument, knew him or her to be merely an accommodation
party, as if the contract was not for accommodation.
As petitioner acknowledged it to be, the relation between an
accommodation party and the accommodated party is one of
principal and suretythe accommodation party being the
surety. As such, he is deemed an original promisor and
debtor from the beginning; he is considered in law as the
same party as the debtor in relation to whatever is adjudged
touching the obligation of the latter since their liabilities are
interwoven as to be inseparable. Although a contract of
suretyship is in essence accessory or collateral to a valid
principal obligation, the suretys liability to the creditor
is immediate, primary and absolute; he
is directly and equally bound with the principal. As an
equivalent of a regular party to the undertaking, a surety
becomes liable to the debt and duty of the principal obligor
even without possessing a direct or personal interest in the
obligations nor does he receive any benefit therefrom.21
Thus, the knowledge, acquiescence, or even demand by
Ocampo for an accommodation by Gonzales in order to
extend the credit or loan of PhP 1,800,000 to the spouses
Panlilio does not exonerate Gonzales from liability on the
three promissory notes.
Fourth, the solidary liability of Gonzales is clearly stipulated
in the promissory notes which uniformly begin, "For value
received, the undersigned (the "BORROWER") jointly and
severally promise to pay x x x." Solidary liability cannot be
presumed but must be established by law or
contract.22 Article 1207 of the Civil Code pertinently states
that "there is solidary liability only when the obligation
expressly so states, or when the obligation requires
solidarity." This is true in the instant case where Gonzales,
as accommodation party, is immediately, equally, and
absolutely bound with the spouses Panlilio on the
promissory notes which indubitably stipulated solidary
liability for all the borrowers. Moreover, the three promissory
notes serve as the contract between the parties. Contracts
have the force of law between the parties and must be
complied with in good faith.23
Second Issue: Improper Dishonor of Check
Having ruled that Gonzales is solidarily liable for the three
promissory notes, We shall now touch upon the question of
whether it was proper for PCIB to dishonor the check issued
by Gonzales against the credit line under the COHLA.
We answer in the negative.
As a rule, an appeal by certiorari under Rule 45 of the Rules
of Court is limited to review of errors of law. 24 The factual
findings of the trial court, especially when affirmed by the
appellate court, are generally binding on us unless there was
a misapprehension of facts or when the inference drawn
from the facts was manifestly mistaken.25 The instant case
falls within the exception.
The courts a quo found and held that there was a proper
dishonor of the PhP 250,000 check issued by Gonzales
against the credit line, because the credit line was already
closed prior to the presentment of the check by Unson; and
the closing of the credit line was likewise proper pursuant to
the stipulations in the promissory notes on the banks right to
set off or apply all moneys of the debtor in PCIBs hand and
the stipulations in the COHLA on the PCIBs right to
terminate the credit line on grounds of default by Gonzales.
Gonzales argues otherwise, pointing out that he was not
informed about the default of the spouses Panlilio and that
the September 21, 1998 account statement of the credit line
shows a balance of PhP 270,000 which was likewise borne
out by the December 7, 1998 PCIBs certification that he has
USD 8,715.72 in his FCD account which is more than
sufficient collateral to guarantee the PhP 250,000 check,
dated September 30, 1998, he issued against the credit line.
A careful scrutiny of the records shows that the courts a
quo committed reversible error in not finding negligence by
PCIB in the dishonor of the PhP 250,000 check.
First. There was no proper notice to Gonzales of the default
and delinquency of the PhP 1,800,000 loan. It must be borne
in mind that while solidarily liable with the spouses Panlilio
on the PhP 1,800,000 loan covered by the three promissory
notes, Gonzales is only an accommodation party and as
such only lent his name and credit to the spouses Panlilio.
While not exonerating his solidary liability, Gonzales has a
right to be properly apprised of the default or delinquency of
the loan precisely because he is a co-signatory of the
promissory notes and of his solidary liability.
We note that it is indeed understandable for Gonzales to
push the spouses Panlilio to pay the outstanding dues of the
PhP 1,800,000 loan, since he was only an accommodation
party and was not personally interested in the loan. Thus, a
meeting was set by Gonzales with the spouses Panlilio and
the PCIB officers, Noceda and Ocampo, in the spouses
Panlilios jewelry shop in SM Megamall on October 5, 1998.
Unfortunately, the meeting did not push through due to the
heavy traffic Noceda and Ocampo encountered.
Such knowledge of the default by Gonzales was, however,
not enough to properly apprise Gonzales about the default
and the outstanding dues. Verily, it is not enough to be
merely informed to pay over a hundred thousand without
being formally apprised of the exact aggregate amount and
the corresponding dues pertaining to specific loans and the
dates they became due.
Gonzales testified that he was not duly notified about the
outstanding interest dues of the loan:
ATTY. DE JESUS:
Now when Mr. Panlilios was encountering problems with the
bank did the defendant bank [advise] you of any problem
with the same account?
GONZALES:
They never [advised] me in writing.
Q: How did you come to know that there was a problem?
A: When my check bounced sir.26
On the other hand, the PCIB contends otherwise, as
Corazon Nepomuceno testified:
ATTY. PADILLA:
Can you tell this Honorable Court what is it that you told Mr.
Gonzales when you spoke to him at the celphone?
NEPOMUCENO:
I just told him to update the interest so that we would not
have to cancel the COH Line and he could withdraw the
money that was in the deposit because technically, if an
account is past due we are not allowed to let the client
withdraw funds because they are allowed to offset funds so,
just to help him get his money, just to update the interest so
that we could allow him to withdraw.
Q: Withdraw what?
A: His money on the COH, whatever deposit he has with us.
Q: Did you inform him that if he did not update the interest
he would not be able to withdraw his money?
A: Yes sir, we will be forced to hold on to any assets that he
has with us so thats why we suggested just to update the
interest because at the end of everything, he would be able
to withdraw more funds than the interest that the money he
would be needed to update the interest.27
From the foregoing testimonies, between the denial of
Gonzales and the assertion by PCIB that Gonzales was
properly apprised, we find for Gonzales. We find the
testimonies of the former PCIB employees to be self-serving
and tenuous at best, for there was no proper written notice
given by the bank. The record is bereft of any document
showing that, indeed, Gonzales was formally informed by
PCIB about the past due periodic interests.
PCIB is well aware and did not dispute the fact that
Gonzales is an accommodation party. It also acted in
accordance with such fact by releasing the proceeds of the
loan to the spouses Panlilio and likewise only informed the
spouses Panlilio of the interest dues. The spouses Panlilio,
through their account28 with PCIB, were paying the periodic
interest dues and were the ones periodically informed by the
bank of the debiting of the amounts for the periodic interest
payments. Gonzales never paid any of the periodic interest
dues. PCIBs Noceda admitted as much in his cross-
examination:
ATTY. DE JESUS: [on Cross-Examination]
And there was no instance that Mr. Gonzales ever made
even interest for this loan, is it not, its always Mr. Panlilio
who was paying the interest for this loan?
NOCEDA:
Yes sir.29
Indeed, no evidence was presented tending to show that
Gonzales was periodically sent notices or notified of the
various periodic interest dues covering the three promissory
notes. Neither do the records show that Gonzales was
aware of amounts for the periodic interests and the payment
for them. Such were serviced by the spouses Panlilio.
Thus, PCIB ought to have notified Gonzales about the status
of the default or delinquency of the interest dues that were
not paid starting July 1998. And such notification must be
formal or in written form considering that the outstanding
periodic interests became due at various dates, i.e., on July
8, 17, and 28, 1998, and the various amounts have to be
certain so that Gonzales is not only properly apprised but is
given the opportunity to pay them being solidarily liable for
the loans covered by the promissory notes.
It is the bank which computes these periodic interests and
such dues must be put into writing and formally served to
Gonzales if he were asked to pay them, more so when the
payments by the spouses Panlilio were charged through the
account of the spouses Panlilio where the interest dues were
simply debited. Such arrangement did not cover Gonzales
bank account with PCIB, since he is only an accommodation
party who has no personal interest in the PhP 1,800,000
loan. Without a clear and determinate demand through a
formal written notice for the exact periodic interest dues for
the loans, Gonzales cannot be expected to pay for them.
In business, more so for banks, the amounts demanded from
the debtor or borrower have to be definite, clear, and without
ambiguity. It is not sufficient simply to be informed that one
must pay over a hundred thousand aggregate outstanding
interest dues without clear and certain figures. Thus, We find
PCIB negligent in not properly informing Gonzales, who is an
accommodation party, about the default and the exact
outstanding periodic interest dues. Without being properly
apprised, Gonzales was not given the opportunity to properly
act on them.
It was only through a letter 30 sent by PCIB dated October 2,
1998 but incongruously showing the delinquencies of the
PhP 1,800,000 loan at a much later date, i.e., as of October
31, 1998, when Gonzales was formally apprised by PCIB. In
it, the interest due was PhP 106,1616.71 and penalties for
the unpaid interest due of PhP 64,766.66, or a total
aggregate due of PhP 171,383.37. But it is not certain and
the records do not show when the letter was sent and when
Gonzales received it. What is clear is that such letter was
belatedly sent by PCIB and received by Gonzales after the
fact that the latters FCD was already frozen, his credit line
under the COHLA was terminated or suspended, and his
PhP 250,000 check in favor of Unson was dishonored.
And way much later, or on May 4, 1999, was a demand letter
from the counsel of PCIB sent to Gonzales demanding
payment of the PhP 1,800,000 loan. Obviously, these formal
written notices sent to Gonzales were too late in the day for
Gonzales to act properly on the delinquency and he already
suffered the humiliation and embarrassment from the
dishonor of his check drawn against the credit line.
To reiterate, a written notice on the default and deficiency of
the PhP 1,800,000 loan covered by the three promissory
notes was required to apprise Gonzales, an accommodation
party. PCIB is obliged to formally inform and apprise
Gonzales of the defaults and the outstanding obligations,
more so when PCIB was invoking the solidary liability of
Gonzales. This PCIB failed to do.
Second. PCIB was grossly negligent in not giving prior
notice to Gonzales about its course of action to suspend,
terminate, or revoke the credit line, thereby violating the
clear stipulation in the COHLA.
The COHLA, in its effectivity clause, clearly provides:
4. EFFECTIVITY The COH shall be effective for a period
of one (1) year commencing from the receipt by the CLIENT
of the COH checkbook issued by the BANK, subject to
automatic renewals for same periods unless terminated by
the BANK upon prior notice served on
CLIENT.31 (Emphasis ours.)
It is undisputed that the bank unilaterally revoked,
suspended, and terminated the COHLA without giving
Gonzales prior notice as required by the above stipulation in
the COHLA. Noceda testified on cross-examination on the
Offering Ticket32 recommending the termination of the credit
line, thus:
ATTY. DE JESUS: [on Cross-Examination]
This Exhibit 8, you have not furnished at anytime a copy to
the plaintiff Mr. Gonzales is it not?
NOCEDA:
No sir but verbally it was relayed to him.
Q: But you have no proof that Mr. Gonzales came to know
about this Exhibit 8?
A: It was relayed to him verbally.
Q: But there is no written proof?
A: No sir.
Q: And it is only now that you claim that it was verbally
relayed to him, its only now when you testified in Court?
A: Before . . .
Q: To whom did you relay this information?
A: It was during the time that we were going to Megamall, it
was relayed by Liza that he has to pay his obligations or else
it will adversely affect the status of the account.33
On the other hand, the testimony of Corazon Nepomuceno
shows:
ATTY. DE JESUS: [on Cross-Examination]
Now we go to the other credit facility which is the credit on
hand extended solely of course to Mr. Eusebio Gonzales
who is the plaintiff here, Mr. Panlilio is not included in this
credit on hand facility. Did I gather from you as per your
Exhibit 7 as of October 2, 1998 you were the one who
recommended the cancellation of this credit on hand facility?
NEPOMUCENO:
It was recommended by the account officer and I supported
it.
Q: And you approved it?
A: Yes sir.
Q: Did you inform Mr. Gonzales that you have already
cancelled his credit on hand facility?
A: As far as I know, it is the account officer who will inform
him.
Q: But you have no record that he was informed?
A: I dont recall and we have to look at the folder to
determine if they were informed.
Q: If you will notice, this letter . . . what do you call this letter
of yours?
A: That is our letter advising them or reminding them of their
unpaid interest and that if he is able to update his interest he
can extend the promissory note or restructure the
outstanding.
Q: Now, I call your attention madam witness, there is nothing
in this letter to the clients advising them or Mr. Gonzales that
his credit on hand facility was already cancelled?
A: I dont know if there are other letters aside from this.
Q: So in this letter there is nothing to inform or to make Mr.
Eusebio aware that his credit on hand facility was already
cancelled?
A: No actually he can understand it from the last sentence.
"If you will be able to update your outstanding interest, we
can apply the extention of your promissory note" so in other
words we are saying that if you dont, you cannot extend the
promissory note.
Q: You will notice that the subject matter of this October 2,
1998 letter is only the loan of 1.8 million is it not, as you can
see from the letter? Okay?
A: Ah . . .
Q: Okay. There is nothing there that will show that that also
refers to the credit on hand facility which was being utilized
by Mr. Gonzales is it not?
A: But I dont know if there are other letters that are not
presented to me now.34
The foregoing testimonies of PCIB officers clearly show that
not only did PCIB fail to give prior notice to Gonzales about
the Offering Ticket for the process of termination,
suspension, or revocation of the credit line under the
COHLA, but PCIB likewise failed to inform Gonzales of the
fact that his credit line has been terminated. Thus, we find
PCIB grossly negligent in the termination, revocation, or
suspension of the credit line under the COHLA. While PCIB
invokes its right on the so-called "cross default provisions," it
may not with impunity ignore the rights of Gonzales under
the COHLA.
Indeed, the business of banking is impressed with public
interest and great reliance is made on the banks sworn
profession of diligence and meticulousness in giving
irreproachable service. Like a common carrier whose
business is imbued with public interest, a bank should
exercise extraordinary diligence to negate its liability to the
depositors.35 In this instance, PCIB is sorely remiss in the
diligence required in treating with its client, Gonzales. It may
not wantonly exercise its rights without respecting and
honoring the rights of its clients.
Art. 19 of the New Civil Code clearly provides that "[e]very
person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith." This is the basis
of the principle of abuse of right which, in turn, is based upon
the maxim suum jus summa injuria (the abuse of right is the
greatest possible wrong).36
In order for Art. 19 to be actionable, the following elements
must be present: "(1) the existence of a legal right or duty,
(2) which is exercised in bad faith, and (3) for the sole intent
of prejudicing or injuring another."37 We find that such
elements are present in the instant case. The effectivity
clause of the COHLA is crystal clear that termination of the
COH should be done only upon prior notice served on the
CLIENT. This is the legal duty of PCIBto inform Gonzales
of the termination. However, as shown by the above
testimonies, PCIB failed to give prior notice to Gonzales.
Malice or bad faith is at the core of Art. 19. Malice or bad
faith "implies a conscious and intentional design to do a
wrongful act for a dishonest purpose or moral obliquity." 38 In
the instant case, PCIB was able to send a letter advising
Gonzales of the unpaid interest on the loans 39 but failed to
mention anything about the termination of the COHLA. More
significantly, no letter was ever sent to him about the
termination of the COHLA. The failure to give prior notice on
the part of PCIB is already prima facie evidence of bad
faith.40 Therefore, it is abundantly clear that this case falls
squarely within the purview of the principle of abuse of rights
as embodied in Art. 19.
Third. There is no dispute on the right of PCIB to suspend,
terminate, or revoke the COHLA under the "cross default
provisions" of both the promissory notes and the COHLA.
However, these cross default provisions do not confer
absolute unilateral right to PCIB, as they are qualified by the
other stipulations in the contracts or specific circumstances,
like in the instant case of an accommodation party.
The promissory notes uniformly provide:
The lender is hereby authorized, at its option and
without notice, to set off or apply to the payment of this
Note any and all moneys which may be in its hands on
deposit or otherwise belonging to the Borrower. The
Borrower irrevocably appoint/s the Lender, effective upon the
nonpayment of this Note on demand/at maturity or upon the
happening of any of the events of default, but without any
obligation on the Lenders part should it choose not to
perform this mandate, as the attorney-in-fact of the
Borrower, to sell and dispose of any property of the
Borrower, which may be in the Lenders possession by
public or private sale, and to apply the proceeds thereof to
the payment of this Note; the Borrower, however, shall
remain liable for any deficiency.41 (Emphasis ours.)
The above provisos are indeed qualified with the specific
circumstance of an accommodation party who, as such, has
not been servicing the payment of the dues of the loans, and
must first be properly apprised in writing of the outstanding
dues in order to answer for his solidary obligation.
The same is true for the COHLA, which in its default clause
provides:
16. DEFAULT The CLIENT shall be considered in default
under the COH if any of the following events shall occur:
1. x x x
2. Violation of the terms and conditions of this
Agreement or any contract of the CLIENT with the
BANK or any bank, persons, corporations or
entities for the payment of borrowed money, or any
other event of default in such contracts.42
The above pertinent default clause must be read in
conjunction with the effectivity clause (No. 4 of the COHLA,
quoted above), which expressly provides for the right of
client to prior notice. The rationale is simple: in cases where
the bank has the right to terminate, revoke, or suspend the
credit line, the client must be notified of such intent in order
for the latter to act accordinglywhether to correct any
ground giving rise to the right of the bank to terminate the
credit line and to dishonor any check issued or to act in
accord with such termination, i.e., not to issue any check
drawn from the credit line or to replace any checks that had
been issued. This, the bankwith gross negligencefailed
to accord Gonzales, a valued client for more than 15 years.
Fourth. We find the testimony43 of Ocampo incredible on the
point that the principal borrower of the PhP 1,800,000 loan
covered by the three promissory notes is Gonzales for which
the bank officers had special instructions to grant and that it
was through the instructions of Gonzales that the payment of
the periodic interest dues were debited from the account of
the spouses Panlilio.
For one, while the first promissory note dated October 30,
1995 indeed shows Gonzales as the principal borrower, the
other promissory notes dated December 26, 1995 and
January 3, 1996 evidently show that it was Jose Panlilio who
was the principal borrower with Gonzales as co-borrower.
For another, Ocampo cannot feign ignorance on the
arrangement of the payments by the spouses Panlilio
through the debiting of their bank account. It is incredulous
that the payment arrangement is merely at the behest of
Gonzales and at a mere verbal directive to do so. The fact
that the spouses Panlilio not only received the proceeds of
the loan but were servicing the periodic interest dues
reinforces the fact that Gonzales was only an
accommodation party.
Thus, due to PCIBs negligence in not giving Gonzalesan
accommodation partyproper notice relative to the
delinquencies in the PhP 1,800,000 loan covered by the
three promissory notes, the unjust termination, revocation, or
suspension of the credit line under the COHLA from PCIBs
gross negligence in not honoring its obligation to give prior
notice to Gonzales about such termination and in not
informing Gonzales of the fact of such termination, treating
Gonzales account as closed and dishonoring his PhP
250,000 check, was certainly a reckless act by PCIB. This
resulted in the actual injury of PhP 250,000 to Gonzales
whose FCD account was frozen and had to look elsewhere
for money to pay Unson.
With banks, the degree of diligence required is more than
that of a good father of the family considering that the
business of banking is imbued with public interest due to the
nature of their function. The law imposes on banks a high
degree of obligation to treat the accounts of its depositors
with meticulous care, always having in mind the fiduciary
nature of banking.44 Had Gonzales been properly notified of
the delinquencies of the PhP 1,800,000 loan and the
process of terminating his credit line under the COHLA, he
could have acted accordingly and the dishonor of the check
would have been avoided.
Third Issue: Award of Damages
The banking system has become an indispensable institution
in the modern world and plays a vital role in the economic
life of every civilized societybanks have attained a
ubiquitous presence among the people, who have come to
regard them with respect and even gratitude and most of all,
confidence, and it is for this reason, banks should guard
against injury attributable to negligence or bad faith on its
part.45
In the instant case, Gonzales suffered from the negligence
and bad faith of PCIB. From the testimonies of Gonzales
witnesses, particularly those of Dominador Santos 46 and
Freddy Gomez,47 the embarrassment and humiliation
Gonzales has to endure not only before his former close
friend Unson but more from the members and families of his
friends and associates in the PCA, which he continues to
experience considering the confrontation he had with Unson
and the consequent loss of standing and credibility among
them from the fact of the apparent bouncing check he
issued. Credit is very important to businessmen and its loss
or impairment needs to be recognized and compensated.48
The termination of the COHLA by PCIB without prior notice
and the subsequent dishonor of the check issued by
Gonzales constitute acts of contra bonus mores. Art. 21 of
the Civil Code refers to such acts when it says, "Any person
who willfully causes loss or injury to another in a manner that
is contrary to morals, good customs or public policy shall
compensate the latter for damage."
Accordingly, this Court finds that such acts warrant the
payment of indemnity in the form of nominal
damages.1avvphi1Nominal damages "are recoverable
where a legal right is technically violated and must be
vindicated against an invasion that has produced no actual
present loss of any kind x x x." 49 We further explained the
nature of nominal damages in Almeda v. Cario:
x x x Its award is thus not for the purpose of indemnification
for a loss but for the recognition and vindication of a right.
Indeed, nominal damages are damages in name only and
not in fact. When granted by the courts, they are not treated
as an equivalent of a wrong inflicted but simply a recognition
of the existence of a technical injury. A violation of the
plaintiffs right, even if only technical, is sufficient to support
an award of nominal damages. Conversely, so long as there
is a showing of a violation of the right of the plaintiff, an
award of nominal damages is proper.50 (Emphasis Ours.)
In the present case, Gonzales had the right to be informed of
the accrued interest and most especially, for the suspension
of his COHLA. For failure to do so, the bank is liable to pay
nominal damages. The amount of such damages is
addressed to the sound discretion of the court, taking into
account the relevant circumstances.51 In this case, the Court
finds that the grant of PhP 50,000 as nominal damages is
proper.
Moreover, as We held in MERALCO v. CA, 52 failure to give
prior notice when required, such as in the instant case,
constitutes a breach of contract and is a clear violation of Art.
21 of the Code. In cases such as this, Art. 2219 of the Code
provides that moral damages may be recovered in acts
referred to in its Art. 21. Further, Art. 2220 of the Code
provides that "[w]illful injury to property may be a legal
ground for awarding moral damages if the court should find
that, under the circumstances, such damages are justly due.
The same rule applies to breaches of contract where the
defendant acted fraudulently or in bad faith." Similarly, "every
person who, contrary to law, willfully or negligently causes
damage to another, shall indemnify the latter for the
same."53Evidently, Gonzales is entitled to recover moral
damages.
Even in the absence of malice or bad faith, a depositor still
has the right to recover reasonable moral damages, if the
depositor suffered mental anguish, serious anxiety,
embarrassment, and humiliation.54 Although incapable of
pecuniary estimation, moral damages are certainly
recoverable if they are the proximate result of the
defendants wrongful act or omission. The factual
antecedents bolstered by undisputed testimonies likewise
show the mental anguish and anxiety Gonzales had to
endure with the threat of Unson to file a suit. Gonzales had
to pay Unson PhP 250,000, while his FCD account in PCIB
was frozen, prompting Gonzales to demand from PCIB and
to file the instant suit.
The award of moral damages is aimed at a restoration within
the limits of the possible, of the spiritual status quo anteit
must always reasonably approximate the extent of injury and
be proportional to the wrong committed. 55Thus, an award of
PhP 50,000 is reasonable moral damages for the unjust
dishonor of the PhP 250,000 which was the proximate cause
of the consequent humiliation, embarrassment, anxiety, and
mental anguish suffered by Gonzales from his loss of
credibility among his friends, colleagues and peers.
Furthermore, the initial carelessness of the banks omission
in not properly informing Gonzales of the outstanding
interest duesaggravated by its gross neglect in omitting to
give prior notice as stipulated under the COHLA and in not
giving actual notice of the termination of the credit line
justifies the grant of exemplary damages of PhP 10,000.
Such an award is imposed by way of example or correction
for the public good.
Finally, an award for attorneys fees is likewise called for
from PCIBs negligence which compelled Gonzales to litigate
to protect his interest. In accordance with Art. 2208(1) of the
Code, attorneys fees may be recovered when exemplary
damages are awarded. We find that the amount of PhP
50,000 as attorneys fees is reasonable.
WHEREFORE, this petition is PARTLY GRANTED.
Accordingly, the CA Decision dated October 22, 2007 in CA-
G.R. CV No. 74466 is hereby REVERSED and SET ASIDE.
The Philippine Commercial and International Bank (now
Banco De Oro) is ORDERED to pay Eusebio Gonzales PhP
50,000 as nominal damages, PhP 50,000 as moral
damages, PhP 10,000 as exemplary damages, and PhP
50,000 as attorneys fees.
No pronouncement as to costs. SO ORDERED.
F. INTERFERENCE WITH CONTRACT RELATIONS
G.R. No. 119107 March 18, 2005
JOSE V. LAGON, Petitioner,
vs.
HONORABLE COURT OF APPEALS and MENANDRO V.
LAPUZ, respondents.
DECISION
CORONA, J.:
On June 23, 1982, petitioner Jose Lagon purchased from the
estate of Bai Tonina Sepi, through an intestate court, 1 two
parcels of land located at Tacurong, Sultan Kudarat. A few
months after the sale, private respondent Menandro Lapuz
filed a complaint for torts and damages against petitioner
before the Regional Trial Court (RTC) of Sultan Kudarat.
In the complaint, private respondent, as then plaintiff,
claimed that he entered into a contract of lease with the late
Bai Tonina Sepi Mengelen Guiabar over three parcels of
land (the "property") in Sultan Kudarat, Maguindanao
beginning 1964. One of the provisions agreed upon was for
private respondent to put up commercial buildings which
would, in turn, be leased to new tenants. The rentals to be
paid by those tenants would answer for the rent private
respondent was obligated to pay Bai Tonina Sepi for the
lease of the land. In 1974, the lease contract ended but
since the construction of the commercial buildings had yet to
be completed, the lease contract was allegedly renewed.
When Bai Tonina Sepi died, private respondent started
remitting his rent to the court-appointed administrator of her
estate. But when the administrator advised him to stop
collecting rentals from the tenants of the buildings he
constructed, he discovered that petitioner, representing
himself as the new owner of the property, had been
collecting rentals from the tenants. He thus filed a complaint
against the latter, accusing petitioner of inducing the heirs of
Bai Tonina Sepi to sell the property to him, thereby violating
his leasehold rights over it.
In his answer to the complaint, petitioner denied that he
induced the heirs of Bai Tonina to sell the property to him,
contending that the heirs were in dire need of money to pay
off the obligations of the deceased. He also denied
interfering with private respondent's leasehold rights as there
was no lease contract covering the property when he
purchased it; that his personal investigation and inquiry
revealed no claims or encumbrances on the subject lots.
Petitioner claimed that before he bought the property, he
went to Atty. Benjamin Fajardo, the lawyer who allegedly
notarized the lease contract between private respondent and
Bai Tonina Sepi, to verify if the parties indeed renewed the
lease contract after it expired in 1974. Petitioner averred that
Atty. Fajardo showed him four copies of the lease renewal
but these were all unsigned. To refute the existence of a
lease contract, petitioner presented in court a certification
from the Office of the Clerk of Court confirming that no
record of any lease contract notarized by Atty. Fajardo had
been entered into their files. Petitioner added that he only
learned of the alleged lease contract when he was informed
that private respondent was collecting rent from the tenants
of the building.
Finding the complaint for tortuous interference to be
unwarranted, petitioner filed his counterclaim and prayed for
the payment of actual and moral damages.
On July 29, 1986, the court a quo found for private
respondent (plaintiff below):
ACCORDINGLY, judgment is hereby rendered in
favor of the plaintiff:
1. Declaring the "Contract of Lease" executed by
Bai Tonina Sepi Mangelen Guiabar in favor of the
plaintiff on November 6, 1974 (Exh. "A" and "A-1")
over Lot No. 6395, Pls-73. Lot No 6396. Pls.-73.
Lot No. 6399. 3ls-73, and Lot no.9777-A. CSD-11-
000076-D (Lot No. 3-A. 40124), all situated along
Ledesma St., Tacurong, Sultan Kudarat, which
document was notarized by Atty. Benjamin S.
Fajardo, Sr. and entered into his notarial register
as Doc. No. 619. Page No. 24. Book No. II. Series
of 1974, to be authentic and genuine and as such
valid and binding for a period of ten (10) years
specified thereon from November 1, 1974 up to
October 31, 1984;
2. Declaring the plaintiff as the lawful owner of the
commercial buildings found on the aforesaid lots
and he is entitled to their possession and the
collection (of rentals) of the said commercial
buildings within the period covered by this
"Contract of Lease" in his favor;
3. Ordering the defendant to pay to the plaintiff the
following:
a) Rentals of the commercial buildings
on the lots covered by the "Contract of
Lease" in favor of the plaintiff for the
period from October 1, 1978 up to
October 31, 1984, including accrued
interests in the total amount of Five
Hundred Six Thousand Eight Hundred
Five Pesos and Fifty Six Centavos
(P506, 850.56), the same to continue to
bear interest at the legal rate of 12% per
annum until the whole amount is fully
paid by the defendant to the plaintiff;
 b) Moral damages in the amount of One
Million Sixty Two Thousand Five
Hundred Pesos (P1,062,500.00);
c) Actual or compensatory damages in
the amount of Three Hundred Twelve
Thousand Five Hundred Pesos (P312,
500.00);
d) Exemplary or corrective damages in
the amount of One Hundred Eighty
Thousand Five Hundred Pesos
(P187,500.00)
e) Temperate or moderate damages in
the amount of Sixty Two Thousand Five
Hundred Pesos (P62,500.00);
f) Nominal damages in the amount of
Sixty Two Thousand Five Hundred
Pesos (P62,500.00);
g) Attorney's fees in the amount of One
Hundred Twenty Five Thousand Pesos
(P125,000.00);
h) Expenses of litigation in the amount
of Sixty Two Thousand Five Hundred
Pesos (P62,500.00);
i) Interest on the moral damages, actual
or compensatory damages temperate or
moderate damages, nominal damages,
attorney's fees and expenses of
litigation in the amounts as specified
hereinabove from May 24, 1982 up to
June 27, 1986, in the total amount of
Nine Hundred Thousand Pesos
(P900,000.00); all of which will continue
to bear interests at a legal rate of 12%
per annum until the whole amounts are
fully paid by the defendants to the
plaintiffs;
4. For failure of the defendant to deposit with this
Court all the rentals he had collected from the
thirteen (13) tenants or occupants of the
commercial buildings in question, the plaintiff is
hereby restored to the possession of his
commercial buildings for a period of seventy-three
(73) months which is the equivalent of the total
period for which he was prevented from collecting
the rentals from the tenants or occupants of his
commercial buildings from October 1, 1978 up to
October 31, 1984, and for this purpose a Writ of
Preliminary Injunction is hereby issued, but the
plaintiff is likewise ordered to pay to the defendant
the monthly rental of Seven Hundred Pesos
(P700.00) every end of the month for the entire
period of seventy three (73) months. This portion
of the judgment should be considered as a mere
alternative should the defendant fail to pay the
amount of Five Hundred Five Pesos and Fifty Six
Centavos (P506,805.56) hereinabove specified;
5. Dismissing the counterclaim interposed by the
defendant for lack of merit;
6. With costs against the defendant.2
Petitioner appealed the judgment to the Court of Appeals.3 In
a decision dated January 31, 1995,4 the appellate court
modified the assailed judgment of the trial court as follows:
a) The award for moral damages, compensatory
damages, exemplary damages, temperate or
moderate damages, and nominal damages as well
as expenses of litigation in the amount
of P62,500.00 and interests under paragraph 3-
a(a), (b), (c), (d), (e), (f), (g), (h), and (i) are
deleted;
b) The award for attorney's fees is reduced
to P30,000.00;
c) Paragraphs 1,2,5 and 6 are AFFIRMED;
d) Additionally, the defendant is hereby ordered to
pay to the plaintiff by way of actual damages the
sum ofP178,425.00 representing the amount of
rentals he collected from the period of October
1978 to August 1983, and minus the amount
of P42,700.00 representing rentals due the
defendant computed at P700.00 per month for the
period from August 1978 to August 1983, with
interest thereon at the rate until the same is fully
paid;
e) Paragraph 4 is deleted.5
Before the appellate court, petitioner disclaimed knowledge
of any lease contract between the late Bai Tonina Sepi and
private respondent. On the other hand, private respondent
insisted that it was impossible for petitioner not to know
about the contract since the latter was aware that he was
collecting rentals from the tenants of the building. While the
appellate court disbelieved the contentions of both parties, it
nevertheless held that, for petitioner to become liable for
damages, he must have known of the lease contract and
must have also acted with malice or bad faith when he
bought the subject parcels of land.
Via this petition for review, petitioner cites the following
reasons why the Court should rule in his favor:
1. The Honorable Court of Appeals seriously erred
in holding that petitioner is liable for interference of
contractual relation under Article 1314 of the New
Civil Code;
2. The Honorable Court of Appeals erred in not
holding that private respondent is precluded from
recovering, if at all, because of laches;
3. The Honorable Court of Appeals erred in
holding petitioner liable for actual damages and
attorney's fees, and;
4. The Honorable Court of Appeals erred in
dismissing petitioner's counterclaims.6
Article 1314 of the Civil Code provides that any third person
who induces another to violate his contract shall be liable for
damages to the other contracting party. The tort recognized
in that provision is known as interference with contractual
relations.7 The interference is penalized because it violates
the property rights of a party in a contract to reap the
benefits that should result therefrom.8
The core issue here is whether the purchase by petitioner of
the subject property, during the supposed existence of
private respondent's lease contract with the late Bai Tonina
Sepi, constituted tortuous interference for which petitioner
should be held liable for damages.
The Court, in the case of So Ping Bun v. Court of
Appeals,9 laid down the elements of tortuous interference
with contractual relations: (a) existence of a valid contract;
(b) knowledge on the part of the third person of the existence
of the contract and (c) interference of the third person
without legal justification or excuse. In that case, petitioner
So Ping Bun occupied the premises which the corporation of
his grandfather was leasing from private respondent, without
the knowledge and permission of the corporation. The
corporation, prevented from using the premises for its
business, sued So Ping Bun for tortuous interference.
As regards the first element, the existence of a valid contract
must be duly established. To prove this, private respondent
presented in court a notarized copy of the purported lease
renewal.10 While the contract appeared as duly notarized, the
notarization thereof, however, only proved its due execution
and delivery but not the veracity of its contents. Nonetheless,
after undergoing the rigid scrutiny of petitioner's counsel and
after the trial court declared it to be valid and subsisting, the
notarized copy of the lease contract presented in court
appeared to be incontestable proof that private respondent
and the late Bai Tonina Sepi actually renewed their lease
contract. Settled is the rule that until overcome by clear,
strong and convincing evidence, a notarized document
continues to be prima facie evidence of the facts that gave
rise to its execution and delivery.11
The second element, on the other hand, requires that there
be knowledge on the part of the interferer that the contract
exists. Knowledge of the subsistence of the contract is an
essential element to state a cause of action for tortuous
interference.12 A defendant in such a case cannot be made
liable for interfering with a contract he is unaware of. 13 While
it is not necessary to prove actual knowledge, he must
nonetheless be aware of the facts which, if followed by a
reasonable inquiry, will lead to a complete disclosure of the
contractual relations and rights of the parties in the
contract.14
In this case, petitioner claims that he had no knowledge of
the lease contract. His sellers (the heirs of Bai Tonina Sepi)
likewise allegedly did not inform him of any existing lease
contract.
After a careful perusal of the records, we find the contention
of petitioner meritorious. He conducted his own personal
investigation and inquiry, and unearthed no suspicious
circumstance that would have made a cautious man probe
deeper and watch out for any conflicting claim over the
property. An examination of the entire property's title bore no
indication of the leasehold interest of private respondent.
Even the registry of property had no record of the same.15
Assuming ex gratia argumenti that petitioner knew of the
contract, such knowledge alone was not sufficient to make
him liable for tortuous interference. Which brings us to the
third element. According to our ruling in So Ping Bun,
petitioner may be held liable only when there was no legal
justification or excuse for his action 16 or when his conduct
was stirred by a wrongful motive. To sustain a case for
tortuous interference, the defendant must have acted with
malice17 or must have been driven by purely impious reasons
to injure the plaintiff. In other words, his act of interference
cannot be justified.18
Furthermore, the records do not support the allegation of
private respondent that petitioner induced the heirs of Bai
Tonina Sepi to sell the property to him. The word "induce"
refers to situations where a person causes another to
choose one course of conduct by persuasion or
intimidation.19 The records show that the decision of the heirs
of the late Bai Tonina Sepi to sell the property was
completely of their own volition and that petitioner did
absolutely nothing to influence their judgment. Private
respondent himself did not proffer any evidence to support
his claim. In short, even assuming that private respondent
was able to prove the renewal of his lease contract with Bai
Tonina Sepi, the fact was that he was unable to prove malice
or bad faith on the part of petitioner in purchasing the
property. Therefore, the claim of tortuous interference was
never established.
In So Ping Bun, the Court discussed whether interference
can be justified at all if the interferer acts for the sole
purpose of furthering a personal financial interest, but
without malice or bad faith. As the Court explained it:
x x x, as a general rule, justification for interfering
with the business relations of another exists where
the actor's motive is to benefit himself. Such
justification does not exist where the actor's motive
is to cause harm to the other. Added to this, some
authorities believe that it is not necessary that the
interferer's interest outweigh that of the party
whose rights are invaded, and that an individual
acts under an economic interest that is substantial,
not merely de minimis, such that wrongful and
malicious motives are negatived, for he acts in
self-protection. Moreover, justification for
protecting one's financial position should not be
made to depend on a comparison of his economic
interest in the subject matter with that of the
others. It is sufficient if the impetus of his conduct
lies in a proper business interest rather than in
wrongful motives.20
The foregoing disquisition applies squarely to the case at
bar. In our view, petitioner's purchase of the subject property
was merely an advancement of his financial or economic
interests, absent any proof that he was enthused by
improper motives. In the very early case of Gilchrist v.
Cuddy,21 the Court declared that a person is not a malicious
interferer if his conduct is impelled by a proper business
interest. In other words, a financial or profit motivation will
not necessarily make a person an officious interferer liable
for damages as long as there is no malice or bad faith
involved.
In sum, we rule that, inasmuch as not all three elements to
hold petitioner liable for tortuous interference are present,
petitioner cannot be made to answer for private respondent's
losses.
This case is one of damnun absque injuria or damage
without injury. "Injury" is the legal invasion of a legal right
while "damage" is the hurt, loss or harm which results from
the injury.22 In BPI Express Card Corporation v. Court of
Appeals,,23 the Court turned down the claim for damages of
a cardholder whose credit card had been cancelled by
petitioner corporation after several defaults in payment. We
held there that there can be damage without injury where the
loss or harm is not the result of a violation of a legal duty. In
that instance, the consequences must be borne by the
injured person alone since the law affords no remedy for
damages resulting from an act which does not amount to
legal injury or wrong.24 Indeed, lack of malice in the conduct
complained of precludes recovery of damages.25
With respect to the attorney's fees awarded by the appellate
court to private respondent, we rule that it cannot be
recovered under the circumstances. According to Article
2208 of the Civil Code, attorney's fees may be awarded only
when it has been stipulated upon or under the instances
provided therein.26 Likewise, being in the concept of actual
damages, the award for attorney's fees must have clear,
factual and legal bases27 which, in this case, do not exist.
Regarding the dismissal of petitioner's counterclaim for
actual and moral damages, the appellate court affirmed the
assailed order of the trial court because it found no basis to
grant the amount of damages prayed for by petitioner. We
find no reason to reverse the trial court and the Court of
Appeals. Actual damages are those awarded in satisfaction
of, or in recompense for, loss or injury sustained. To be
recoverable, they must not only be capable of proof but must
actually be proved with a reasonable degree of
certainty.28 Petitioner was unable to prove that he suffered
loss or injury, hence, his claim for actual damages must fail.
Moreover, petitioner's prayer for moral damages was not
warranted as moral damages should result from the wrongful
act of a person. The worries and anxieties suffered by a
party hailed to court litigation are not compensable.29
With the foregoing discussion, we no longer deem it
necessary to delve into the issue of laches.
WHEREFORE, premises considered, the petition is hereby
GRANTED. The assailed decision of the Court of Appeals is
hereby REVERSED and SET ASIDE. No costs. SO
ORDERED.
G. OTHERS
G.R. No. 135306 January 28, 2003
MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA
C. AGUJA and AGUSTINO G. BINEGAS, JR.,petitioners,
vs.
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.,
ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA,
ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and
IBRAHIM B.A. JUNIO, respondents.
BELLOSILLO, J.:
I may utterly detest what you write, but I shall fight
to the death to make it possible for you to continue
writing it.
Voltaire
VOLTAIRE'S PONTIFICAL VERSE bestirs once again the
basic liberties to free speech and free press liberties that
belong as well, if not more, to those who question, who do
not conform, who differ. For the ultimate good which we all
strive to achieve for ourselves and our posterity can better
be reached by a free exchange of ideas, where the best test
of truth is the power of the thought to get itself accepted in
the competition of the free market not just the ideas we
desire, but including those thoughts we despise.1
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a
local federation of more than seventy (70) Muslim religious
organizations, and individual Muslims ABDULRAHMAN R.T.
LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE
GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO,
filed in the Regional Trial Court of Manila a complaint for
damages in their own behalf and as a class suit in behalf of
the Muslim members nationwide against MVRS
PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C.
AGUJA and AGUSTINO G. BINEGAS, JR., arising from an
article published in the 1 August 1992 issue of Bulgar, a daily
tabloid. The article reads:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa
Mindanao ay hindi kinakain ng mga Muslim?
Para sa kanila ang mga ito ay isang sagradong
bagay. Hindi nila ito kailangang kainin kahit na sila
pa ay magutom at mawalan ng ulam sa tuwing sila
ay kakain. Ginagawa nila itong Diyos at
sinasamba pa nila ito sa tuwing araw ng kanilang
pangingilin lalung-lalo na sa araw na tinatawag
nilang 'Ramadan'."
The complaint alleged that the libelous statement was
insulting and damaging to the Muslims; that these words
alluding to the pig as the God of the Muslims was not only
published out of sheer ignorance but with intent to hurt the
feelings, cast insult and disparage the Muslims and Islam, as
a religion in this country, in violation of law, public policy,
good morals and human relations; that on account of these
libelous words Bulgar insulted not only the Muslims in the
Philippines but the entire Muslim world, especially every
Muslim individual in non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS,
JR., in their defense, contended that the article did not
mention respondents as the object of the article and
therefore were not entitled to damages; and, that the article
was merely an expression of belief or opinion and was
published without malice nor intention to cause damage,
prejudice or injury to Muslims.2
On 30 June 1995 the trial court dismissed the complaint
holding that the plaintiffs failed to establish their cause of
action since the persons allegedly defamed by the article
were not specifically identified
It must be noted that the persons allegedly
defamed, the herein plaintiffs, were not identified
with specificity. The subject article was directed at
the Muslims without mentioning or identifying the
herein plaintiffs x x x. It is thus apparent that the
alleged libelous article refers to the larger
collectivity of Muslims for which the readers of the
libel could not readily identify the personalities of
the persons defamed. Hence, it is difficult for an
individual Muslim member to prove that the
defamatory remarks apply to him. The evidence
presented in this case failed to convince this court
that, indeed, the defamatory remarks really
applied to the herein plaintiffs.3
On 27 August 1998 the Court of Appeals reversed the
decision of the trial court. It opined that it was "clear from the
disputed article that the defamation was directed to all
adherents of the Islamic faith. It stated that pigs were sacred
and idolized as god by members of the Muslim religion. This
libelous imputation undeniably applied to the plaintiff-
appellants who are Muslims sharing the same religious
beliefs." It added that the suit for damages was a "class suit"
and that ISLAMIC DA'WAH COUNCIL OF THE
PHILIPPINES, INC.'s religious status as a Muslim umbrella
organization gave it the requisite personality to sue and
protect the interests of all Muslims.4
Hence, the instant petition for review assailing the findings of
the appellate court (a) on the existence of the elements of
libel, (b) the right of respondents to institute the class suit,
and, (c) the liability of petitioners for moral damages,
exemplary damages, attorney's fees and costs of suit.
Defamation, which includes libel and slander, means the
offense of injuring a person's character, fame or reputation
through false and malicious statements. 5 It is that which
tends to injure reputation or to diminish the esteem, respect,
good will or confidence in the plaintiff or to excite derogatory
feelings or opinions about the plaintiff.6 It is the publication of
anything which is injurious to the good name or reputation of
another or tends to bring him into disrepute. 7 Defamation is
an invasion of a relational interest since it involves the
opinion which others in the community may have, or tend to
have, of the plaintiff.8
It must be stressed that words which are merely insulting are
not actionable as libel or slander per se, and mere words of
general abuse however opprobrious, ill-natured, or
vexatious, whether written or spoken, do not constitute a
basis for an action for defamation in the absence of an
allegation for special damages.9 The fact that the language
is offensive to the plaintiff does not make it actionable by
itself.10
they cannot sue for a class allegedly disparaged. Private
Declarations made about a large class of people cannot be
interpreted to advert to an identified or identifiable individual.
Absent circumstances specifically pointing or alluding to a
particular member of a class, no member of such class has a
right of action11 without at all impairing the equally
demanding right of free speech and expression, as well as of
the press, under the Bill of Rights.12 Thus, in Newsweek, Inc.
v. Intermediate Appellate Court,13 we dismissed a complaint
for libel against Newsweek, Inc., on the ground that private
respondents failed to state a cause of action since they
made no allegation in the complaint that anything contained
in the article complained of specifically referred to any of
them. Private respondents, incorporated associations of
sugarcane planters in Negros Occidental claiming to have
8,500 members and several individual members, filed a
class action suit for damages in behalf of all sugarcane
planters in Negros Occidental. The complaint filed in the
Court of First Instance of Bacolod City alleged that
Newsweek, Inc., committed libel against them by the
publication of the article "Island of Fear" in its weekly
newsmagazine allegedly depicting Negros Province as a
place dominated by wealthy landowners and sugar planters
who not only exploited the impoverished and underpaid
sugarcane workers but also brutalized and killed them with
impunity. Private respondents alleged that the article showed
a deliberate and malicious use of falsehood, slanted
presentation and/or misrepresentation of facts intended to
put the sugarcane planters in a bad light, expose them to
public ridicule, discredit and humiliation in the Philippines
and abroad, and make them the objects of hatred, contempt
and hostility of their agricultural workers and of the public in
general. We ratiocinated
x x x where the defamation is alleged to have
been directed at a group or class, it is essential
that the statement must be so sweeping or all-
embracing as to apply to every individual in that
group or class, or sufficiently specific so that each
individual in the class or group can prove that the
defamatory statement specifically pointed to him,
so that he can bring the action separately, if need
be x x x x The case at bar is not a class suit. It is
not a case where one or more may sue for the
benefit of all, or where the representation of class
interest affected by the judgment or decree is
indispensable to make each member of the class
an actual party. We have here a case where each
of the plaintiffs has a separate and distinct
reputation in the community. They do not have a
common or general interest in the subject matter
of the controversy.
In the present case, there was no fairly identifiable person
who was allegedly injured by the Bulgar article. Since the
persons allegedly defamed could not be identifiable, private
respondents have no individual causes of action; hence,
respondents must have a cause of action in common with
the class to which they belong to in order for the case to
prosper.
An individual Muslim has a reputation that is personal,
separate and distinct in the community. Each Muslim, as part
of the larger Muslim community in the Philippines of over five
(5) million people, belongs to a different trade and
profession; each has a varying interest and a divergent
political and religious view some may be conservative,
others liberal. A Muslim may find the article dishonorable,
even blasphemous; others may find it as an opportunity to
strengthen their faith and educate the non-believers and the
"infidels." There is no injury to the reputation of the individual
Muslims who constitute this community that can give rise to
an action for group libel. Each reputation is personal in
character to every person. Together, the Muslims do not
have a single common reputation that will give them a
common or general interest in the subject matter of the
controversy.
In Arcand v. The Evening Call Publishing Company,14 the
United States Court of Appeals held that one guiding
principle of group libel is that defamation of a large group
does not give rise to a cause of action on the part of an
individual unless it can be shown that he is the target of the
defamatory matter.
The rule on libel has been restrictive. In an American
case,15 a person had allegedly committed libel against all
persons of the Jewish religion. The Court held that there
could be no libel against an extensive community in common
law. In an English case, where libel consisted of allegations
of immorality in a Catholic nunnery, the Court considered
that if the libel were on the whole Roman Catholic Church
generally, then the defendant must be absolved. 16 With
regard to the largest sectors in society, including religious
groups, it may be generally concluded that no criminal action
at the behest of the state, or civil action on behalf of the
individual, will lie.
In another case, the plaintiffs claimed that all Muslims,
numbering more than 600 million, were defamed by the
airing of a national television broadcast of a film depicting
the public execution of a Saudi Arabian princess accused of
adultery, and alleging that such film was "insulting and
defamatory" to the Islamic religion. 17 The United States
District Court of the Northern District of California concluded
that the plaintiffs' prayer for $20 Billion in damages arising
from "an international conspiracy to insult, ridicule, discredit
and abuse followers of Islam throughout the world, Arabs
and the Kingdom of Saudi Arabia" bordered on the
"frivolous," ruling that the plaintiffs had failed to demonstrate
an actionable claim for defamation. The California Court
stressed that the aim of the law on defamation was to
protect individuals; a group may be sufficiently large that a
statement concerning it could not defame individual group
members.18
Philip Wittenberg, in his book "Dangerous Words: A Guide to
the Law of Libel,"19 discusses the inappropriateness of any
action for tortious libel involving large groups, and provides a
succinct illustration:
which may lie in an inspired charlatan, whose temple may be
There are groupings which may be finite enough
so that a description of the body is a description of
the members. Here the problem is merely one of
evaluation. Is the description of the member
implicit in the description of the body, or is there a
possibility that a description of the body may
consist of a variety of persons, those included
within the charge, and those excluded from it?
A general charge that the lawyers in the city are
shysters would obviously not be a charge that all
of the lawyers were shysters. A charge that the
lawyers in a local point in a great city, such as
Times Square in New York City, were shysters
would obviously not include all of the lawyers who
practiced in that district; but a statement that all of
the lawyers who practiced in a particular building
in that district were shysters would be a specific
charge, so that any lawyer having an office within
that building could sue.
If the group is a very large one, then the alleged libelous
statement is considered to have no application to anyone in
particular, since one might as well defame all mankind. Not
only does the group as such have no action; the plaintiff
does not establish any personal reference to himself. 20 At
present, modern societal groups are both numerous and
complex. The same principle follows with these groups: as
the size of these groups increases, the chances for
members of such groups to recover damages on tortious
libel become elusive. This principle is said to embrace two
(2) important public policies: first, where the group referred
to is large, the courts presume that no reasonable reader
would take the statements as so literally applying to each
individual member; and second, the limitation on liability
would satisfactorily safeguard freedom of speech and
expression, as well as of the press, effecting a sound
compromise between the conflicting fundamental interests
involved in libel cases.21
In the instant case, the Muslim community is too vast as to
readily ascertain who among the Muslims were particularly
defamed. The size of the group renders the reference as
indeterminate and generic as a similar attack on Catholics,
Protestants, Buddhists or Mormons would do. The word
"Muslim" is descriptive of those who are believers of Islam, a
religion divided into varying sects, such as the Sunnites, the
Shiites, the Kharijites, the Sufis and others based upon
political and theological distinctions. "Muslim" is a name
which describes only a general segment of the Philippine
population, comprising a heterogeneous body whose
construction is not so well defined as to render it impossible
for any representative identification.
The Christian religion in the Philippines is likewise divided
into different sects: Catholic, Baptist, Episcopalian,
Presbyterian, Lutheran, and other groups the essence of
a corner house in the fringes of the countryside. As with the
Christian religion, so it is with other religions that represent
the nation's culturally diverse people and minister to each
one's spiritual needs. The Muslim population may be divided
into smaller groups with varying agenda, from the prayerful
conservative to the passionately radical. These divisions in
the Muslim population may still be too large and ambiguous
to provide a reasonable inference to any personality who can
bring a case in an action for libel.
The foregoing are in essence the same view scholarly
expressed by Mr. Justice Reynato S. Puno in the course of
the deliberations in this case. We extensively reproduce
hereunder his comprehensive and penetrating discussion on
group libel
Defamation is made up of the twin torts of libel and
slander the one being, in general, written, while
the other in general is oral. In either form,
defamation is an invasion of the interest in
reputation and good name. This is a "relational
interest" since it involves the opinion others in the
community may have, or tend to have of the
plaintiff.
The law of defamation protects the interest in
reputation the interest in acquiring, retaining
and enjoying one's reputation as good as one's
character and conduct warrant. The mere fact that
the plaintiff's feelings and sensibilities have been
offended is not enough to create a cause of action
for defamation. Defamation requires that
something be communicated to a third person that
may affect the opinion others may have of the
plaintiff. The unprivileged communication must be
shown of a statement that would tend to hurt
plaintiff's reputation, to impair plaintiff's standing in
the community.
Although the gist of an action for defamation is an
injury to reputation, the focus of a defamation
action is upon the allegedly defamatory statement
itself and its predictable effect upon third persons.
A statement is ordinarily considered defamatory if
it "tend[s] to expose one to public hatred, shame,
obloquy, contumely, odium, contempt, ridicule,
aversion, ostracism, degradation or disgracex x x."
The Restatement of Torts defines a defamatory
statement as one that "tends to so harm the
reputation of another as to lower him in the
estimation of the community or to deter third
persons from associating or dealing with him."
Consequently as a prerequisite to recovery, it is
necessary for the plaintiff to prove as part of
his prima faciecase that the defendant (1)
published a statement that was (2) defamatory (3)
of and concerning the plaintiff.
The rule in libel is that the action must be brought
by the person against whom the defamatory
charge has been made. In the American
jurisdiction, no action lies by a third person for
damages suffered by reason of defamation of
another person, even though the plaintiff suffers
some injury therefrom. For recovery in defamation
cases, it is necessary that the publication be "of
and concerning the plaintiff." Even when a
publication may be clearly defamatory as to
somebody, if the words have no personal
application to the plaintiff, they are not actionable
by him. If no one is identified, there can be no libel
because no one's reputation has been injured x x
xx
In fine, in order for one to maintain an action for an
alleged defamatory statement, it must appear that
the plaintiff is the person with reference to whom
the statement was made. This principle is of vital
importance in cases where a group or class is
defamed since, usually, the larger the collective,
the more difficult it is for an individual member to
show that he was the person at whom the
defamation was directed.
If the defamatory statements were directed at a
small, restricted group of persons, they applied to
any member of the group, and an individual
member could maintain an action for defamation.
When the defamatory language was used toward
a small group or class, including every member, it
has been held that the defamatory language
referred to each member so that each could
maintain an action. This small group or class may
be a jury, persons engaged in certain businesses,
professions or employments, a restricted
subdivision of a particular class, a society, a
football team, a family, small groups of union
officials, a board of public officers, or engineers of
a particular company.
In contrast, if defamatory words are used broadly
in respect to a large class or group of persons,
and there is nothing that points, or by proper
colloquium or innuendo can be made to apply, to a
particular member of the class or group, no
member has a right of action for libel or slander.
Where the defamatory matter had no special,
personal application and was so general that no
individual damages could be presumed, and
where the class referred to was so numerous that
great vexation and oppression might grow out of
the multiplicity of suits, no private action could be
maintained. This rule has been applied to
defamatory publications concerning groups or
classes of persons engaged in a particular
business, profession or employment, directed at
associations or groups of association officials, and
to those directed at miscellaneous groups or
classes of persons.
Distinguishing a small group which if defamed
entitles all its members to sue from a large group
which if defamed entitles no one to sue is
not always so simple. Some authorities have
noted that in cases permitting recovery, the group
generally has twenty five (25) or fewer members.
However, there is usually no articulated limit on
size. Suits have been permitted by members of
fairly large groups when some distinguishing
characteristic of the individual or group increases
the likelihood that the statement could be
interpreted to apply individually. For example, a
single player on the 60 to 70 man Oklahoma
University football team was permitted to sue
when a writer accused the entire team of taking
amphetamines to "hop up" its performance; the
individual was a fullback, i.e., a significant position
on the team and had played in all but two of the
team's games.
A prime consideration, therefore, is the public
perception of the size of the group and whether a
statement will be interpreted to refer to every
member. The more organized and cohesive a
group, the easier it is to tar all its members with
the same brush and the more likely a court will
permit a suit from an individual even if the group
includes more than twenty five (25) members. At
some point, however, increasing size may be seen
to dilute the harm to individuals and any resulting
injury will fall beneath the threshold for a viable
lawsuit.
x x x x There are many other groupings of men
than those that are contained within the foregoing
group classifications. There are all the religions of
the world, there are all the political and ideological
beliefs; there are the many colors of the human
race. Group defamation has been a fertile and
dangerous weapon of attack on various racial,
religious and political minorities. Some states,
therefore, have passed statutes to prevent
concerted efforts to harass minority groups in the
United States by making it a crime to circulate
insidious rumors against racial and religious
groups. Thus far, any civil remedy for such
broadside defamation has been lacking.
There have been numerous attempts by individual
members to seek redress in the courts for libel on
these groups, but very few have succeeded
because it felt that the groups are too large and
poorly defined to support a finding that the plaintiff
was singled out for personal attack x x x x
(citations omitted).
Our conclusion therefore is that the statements published by
petitioners in the instant case did not specifically identify nor
refer to any particular individuals who were purportedly the
subject of the alleged libelous publication. Respondents can
scarcely claim to having been singled out for social censure
pointedly resulting in damages.
A contrary view is expressed that what is involved in the
present case is an intentional tortious act causing mental
distress and not an action for libel. That opinion
invokes Chaplinsky v. New Hampshire22 where the U.S.
Supreme Court held that words heaping extreme profanity,
intended merely to incite hostility, hatred or violence, have
no social value and do not enjoy constitutional protection;
and Beauharnais v. Illinois23 where it was also ruled that hate
speech which denigrates a group of persons identified by
their religion, race or ethnic origin defames that group and
the law may validly prohibit such speech on the same
ground as defamation of an individual.
We do not agree to the contrary view articulated in the
immediately preceding paragraph. Primarily, an "emotional
distress" tort action is personal in nature, i.e., it is a civil
action filed by an individual24 to assuage the injuries to his
emotional tranquility due to personal attacks on his
character. It has no application in the instant case since no
particular individual was identified in the disputed article
of Bulgar. Also, the purported damage caused by the article,
assuming there was any, falls under the principle
of relational harm which includes harm to social
relationships in the community in the form of defamation; as
distinguished from the principle of reactive harm which
includes injuries to individual emotional tranquility in the form
of an infliction of emotional distress. In their complaint,
respondents clearly asserted an alleged harm to the
standing of Muslims in the community, especially to their
activities in propagating their faith in Metro Manila and in
other non-Muslim communities in the country.25It is thus
beyond cavil that the present case falls within the application
of the relational harm principle of tort actions for defamation,
rather than the reactive harm principle on which the concept
of emotional distress properly belongs.
Moreover, under the Second Restatement of the Law, to
recover for the intentional infliction of emotional distress the
plaintiff must show that: (a) The conduct of the defendant
was intentional or in reckless disregard of the plaintiff; (b)
The conduct was extreme and outrageous; (c) There was a
causal connection between the defendant's conduct and the
plaintiff's mental distress; and, (d) The plaintiff's mental
distress was extreme and severe.26
"Extreme and outrageous conduct" means conduct that is so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in civilized society. The
defendant's actions must have been so terrifying as naturally
to humiliate, embarrass or frighten the plaintiff. 27 Generally,
conduct will be found to be actionable where the recitation of
the facts to an average member of the community would
arouse his resentment against the actor, and lead him or her
to exclaim, "Outrageous!" as his or her reaction.28
"Emotional distress" means any highly unpleasant mental
reaction such as extreme grief, shame, humiliation,
embarrassment, anger, disappointment, worry, nausea,
mental suffering and anguish, shock, fright, horror, and
chagrin.29 "Severe emotional distress," in some jurisdictions,
refers to any type of severe and disabling emotional or
mental condition which may be generally recognized and
diagnosed by professionals trained to do so, including
posttraumatic stress disorder, neurosis, psychosis, chronic
depression, or phobia.30 The plaintiff is required to show,
among other things, that he or she has suffered emotional
distress so severe that no reasonable person could be
expected to endure it; severity of the distress is an element
of the cause of action, not simply a matter of damages.31
Any party seeking recovery for mental anguish must prove
more than mere worry, anxiety, vexation, embarrassment, or
anger. Liability does not arise from mere insults, indignities,
threats, annoyances, petty expressions, or other trivialities.
In determining whether the tort of outrage had been
committed, a plaintiff is necessarily expected and required to
be hardened to a certain amount of criticism, rough
language, and to occasional acts and words that are
definitely inconsiderate and unkind; the mere fact that the
actor knows that the other will regard the conduct as
insulting, or will have his feelings hurt, is not enough.32
Hustler Magazine v. Falwell33 illustrates the test case of a
civil action for damages on intentional infliction of emotional
distress. A parody appeared in Hustler magazine featuring
the American fundamentalist preacher and evangelist
Reverend Jerry Falwell depicting him in an inebriated state
having an incestuous, sexual liaison with his mother in an
outhouse. Falwell sued Hustler and its publisher Larry Flynt
for damages. The United States District Court for the
Western District of Virginia ruled that the parody was not
libelous, because no reasonable reader would have
understood it as a factual assertion that Falwell engaged in
the act described. The jury, however, awarded $200,000 in
damages on a separate count of "intentional infliction of
emotional distress," a cause of action that did not require a
false statement of fact to be made. The United States
Supreme Court in a unanimous decision overturned the jury
verdict of the Virginia Court and held that Reverend Falwell
may not recover for intentional infliction of emotional
distress. It was argued that the material might be deemed
outrageous and may have been intended to cause severe
emotional distress, but these circumstances were not
sufficient to overcome the free speech rights guaranteed
under the First Amendment of the United States Constitution.
Simply stated, an intentional tort causing emotional distress
must necessarily give way to the fundamental right to free
speech.
It must be observed that although Falwell was regarded by
the U.S. High Court as a "public figure," he was anindividual
particularly singled out or identified in the parody appearing
on Hustler magazine. Also, the emotional distress allegedly
suffered by Reverend Falwell involved a reactive interest
an emotional response to the parody which supposedly
injured his psychological well-being.
Verily, our position is clear that the conduct of petitioners
was not extreme or outrageous. Neither was the emotional
distress allegedly suffered by respondents so severe that no
reasonable person could be expected to endure it. There is
no evidence on record that points to that result.
Professor William Prosser, views tort actions on intentional
infliction of emotional distress in this manner34
There is virtually unanimous agreement that such
ordinary defendants are not liable for mere insult,
indignity, annoyance, or even threats, where the
case is lacking in other circumstances of
aggravation. The reasons are not far to seek. Our
manners, and with them our law, have not yet
progressed to the point where we are able to
afford a remedy in the form of tort damages for all
intended mental disturbance. Liability of course
cannot be extended to every trivial indignity x x x x
The plaintiff must necessarily be expected and
required to be hardened to a certain amount of
rough language, and to acts that are definitely
inconsiderate and unkind x x x The plaintiff cannot
recover merely because of hurt feelings.
Professor Calvert Magruder reinforces Prosser with this
succinct observation, viz:35
There is no occasion for the law to intervene in
every case where someone's feelings are hurt.
There must still be freedom to express an
unflattering opinion, and some safety valve must
be left through which irascible tempers may blow
off relatively harmless steam.
Thus, it is evident that even American courts are reluctant to
adopt a rule of recovery for emotional harm that would "open
up a wide vista of litigation in the field of bad manners," an
area in which a "toughening of the mental hide" was thought
to be a more appropriate remedy.36 Perhaps of greater
concern were the questions of causation, proof, and the
ability to accurately assess damages for emotional harm,
each of which continues to concern courts today.37
In this connection, the doctrines
in Chaplinsky and Beauharnais had largely been superseded
by subsequent First Amendment doctrines. Back in simpler
times in the history of free expression the Supreme Court
appeared to espouse a theory, known as the Two-Class
Theory, that treated certain types of expression as taboo
forms of speech, beneath the dignity of the First
Amendment. The most celebrated statement of this view was
expressed in Chaplinsky:
There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment
of which have never been thought to raise any
Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the
insulting or "fighting" words those which by their
very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well
observed that such utterances are no essential
part of any exposition of ideas, and are of such
slight social value as a step to truth that any
benefit that may be derived from them is clearly
outweighed by the social interest in order and
morality.
Today, however, the theory is no longer viable; modern First
Amendment principles have passed it by. American courts no
longer accept the view that speech may be proscribed
merely because it is "lewd," "profane," "insulting" or
otherwise vulgar or offensive.38 Cohen v. California39 is
illustrative: Paul Robert Cohen wore a jacket bearing the
words "Fuck the Draft" in a Los Angeles courthouse in April
1968, which caused his eventual arrest. Cohen was
convicted for violating a California statute prohibiting any
person from "disturb[ing] the peace x x x by offensive
conduct." The U.S. Supreme Court conceded that Cohen's
expletive contained in his jacket was "vulgar," but it
concluded that his speech was nonetheless protected by the
right to free speech. It was neither considered an
"incitement" to illegal action nor "obscenity." It did not
constitute insulting or "fighting" words for it had not been
directed at a person who was likely to retaliate or at
someone who could not avoid the message. In other words,
no one was present in the Los Angeles courthouse who
would have regarded Cohen's speech as a direct personal
insult, nor was there any danger of reactive violence against
him.
No specific individual was targeted in the allegedly
defamatory words printed on Cohen's jacket. The conviction
could only be justified by California's desire to exercise the
broad power in preserving the cleanliness of discourse in the
public sphere, which the U.S. Supreme Court refused to
grant to the State, holding that no objective distinctions can
be made between vulgar and nonvulgar speech, and that the
emotive elements of speech are just as essential in the
exercise of this right as the purely cognitive. As Mr. Justice
Harlan so eloquently wrote: "[O]ne man's vulgarity is another
man's lyric x x x words are often chosen as much for their
emotive as their cognitive force." 40 With Cohen, the U.S.
Supreme Court finally laid the Constitutional foundation for
judicial protection of provocative and potentially offensive
speech.
Similarly, libelous speech is no longer outside the First
Amendment protection. Only one small piece of the Two-
Class Theory in Chaplinsky survives U.S. courts continue
to treat "obscene" speech as not within the protection of the
First Amendment at all. With respect to the "fighting words"
doctrine, while it remains alive it was modified by the current
rigorous clear and present danger test. 41 Thus, in Cohen the
U.S. Supreme Court in applying the test held that there was
no showing that Cohen's jacket bearing the words "Fuck the
Draft" had threatened to provoke imminent violence; and that
protecting the sensibilities of onlookers was not sufficiently
compelling interest to restrain Cohen's speech.
Beauharnais, which closely followed the Chaplinsky doctrine,
suffered the same fate as Chaplinsky. Indeed,
whenBeauharnais was decided in 1952, the Two-Class
Theory was still flourishing. While concededly the U.S. High
Tribunal did not formally abandon Beauharnais, the seminal
shifts in U.S. constitutional jurisprudence substantially
undercut Beauharnais and seriously undermined what is left
of its vitality as a precedent. Among the cases that dealt a
crushing impact on Beauharnais and rendered it almost
certainly a dead letter case law are Brandenburg v.
Ohio,42 and, again, Cohen v. California.43 These decisions
recognize a much narrower set of permissible grounds for
restricting speech than did Beauharnais.44
In Brandenburg, appellant who was a leader of the Ku Klux
Klan was convicted under the Ohio Criminal Syndicalism
Statute for advocating the necessity, duty and propriety of
crime, sabotage, violence, or unlawful methods of terrorism
as a means of accomplishing industrial or political reforms;
and for voluntarily assembling with a group formed to teach
or advocate the doctrines of criminal syndicalism. Appellant
challenged the statute and was sustained by the U.S.
Supreme Court, holding that the advocacy of illegal action
becomes punishable only if such advocacy is directed to
inciting or producing imminent lawless action and is likely to
incite or produce such action.45 Except in unusual
instances, Brandenburg protects the advocacy of
lawlessness as long as such speech is not translated into
action.
The importance of the Brandenburg ruling cannot be
overemphasized. Prof. Smolla affirmed that
"Brandenburgmust be understood as
overruling Beauharnais and eliminating the possibility of
treating group libel under the same First Amendment
standards as individual libel."46 It may well be considered as
one of the lynchpins of the modern doctrine of free speech,
which seeks to give special protection to politically relevant
speech.
In any case, respondents' lack of cause of action cannot be
cured by the filing of a class suit. As correctly pointed out by
Mr. Justice Jose C. Vitug during the deliberations, "an
element of a class suit is the adequacy of representation. In
determining the question of fair and adequate representation
of members of a class, the court must consider (a) whether
the interest of the named party is coextensive with the
interest of the other members of the class; (b) the proportion
of those made parties as it so bears to the total membership
of the class; and, (c) any other factor bearing on the ability of
the named party to speak for the rest of the class.47
The rules require that courts must make sure that the
persons intervening should be sufficiently numerous to fully
protect the interests of all concerned. In the present
controversy, Islamic Da'wah Council of the Philippines, Inc.,
seeks in effect to assert the interests not only of the Muslims
in the Philippines but of the whole Muslim world as well.
Private respondents obviously lack the sufficiency of
numbers to represent such a global group; neither have they
been able to demonstrate the identity of their interests with
those they seek to represent. Unless it can be shown that
there can be a safe guaranty that those absent will be
adequately represented by those present, a class suit, given
its magnitude in this instance, would be unavailing."48
Likewise on the matter of damages, we agree that "moral
damages may be recovered only if the plaintiff is able to
satisfactorily prove the existence of the factual basis for the
damages and its causal connection with the acts complained
of,49 and so it must be, as moral damages although
incapable of pecuniary estimation are designed not to
impose a penalty but to compensate for injury sustained and
actual damages suffered.50 Exemplary damages, on the
other hand, may only be awarded if claimant is able to
establish his right to moral, temperate, liquidated or
compensatory damages.51 Unfortunately, neither of the
requirements to sustain an award for either of these
damages would appear to have been adequately established
by respondents."
In a pluralistic society like the Philippines where
misinformation about another individual's religion is as
commonplace as self-appointed critics of government, it
would be more appropriate to respect the fair criticism of
religious principles, including those which may be
outrageously appalling, immensely erroneous, or those
couched as fairly informative comments. The greater danger
in our society is the possibility that it may encourage the
frequency of suits among religious fundamentalists, whether
Christian, Muslim, Hindu, Buddhist, Jewish, or others. This
would unnecessarily make the civil courts a battleground to
assert their spiritual ideas, and advance their respective
religious agenda.
It need not be stressed that this Court has no power to
determine which is proper religious conduct or belief; neither
does it have the authority to rule on the merits of one religion
over another, nor declare which belief to uphold or cast
asunder, for the validity of religious beliefs or values are
outside the sphere of the judiciary. Such matters are better
left for the religious authorities to address what is rightfully
within their doctrine and realm of influence. Courts must be
viewpoint-neutral when it comes to religious matters if only to
affirm the neutrality principle of free speech rights under
modern jurisprudence where "[a]ll ideas are treated equal in
the eyes of the First Amendment even those ideas that
are universally condemned and run counter to constitutional
principles."52 Under the right to free speech, "there is no such
thing as a false idea. However pernicious an opinion may
seem, we depend for its correction not on the conscience of
judges and juries but on the competition of other
ideas."53 Denying certiorari and affirming the appellate court
decision would surely create a chilling effect on the
constitutional guarantees of freedom of speech, of
expression, and of the press.
WHEREFORE, the petition is GRANTED. The assailed
Decision of the Court of Appeals dated 27 August 1998 is
REVERSED and SET ASIDE, and the Decision of the RTC-
Br. 4, Manila, dismissing the complaint for lack of merit, is
REINSTATED and AFFIRMED. No pronouncement as to
costs. SO ORDERED.
Separate Opinions
VITUG, J ., concurring:
The innate right of a person to an unimpaired reputation and
good name is no less a constitutional imperative than that
which protects his life, liberty or property. Thus, the law
imposes upon him who attacks another's reputation, by
slanderous words or libelous publication, a liability to make
compensation for the injury done and the damages
sustained.1
Private respondent Islamic Da'wah Council of the
Philippines, Inc., a federation of more than 70 Muslim
religious organizations in the country, and the other named
respondents all claim, with understandable indignation, that
they have been defamed by an item published by petitioners
in Bulgar, a tabloid, circulated in the Metro Manila area. The
article reads:
"ALAM BA NINYO?
"Na ang mga baboy at kahit anong uri ng hayop sa
Mindanao ay hindi kinakain ng mga Muslim?
"Para sa kanila ang mga ito ay isang sagradong
bagay. Hindi nila ito kailangang kainin kahit na sila
pa ay magutom at mawalan ng ulam sa tuwing sila
ay kakain. Ginagawa nila itong Diyos at
sinasamba pa nila ito sa tuwing araw ng kanilang
pangingilin lalung-lalo na sa araw na tinatawag
nilang 'Ramadan'."
Private respondents, for themselves and in behalf of all
Muslims, filed the complaint before the trial court against
petitioners, alleging that the published article was
defamatory and an insult to respondents. The trial court
dismissed the complaint. On appeal, the Court of Appeals
reversed the decision of the lower court and ordered
petitioners to pay damages to private respondents.
Aggrieved, petitioners are now before the Court to assail the
findings of the Court of Appeals on the existence of the
elements of libel, the right of respondents to institute the
class suit, and the liability of petitioners for moral damages,
exemplary damages, attorney's fees and costs of suit.
The present controversy stems from a civil action for
damages and not from a criminal complaint. The Civil Code
recognizes the possibility of such a civil action either
pursuant to Article 26, paragraph (4), to the effect that
although it may not constitute a criminal offense, "vexing or
humiliating another on account of his religious beliefs, lowly
station in life, place of birth, physical defect, or other
personal condition," can give rise to a cause of action for
damages, or consonantly with Article 33 which provides that
in case of defamation, a civil complaint for damages, entirely
separate and distinct from the criminal case, may be brought
by the injured party. Both civil actions are based on tort
liability under common law and require the plaintiff to
establish that he has suffered personal damage or injury as
a direct consequence of the defendant's wrongful conduct. In
fine, it must be shown that the act complained of is vexatious
or defamatory of, and as it pertains to, the claimant, thereby
humiliating or besmirching the latter's dignity and honor.
Defined in simple terms, vexation is an act of annoyance or action16 without at all impairing the equally demanding right
irritation that causes distress or agitation. 2 Early American of free speech and expression, as well as of the press, under
cases have refused all remedy for mental injury, such as one the bill of rights.17
caused by vexation, because of the difficulty of proof or of
measurement of damages.3 In comparatively recent times,
If an article, for instance, states that "judges in the
however, the infliction of mental distress as a basis for an
Philippines are corrupt," such a general condemnation
independent tort action has been recognized. It is said that
cannot reasonably be interpreted to be pointing to each
"one who by extreme and outrageous conduct intentionally
judge or to a certain judge in the Philippines. Thus, no
or recklessly causes severe emotional distress to another is
particular magistrate can claim to have been disgraced or to
subject to liability for such emotional
have sustained an impaired reputation because of that
distress."4 Nevertheless, it has also been often held that
article. If, on the other hand, the article proclaims that
petty insult or indignity lacks, from its very nature, any
"judges in Metro Manila are corrupt," such statement of
convincing assurance that the asserted emotional or mental
derogatory conduct now refers to a relatively narrow group
distress is genuine, or that if genuine it is
that might yet warrant its looking into in an appropriate suit.
serious.5 Accordingly, it is generally declared that there can
And if the article accuses the "Justices of the Supreme
be no recovery for insults, 6 indignities or threats7 which are
Court" of corruption, then there is a specific derogatory
considered to amount to nothing more than mere
statement about a definite number of no more than fifteen
annoyances or hurt feelings.8 At all events, it would be
persons.
essential to prove that personal damage is directly suffered
by the plaintiff on account of the wrongful act of the
defendant. Jurisprudence would appear to suggest that in cases
permitting recovery, the group generally has 25 or fewer
members.18 When statements concern groups with larger
A kindred concept, albeit of greater degree of perversity,
composition, the individual members of that group would be
defamation, broadly defined, is an attack on the reputation of
hardput to show that the statements are "of and concerning
another, the unprivileged publication of false statements
them."19 Although no precise limits can be set as to the size
which naturally and proximately result in injury to another. 9 It
of a group or class that would be sufficiently small,
is that which tends to diminish the esteem, respect, goodwill
increasing size, at some point, would be seen to dilute the
or confidence in which a person is held, or to excite adverse,
harm to individuals and any resulting injury would fall
derogatory or unpleasant feelings or opinions against
beneath the threshold for a viable lawsuit. 20 This principle is
him.10 Defamation is an invasion of a "relational interest"
said to embrace two important public policies: 1) where the
since it involves the opinion which others in the community
group referred to is large, the courts presume that no
may have, or tend to have, of the plaintiff. 11 The Revised
reasonable reader would take the statements as so literally
Penal Code, although not the primary governing law in this
applying to each individual member; and 2) the limitation on
instance, provides an instructive definition of libel as being a
liability would satisfactorily safeguard freedom of speech and
form of defamation expressed in writing, print, pictures, or
expression, as well as of press, effecting a sound
signs,12 to wit: "A libel is a public and malicious imputation of
compromise between the conflicting fundamental interests
a crime, or vice or defect, real or imaginary, or any act,
involved in libel cases.21
omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is dead."13 Thus, no recovery was allowed where the remarks
complained of had been made about correspondence
schools, one school suing;22 or where there was imputation
While arguably, the article subject of the complaint could be
of criminality to a union, one member suing; 23 or where an
characterized as vexatious or defamatory and as imparting
attack was made on Catholic clergymen, one clergyman
an erroneous interpretation of a Muslim practice that tends to
suing.24
ridicule the Islamic faith, it is, however, impersonal on its
face, its language not being directed at any particular person
but to a large segment of society. In order that defamatory In Newsweek, Inc., vs. Intermediate Appellate Court,25 this
words can be actionable in court, it is essential that they are Court dismissed a class suit for scurrilous remarks filed by
personal to the party maligned, an ascertained or four incorporated associations of sugar planters in Negros
ascertainable individual.14 It is only then that plaintiff's Occidental in behalf of all sugar planters in that province,
emotions and/or reputation can be said to have been injured; against Newsweek, Inc., on the ground, among other things,
thus, the plaintiff, to recover, must show that he or she is the that the plaintiffs were not sufficiently ascribed to in the
person to whom the statements are directed.15 Declarations article published by the defendant. And so also it was in an
made about a large class of people cannot be interpreted to older case,26 where the Court ratiocinated that an article
advert to an identified or identifiable individual. Absent directed at a class or group of persons in broad language
circumstances specifically pointing or alluding to a particular would not be actionable by individuals composing the class
member of a class, no member of such class has a right of or group unless the statements were sweeping but, even
then, it would be highly probable, said the Court, that no
action could lie "where the body is composed of so large a
number of persons that common sense would tell those to
whom the publication was made that there was room for
persons connected with the body to pursue an upright and
law abiding course and that it would be unreasonable and
absurd to condemn all because of the actions of a part."
In the present case, the subject article relates to the entire
Muslim population and not just to the Islamic Da'wah Council
of the Philippines or to any of the individual respondents.
There is no direct reference or allusion to the federation or
any of its members, or to any of the individual complainants.
Respondents scarcely can claim having been singled out for
social censure pointedly resulting in damages. Islamic
Da'wah Council of the Philippines, Inc., itself, much like any
other artificial being or juridical entity, having existence only
in legal contemplation, would be devoid of any such real
feeling or emotion as ordinarily these terms are
understood,27 and it cannot have that kind of reputation that
an individual has that could allow it to sue for damages
based on impinged personal reputation.28
WHEREFORE, I vote to GRANT the petition and to SET
ASIDE the assailed decision of the Court of Appeals,
REINSTATING thereby the order of dismissal rendered by
the Regional Trial Court.
Dissenting Opinion
CARPIO, J ., dissenting:
I dissent not because the newspaper article in question is
libelous, but because it constitutes an intentional tortious act
causing mental distress to those whom private respondent
Islamic Da'wah Council of the Philippines; Inc. represents.
1. Nature of Action: Not a Libel but a Tort Case
Private respondents filed this class suit under Articles 19, 20,
21 and 26 of the Civil Code. Accordingly, private
respondents stated their case as follows:
"Statement of Case
The Civil Code of the Philippines provides:
'Every person must, in the exercise of his rights
and in the performance of his duties, act with
justice, give everyone his due and observe
honesty and good faith.' [Art. 19]
'Every person who, contrary to law, willfully or
negligently causes damage to another, shall
indemnify the latter for the same.' [Art. 20]
'Any person who willfully causes loss or injury to
another in a manner that is contrary to morals,
good customs or public policy shall compensate
the latter for the damage.' [Art. 21]
'Every person shall respect the dignity, personality,
privacy and peace of mind of his neighbor and
other persons. The following and similar acts,
though they may not constitute a criminal offense,
shall produce a cause of action for damages,
prevention and other relief:
(1) Prying into the privacy of another's
residence;
(2) Meddling with or disturbing the
private life or family relation of another;
(3) Intriguing to cause another to be
alienated from his friends;
(4) Vexing or humiliating another on
account of his religious belief, lowly
station in life, place of birth, physical
defect, or other personal condition.' [Art.
26]
It is on account of the foregoing provisions of our
Civil Code that plaintiffs brought to the court 'a
quo' a civil case for damages on account of a
published article at the editorial section of the
defendant newspaper x x x."1
Petitioners acknowledge that private respondents' principal
cause of action is based on tortious conduct when
petitioners state in their Petition that "[p]laintiffs rely heavily
on Article 26 of the Civil Code particularly par. 4 thereof."
Petitioners, however, assert that the newspaper article in
question has not caused mental anguish, wounded feelings,
moral shock, social humiliation or similar injury to private
respondents.2
Clearly, the instant case is not about libel which requires the
identification of the plaintiff in the libelous statement. If this
were a libel case under Article 30 3 of the Civil Code, which
authorizes a separate civil action to recover civil liability
arising from a criminal offense, I would agree that the instant
case could not prosper for want of identification of the private
respondents as the libeled persons. But private respondents
do not anchor their action on Article 30 of the Civil Code.
Private respondents insist that this case is principally about
tortious conduct under Article 26 of the Civil Code. Unlike the
action in Article 30 of the Civil Code which must arise from a
"criminal offense," the action under Article 26 "may not
constitute a criminal offense." Article 26, adopted from
American jurisprudence, covers several kinds of intentional
torts. Paragraph 4 of Article 26, which refers to acts
humiliating another for his religious beliefs, is embraced in
the tort known as intentional infliction of mental or emotional
distress. This case must be decided on the issue of whether
there was such tortious conduct, and not whether there was
defamation that satisfied the elements of the crime of libel.
II. The Tortious Act in Question
The newspaper article in question published by petitioners
states as follows:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa
Mindanao ay hindi kinakain ng mga Muslim? Para
sa kanila ang mga ito ay isang sagradong bagay.
Hindi nila ito kailangang kainin kahit na sila pa ay
magutom at mawalan ng ulam sa tuwing sila
kakain. Ginagawa nila itong Diyos at sinasamba
pa nila ito sa tuwing araw ng kanilang pangingilin
lalung-lalo na sa araw na tinatawag nilang
'Ramadan'."
Private respondents claim that the newspaper article, which
asserts that Muslims worship the pig as their god, was
published with intent to humiliate and disparage Muslims and
cast insult on Islam as a religion in this country. The
publication is not only grossly false, but is also the complete
opposite of what Muslims hold dear in their religion.
The trial court found that the newspaper article clearly
imputes a disgraceful act on Muslims. However, the trial
court ruled that the article was not libelous because the
article did not identify or name the plaintiffs. Declared the
trial court:
"There is no doubt that the subject article contains
an imputation of a discreditable 4 act when it
portrayed the Muslims to be worshipping the pig
as their god. Likewise, there is no doubt that the
subject article was published, the newspaper
'Bulgar' containing the same having been
circulated in Metro Manila and in other parts of the
country.
 The defendants did not dispute these facts x x x
However, x x x identity of the person is not
present.
It must be noted that the persons allegedly
defamed, the herein plaintiffs were not identified
with specificity. The subject article was directed at
the Muslims without mentioning or identifying the
herein plaintiffs. x x x x."
In their appeal to the Court of Appeals, private respondents
assailed the trial court for "deciding the case as a libel case
rather than a case for damages for violation of Articles 19,
20, 21 and 26 of the Civil Code." The Court of Appeals
reversed the decision of the trial court not on the basis of
Articles 19, 20, 21 and 26, but on the ground that the
newspaper article was libelous. Thus, the Court of Appeals
held:
"It is clear from the disputed article that the
defamation was directed at all adherents of the
Islamic faith. It stated that pigs were sacred and
idolized as god by members of the Muslim religion.
This libelous imputation undeniably applied to the
plaintiffs-appellants who are Muslims sharing the
same religious beliefs."
Thus, both the trial and appellate courts found the
newspaper article in question insulting and humiliating to
Muslims, causing wounded feelings and mental anguish to
believers of Islam. This is a finding of fact that the Court is
duty bound to respect.5 This finding of fact establishes that
petitioners have inflicted on private respondents an
intentional wrongful act humiliating persons because of
their religious beliefs. Like the trial and appellate courts, we
find the newspaper article in question dripping with extreme
profanity, grossly offensive and manifestly outrageous, and
devoid of any social value. The article evidently incites
religious hatred, discrimination and hostility against Muslims.
Private respondents have certainly suffered humiliation and
mental distress because of their religious beliefs. The only
question is whether the wrongful act committed by
petitioners, which does not constitute the crime of libel, is a
case of damnum absque injuria or an actionable tort under
paragraph 4, Article 26 of the Civil Code.
III. Why Article 26 of the Civil Code was Enacted
The Code Commission explained the inclusion of Article 26
in the Civil Code in this wise:
"The present laws, criminal or civil, do not
adequately cope with interferences and vexations
mentioned in Article 26.
The privacy of one's home is an inviolable right.
Yet the laws in force do not squarely and
effectively protect this right.
The acts referred to in No. 2 are multifarious, and
yet many of them are not within the purview of the
law in force. Alienation of the affection of another's
wife or husband, unless it constituted adultery or
concubinage, is not condemned by the law, much
as it may shock society. There are numerous
acts, short of criminal unfaithfulness, whereby the
husband or the wife breaks the marital vows, thus
causing untold moral suffering to the other spouse.
Why should not these acts be the subject matter of
a civil action for damages? In American law, they
are.
Again, there is meddling of so-called friends who
poison the mind of one or more members of the
family against the other members. In this manner
many a happy family is broken up or estranged.
Why should not the law try to stop this by creating
a civil action for damages?
Of the same nature is that class of acts specified
in No. 3: intriguing to cause another to be
alienated from his friends.
No less serious are the acts mentioned in No. 4:
vexing, or humiliating another on account of his
religious beliefs, lowly station in life, place of birth,
physical defect or other personal condition. The
penal laws against defamation and unjust vexation
are glaringly inadequate.
Religious freedom does not authorize anyone to
heap obloquy and disrepute upon another by
reason of the latter's religion.
Not a few of the rich people treat the poor with
contempt because of the latter's lowly station in
life. To a certain extent this is inevitable, from the
nature of the social make-up, but there ought to
be a limit somewhere, even when the penal laws
against defamation and unjust vexation are not
transgressed. In a democracy, such a limit must be
established. The courts will recognize it in each
case. Social equality is not sought by the legal
provision under consideration, but due regard for
decency and propriety.
Place of birth, of physical defect and other
personal conditions are too often the pretext of
humiliation cast upon other persons. Such
tampering with human personality, even though
the penal laws are not violated, should be the
cause of civil action.
The article under study denounces "similar acts"
which could readily be named, for they occur with
unpleasant frequency."6 (Emphasis supplied)
The intent of the Code Commission is quite clear: Article 26
specifically applies to intentional acts which fall short of
being criminal offenses. Article 24 itself expressly refers to
tortious conduct which "may not constitute criminal
offenses." The purpose is precisely to fill a gap or lacuna in
the law where a person who suffers injury because of a
wrongful act not constituting a crime is left without any
redress. Under Article 26, the person responsible for such
act becomes liable for "damages, prevention and other
relief." In short, to preserve peace and harmony in the family
and in the community, Article 26 seeks to eliminate cases
of damnum absque injuria in human relations.
Consequently, the elements that qualify the same acts as
criminal offenses do not apply in determining responsibility
for tortious conduct under Article 26. Where the tortious act
humiliating another because of his religious beliefs is
published in a newspaper, the elements of the crime of libel
need not be satisfied before the aggrieved person can
recover damages under Article 26. In intentional tort under
Article 26, the offensive statements may not even be
published or broadcasted but merely hurled privately at the
offended party.
In intentional infliction of mental distress, the gravamen of
the tort is not the injury to plaintiff's reputation, but the harm
to plaintiff's mental and emotional state. In libel, the gist of
the action is the injury to plaintiff's reputation. Reputation is
the community's opinion of what a person is. 7 In intentional
infliction of mental distress, the opinion of the community is
immaterial to the existence of the action although the court
can consider it in awarding damages. What is material is the
disturbance on the-mental or emotional state of the plaintiff
who is entitled to peace of mind. The offensive act or
statement need not identify specifically the plaintiff as the
object of the humiliation. What is important is that the plaintiff
actually suffers mental or emotional distress because he saw
the act or read the statement and it alludes to an identifiable
group to which he clearly belongs.
If one of the petitioners, without specifically naming private
respondents, hurled the same statement in private
separately to each of the private respondents, the act would
be actionable under Article 26 because it would cause
mental distress to each private respondent. The fact that the
statement was made publicly in fact makes matters worse
because the mental or emotional distress caused on private
respondents would even be aggravated by the publicity. This
merely illustrates that the requirements of libel have no
application in intentional torts under Article 26 where the
impression of the public is immaterial while the impact on the
mind or emotion of the offended party is all-important. That is
why in American jurisprudence the tort of intentional infliction
of mental or emotional distress is completely separate and
distinct8 from the twin torts of libel and slander.9
The majority opinion, however, cites the U.S. Supreme Court
decision in Hustler Magazine v. Falwell10 as authority that a
person "may not recover for intentional infliction of emotional
distress arising from a publication unless the publication
contained a false statement of fact that was made with
actual malice, that is, with a knowledge of falsity or reckless
disregard for the truth." The majority opinion's reliance
on Hustler is misplaced. The doctrine in Hustler applies only
to public figures, and the U.S. Supreme Court found that
"respondent Falwell is a 'public figure' for purposes of First
Amendment law." The U.S. Supreme Court held
in Hustler that
"We conclude that public figures and public
officials may not recover for the tort of intentional
infliction of emotional distress by reason of
publication such as the one here at issue without
'a showing in addition that the publication contains
a false statement of fact which was made with
'actual malice,' i.e., with knowledge that the
statement was false or with reckless disregard as
to whether or not it was true. x x x." (Emphasis
supplied)
Evidently, Hustler allows recovery for intentional infliction of
emotional distress if the aggrieved party is a private person
and not a public figure even if there is no showing that the
false statement was made with actual malice. In the instant
case, private respondents are not public figures or public
officials but ordinary private individuals represented by
private respondent Islamic Da'wah Council of the
Philippines, Inc.
IV. Constitutional Guarantee of 'Full Respect for Human
Rights'
The 1987 Constitution provides that "[t]he State values the
dignity of every human person and guarantees full respect
for human rights."11 The Constitution created a Commission
on Human Rights with the function, among others, to
"[M]onitor the Philippine Government's compliance with
international treaty obligations on human rights."12 The
framers of the Constitution made it clear that the term
"human rights" as used in the Constitution referred to the
civil and political rights embodied in the International
Covenant on Civil and Political Rights 13 to which the
Philippines is a signatory. This is clear from the following
exchange in the deliberations of the Constitutional
Commission:
"MR. GARCIA: But it does not mean that we will
refer to each and every specific article therein, but
only to those that pertain to the civil and politically
related, as we understand it in this Commission on
Human Rights.
MR. GUINGONA: Madam President, I am not
clear as to the distinction between social and civil
rights.
MR. GARCIA: There are two international
covenants: the International Covenant (on) Civil
and Political Rights and the International Covenant
on Economic, Social and Cultural Rights. The
second covenant contains all the different rights
the rights of labor to organize, the right to
education, housing, shelter, etcetera.
MR. GUINGONA: So we are just limiting at the
moment the sense of the committee to those the
Gentleman has specified.
MR. GARCIA: Yes, to civil and political rights.
MR. GUINGONA: Thank you."14 (Emphasis
supplied)
Article 20 (2) of the International Covenant on Civil and
Political Rights provides that "[a]ny advocacy of x x
xreligious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by
law." The Human Rights Committee created under the
Covenant, in its 1983 Nineteenth Session, reported to
member states that:
"1. x x x In view of the nature of article 20, States
parties are obliged to adopt the necessary
legislative measures prohibiting the actions
referred to therein. However, the reports have
shown that in some States such actions are
neither prohibited by law nor are appropriate
efforts intended or made to prohibit them. Further,
many reports failed to give sufficient information
concerning the relevant national legislation and
practice.
2. x x x For article 20 to become fully effective
there ought to be a law making it clear that
propaganda and advocacy as described therein
are contrary to public policy and providing for an
appropriate sanction in case of violation. x x x ."15
The Covenant, being an international treaty to which the
Philippines is a signatory, is part of the country's municipal
law.16 The Covenant carries great weight in the interpretation
of the scope and meaning of the term "human rights" as
used in the Constitution. Unquestionably, the framers of the
Constitution intentionally referred to the civil and political
rights embraced in the Covenant in describing the term
"human rights." The Constitution even mandates the
independent Commission on Human Rights to monitor the
compliance of the Philippine Government, which includes the
judiciary, with its treaty obligations under the Covenant.
Paragraph 4, Article 26 of the Civil Code makes civilly liable
any person who humiliates another because of his religious
beliefs. This is just a soft prohibition of advocacy of religious
hatred that incites discrimination, hostility or violence, the act
the Covenant seeks to curb and which the Philippine
Government has undertaken to declare unlawful. Other
countries that signed the Covenant have criminalized the
acts prohibited under the Covenant. Since our ratification of
the Covenant in 1986, the Philippines has not enacted any
special legislation to enforce the provisions of the Covenant,
on the ground that existing laws are adequate to meet the
requirements of the Covenant. There is no other law, except
paragraph 4, Article 26 of the Civil Code, that can provide a
sanction against intentional conduct, falling short of a
criminal act, advocating religious hatred that incites hostility
between Muslims and Christians in this country.
If we are to comply in good faith with our treaty obligations
under the Covenant, as the Constitution expressly mandates
the Philippine Government, we must give redress under
Article 26 to the outrageous profanity suffered by private
respondents. Our Constitution adopts the generally accepted
principles of international law as part of the law of the
land. Pacta sunt servanda every treaty in force binds the
parties who must comply with the treaty in good faith 17 is
one such principle. Thus, if we refuse to apply Article 26 to
the instant case, then we admit that we have no law to
enforce the Covenant. In effect, we admit non-compliance
with the Covenant.
The Supreme Court of Canada, in interpreting Canada's
obligation under the Covenant, explained in R. v. Keegstra:18
"C.E.R.D. (Convention on the Elimination of All
Forms of Racial Discrimination) and I.C.C.P.R.
(International Covenant on Civil and Political
Rights) demonstrate that the prohibition of hate
promoting expression is considered to be not only
compatible with a signatory nation's guarantee of
human rights, but is as well an obligatory aspect of
this guarantee. Decisions under the European
 Convention for the Protection of Human Rights
and Fundamental Freedoms are also of aid in
illustrating the tenor of the international
community's approach to hate propaganda and
free expression. This is not to deny that finding the
correct balance between prohibiting hate
propaganda and ensuring freedom of expression
has been a source of debate internationally
(see, e.g., Nathan Lerner, The U.N. Convention on
the Elimination of All Forms of Racial
Discrimination (1980), at pp. 43-54). But despite
debate Canada, along with other members of the
international community, has indicated a
commitment to prohibiting hate propaganda, and
in my opinion this court must have regard to that
commitment in investigating the nature of the
government objective behind s. 319(2) of the
Criminal Code. That the international community
has collectively acted to condemn hate
propaganda, and to oblige State Parties to
C.E.R.D. and I.C.C.P.R. to prohibit such
expression, thus emphasizes the importance of
the objective behind s. 319(2) and the principles of
equality and the inherent dignity of all persons that
infuse both international human rights and the
Charter."
As a signatory to the Covenant, the Philippines is, like,
Canada, obligated under international law and the 1987
Constitution to protect the inherent dignity and human rights
of all its citizens.
V. Freedom of Expression and Profane Utterances
The blatant profanity contained in the newspaper article in
question is not the speech that is protected by the
constitutional guarantee of freedom of expression. Words
that heap extreme profanity, intended merely to incite
hostility, hatred or violence, have no social value and do not
enjoy constitutional protection. As explained by the United
States Supreme Court in the landmark case of Chaplinsky v.
New Hampshire:19
"Allowing the broadest scope to the language and
purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not
absolute at all times and under
circumstances. There are certain well-defined and
narrowly limited classes of speech, the prevention
and punishment of which has never been thought
to raise any Constitutional problem. These include
the lewd and obscene, the profane, the libelous,
and the insulting or 'fighting' words those which
by their very utterance inflict injury or tend to incite
an immediate breach of the peace. It has been
well observed that such utterances are no
essential part of any exposition of ideas, and are
of such slight social value as a step to truth that
any benefit that may be derived from them is
clearly outweighed by the social interest in order
and morality. Resort to epithets or personal abuse
is not in any proper sense communication of
information or opinion safeguarded by the
Constitution, and its punishment as a criminal act
would raise no question under that instrument."
(Emphasis supplied)
Chaplinsky expressly includes profane utterances as
belonging to the narrowly limited classes of speech that
arenot constitutionally protected. Profane utterances, like
asserting that Muslims worship the pig as their God, have no
social value meriting constitutional protection. Black's Law
Dictionary (6th Ed.) defines the words "profane" and
"profanity" as follows:
"Profane. Irreverence toward God or holy things.
Writing, speaking, or acting, in manifest or implied
contempt of sacred things. Town of Torrington v.
Taylor, 59 Wyo. 109, 137 P.2d 621, 624; Duncan v.
U.S., C.C.A. Or., 48 F.2d 128, 133. That which has
not been consecrated."
"Profanity. Irreverence towards sacred things;
particularly, an irreverent and blasphemous use of
the name of God. Vulgar, irreverent, or coarse
language. It is a federal offense to utter an
obscene, indecent, or profane language on radio.
18 U.S.C.A. 1464. See also Obscenity."
The majority opinion states that the doctrine
in Chaplinsky "had largely been superseded by subsequent
First Amendment doctrines." The majority opinion then cites
the 1971 case of Cohen v. California 20 as an "illustrative"
case that "American courts no longer accept the view that
speech may be proscribed merely because it is 'lewd,'
'profane,' 'insulting' or otherwise vulgar or offensive."
However, Hustler Magazine v. Falwell,21 a 1988 case which
the majority opinion also cites, clearly explains the state of
American law on this matter, thus:
"Admittedly, these oft-repeated First Amendment
principles, like other principles, are subject to
all
limitations. We recognized in Pacifica
Foundation that speech that is 'vulgar, offensive,
and shocking' is 'not entitled to absolute
constitutional protection under all circumstances.'
In Chaplinsky v. New Hampshire, we held that that
a State could lawfully punish an individual for the
use of insulting 'fighting words' those which by
their very utterance inflict injury or tend to incite an
immediate breach of the peace.' These limitations
are but recognition of the observation in Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc. 472
U.S. 749 (1985) that this Court has 'long
recognized that not all speech is of equal First
Amendment importance.' x x x ." [other citations
omitted] x x x."
Indeed, while democratic societies maintain a deep
commitment to the principle that debate on public issues
should be uninhibited, robust and wide open, this free
debate has never been meant to include libelous, obscene
or profane utterances against private individuals. 22 Clearly,
the newspaper article in question, dripping with extreme
profanity, does not enjoy the protection of the constitutional
guarantee of freedom of speech.
VI. Court's Duty and Power to Enforce Constitutional Rights
The 1987 Constitution has conferred on the Court the power
to "[p]romulgate rules concerning the protection and
enforcement of constitutional rights." This is an innovation in
the 1987 Constitution to insure, in the words of former Chief
Justice Roberto R. Concepcion, one of the framers of the
Constitution, that "the protection and enforcement of these
constitutional rights is something that the courts have to
consider in the exercise of their judicial power. 23 This
provision stresses that constitutional rights, whether found in
the Bill of Rights or in other provisions of the Constitution like
in the Declaration of Principles and State Policies, are "not
merely declaratory but are also enforceable."24
One such right, the enforcement and protection of which is
expressly guaranteed by the State under the Constitution, is
the right to "full respect for human rights." The trial and
appellate courts have found that private respondents'
religious beliefs and practices have been twisted, ridiculed
and vilified by petitioners. This is a clear violation of the
human rights of private respondents under the Constitution
and the International Covenant on Civil and Political Rights.
It now becomes the duty of the Court, as the guardian of the
fundamental rights of the people, to exercise its power to
protect and enforce the constitutional rights of private
respondents.
The Court, pursuant to its rule making power, can require
that in actions like the instant case, the plaintiffs must bring a
class suit. This will avoid multiplicity of suits considering the
numerous potential plaintiffs all over the country. A judgment
in a class suit, whether favorable or unfavorable to the class,
is binding under the res judicataprinciple on all members of
the class whether or not they were before the court. 25 This
rule will address the fear that cases will swamp the courts all
over the country if profanities against religious groups are
made actionable under Article 26.
VII. The Special Circumstance of Muslim Secession in the
South
Limitations on freedom of expression have always been
rooted on special circumstances confronting a society in its
historical development. In the 1950s, faced with rising racial
tension in American society, the U.S Supreme Court ruled
in Beauharnais v. Illinois26 that hate speech which denigrates
a group of persons defined by their religion, race or ethnic
origin defames that group and the law may validly prohibit
such speech on the same ground as defamation of an
individual. This was the only time that the U.S. Supreme
Court upheld group libel, and since then, there has been a
consistent retreat from this doctrine as blacks and other
ethnic groups became more assimilated into the mainstream
of American society. Beauharnais expressly acknowledged
that race riots and massive immigration of unassimilated
ethnic groups justified the legislature in "punishing x x x
libels directed at designated collectives and flagrantly
disseminated."
The majority opinion states also that Beauharnais has been
superseded by Brandenburg v. Ohio."27 The majority opinion
explains that Brandenburg, a 1969 decision, ruled that
"advocacy of illegal action becomes punishable only if such
advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action."
While Beauharnais has been apparently weakened by
subsequent decisions of the U.S. Supreme Court, it was not
overturned in Brandenburg which did not even cite or
mention Beauharnais. What Brandenburgoverturned
was Whitney v. California,28 thus
"Accordingly, we are here confronted with a statute
which, by its own words and as applied, purports
to punish mere advocacy and to forbid, on pain of
criminal punishment, assembly with others merely
to advocate the described type of action. Such a
statute falls within the condemnation of the First
and Fourteenth Amendments. The contrary
teaching of Whitney v. California, supra, cannot be
supported, and that decision is therefore
overruled." (Emphasis supplied)
In any event, Brandenburg involved the constitutionality of a
criminal statute which sought to punish the mere advocacy
of violence as a means to accomplish industrial or political
reform. This is distinctly different from the instant case, which
involves profane utterances that have long been recognized
as devoid of social value and outside the purview of
constitutionally protected speech.29
In 1990, the Canadian Supreme Court, in R. v.
Keegstra,30 upheld a law criminalizing hate speech toward
any section of the public distinguished by color, race, religion
or ethnic origin. The Canadian Supreme Court rejected the
clear and present danger test of the U.S. Supreme Court,
stating that it did not address the psychological trauma hate
propaganda causes and the subtle and incremental way
hate propaganda works. The Canadian Supreme Court
found the U.S. Supreme Court's Beauharnais decision more
reflective of Canadian values rather than later U.S. decisions
that weakened Beauharnais. The Canadian Supreme Court
handed down Keegstra at a time when Canada was
becoming a multi-racial society following the influx of
immigrants of different color, ethnic origin and religion. The
following passages in Keegstra are instructive:
"A myriad of sources both judicial and academic
offer reviews of First Amendment jurisprudence
as it pertains to hate propaganda. Central to most
discussions is the 1952 case of Beauharnais v.
Illinois, where the Supreme Court of the United
States upheld as constitutional a criminal statute
forbidding certain types of group defamation.
Though never overruled, Beauharnais appears to
have been weakened by later pronouncements of
the Supreme Court (see, e.g., Garrison v.
Louisiana, 379 U.S. 64 (1964); Ashton v.
Kentucky, 384 U.S. 195 (1966); New York Times
Co. v. Sullivan, 376 U.S. 254 1964); Brandenburg
v. Ohio, 395 U.S. 444 (1969); and Cohen v.
California, 403 U.S. 15 (1971)). The trend reflected
in many of these pronouncements is to protect
offensive, public invective as long as the speaker
has not knowingly lied and there exists no clear
and present danger of violence or insurrection.
xxx xxx xxx
The question that concerns us in this appeal is
not, of course, what the law is or should be in the
United States. But it is important to be explicit as
to the reasons why or why not American
jurisprudence may be useful in the s. 1 analysis of
s. 319(2) of the Criminal Code. In the United
States, a collection of fundamental rights has been
constitutionally protected for over 200 years. The
resulting practical and theoretical experience is
immense, and should not be overlooked by
Canadian courts. On the other hand, we must
examine American constitutional law with a critical
eye, and in this respect La Forest J. has noted
in R. v. Rahey, (1987) 1 S.C.R. 588 at 639:
'While it is natural and even desirable for
Canadian courts to refer to American
constitutional jurisprudence in seeking
to elucidate the meaning of Charter
guarantees that have counterparts in the
United States Constitution, they should
be wary of drawing too ready a parallel
between constitutions born to different
countries in different ages and in very
different circumstances. . .'
Canada and the United States are not alike in
every way, nor have the documents entrenching
human rights in our two countries arisen in the
same context. It is only common sense to
recognize that, just as similarities will justify
borrowing from the American experience,
differences may require that Canada's
constitutional vision depart from that endorsed in
the United States." (Other citations omitted)
xxx xxx xxx
First, it is not entirely clear that Beauharnais must
conflict with existing First Amendment doctrine.
Credible arguments have been made that later
Supreme Court cases do not necessarily erode its
legitimacy (see, e.g., Kenneth Lasson, "Racial
Defamation as Free Speech: Abusing the First
Amendment" (1985), 17 Colum. Human Rights L.
Rev. 11). Indeed, there exists a growing body of
academic writing in the United States which
evinces a stronger focus upon the way in which
hate propaganda can undermine the very values
which free speech is said to protect. This body of
writing is receptive to the idea that, were the issue
addressed from this new perspective, First
Amendment doctrine might be able to
accommodate statutes prohibiting hate
propaganda (see, e.g., Richard Delgado, "Words
That Wound: A Tort Action for Racial Insults,
Epithets, and Name-Calling" (1982), 17 Harv.
C.R.-C.L. Law Rev. 133; Irving Horowitz, "Skokie,
the ACLU and the Endurance of Democratic
Theory" (1979), 43 Law & Contemp. Prob. 328;
Lasson, op. cit., at pp. 2030; Mari Matsuda,
"Public Response to Racist Speech: Considering
the Victim's Story," (1989), 87 Mich. L. Rev. 2320,
at p. 2348; "Doe v. University of Michigan: First
Amendment Racist and Sexist Expression on
Campus Court Strikes Down University Limits
on Hate Speech" (1990), 103 Harv. L. Rev. 1397)."
In deciding Keegstra, the Canadian Supreme Court also
relied on Canada's treaty obligations under the United
Nations International Covenant on Civil and Political Rights
which requires signatory states to prohibit any "advocacy of
x x x religious hatred that constitutes incitement to
discrimination, hostility or violence." During the negotiations
of the Covenant, the United States objected to this provision
on free speech grounds. When it finally ratified the
Covenant, the United States made a reservation rejecting
this provision insofar as it conflicts with U.S. constitutional
protections.31 The Covenant opened for ratification on
December 19, 1966 and entered into force on March 23,
1976. The Philippines ratified the Covenant in 1986 without
any reservation, just like Canada. The 1987 Constitution of
the Philippines even created a Commission on Human
Rights to "[M]onitor the Philippine Government's compliance
with international treaty obligations on human rights."
Obviously, Canada and the Philippines are alike in their
obligations under the Covenant, but the United States is
differently situated.32
In our country, there has been a long festering and bloody
Muslim secessionist movement in the South, fueled not only
by poverty but also by the palpable feeling among Muslims
that the Christian majority is not treating Muslims fairly.
Private respondents in the instant case, despite the
outrageous profanity hurled at them by petitioners, chose not
to join their secessionist brethren in the armed struggle but
instead decided to petition our courts for legal redress of
their grievance. They could have easily retaliated by flinging
their own blasphemous invectives against the Christian
religion. They did not, realizing perhaps that answering
profanity with more profanity would mean answering hatred
with more hatred, further dividing rather than unifying the
Filipino nation.
Just last November of 2002, a Christian newspaper in
Nigeria where the Miss World contest was being held opined
that the Prophet Mohammed would have approved of the
beauty contest. The newspaper stated: "What would
Mohammed think? In all honesty, he would have probably
chosen a wife from one of them." These words provoked
bloody rioting in Nigeria among Muslims who felt insulted by
the article. Hundreds died in the religious riots. Yet the
offensive article in the Nigerian newspaper pales in
comparison to the utterly profane newspaper article in the
instant case.
Indeed, private respondent Islamic Da'wah Council of the
Philippines, a federation of more than 70 Muslim religious
organizations in the Philippines, deserves commendation for
bringing this case before our courts for a peaceful and legal
resolution of the issue. Private respondents have placed
their trust and faith in our courts, knowing and insisting that
they are entitled to a just remedy under paragraph 4, Article
26 of the Civil Code. It is time to breathe life to this long
dormant provision of the Civil Code, to give even just
a token redress to religious minorities who suffer mental and
emotional distress from mindless profanity committed by
irresponsible persons belonging to the religious majority. In
the process we will contribute in avoiding a further cleavage
in the fabric of our nation, and demonstrate to our Muslim
brothers that their grievances can be redressed under the
rule of law.
The instant case does not even call for a re-examination of
the clear and present danger test which we have adopted in
this jurisdiction in determining the constitutionality of
legislation that impinges on civil liberties. 33 Even under the
clear and present danger test, profane utterances are not
constitutionally protected at least with respect to profanities
directed against private individuals. The special
circumstance involving the Muslim secessionist movement in
the South should make us more sensitive to the grievances
of our Muslim brothers who continue to have faith in the rule
of law in this country.
Since the peace of mind of private respondents has been
violated by the publication of the profane article in question,
Article 26 of the Civil Code mandates that the tortious
conduct "shall produce a cause of action for damages,
prevention and other relief." Article 2219 of the same Code
provides that "[M]oral damages may be recovered in x x x
actions referred to in Articles 21, 26 x x x ." Private
respondents are entitled to moral damages because, as duly
established by the testimonies of prominent
Muslims,34 private respondents suffered emotional distress
which was evidently the proximate result of the petitioners'
wrongful publication of the article in question.35
VII. Conclusion
Almost thirty years ago, I had occasion to write about Article
26 in this wise:
"At the time Article 26 was lifted by the Code
Commission from American jurisprudence, many
of the rights embodied therein were not yet widely
accepted by American courts, and in fact even
now at least one, the right to privacy, is still
struggling to gain recognition in some states.
While we have been quick to leapfrog American
state decisions in recognizing such rights, we
have, however, been painfully slow in galvanizing
the same in actual cases. To date Article 26 stands
almost as a mere decorative provision in our
statutes; but it may be harnessed fruitfully
anytime."36
Now is the time to apply this provision of law since the
instant case falls clearly within paragraph 4 of Article 26.
Applying Article 26 will not undermine freedom of speech
since the profane publication in question belongs to the class
of speech that clearly does not enjoy constitutional
protection. Applying Article 26 demonstrates good faith
compliance with our treaty obligations under the International
Covenant on Civil and Political Rights. Applying Article 26
implements the constitutional policy that the "State values
the dignity of every human person and guarantees full
respect for human rights." Applying Article 26 constitutes
compliance by the Court of its constitutional duty to protect
and enforce constitutional rights. Applying Article 26 will help
bind the wounds that mindless profanities inflict on religious
minorities in violation of their human rights.
Accordingly, I vote to dismiss the petition and affirm the
award by the Court of Appeals of P50,000.00 moral
damages, P10,000.00 exemplary damages, and P10,000.00
attorney's fees to respondent Islamic Da'wah Council of the
Philippines, Inc. based on paragraph 4, Article 26 of the Civil
Code.
Dissenting Opinion
AUSTRIA-MARTINEZ, J., dissenting:
I vote to affirm the assailed decision of the Court of Appeals
with certain modifications.
For a proper perspective of the issues involved in the
present petition, it must be emphasized that the portion of
the subject article which alludes to the Muslims as not eating
pork because it is dirty is not the bone of contention of
respondents, because admittedly, the Muslims may eat pork
if driven by necessity, as expressed in the Quran, to wit:
"Allah has forbidden you only what dies of itself
and blood and the flesh of swine and that over
which any other (name) than (that of) Allah has
been invoked. Then, whoever is driven by
necessity, not desiring, nor exceeding the limit, no
sin is upon him."1
The focal point of private respondents' claim for damages is
the insult heaped upon them because of the malicious
publication that the Muslims worship the pig as their God
which is absolutely contrary to their basic belief as Muslims
that there is only one God they call Allah, and, that the
greatest sin in Islam is to worship things or persons other
than Allah.2
Petitioners are liable for damages both under Articles 33 and
26(4) of the Civil Code. The instances that can be brought
under Article 26 may also be subject to an action for
defamation under Article 33. In such a case, the action
brought under Article 26 is an alternative remedy, and the
plaintiff can proceed upon either theory, or both, although he
can have but one recovery for a single instance of publicity. 3
Article 33 of the Civil Code provides:
"Article 33. In cases of defamation, fraud and
physical injuries, a civil action for damages,
entirely separate and distinct from the criminal
action, may be brought by the injured party. Such
civil action shall proceed independently of the
 criminal prosecution, and shall require only a
preponderance of evidence." (Emphasis supplied)
Necessarily, Article 353 of the Revised Penal Code comes
into play. In the present civil case, it is necessary that
respondents are able to establish by preponderance of
evidence the following elements of defamation:
"1. That there must be an imputation of a crime, or
of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance.
"2. That the imputation must be made publicly.
"3. That it must be malicious.
"4. That the imputation must be directed at a
natural or juridical person, or one who is dead.
"5. That the imputation must tend to cause the
dishonor, discredit or contempt of the person
defamed."4
An allegation is considered defamatory if it ascribes to a
person the commission of a crime, the possession of a vice
or defect, real or imaginary, or any act, omission, condition,
status or circumstance which tends to dishonor or discredit
or put him in contempt, or which tends to blacken the
memory of one who is dead.5
As a general rule, words, written or printed, are libelous per
se if they tend to expose a person to public hatred,
contempt, ridicule, aversion, or disgrace, induce an evil
opinion of him in the minds of right thinking persons, and
deprive him of their friendly intercourse in society, regardless
of whether they actually produce such results.6Otherwise
stated; words published are libelous if they discredit plaintiff
in the minds of any considerable and respectable class in
the community, taking into consideration the emotions,
prejudices, and intolerance of mankind.7 It has been held
that it is not necessary that the published statements make
all or even a majority of those who read them think any less
of the person defamed, but it is enough if a noticeable part of
those who do read the statements are made to hate,
despise, scorn or be contemptuous of the person concerning
whom the false statements are published.8
Thus, in order to be libelous per se, the defamatory words
must be of such a nature that the court can presume as a
matter of law that they will tend to disgrace and degrade the
person or hold him up to public hatred, contempt, ridicule or
cause him to be shunned and avoided; in other words, they
must reflect on his integrity, his character, and his good
name and standing in the community, and tend to expose
him to public hatred, contempt, or disgrace. 9 The imputation
must be one which tends to affect plaintiff in a class of
society whose standard of opinion the court can
recognize.10 It is not sufficient, standing alone, that the
language is unpleasant and annoys or irks plaintiff, and
subjects him to jests or banter, so as to affect his feelings.11
In the present case, it is evident that the subject article
attributes a discreditable or dishonorable act or condition to
all Muslims in general, a derision of the religious beliefs of
the Muslims and of the objectives of respondent Council to
herald the truth about Islam, in particular. The portion of the
assailed article which declares that the Muslims worship the
pigs as God is obnoxiously contrary to the basic belief of the
Muslims.
Thus, the article is not only an imputation of irreligious
conduct but also a downright misrepresentation of the
religious beliefs of Muslims. It has been held that
scandalous matter is not necessary to make a libel; it is
enough if the defendant induces an ill opinion to be held of
the plaintiff, or to make him contemptible or ridiculous; 12 or
that the imputation tends to cause dishonor, discredit or
contempt of the offended party.13
Petitioners' stance that the article "Alam Ba Ninyo?" is but an
expression of belief or opinion does not justify said
publication. It cannot be considered as a mere information
being disseminated. Petitioners' defense that the article itself
was merely a contribution of a reader, or that the writer was
soliciting opinion from the readers, does not hold water,
since the article did not in any way refer to such
circumstance. Verily, the article, read as a whole with the
other paragraphs, calls the attention of the readers to a
statement of fact, not fiction, and that the writer speaks with
authority on the subject matter. Bulgar in fact prides itself as
being the "Pahayagan Ng Katotohanan".
Significantly, liability for libel does not depend on the
intention of the defamer, but on the fact of the
defamation.14In matters of libel, the question is not what the
writer of an alleged libel means, but what is the meaning of
the words he has used.15 The meaning of the writer is quite
immaterial. The question is, not what the writer meant, but
what he conveyed to those who heard or read.16
In other words, it is not the intention of the speaker or writer,
or the understanding of the plaintiff or of any particular
hearer or reader, by which the actionable quality of the
words is to be determined. It is the meaning that the words in
fact conveyed, rather than the effect which the language
complained of was fairly calculated to produce and would
naturally produce on the minds of persons of reasonable
understanding, discretion, and candor, taking into
consideration accompanying explanations and surrounding
circumstances which were known to the hearer or reader.
The alleged defamatory statement should be construed not
only as to the expression used but also with respect to the
whole scope and apparent object of the writer.17
Want of intention to vilify does not render an objectionable
publication any the less a libel and a publication is not
excused by the publisher's ignorance that it contains libelous
matter.18 The state of mind of the person who publishes a
libel is immaterial in determining liability. The law looks at the
tendency and consequences of the publication rather than
the motive or intention of the writer or publisher. 19 It does not
signify what the motive of the person publishing the libel
was, or whether he intended it to have a libelous meaning or
not.20 The defendant may not have intended to injure the
plaintiff's reputation at all and he may have published the
words by mistake or inadvertence, 21 or in jest, or without
intending to refer, or knowing that he was referring, to the
plaintiff, or any existing person, or again he may have been
actuated by the best motives in publishing the words, but
such facts will usually afford the defendant no defense,
though they may be urged in mitigation of damages.22
Tested with the foregoing principles of law, there is no doubt
that the article in question is defamatory under Article 33 of
the Civil Code. If the imputation is defamatory, 23 the Court
has held that malice is presumed and the burden of
overcoming the presumption of malice by mere
preponderance of evidence rested on the petitioners.
A careful examination of the records of the case does not
reveal any cogent reason that would set aside the
presumption of malice. In fact, there is convincing evidence
that the publication of the assailed article was malicious, as
more extensively discussed in the latter portion of herein
opinion.
Furthermore, there is no showing that the instant case falls
under any of the exceptions provided for in Article 354 of the
Revised Penal Code, to wit:
"Art. 354. Requirement of publicity. Every
defamatory imputation is presumed to be
malicious, even if it be true, if no good intention
and justifiable motive for making it is shown,
except in the following cases:
"1. A private communication made by any person
to another in the performance of any legal, moral
or social duty; and
"2. A fair and true report, made in good faith,
without any comments or remarks, of any judicial,
legislative or other official proceedings which are
not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or
 of any other act performed by public officers in the
exercise of their functions."
Consequently, there is no compelling reason to disregard the
findings of the Court of Appeals that no evidence was
presented to overcome said presumption of malice.
On the matter of publication, there is no dispute that the
same is present, as the subject article was admittedly
published in the newspaper "Bulgar" which was circulated in
Metro Manila and in other parts of the country.
It must be emphasized that not only did both the trial court
and the appellate court find that the subject article was
published, they also held that the subject article contains an
imputation of a discreditable act when it portrayed the
Muslims to be worshipping the pig as their god.
But the trial court and the appellate court differed as to the
presence of the element of the identity of the persons
defamed. While the trial court held that the libelous article
does not identify the personalities of the persons defamed
and therefore respondents had no cause of action, the Court
of Appeals ruled that the Muslims were the defamed persons
and respondent IDCP has the requisite personality to sue for
damages. The appellate court is right.
Specific identity of the person defamed means that the third
person who read or learned about the libelous article must
know that it referred to the plaintiff. 24 In order to maintain a
libel suit, it is essential that the victim is identifiable although
it is not necessary that he be named; it is likewise not
sufficient that the offended party recognized himself as the
person attacked or defamed, but it must be shown that at
least a third person could identify him as the object of the
libelous publication.25
It cannot be refuted that the obvious victims in the article in
question are specifically identified the Muslims. The
principle laid down in Newsweek, Inc. vs. Intermediate
Appellate Court,26 that "where the defamation is alleged to
have been directed at a group or class, it is essential that
the statement must be so sweeping or all-embracing as to
apply to every individual in that class or group, or sufficiently
specific so that each individual in that class or group can
prove that the defamatory statement specifically pointed to
him, so that he can bring the action separately, if need be,"
obviously applies to the present case. Certainly, the
defamatory imputation contained in the subject article is a
sweeping statement affecting a common or general interest
of all Muslims, that is, their religious belief in Allah as the one
and only God. The publication was directed against all
Muslims without exceptions and it is not necessary to name
each one of them as they could only have one cause of
action which is the damage suffered by them caused by the
insult inflicted on their basic religious tenets.
All premises considered, petitioners are indeed liable for
damages under Article 33 of the Civil Code.
Significantly, the respondents brought to the attention of the
Court of Appeals the failure of the trial court to appreciate
Article 26(4) of the Civil Code, but the appellate court simply
delved exclusively on the applicability of libel and the
existence of its elements.
Ordinarily, the Court may only pass upon errors
assigned.27 However, this rule is not without exceptions. The
Court has ruled that an appellate court is accorded a broad
discretionary power to consider errors not assigned,
involving, among others, (1) matters not assigned as errors
on appeal but consideration of which is necessary in arriving
at a just decision and complete resolution of the case or to
serve the interests of justice or to avoid dispensing
piecemeal justice; (2) matters not specifically assigned as
errors on appeal but raised in the trial court and are matters
of record having some bearing on the issue submitted which
the parties failed to raise or which the lower court ignored;
and (3) matters not assigned as errors on appeal but upon
which the determination of a question properly assigned, is
dependent.28 Evidently, all three exceptions apply to the
present case.
Necessarily, the Court has to dwell on the applicability of
Article 26 (4) of the Civil Code in support of respondents'
claim for damages.
Before proceeding any further, a distinction must first be
made between a cause of action based on libel or
defamation, whether in a criminal or civil case, and one
based on Article 26. In libel, the gravamen of the claim is
reputational harm; whereas, under Article 26, it can be the
embarrassment, emotional harm or mental distress caused
upon a person.29 In libel cases, its four (4) constitutive
elements, to wit: (a) defamatory imputation; (b) malice; (c)
publication; and (d) identifiability of the victim,30 must be
established, by mere preponderance of evidence in a civil
case which herein petitioners have done in the present case.
Said elements, however, are not essential in a cause of
action based on tort under Article 26, wherein one is liable
for personal injury, whether administered intentionally,
wantonly or by negligence.31 Personal injury herein refers not
only to reputation but also encompasses character, conduct,
manner, and habits of a person.32
American Tort Law, on the basis of which, Philippine Tort
Law was patterned, has recognized that if the plaintiff is
shown to have suffered a wrong, the mere paucity of cases
or absence of any precedent does not constitute sufficient
reason for refusing relief if a sound principle of law can be
found which governs, or which by analogy ought to
govern.33 The fact that a case is novel does not operate to
defeat recovery, if it can be brought within the general rules
of law applicable to torts. 34 Neither is the fact that a tort
action does not fit into a nicely defined or established
"cubbyhole" of the law has been said not to warrant, in itself,
the denial of relief to one who is injured. 35 Thus, to ignore the
application of the proper provision of law in the instant case
would be an abdication of the judiciary's primordial objective,
which is, the just resolution of disputes.
Article 26 is an integral part of the Chapter in the Civil Code
on human relations, "designed to indicate certain norms that
spring from the fountain of good conscience. These guides
for human conduct should run as golden threads through
society, to the end that law may approach its supreme ideal,
which is the sway and dominance of justice." 36 Article 26,
which enhances and preserves human dignity and
personality, provides:
"Article 26. Every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons. The following and
similar acts, though they may not constitute a
criminal offense, shall produce a cause of action
for damages, prevention and other relief.
"(1) Prying into the privacy of another's
residence;
"(2) Meddling with or disturbing the
private life or family relations of another;
"(3) Intriguing to cause another to be
alienated from his friends;
"(4) Vexing or humiliating another on
account of his religious beliefs, lowly
station in life, place of birth, physical
defect, or other personal condition."
(Emphasis supplied)
The raison d'tre for the foregoing statutory provision, as
stated by the Code Commission in its Report, is worth
setting forth verbatim:
"The sacredness of human personality is a
concomitant of every plan for human amelioration.
The touchstone of every system of laws, of the
culture and civilization of every country, is how far
it dignifies man. If in legislation, inadequate regard
is observed for human life and safety; if the laws
do not sufficiently forestall human suffering, or do
 not try effectively to curb those factors or
influences that wound the noblest sentiments; if
the statutes insufficiently protect persons from
being unjustly humiliated, in short, if human
personality is not properly exalted then the laws
are indeed defective. Sad to say, such is to some
"degree the present state of legislation in the
Philippines. To remedy this grave fault in the laws
is one of the principal aims of the Project of Civil
Code. Instances will now be specified.
"The present laws, criminal and civil, do not
adequately cope with the interferences and
vexations mentioned in Article 26."37 (Emphasis
supplied)
Thus, Article 26 provides aggrieved individuals with a legal
remedy against violations of human personality, even though
such do not amount to violations of penal laws. Social
equality is not sought, but simply due regard for decency and
propriety.38
Among the rights covered by Article 26 are: (a) personal
dignity, (b) personal security; (c) family relations, (d) social
intercourse, (e) privacy and (f) peace of mind.39 However, it
has been held that the violations mentioned in the Article 26
are not exclusive but are merely examples and do not
preclude other similar acts.40 Thus, disturbing or offensive
utterances, such as threats, false statements, or insulting,
humiliating, scandalous, or abusive language,41 may give
rise to an action in tort where such language causes mental
or emotional disturbance, as in this case, or bodily injury or
illness resulting therefrom.42
Paragraph 4 of Article 26 which makes one liable for vexing
or humiliating another on account of his religious beliefs
finds proper application in the case at bar. The Code
Commission stressed in no uncertain terms that religious
freedom does not authorize anyone to heap obloquy and
disrepute upon another by reason of the latter's religion.43
In support of respondents' claim for damages, Professor
Abdul Rafih Sayedy, Dean of the Institute of Islamic Affairs of
the University of the Philippines, testified in this wise:
"WITNESS:
"A: First, I understood that this tabloid is the
voice of katotohanan but regarding this article it is
not 'katotohanan'. To the Muslim it is a blasphemy.
It is an abuse and desecration and belief of the
Muslims and the Muslims are commanded by God
to worship no other than Him. So how could the
publisher publish that the Muslims are worshipping
pigs, that Muslims in his mind do not eat animals
while they are also eating slaughtered chicken,
cow and carabao and other non-prohibited
animals. So to the Muslims this is an insult, not
only to the Muslims in Mindanao but to the whole
Muslim community. This is a blasphemy to the
Muslims.
"Q As a Muslim, Professor Sayedy, how do
you feel about this article?
"A I feel insulted and I feel that the beliefs of
the Muslims are over abused by the publisher and
it is a defamation and desecration on the religion
of the Islam.
"Q What is the concept of God insofar as the
religion of Islam is concerned?
"A The concept of God is that God is the only
God, He was not begotten and He is to be
worshipped and no other to be worshipped aside
from him, He has no beginning and has no end,
He is the creator of all creatures and He should be
honored by all creatures."44
Clearly therefrom, the assailed article is vexatious and
humiliating to Muslims as they adore only one God, they call
Allah. Muslims are called Muslims because they sincerely
believe in the Quran and the Hadith (the Saying and the
Conduct of the Prophet). It cannot be over-stressed that
Muslims do not eat pork because it is forbidden in the Quran
for being unclean not because they hold pigs as sacred and
worship them; and that to the Muslims, the greatest sin in
Islam is to worship persons or things other than Allah.45
Petitioner Myla C. Aguja, who testified as Myla Tabora,
admitted in open court that she: wrote the subject article;
was a graduate of "Mass Com"; based the said article on her
interpretation of what she recalled she had read in Reader's
Digest while she was still in high school; and did not verify if
what she recalled was true46 . Such shocking irresponsible
attitude on her part who at that time was an Assistant Editor
of Bulgar is utterly malicious, in the same degree as the
failure of the rest of the petitioners (except Binegas, Jr.) 47 to
verify the truthfulness of the subject article, for which they
should be held liable for damages.
The freedom of expression and the right of speech and of
the press are, to be sure, among the most zealously
protected rights in the Constitution. But the constitutional
right of freedom of expression may not be availed of to
broadcast lies or half-truths nor may it be used to insult
others, for such would be contrary to the plain mandate of
the Civil Code for each person "to respect the dignity,
personality, privacy and peace of mind of his neighbors and
other persons." The freedom of speech does not require a
journalist to guarantee the truth of what he says or publishes
but it does prohibit publishing or circulating statements in
reckless disregard without any bona fide effort to ascertain
the truth thereof.48
By causing the assailed article to be published in reckless
disregard of the truth thereof, petitioners publisher MVRS,
Editor-in-Chief Mars C. Laconsay, Assistant Editor and writer
Myla C. Aguja (Myla Tabora) exhibited utter irresponsibility
and acted contrary to the Code of Ethics adopted by the
journalism profession in the Philippines, for which they
deserve condemnation. The assailed article has falsely
portrayed all Muslims as worshippers of pig or swine and
thus, perverted their religious beliefs and demeaned the
Muslims as a segment of human society. It belittled the
Muslims by inverting the relative importance of their religious
beliefs and practice, thereby disgracing the ideals and
aspirations of the Muslim people. Such amounts to a
violation of their personal dignity and peace of mind, which
are the very rights affirmed by Article 26.
Petitioner Binegas should be absolved from liability. It is not
refuted that the principal function of petitioner Binegas, Jr.,
as Circulation Manager of Bulgar, was to supervise the
delivery and the distribution of the paper, monitor the
accounts of the agents and schedule the circulation
personnel. It is likewise unrebutted that petitioner Binegas,
Jr. was never consulted on what articles are to be published;
that he had no authority to decide whether or not a certain
publication of Bulgar shall be circulated; and that his only
duty was to distribute the issue after its printing. 49 As such,
his duty being ministerial in character, petitioner Binegas, Jr.,
should have been exonerated from liability.
Now, do plaintiffs-respondents IDCP and its officers have the
requisite personality to institute the suit? The answer is in
the affirmative. Respondents IDCP and its officers have the
requisite personality to institute the suit inasmuch as the
action is properly a class suit.
The concept of a "true" class suit has been elucidated upon
in Re: Request of the Heirs of the Passengers of
Doa Paz,50 thus:
"What makes a situation a proper case for a class
suit is the circumstance that there is only one right
or cause of action pertaining or belonging in
common to many persons, not separately or
severally to distinct individuals.
'The 'true' class action, which is the
invention of equity, is one which involves
the enforcement of a right which is joint,
common, or secondary or derivative. x x
 (It) is a suit wherein, but for the class
action device, the joinder of all
interested parties would be essential.
'A 'true class action' as distinguished
from the so-called hybrid and the
spurious class action in U.S. Federal
Practice 'involves principles of
compulsory joinder, since x x (were it
not) for the numerosity of the class
members all should x x (be) before the
court. Included within the true class suit
x x (are) the shareholders' derivative suit
and a class action by or against an
unincorporated association x x. A
judgment in a true class suit, whether
favorable or unfavorable to the class, is
binding under res judicata principles
upon all the members of the class,
whether or not they were before the
court. It is the nondivisible nature of the
right sued on which determines both the
membership of the class and the res
judicata effect of the final determination
of the right.'
"The object of the suit is to obtain relief for or
against numerous persons as a group or as an
integral entity, and not as separate, distinct
individuals whose rights or liabilities are separate
from and independent of those affecting the
others." (Emphasis supplied)
In order that a class suit may prosper, Section 12, Rule 3 of
the Rules of Court requires the concurrence of three (3)
essential elements, namely: (1) that the subject matter of the
controversy is one of common or general interest to many
persons; (2) that the parties are so numerous that it is
impracticable to bring them all before the court; and (3) that
the action be maintained by parties who will fairly and
adequately represent the class.
Under the first requisite, the person who sues must have an
interest in the controversy, common with those for whom he
sues, and there must be that unity of interest between him
and all such other persons which would entitle them to
maintain the action if suit was brought by them jointly.51
As to what constitutes common interest in the subject matter
of the controversy has been explained in Sulo ng Bayan,
Inc. vs. Araneta, Inc.,52 thus:
"The interest that will allow parties to join in a bill
of complaint, or that will enable the court to
dispense with the presence of all the parties, when
numerous, except a determinate number, is not by the assailed article are multitudinous, and therefore, the
only an interest in the question, but one in second element is present in the instant case.
common in the subject matter of the suit, x x x a
community of interest growing out of the nature
With regards to the third element, that the action be
and condition of the right in dispute; for, although
maintained by one who fairly and adequately represents the
there may not be any privity between the
class, it is essential that the relief sought must be beneficial
numerous parties, there is a common title out of
to the class members, the party must represent the entire
which the question arises, and which lies at the
class asserted, and be a member of the class he claims to
foundation of the proceedings x x x [here] the only
represent, in addition to having an interest in the controversy
matter in common among the plaintiffs, or between
common with those for whom he sues.56 For adequate
them and the defendants, is an interest in the
representation, it is sufficient that there are persons before
question involved, which alone cannot lay a
the court who have the same interest as the absent persons
foundation for the joinder of parties. There is
and are equally certain to bring forward the entire merits of
scarcely a suit at law, or in equity, which settles a
the question and thus give such interest effective
principle or applies a principle to a given state of
protection.57 It has also been held that whether the class
facts or in which a general statute is interpreted,
members are adequately represented by the named plaintiffs
that does not involve a question in which other
depends on the quality of representation rather than on the
parties are interested x x x."
number of representative parties as compared with the total
membership of the class.58 Thus, even one member of a
It has further been held that in order to maintain a class large class can provide the kind of representation for all that
action there must be an ascertainable class as well as a is contemplated by the class suit.59
community of interest among the members of that class in
questions of law and fact involved. 53 The class must be
Respondent IDCP, as a religious organization, being a
cognizable and manageable, and must be defined at the
federation or umbrella organization of more than seventy
outset of the action. There must be a cognizable class
(70) Muslim religious organizations in the Philippines, and its
beyond the general strains which can be conceived to create
officers who are individual respondents as well, carry the
a class of any superficially resembling parties, but it is not
requisite personality to file a case for damages in behalf of
necessary that the exact number comprising the class be
all Muslims. Unequivocally, they properly represent the
specified or that the members be identified.54
Muslims who are similarly situated and affected by the
assailed article.
The first element is present in this case. The class spoken of
in the assailed article that segregates them from the other
Respondent officers of IDCP namely, Abdulrahman R.T.
members of the general populace is the Muslim people, and
Linzag, Ibrahim F. P. Arcilla, Abdul Rashid De Guzman, and
their common interest, undoubtedly, is their religious belief in
Ibrahim B. A. Junio, as well as their witness, Professor Abdul
adoring Allah as the one and only God and that the greatest
Rafih Sayedy, not only testified on how the assailed article
sin is to worship persons or things other than Allah. The
emotionally, as well as psychologically, affected each of
article is an outrageous misrepresentation, inflicting stark
them, but also as to how the said article received the
insult on the religious beliefs of the Muslims.
condemnation and contempt of other Muslims, further
evidenced by the letter dated September 21, 1992 from
Concerning the second element, i.e., numerosity of parties thirty-one (31) students of the Islamic University Madinah Al-
one must bear in mind that the purpose. of the rule Mukarramah, K.S.A.,60 and the seething letter of one Abdil T.
permitting class actions is to furnish a mode of obtaining a Arafat of South Cotabato province, dated September 29,
complete determination of the rights of the parties in such 1992.61
cases, when the number is so great as to preclude
involvement by actual service. In this class of cases, one is
Moreover, an officer may sue in his own behalf if the
allowed to sue for all as a matter of convenience in the
defamation affects him as well as the corporation 62 , or
administration of justice. A class action is particularly proper
where the defamation against the officer has a direct relation
in an action wherein the persons are so multitudinous as
to the corporation's trade or business and it causes injury63 .
vexatiously to prolong and probably altogether prevent a full
hearing.55
Thus, without a shred of doubt, respondents IDCP and the
individual respondents, and all Muslims they represent, have
Judicial notice may be taken of the fact that Muslims in this
interest so identical that the motive and inducement to
country comprise a lot of the population, thus, it is highly
protect and preserve may be assumed to be the same in
impractical to make them all parties or bring them all before
each.64 By instituting the suit, the respondents necessarily
the court. It is beyond contradiction that the Muslims affected
represent all Muslims.65
Under Article 2217 of the Civil Code, moral damages which
include physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury, although
incapable of pecuniary computation, may be recovered for
acts and actions based on Article 26.66
Individual Muslim plaintiffs-respondents, Abdulrahman R.T.
Linzag, Ibrahim F. P. Arcilla, Abdul Rashid De Guzman, and
Ibrahim B. A. Junio, as well as their witness, Professor Abdul
Rafih Sayedy, as proper representatives of the class action
testified on the despair, mental anguish, social humiliation
and inferior feeling experienced by the Muslims as a result of
the vexatious article.67 Thus, the award of moral damages is
justified.
The award of exemplary damages and attorney's fees is
likewise warranted and the amount is in accordance with
Articles 222968 and 220869 of the Civil Code.
However, damages awarded to individual respondents
should be deleted inasmuch as the instant case is
considered as a class suit and they merely acted as officers
and members of the principal plaintiff-respondent IDCP.
One last point. There should be no room for apprehension
on future litigations relating to the assailed article in view of
the fact that the instant suit is a class suit. In a class suit,
each member of the class for whose benefit the action is
brought is a party plaintiff; the persons represented are quasi
parties or parties by representation. A suit brought in behalf
of others in a class gives the court jurisdiction of the whole
subject matter, and of all the parties, such that the judgment
will be binding on all persons belonging to the class
represented.70
In other words, a judgment in a class action concludes upon
all members of the class, whether formally joined as parties
or not. 71 The class action has preclusive effect against one
who was not named representative of the class, as long as
he was a member of the class which was a party to the
judgment.72
Thus, in the case at bar, the Muslims, who are parties
represented by respondent IDCP and its officers, are thereby
precluded from instituting separate or individual suits for
damages against MVRS Publications, Inc., et al., as they are
bound by the judgment in this class action, which
amounts to res judicata.
In the light of all the foregoing, I am constrained
to dissent from the majority opinion.
G.R. No. 179736 June 26, 2013
SPOUSES BILL AND VICTORIA HING, Petitioners,
vs.
ALEXANDER CHOACHUY, SR. and ALLAN
CHOACHUY, Respondents.
DECISION
DEL CASTILLO, J.:
"The concept of liberty would be emasculated if it does not
likewise compel respect for one's personality as a unique
individual whose claim to privacy and non-interference
demands respect."1
This Petition for Review on Certiorari 2 under Rule 45 of the
Rules of Court assails the July 10, 2007 Decision 3and the
September 11, 2007 Resolution4 of the Court of Appeals
(CA) in CA-G.R. CEB-SP No. 01473.
Factual Antecedents
On August 23, 2005, petitioner-spouses Bill and Victoria
Hing filed with the Regional Trial Court (RTC) of Mandaue
City a Complaint5 for Injunction and Damages with prayer for
issuance of a Writ of Preliminary Mandatory
Injunction/Temporary Restraining Order (TRO), docketed as
Civil Case MAN-5223 and raffled to Branch 28, against
respondents Alexander Choachuy, Sr. and Allan Choachuy.
Petitioners alleged that they are the registered owners of a
parcel of land (Lot 1900-B) covered by Transfer Certificate of
Title (TCT) No. 42817 situated in Barangay Basak, City of
Mandaue, Cebu;6 that respondents are the owners of Aldo
Development & Resources, Inc. (Aldo) located at Lots 1901
and 1900-C, adjacent to the property of petitioners; 7 that
respondents constructed an auto-repair shop building (Aldo
Goodyear Servitec) on Lot 1900-C; that in April 2005, Aldo
filed a case against petitioners for Injunction and Damages
with Writ of Preliminary Injunction/TRO, docketed as Civil
Case No. MAN-5125;8 that in that case, Aldo claimed that
petitioners were constructing a fence without a valid permit
and that the said construction would destroy the wall of its
building, which is adjacent to petitioners property; 9 that the
court, in that case, denied Aldos application for preliminary
injunction for failure to substantiate its allegations;10 that, in
order to get evidence to support the said case, respondents
on June 13, 2005 illegally set-up and installed on the
building of Aldo Goodyear Servitec two video surveillance
cameras facing petitioners property;11 that respondents,
through their employees and without the consent of
petitioners, also took pictures of petitioners on-going
construction;12 and that the acts of respondents violate
petitioners right to privacy.13 Thus, petitioners prayed that
respondents be ordered to remove the video surveillance
cameras and enjoined from conducting illegal surveillance.14
In their Answer with Counterclaim,15 respondents claimed
that they did not install the video surveillance cameras, 16 nor
did they order their employees to take pictures of petitioners
construction.17 They also clarified that they are not the
owners of Aldo but are mere stockholders.18
Ruling of the Regional Trial Court
On October 18, 2005, the RTC issued an Order 19 granting
the application for a TRO. The dispositive portion of the said
Order reads:
WHEREFORE, the application for a Temporary Restraining
Order or a Writ of Preliminary Injunction is granted. Upon the
filing and approval of a bond by petitioners, which the Court
sets at P50,000.00, let a Writ of Preliminary Injunction issue
against the respondents Alexander Choachuy, Sr. and Allan
Choachuy. They are hereby directed to immediately remove
the revolving camera that they installed at the left side of
their building overlooking the side of petitioners lot and to
transfer and operate it elsewhere at the back where
petitioners property can no longer be viewed within a
distance of about 2-3 meters from the left corner of Aldo
Servitec, facing the road.
IT IS SO ORDERED.20
Respondents moved for a reconsideration21 but the RTC
denied the same in its Order 22 dated February 6,
2006.23 Thus:
WHEREFORE, the Motion for Reconsideration is hereby
DENIED for lack of merit. Issue a Writ of Preliminary
Injunction in consonance with the Order dated 18 October
2005.
IT IS SO ORDERED.24
Aggrieved, respondents filed with the CA a Petition for
Certiorari25 under Rule 65 of the Rules of Court with
application for a TRO and/or Writ of Preliminary Injunction.
Ruling of the Court of Appeals
On July 10, 2007, the CA issued its Decision26 granting the
Petition for Certiorari. The CA ruled that the Writ of
Preliminary Injunction was issued with grave abuse of
discretion because petitioners failed to show a clear and
unmistakable right to an injunctive writ.27 The CA explained
that the right to privacy of residence under Article 26(1) of
the Civil Code was not violated since the property subject of
the controversy is not used as a residence. 28 The CA
alsosaid that since respondents are not the owners of the
building, they could not have installed video surveillance
cameras.29 They are mere stockholders of Aldo, which has a
separate juridical personality.30 Thus, they are not the proper
parties.31 The fallo reads:
WHEREFORE, in view of the foregoing premises, judgment
is hereby rendered by us GRANTING the petition filed in this
case. The assailed orders dated October 18, 2005 and
February 6, 2006 issued by the respondent judge are hereby
ANNULLED and SET ASIDE.
SO ORDERED.32
Issues
Hence, this recourse by petitioners arguing that:
I.
THE X X X CA COMMITTED A REVERSIBLE ERROR
WHEN IT ANNULLED AND SET ASIDE THE ORDERS OF
THE RTC DATED 18 OCTOBER 2005 AND 6 FEBRUARY
2006 HOLDING THAT THEY WERE ISSUED WITH GRAVE
ABUSE OF DISCRETION.
II.
THE X X X CA COMMITTED A REVERSIBLE ERROR
WHEN IT RULED THAT PETITIONER SPOUSES HING
ARE NOT ENTITLED TO THE WRIT OF PRELIMINARY
INJUNCTION ON THE GROUND THAT THERE IS NO
VIOLATION OF THEIR CONSTITUTIONAL AND CIVIL
RIGHT TO PRIVACY DESPITE THE FACTUAL FINDINGS
OF THE RTC, WHICH RESPONDENTS CHOACHUY
FAILED TO REFUTE, THAT THE ILLEGALLY INSTALLED
SURVEILLANCE CAMERAS OF RESPONDENTS
CHOACH[U]Y WOULD CAPTURE THE PRIVATE
ACTIVITIES OF PETITIONER SPOUSES HING, THEIR
CHILDREN AND EMPLOYEES.
III.
THE X X X CA COMMITTED A REVERSIBLE ERROR
WHEN IT RULED THAT SINCE THE OWNER OF THE
BUILDING IS ALDO DEVELOPMENT AND RESOURCES,
INC. THEN TO SUE RESPONDENTS CHOACHUY
CONSTITUTES A PURPORTEDLY UNWARRANTED
PIERCING OF THE CORPORATE VEIL.
IV.
THE X X X CA COMMITTED A REVERSIBLE ERROR
WHEN IT IGNORED THE SERIOUS FORMAL
DEFICIENCIES OF BOTH THE PETITION AND THE
MOTION FOR RECONSIDERATION DATED 15 MARCH
2006 OF RESPONDENTS CHOACHUY AND GAVE X X X
THEM DUE COURSE AND CONSIDERATION.33
Essentially, the issues boil down to (1) whether there is a
violation of petitioners right to privacy, and (2) whether
respondents are the proper parties to this suit.
Petitioners Arguments
Petitioners insist that they are entitled to the issuance of a
Writ of Preliminary Injunction because respondents
installation of a stationary camera directly facing petitioners
property and a revolving camera covering a significant
portion of the same property constitutes a violation of
petitioners right to privacy.34 Petitioners cite Article 26(1) of
the Civil Code, which enjoins persons from prying into the
private lives of others.35 Although the said provision pertains
to the privacy of anothers residence, petitioners opine that it
includes business offices, citing Professor Arturo M.
Tolentino.36 Thus, even assuming arguendo that petitioners
property is used for business, it is still covered by the said
provision.37
As to whether respondents are the proper parties to implead
in this case, petitioners claim that respondents and Aldo are
one and the same, and that respondents only want to hide
behind Aldos corporate fiction.38 They point out that if
respondents are not the real owners of the building, where
the video surveillance cameras were installed, then they had
no business consenting to the ocular inspection conducted
by the court.39
Respondents Arguments
Respondents, on the other hand, echo the ruling of the CA
that petitioners cannot invoke their right to privacy since the
property involved is not used as a residence.40 Respondents
maintain that they had nothing to do with the installation of
the video surveillance cameras as these were installed by
Aldo, the registered owner of the building, 41 as additional
security for its building.42 Hence, they were wrongfully
impleaded in this case.43
Our Ruling
The Petition is meritorious.
The right to privacy is the right to be let alone.
The right to privacy is enshrined in our Constitution 44 and in
our laws. It is defined as "the right to be free from
unwarranted exploitation of ones person or from intrusion
into ones private activities in such a way as to cause
humiliation to a persons ordinary sensibilities." 45 It is the
right of an individual "to be free from unwarranted publicity,
or to live without unwarranted interference by the public in
matters in which the public is not necessarily
concerned."46 Simply put, the right to privacy is "the right to
be let alone."47
The Bill of Rights guarantees the peoples right to privacy
and protects them against the States abuse of power. In this
regard, the State recognizes the right of the people to be
secure in their houses. No one, not even the State, except
"in case of overriding social need and then only under the
stringent procedural safeguards," can disturb them in the
privacy of their homes.48
The right to privacy under Article 26(1)
of the Civil Code covers business offices
where the public are excluded
therefrom and only certain individuals
are allowed to enter.
Article 26(1) of the Civil Code, on the other hand, protects an
individuals right to privacy and provides a legal remedy
against abuses that may be committed against him by other
individuals. It states:
Art. 26. Every person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other
persons. The following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of action
for damages, prevention and other relief:
(1) Prying into the privacy of anothers residence;
xxxx
This provision recognizes that a mans house is his castle,
where his right to privacy cannot be denied or even
restricted by others. It includes "any act of intrusion into,
peeping or peering inquisitively into the residence of another
without the consent of the latter."49 The phrase "prying into
the privacy of anothers residence," however, does not mean
that only the residence is entitled to privacy. As elucidated by
Civil law expert Arturo M. Tolentino:
Our Code specifically mentions "prying into the privacy of
anothers residence." This does not mean, however, that
only the residence is entitled to privacy, because the law
covers also "similar acts." A business office is entitled to the
same privacy when the public is excluded therefrom and
only such individuals as are allowed to enter may come in. x
x x50 (Emphasis supplied)
Thus, an individuals right to privacy under Article 26(1) of
the Civil Code should not be confined to his house or
residence as it may extend to places where he has the right
to exclude the public or deny them access. The phrase
"prying into the privacy of anothers residence," therefore,
covers places, locations, or even situations which an
individual considers as private. And as long as his right is
recognized by society, other individuals may not infringe on
his right to privacy. The CA, therefore, erred in limiting the
application of Article 26(1) of the Civil Code only to
residences.
The "reasonable expectation of
privacy" test is used to determine
whether there is a violation of the right
to privacy.
In ascertaining whether there is a violation of the right to
privacy, courts use the "reasonable expectation of privacy"
test. This test determines whether a person has a
reasonable expectation of privacy and whether the
expectation has been violated.51 In Ople v. Torres,52 we
enunciated that "the reasonableness of a persons
expectation of privacy depends on a two-part test: (1)
whether, by his conduct, the individual has exhibited an
expectation of privacy; and (2) this expectation is one that
society recognizes as reasonable." Customs, community
norms, and practices may, therefore, limit or extend an
individuals "reasonable expectation of privacy."53 Hence, the
reasonableness of a persons expectation of privacy must be
determined on a case-to-case basis since it depends on the
factual circumstances surrounding the case.54
In this day and age, video surveillance cameras are installed
practically everywhere for the protection and safety of
everyone. The installation of these cameras, however,
should not cover places where there is reasonable
expectation of privacy, unless the consent of the individual,
whose right to privacy would be affected, was obtained. Nor
should these cameras be used to pry into the privacy of
anothers residence or business office as it would be no
different from eavesdropping, which is a crime under
Republic Act No. 4200 or the Anti-Wiretapping Law.
In this case, the RTC, in granting the application for
Preliminary Injunction, ruled that:
After careful consideration, there is basis to grant the
application for a temporary restraining order. The operation
by respondents of a revolving camera, even if it were
mounted on their building, violated the right of privacy of
petitioners, who are the owners of the adjacent lot. The
camera does not only focus on respondents property or the
roof of the factory at the back (Aldo Development and
Resources, Inc.) but it actually spans through a good portion
of the land of petitioners.
Based on the ocular inspection, the Court understands why
petitioner Hing was so unyielding in asserting that the
revolving camera was set up deliberately to monitor the
on[-]going construction in his property. The monitor showed
only a portion of the roof of the factory of Aldo. If the purpose
of respondents in setting up a camera at the back is to
secure the building and factory premises, then the camera
should revolve only towards their properties at the back.
Respondents camera cannot be made to extend the view to
petitioners lot. To allow the respondents to do that over the
objection of the petitioners would violate the right of
petitioners as property owners. "The owner of a thing cannot
make use thereof in such a manner as to injure the rights of
a third person."55
The RTC, thus, considered that petitioners have a
"reasonable expectation of privacy" in their property, whether
they use it as a business office or as a residence and that
the installation of video surveillance cameras directly facing
petitioners property or covering a significant portion thereof,
without their consent, is a clear violation of their right to
privacy. As we see then, the issuance of a preliminary
injunction was justified. We need not belabor that the
issuance of a preliminary injunction is discretionary on the
part of the court taking cognizance of the case and should
not be interfered with, unless there is grave abuse of
discretion committed by the court.56 Here, there is no
indication of any grave abuse of discretion. Hence, the CA
erred in finding that petitioners are not entitled to an
injunctive writ.
This brings us to the next question: whether respondents are
the proper parties to this suit.
A real party defendant is one who has a
correlative legal obligation to redress a RTC, one of the arguments they raised is that Aldo would
wrong done to the plaintiff by reason of
the defendant's act or omission which
had violated the legal right of the
former.
Section 2, Rule 3 of the Rules of Court provides:
SEC. 2. Parties-in-interest. A real party-in-interest is the
party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit.
Unless otherwise authorized by law or these Rules, every
action must be prosecuted or defended in the name of the
real party-in-interest.
A real party defendant is "one who has a correlative legal
obligation to redress a wrong done to the plaintiff by reason
of the defendants act or omission which had violated the
legal right of the former."57
In ruling that respondents are not the proper parties, the CA
reasoned that since they do not own the building, they could
not have installed the video surveillance cameras.58 Such
reasoning, however, is erroneous. The fact that respondents
are not the registered owners of the building does not
automatically mean that they did not cause the installation of
the video surveillance cameras.
In their Complaint, petitioners claimed that respondents
installed the video surveillance cameras in order to fish for
evidence, which could be used against petitioners in another
case.59 During the hearing of the application for Preliminary
Injunction, petitioner Bill testified that when respondents
installed the video surveillance cameras, he immediately
broached his concerns but they did not seem to care,60 and
thus, he reported the matter to the barangay for mediation,
and eventually, filed a Complaint against respondents before
the RTC.61 He also admitted that as early as 1998 there has
already been a dispute between his family and the
Choachuy family concerning the boundaries of their
respective properties.62 With these factual circumstances in
mind, we believe that respondents are the proper parties to
be impleaded.
Moreover, although Aldo has a juridical personality separate
and distinct from its stockholders, records show that it is a
family-owned corporation managed by the Choachuy
family.63
Also quite telling is the fact that respondents,
notwithstanding their claim that they are not owners of the
building, allowed the court to enter the compound of Aldo
and conduct an ocular inspection. The counsel for
respondents even toured Judge Marilyn Lagura-Yap inside
the building and answered all her questions regarding the
set-up and installation of the video surveillance
cameras.64 And when respondents moved for
reconsideration of the Order dated October 18, 2005 of the
suffer damages if the video surveillance cameras are
removed and transferred.65 Noticeably, in these instances,
the personalities of respondents and Aldo seem to merge.
All these taken together lead us to the inevitable conclusion
that respondents are merely using the corporate fiction of
Aldo as a shield to protect themselves from this suit. In view
of the foregoing, we find that respondents are the proper
parties to this suit.
WHEREFORE, the Petition is hereby GRANTED. The
Decision dated July 10, 2007 and the Resolution dated
September 11, 2007 of the Court of Appeals in CA-G.R.
CEB-SP No. 01473 are hereby REVERSED and SET
ASIDE. The Orders dated October 18,2005 and February 6,
200[6] of Branch 28 of the Regional Trial Court of Mandaue
City in Civil Case No. MAN-5223 are hereby REINSTATED
and AFFIRMED. SO ORDERED.
VII. KINDRED TORTS
MEDICAL NEGLIGENCE
ELEMENTS
EVIDENTIAL RULES
LIABILITY OF HOSPITALS
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 complaint6 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. 7Instead, 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; 21 and (2) Dr.
Marvie Blanes erred in ordering the 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,27and 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 41 oC, and then
about 40 minutes later the temperature rose to 100 oF,
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 hyperplasia31 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 shock38 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., inHarrisons
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.1wphi1 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.
G.R. No. 126297 January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467 January 31, 2007
NATIVIDAD (Substituted by her children MARCELINO
AGANA III, ENRIQUE AGANA, JR., EMMA AGANA
ANDAYA, JESUS AGANA, and RAYMUND AGANA) and
ENRIQUE AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590 January 31, 2007
MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankinds most
important and delicate endeavors, must assume the grave
responsibility of pursuing it with appropriate care. The care
and service dispensed through this high trust, however
technical, complex and esoteric its character may be, must
meet standards of responsibility commensurate with the
undertaking to preserve and protect the health, and indeed,
the very lives of those placed in the hospitals keeping.1
Assailed in these three consolidated petitions for review on
certiorari is the Court of Appeals Decision 2 dated September
6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No.
32198 affirming with modification the Decision 3 dated March
17, 1993 of the Regional Trial Court (RTC), Branch 96,
Quezon City in Civil Case No. Q-43322 and nullifying its
Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical
City General Hospital (Medical City Hospital) because of
difficulty of bowel movement and bloody anal discharge.
After a series of medical examinations, Dr. Miguel Ampil,
petitioner in G.R. No. 127590, diagnosed her to be suffering
from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff 4 of
the Medical City Hospital, performed an anterior resection
surgery on Natividad. He found that the malignancy in her
sigmoid area had spread on her left ovary, necessitating the
removal of certain portions of it. Thus, Dr. Ampil obtained the
consent of Natividads husband, Enrique Agana, to permit
Dr. Juan Fuentes, respondent in G.R. No. 126467, to
perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil
took over, completed the operation and closed the incision.
However, the operation appeared to be flawed. In the
corresponding Record of Operation dated April 11, 1984, the
attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail
continue for closure."
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, for exemplary damages and the interest thereon which are
went to the United States to seek further treatment. After four the liabilities of defendants Dr. Ampil and Dr. Fuentes only,
months of consultations and laboratory examinations, as follows:
Natividad was told she was free of cancer. Hence, she was
advised to return to the Philippines.
1. As actual damages, the following amounts:
On August 31, 1984, Natividad flew back to the Philippines,
a. The equivalent in Philippine Currency
still suffering from pains. Two weeks thereafter, her daughter
of the total of US$19,900.00 at the rate
found a piece of gauze protruding from her vagina. Upon
of P21.60-US$1.00, as reimbursement
being informed about it, Dr. Ampil proceeded to her house
of actual expenses incurred in the
where he managed to extract by hand a piece of gauze
United States of America;
measuring 1.5 inches in width. He then assured her that the
pains would soon vanish.
b. The sum of P4,800.00 as travel taxes
of plaintiffs and their physician daughter;
Dr. Ampils assurance did not come true. Instead, the pains
intensified, prompting Natividad to seek treatment at the
Polymedic General Hospital. While confined there, Dr. c. The total sum of P45,802.50,
Ramon Gutierrez detected the presence of another foreign representing the cost of hospitalization
object in her vagina -- a foul-smelling gauze measuring 1.5 at Polymedic Hospital, medical fees,
inches in width which badly infected her vaginal vault. A and cost of the saline solution;
recto-vaginal fistula had formed in her reproductive organs
which forced stool to excrete through the vagina. Another
2. As moral damages, the sum of P2,000,000.00;
surgical operation was needed to remedy the damage. Thus,
in October 1984, Natividad underwent another surgery.
3. As exemplary damages, the sum of
P300,000.00;
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), 4. As attorneys fees, the sum of P250,000.00;
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 5. Legal interest on items 1 (a), (b), and (c); 2; and
3 hereinabove, from date of filing of the complaint
of gauze inside Natividads body and malpractice for
until full payment; and
concealing their acts of negligence.
6. Costs of suit.
Meanwhile, Enrique Agana also filed with the Professional
Regulation Commission (PRC) an administrative complaint
for gross negligence and malpractice against Dr. Ampil and SO ORDERED.
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. Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an
Ampil who was then in the United States. appeal to the Court of Appeals, docketed as CA-G.R. CV No.
42062.
On February 16, 1986, pending the outcome of the above
cases, Natividad died and was duly substituted by her Incidentally, on April 3, 1993, the Aganas filed with the RTC a
motion for a partial execution of its Decision, which was
above-named children (the Aganas).
granted in an Order dated May 11, 1993. Thereafter, the
sheriff levied upon certain properties of Dr. Ampil and sold
On March 17, 1993, the RTC rendered its Decision in favor them for P451,275.00 and delivered the amount to the
of the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable Aganas.
for negligence and malpractice, the decretal part of which
reads:
Following their receipt of the money, the Aganas entered into
an agreement with PSI and Dr. Fuentes to indefinitely
WHEREFORE, judgment is hereby rendered for the plaintiffs suspend any further execution of the RTC Decision.
ordering the defendants PROFESSIONAL SERVICES, INC., However, not long thereafter, the Aganas again filed a
DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the motion for an alias writ of execution against the properties of
plaintiffs, jointly and severally, except in respect of the award
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 Decision 6 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 Natividads
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 Natividads 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 Courts
attention to other possible causes of Natividads detriment.
He argues that the Court should not discount either of the
following possibilities: first, Dr. Fuentes left the gauzes in
Natividads body after performing hysterectomy; second, the
attending nurses erred in counting the gauzes; and third, the
American doctors were the ones who placed the gauzes in
Natividads body.
Dr. Ampils arguments are purely conjectural and without
basis. Records show that he did not present any evidence to
prove that the American doctors were the ones who put or
left the gauzes in Natividads body. Neither did he submit
evidence to rebut the correctness of the record of operation,
particularly the number of gauzes used. As to the alleged
negligence of Dr. Fuentes, we are mindful that Dr. Ampil
examined his (Dr. Fuentes) work and found it in order.
The glaring truth is that all the major circumstances, taken
together, as specified by the Court of Appeals, directly point
to Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used
gauzes as sponges to control the bleeding of the
patient during the surgical operation.
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 patients 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 patients 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 patients 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 patients 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 Natividads body before closure of the incision. When
he failed to do so, it was his duty to inform Natividad about it.
Dr. Ampil breached both duties. Such breach caused injury
to Natividad, necessitating her further examination by
American doctors and another surgery. That Dr. Ampils
negligence is the proximate cause 12 of Natividads injury
could be traced from his act of closing the incision despite
the information given by the attending nurses that two pieces
of gauze were still missing. That they were later on extracted
from Natividads vagina established the causal link between
Dr. Ampils negligence and the injury. And what further
aggravated such injury was his deliberate concealment of
the missing gauzes from the knowledge of Natividad and her
family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the
case against Dr. Fuentes on the ground that it is contrary to
the doctrine of res ipsa loquitur. According to them, the fact
that the two pieces of gauze were left inside Natividads
body is a prima facie evidence of Dr. Fuentes negligence.
We are not convinced.
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
plaintiffs 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 defendants 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 Natividads 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 patients 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 ones 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 rule of respondeat superior.
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 physicians
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 hospitals hospital or its peer review committee, is normally politely
functions limited to furnishing room, food, facilities for terminated.
treatment and operation, and attendants for its patients.
Thus, in Bing v. Thunig,27 the New York Court of Appeals
In other words, private hospitals, hire, fire and exercise real
deviated from the Schloendorff doctrine, noting that modern
control over their attending and visiting consultant staff.
hospitals actually do far more than provide facilities for
While consultants are not, technically employees, x x x, the
treatment. Rather, they regularly employ, on a salaried basis,
control exercised, the hiring, and the right to terminate
a large staff of physicians, interns, nurses, administrative
consultants all fulfill the important hallmarks of an employer-
and manual workers. They charge patients for medical care
employee relationship, with the exception of the payment of
and treatment, even collecting for such services through
wages. In assessing whether such a relationship in fact
legal action, if necessary. The court then concluded that
exists, the control test is determining. Accordingly, on the
there is no reason to exempt hospitals from the universal
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
In our shores, the nature of the relationship between the hospitals and their attending and visiting physicians. "
hospital and the physicians is rendered inconsequential in
view of our categorical pronouncement in Ramos v. Court of
But the Ramos pronouncement is not our only basis in
Appeals28 that for purposes of apportioning responsibility in
sustaining PSIs liability. Its liability is also anchored upon the
medical negligence cases, an employer-employee
agency principle of apparent authority or agency by estoppel
relationship in effect exists between hospitals and their
and the doctrine of corporate negligence which have gained
attending and visiting physicians. This Court held:
acceptance in the determination of a hospitals liability for
negligent acts of health professionals. The present case
"We now discuss the responsibility of the hospital in this serves as a perfect platform to test the applicability of these
particular incident. The unique practice (among private doctrines, thus, enriching our jurisprudence.
hospitals) of filling up specialist staff with attending and
visiting "consultants," who are allegedly not hospital
Apparent authority, or what is sometimes referred to as the
employees, presents problems in apportioning responsibility
"holding
for negligence in medical malpractice cases. However, the
difficulty is more apparent than real.
out" theory, or doctrine of ostensible agency or agency by
estoppel,29 has its origin from the law of agency. It imposes
In the first place, hospitals exercise significant control in the
liability, not as the result of the reality of a contractual
hiring and firing of consultants and in the conduct of their
relationship, but rather because of the actions of a principal
work within the hospital premises. Doctors who apply for
or an employer in somehow misleading the public into
consultant slots, visiting or attending, are required to submit
believing that the relationship or the authority exists. 30 The
proof of completion of residency, their educational
concept is essentially one of estoppel and has been
qualifications, generally, evidence of accreditation by the
explained in this manner:
appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are
carefully scrutinized by members of the hospital "The principal is bound by the acts of his agent with the
administration or by a review committee set up by the apparent authority which he knowingly permits the agent to
hospital who either accept or reject the application. x x x. 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
After a physician is accepted, either as a visiting or attending
situation that a person of ordinary prudence, conversant with
consultant, he is normally required to attend clinico-
business usages and the nature of the particular business, is
pathological conferences, conduct bedside rounds for clerks,
justified in presuming that such agent has authority to
interns and residents, moderate grand rounds and patient
perform the particular act in question.31
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. The applicability of apparent authority in the field of hospital
In addition to these, the physicians performance as a liability was upheld long time ago in Irving v. Doctor Hospital
specialist is generally evaluated by a peer review committee of Lake Worth, Inc.32 There, it was explicitly stated that "there
on the basis of mortality and morbidity statistics, and does not appear to be any rational basis for excluding the
feedback from patients, nurses, interns and residents. A concept of apparent authority from the field of hospital
consultant remiss in his duties, or a consultant who regularly liability." Thus, in cases where it can be shown that a
falls short of the minimum standards acceptable to the 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 physicians 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, PSIs 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 hospitals act of listing him and his specialty in its lobby
directory, as in the case herein. The high costs of todays
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 In the present case, it was duly established that PSI
for negligence and malpractice is that PSI as owner, operates the Medical City Hospital for the purpose and under
operator and manager of Medical City Hospital, "did not the concept of providing comprehensive medical services to
perform the necessary supervision nor exercise diligent the public. Accordingly, it has the duty to exercise
efforts in the supervision of Drs. Ampil and Fuentes and its reasonable care to protect from harm all patients admitted
nursing staff, resident doctors, and medical interns who into its facility for medical treatment. Unfortunately, PSI failed
assisted Drs. Ampil and Fuentes in the performance of their to perform such duty. The findings of the trial court are
duties as surgeons."34 Premised on the doctrine of corporate convincing, thus:
negligence, the trial court held that PSI is directly liable for
such breach of duty.
x x x PSIs liability is traceable to its failure to conduct an
investigation of the matter reported in the nota bene of the
We agree with the trial court. count nurse. Such failure established PSIs part in the dark
conspiracy of silence and concealment about the gauzes.
Ethical considerations, if not also legal, dictated the holding
Recent years have seen the doctrine of corporate
of an immediate inquiry into the events, if not for the benefit
negligence as the judicial answer to the problem of allocating
of the patient to whom the duty is primarily owed, then in the
hospitals liability for the negligent acts of health
interest of arriving at the truth. The Court cannot accept that
practitioners, absent facts to support the application of
the medical and the healing professions, through their
respondeat superior or apparent authority. Its formulation
members like defendant surgeons, and their institutions like
proceeds from the judiciarys acknowledgment that in these
PSIs hospital facility, can callously turn their backs on and
modern times, the duty of providing quality medical service is
disregard even a mere probability of mistake or negligence
no longer the sole prerogative and responsibility of the
by refusing or failing to investigate a report of such
physician. The modern hospitals have changed structure.
seriousness as the one in Natividads case.
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 It is worthy to note that Dr. Ampil and Dr. Fuentes operated
responsibility to provide quality medical care.35 on Natividad with the assistance of the Medical City
Hospitals staff, composed of resident doctors, nurses, and
interns. As such, it is reasonable to conclude that PSI, as the
The doctrine has its genesis in Darling v. Charleston
operator of the hospital, has actual or constructive
Community Hospital.36 There, the Supreme Court of Illinois
knowledge of the procedures carried out, particularly the
held that "the jury could have found a hospital negligent,
report of the attending nurses that the two pieces of gauze
inter alia, in failing to have a sufficient number of trained
were missing. In Fridena v. Evans, 41 it was held that a
nurses attending the patient; failing to require a consultation
corporation is bound by the knowledge acquired by or notice
with or examination by members of the hospital staff; and
given to its agents or officers within the scope of their
failing to review the treatment rendered to the patient." On
authority and in reference to a matter to which their authority
the basis of Darling, other jurisdictions held that a hospitals
extends. This means that the knowledge of any of the staff of
corporate negligence extends to permitting a physician
Medical City Hospital constitutes knowledge of PSI. Now, the
known to be incompetent to practice at the hospital. 37 With
failure of PSI, despite the attending nurses report, to
the passage of time, more duties were expected from
investigate and inform Natividad regarding the missing
hospitals, among them: (1) the use of reasonable care in the
gauzes amounts to callous negligence. Not only did PSI
maintenance of safe and adequate facilities and equipment;
breach its duties to oversee or supervise all persons who
(2) the selection and retention of competent physicians; (3)
practice medicine within its walls, it also failed to take an
the overseeing or supervision of all persons who practice
active step in fixing the negligence committed. This renders
medicine within its walls; and (4) the formulation, adoption
PSI, not only vicariously liable for the negligence of Dr. Ampil
and enforcement of adequate rules and policies that ensure
under Article 2180 of the Civil Code, but also directly liable
quality care for its patients. 38 Thus, in Tucson Medical
for its own negligence under Article 2176. In Fridena, the
Center, Inc. v. Misevich,39 it was held that a hospital,
Supreme Court of Arizona held:
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 x x x In recent years, however, the duty of care owed to the
supervision of the members of its medical staff. And in Bost patient by the hospital has expanded. The emerging trend is
v. Riley,40 the court concluded that a patient who enters a to hold the hospital responsible where the hospital has failed
hospital does so with the reasonable expectation that it will to monitor and review medical services being provided within
attempt to cure him. The hospital accordingly has the duty to its walls. See Kahn Hospital Malpractice Prevention, 27 De
make a reasonable effort to monitor and oversee the Paul . Rev. 23 (1977).
treatment prescribed and administered by the physicians
practicing in its premises.
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 patients injuries.
We find that such general allegations of negligence, along
with the evidence produced at the trial of this case, are
sufficient to support the hospitals liability based on the
theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily liable
with Dr. Ampil for damages, let it be emphasized that PSI,
apart from a general denial of its responsibility, failed to
adduce evidence showing that it exercised the diligence of a
good father of a family in the accreditation and supervision of
the latter. In neglecting to offer such proof, PSI failed to
discharge its burden under the last paragraph of Article 2180
cited earlier, and, therefore, must be adjudged solidarily
liable with Dr. Ampil. Moreover, as we have discussed, PSI is
also directly liable to the Aganas.
One final word. Once a physician undertakes the treatment
and care of a patient, the law imposes on him certain
obligations. In order to escape liability, he must possess that
reasonable degree of learning, skill and experience required
by his profession. At the same time, he must apply
reasonable care and diligence in the exercise of his skill and
the application of his knowledge, and exert his best
judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the
challenged Decision of the Court of Appeals in CA-G.R. CV
No. 42062 and CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil. SO
ORDERED.
G.R. No. 126297 February 2, 2010
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
THE COURT OF APPEALS and NATIVIDAD and
ENRIQUE AGANA, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 126467
NATIVIDAD [substituted by her children Marcelino
Agana III, Enrique Agana, Jr., Emma Agana-Andaya,
Jesus Agana and Raymund Agana] and ENRIQUE
AGANA, Petitioners,
vs.
THE COURT OF APPEALS and JUAN
FUENTES, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 127590
MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
RESOLUTION
CORONA, J.:
With prior leave of court,1 petitioner Professional Services,
Inc. (PSI) filed a second motion for reconsideration2urging
referral thereof to the Court en banc and seeking
modification of the decision dated January 31, 2007 and
resolution dated February 11, 2008 which affirmed its
vicarious and direct liability for damages to respondents
Enrique Agana and the heirs of Natividad Agana (Aganas).
Manila Medical Services, Inc. (MMSI),3 Asian Hospital, Inc.
(AHI),4 and Private Hospital Association of the Philippines
(PHAP)5 all sought to intervene in these cases invoking the
common ground that, unless modified, the assailed decision
and resolution will jeopardize the financial viability of private
hospitals and jack up the cost of health care.
The Special First Division of the Court granted the motions
for intervention of MMSI, AHI and PHAP (hereafter
intervenors),6 and referred en consulta to the Court en
banc the motion for prior leave of court and the second
motion for reconsideration of PSI.7
Due to paramount public interest, the Court en
banc accepted the referral8 and heard the parties on oral
arguments on one particular issue: whether a hospital may
be held liable for the negligence of physicians-consultants
allowed to practice in its premises.9
To recall the salient facts, PSI, together with Dr. Miguel Ampil
(Dr. Ampil) and Dr. Juan Fuentes (Dr. Fuentes), was
impleaded by Enrique Agana and Natividad Agana (later
substituted by her heirs), in a complaint10 for damages filed
in the Regional Trial Court (RTC) of Quezon City, Branch 96,
for the injuries suffered by Natividad when Dr. Ampil and Dr.
Fuentes neglected to remove from her body two
gauzes11 which were used in the surgery they performed on
her on April 11, 1984 at the Medical City General Hospital.
PSI was impleaded as owner, operator and manager of the
hospital.
In a decision12 dated March 17, 1993, the RTC held PSI
solidarily liable with Dr. Ampil and Dr. Fuentes for
damages.13 On appeal, the Court of Appeals (CA), absolved
Dr. Fuentes but affirmed the liability of Dr. Ampil and PSI,
subject to the right of PSI to claim reimbursement from Dr.
Ampil.141avvphi1
On petition for review, this Court, in its January 31, 2007
decision, affirmed the CA decision.15 PSI filed a motion for
reconsideration16 but the Court denied it in a resolution dated
February 11, 2008.17
The Court premised the direct liability of PSI to the Aganas
on the following facts and law:
First, there existed between PSI and Dr. Ampil an employer-
employee relationship as contemplated in the December 29,
1999 decision in Ramos v. Court of Appeals18 that "for
purposes of allocating responsibility in medical negligence
cases, an employer-employee relationship exists between
hospitals and their consultants."19Although the Court
in Ramos later issued a Resolution dated April 11,
200220 reversing its earlier finding on the existence of an
employment relationship between hospital and doctor, a
similar reversal was not warranted in the present case
because the defense raised by PSI consisted of a mere
general denial of control or responsibility over the actions of
Dr. Ampil.21
Second, by accrediting Dr. Ampil and advertising his
qualifications, PSI created the public impression that he was
its agent.22 Enrique testified that it was on account of Dr.
Ampil's accreditation with PSI that he conferred with said
doctor about his wife's (Natividad's) condition. 23 After his
meeting with Dr. Ampil, Enrique asked Natividad to
personally consult Dr. Ampil.24 In effect, when Enrigue and
Natividad engaged the services of Dr. Ampil, at the back of
their minds was that the latter was a staff member of a
prestigious hospital. Thus, under the doctrine of apparent
authority applied in Nogales, et al. v. Capitol Medical Center,
et al.,25 PSI was liable for the negligence of Dr. Ampil.
Finally, as owner and operator of Medical City General
Hospital, PSI was bound by its duty to provide
comprehensive medical services to Natividad Agana, to
exercise reasonable care to protect her from harm, 26 to
oversee or supervise all persons who practiced medicine
within its walls, and to take active steps in fixing any form of
negligence committed within its premises. 27 PSI committed a
serious breach of its corporate duty when it failed to conduct
an immediate investigation into the reported missing
gauzes.28
PSI is now asking this Court to reconsider the foregoing
rulings for these reasons:
I practitioners in the conduct of its business of facilitating
The declaration in the 31 January 2007 Decision vis-a-vis
the 11 February 2009 Resolution that the ruling in Ramos vs.
Court of Appeals (G.R. No. 134354, December 29, 1999)
that "an employer-employee relations exists between
hospital and their consultants" stays should be set aside for
being inconsistent with or contrary to the import of the
resolution granting the hospital's motion for reconsideration
in Ramos vs. Court of Appeals (G.R. No. 134354, April 11,
2002), which is applicable to PSI since the Aganas failed to
prove an employer-employee relationship between PSI and
Dr. Ampil and PSI proved that it has no control over Dr.
Ampil. In fact, the trial court has found that there is no
employer-employee relationship in this case and that the
doctor's are independent contractors.
II
Respondents Aganas engaged Dr. Miguel Ampil as their
doctor and did not primarily and specifically look to the
Medical City Hospital (PSI) for medical care and support;
otherwise stated, respondents Aganas did not select Medical
City Hospital (PSI) to provide medical care because of any
apparent authority of Dr. Miguel Ampil as its agent since the
latter was chosen primarily and specifically based on his
qualifications and being friend and neighbor.
III
PSI cannot be liable under doctrine of corporate negligence
since the proximate cause of Mrs. Agana's injury was the
negligence of Dr. Ampil, which is an element of the principle
of corporate negligence.29
In their respective memoranda, intervenors raise parallel
arguments that the Court's ruling on the existence of an
employer-employee relationship between private hospitals
and consultants will force a drastic and complex alteration in
the long-established and currently prevailing relationships
among patient, physician and hospital, with burdensome
operational and financial consequences and adverse effects
on all three parties.30
The Aganas comment that the arguments of PSI need no
longer be entertained for they have all been traversed in the
assailed decision and resolution.31
After gathering its thoughts on the issues, this Court
holds that PSI is liable to the Aganas, not under the principle
of respondeat superior for lack of evidence of an
employment relationship with Dr. Ampil but under the
principle of ostensible agency for the negligence of Dr. Ampil
and, pro hac vice, under the principle of corporate
negligence for its failure to perform its duties as a hospital.
While in theory a hospital as a juridical entity cannot practice
medicine,32 in reality it utilizes doctors, surgeons and medical
medical and surgical treatment.33 Within that reality, three
legal relationships crisscross: (1) between the hospital and
the doctor practicing within its premises; (2) between the
hospital and the patient being treated or examined within its
premises and (3) between the patient and the doctor. The
exact nature of each relationship determines the basis and
extent of the liability of the hospital for the negligence of the
doctor.
Where an employment relationship exists, the hospital may
be held vicariously liable under Article 2176 34 in relation to
Article 218035 of the Civil Code or the principle of respondeat
superior. Even when no employment relationship exists but it
is shown that the hospital holds out to the patient that the
doctor is its agent, the hospital may still be vicariously liable
under Article 2176 in relation to Article 1431 36 and Article
186937 of the Civil Code or the principle of apparent
authority.38 Moreover, regardless of its relationship with the
doctor, the hospital may be held directly liable to the patient
for its own negligence or failure to follow established
standard of conduct to which it should conform as a
corporation.39
This Court still employs the "control test" to determine the
existence of an employer-employee relationship between
hospital and doctor. In Calamba Medical Center, Inc. v.
National Labor Relations Commission, et al.40 it held:
Under the "control test", an employment relationship exists
between a physician and a hospital if the hospital controls
both the means and the details of the process by which the
physician is to accomplish his task.
xxx xxx xxx
As priorly stated, private respondents maintained specific
work-schedules, as determined by petitioner through its
medical director, which consisted of 24-hour shifts totaling
forty-eight hours each week and which were strictly to be
observed under pain of administrative sanctions.
That petitioner exercised control over respondents
gains light from the undisputed fact that in the
emergency room, the operating room, or any
department or ward for that matter, respondents' work is
monitored through its nursing supervisors, charge
nurses and orderlies. Without the approval or consent of
petitioner or its medical director, no operations can be
undertaken in those areas. For control test to apply, it is
not essential for the employer to actually supervise the
performance of duties of the employee, it being enough
that it has the right to wield the power. (emphasis
supplied)
Even in its December 29, 1999 decision 41 and April 11, 2002
resolution42 in Ramos, the Court found the control test
decisive.
In the present case, it appears to have escaped the Court's
attention that both the RTC and the CA found no
employment relationship between PSI and Dr. Ampil, and
that the Aganas did not question such finding. In its
March 17, 1993 decision, the RTC found "that defendant
doctors were not employees of PSI in its hospital, they being
merely consultants without any employer-employee
relationship and in the capacity of independent
contractors."43 The Aganas never questioned such finding.
PSI, Dr. Ampil and Dr. Fuentes appealed44 from the RTC
decision but only on the issues of negligence, agency and
corporate liability. In its September 6, 1996 decision, the CA
mistakenly referred to PSI and Dr. Ampil as employer-
employee, but it was clear in its discussion on the matter that
it viewed their relationship as one of mere apparent
agency.45
The Aganas appealed from the CA decision, but only to
question the exoneration of Dr. Fuentes.46 PSI also appealed
from the CA decision, and it was then that the issue of
employment, though long settled, was unwittingly
resurrected.
In fine, as there was no dispute over the RTC finding that
PSI and Dr. Ampil had no employer-employee relationship,
such finding became final and conclusive even to this
Court.47 There was no reason for PSI to have raised it as an
issue in its petition. Thus, whatever discussion on the matter
that may have ensued was purely academic.
Nonetheless, to allay the anxiety of the intervenors, the
Court holds that, in this particular instance, the concurrent
finding of the RTC and the CA that PSI was not the employer
of Dr. Ampil is correct. Control as a determinative factor in
testing the employer-employee relationship between doctor
and hospital under which the hospital could be held
vicariously liable to a patient in medical negligence cases is
a requisite fact to be established by preponderance of
evidence. Here, there was insufficient evidence that PSI
exercised the power of control or wielded such power over
the means and the details of the specific process by which
Dr. Ampil applied his skills in the treatment of Natividad.
Consequently, PSI cannot be held vicariously liable for the
negligence of Dr. Ampil under the principle of respondeat
superior.
There is, however, ample evidence that the hospital (PSI)
held out to the patient (Natividad)48 that the doctor (Dr. Ampil)
was its agent. Present are the two factors that determine
apparent authority: first, the hospital's implied manifestation
to the patient which led the latter to conclude that the doctor
was the hospital's agent; and second, the patients reliance
upon the conduct of the hospital and the doctor, consistent
with ordinary care and prudence.49
Enrique testified that on April 2, 1984, he consulted Dr. Ampil
regarding the condition of his wife; that after the meeting and
as advised by Dr. Ampil, he "asked [his] wife to go to
Medical City to be examined by [Dr. Ampil]"; and that the
next day, April 3, he told his daughter to take her mother to
Dr. Ampil.50 This timeline indicates that it was Enrique who
actually made the decision on whom Natividad should
consult and where, and that the latter merely acceded to it. It
explains the testimony of Natividad that she consulted Dr.
Ampil at the instigation of her daughter.51
Moreover, when asked what impelled him to choose Dr.
Ampil, Enrique testified:
Atty. Agcaoili
On that particular occasion, April 2, 1984, what was your
reason for choosing Dr. Ampil to contact with in connection
with your wife's illness?
A. First, before that, I have known him to be a specialist on
that part of the body as a surgeon, second, I have known
him to be a staff member of the Medical City which is
a prominent and known hospital. And third, because he is
a neighbor, I expect more than the usual medical service to
be given to us, than his ordinary patients.52 (emphasis
supplied)
Clearly, the decision made by Enrique for Natividad to
consult Dr. Ampil was significantly influenced by the
impression that Dr. Ampil was a staff member of Medical City
General Hospital, and that said hospital was well known and
prominent. Enrique looked upon Dr. Ampil not as
independent of but as integrally related to Medical City.
PSI's acts tended to confirm and reinforce, rather than
negate, Enrique's view. It is of record that PSI required a
"consent for hospital care"53 to be signed preparatory to the
surgery of Natividad. The form reads:
Permission is hereby given to the medical, nursing and
laboratory staff of the Medical City General Hospital to
perform such diagnostic procedures and to administer such
medications and treatments as may be deemed necessary
or advisable by the physicians of this hospital for and
during the confinement of xxx. (emphasis supplied)
By such statement, PSI virtually reinforced the public
impression that Dr. Ampil was a physician of its hospital,
rather than one independently practicing in it; that the
medications and treatments he prescribed were necessary
and desirable; and that the hospital staff was prepared to
carry them out.1avvphi1
PSI pointed out in its memorandum that Dr. Ampil's hospital
affiliation was not the exclusive basis of the Aganas decision
to have Natividad treated in Medical City General Hospital,
meaning that, had Dr. Ampil been affiliated with another
hospital, he would still have been chosen by the Aganas as
Natividad's surgeon.54
The Court cannot speculate on what could have been behind
the Aganas decision but would rather adhere strictly to the
fact that, under the circumstances at that time, Enrique
decided to consult Dr. Ampil for he believed him to be a staff
member of a prominent and known hospital. After his
meeting with Dr. Ampil, Enrique advised his wife Natividad to
go to the Medical City General Hospital to be examined by
said doctor, and the hospital acted in a way that fortified
Enrique's belief.
This Court must therefore maintain the ruling that PSI is
vicariously liable for the negligence of Dr. Ampil as its
ostensible agent.
Moving on to the next issue, the Court notes that PSI made
the following admission in its Motion for Reconsideration:
51. Clearly, not being an agent or employee of petitioner
PSI, PSI [sic] is not liable for Dr. Ampil's acts during the
operation. Considering further that Dr. Ampil was personally
engaged as a doctor by Mrs. Agana, it is incumbent upon Dr.
Ampil, as "Captain of the Ship", and as the Agana's doctor to
advise her on what to do with her situation vis-a-vis the two
missing gauzes. In addition to noting the missing gauzes,
regular check-ups were made and no signs of
complications were exhibited during her stay at the
hospital, which could have alerted petitioner PSI's
hospital to render and provide post-operation services
to and tread on Dr. Ampil's role as the doctor of Mrs.
Agana. The absence of negligence of PSI from the
patient's admission up to her discharge is borne by the
finding of facts in this case. Likewise evident therefrom
is the absence of any complaint from Mrs. Agana after
her discharge from the hospital which had she brought
to the hospital's attention, could have alerted petitioner
PSI to act accordingly and bring the matter to Dr.
Ampil's attention. But this was not the case. Ms. Agana
complained ONLY to Drs. Ampil and Fuentes, not the
hospital. How then could PSI possibly do something to
fix the negligence committed by Dr. Ampil when it was
not informed about it at all.55 (emphasis supplied)
PSI reiterated its admission when it stated that had Natividad
Agana "informed the hospital of her discomfort and pain, the
hospital would have been obliged to act on it."56
The significance of the foregoing statements is critical.
First, they constitute judicial admission by PSI that while it
had no power to control the means or method by which Dr.
Ampil conducted the surgery on Natividad Agana, it had
the power to review or cause the review of what may have
irregularly transpired within its walls strictly for the purpose of
determining whether some form of negligence may have
attended any procedure done inside its premises, with the
ultimate end of protecting its patients.
Second, it is a judicial admission that, by virtue of the nature
of its business as well as its prominence 57 in the hospital
industry, it assumed a duty to "tread on" the "captain of the
ship" role of any doctor rendering services within its
premises for the purpose of ensuring the safety of the
patients availing themselves of its services and facilities.
Third, by such admission, PSI defined the standards of its
corporate conduct under the circumstances of this case,
specifically: (a) that it had a corporate duty to Natividad even
after her operation to ensure her safety as a patient; (b) that
its corporate duty was not limited to having its nursing staff
note or record the two missing gauzes and (c) that its
corporate duty extended to determining Dr. Ampil's role in it,
bringing the matter to his attention, and correcting his
negligence.
And finally, by such admission, PSI barred itself from arguing
in its second motion for reconsideration that the concept of
corporate responsibility was not yet in existence at the time
Natividad underwent treatment;58 and that if it had any
corporate responsibility, the same was limited to reporting
the missing gauzes and did not include "taking an active step
in fixing the negligence committed."59 An admission made in
the pleading cannot be controverted by the party making
such admission and is conclusive as to him, and all proofs
submitted by him contrary thereto or inconsistent therewith
should be ignored, whether or not objection is interposed by
a party.60
Given the standard of conduct that PSI defined for itself, the
next relevant inquiry is whether the hospital measured up to
it.
PSI excuses itself from fulfilling its corporate duty on the
ground that Dr. Ampil assumed the personal responsibility of
informing Natividad about the two missing gauzes.61 Dr.
Ricardo Jocson, who was part of the group of doctors that
attended to Natividad, testified that toward the end of the
surgery, their group talked about the missing gauzes but Dr.
Ampil assured them that he would personally notify the
patient about it.62Furthermore, PSI claimed that there was no
reason for it to act on the report on the two missing gauzes
because Natividad Agana showed no signs of complications.
She did not even inform the hospital about her discomfort.63
The excuses proffered by PSI are totally unacceptable.
To begin with, PSI could not simply wave off the problem and
nonchalantly delegate to Dr. Ampil the duty to review what
transpired during the operation. The purpose of such review
would have been to pinpoint when, how and by whom two
surgical gauzes were mislaid so that necessary remedial
measures could be taken to avert any jeopardy to
Natividads recovery. Certainly, PSI could not have expected
that purpose to be achieved by merely hoping that the
person likely to have mislaid the gauzes might be able to
retrace his own steps. By its own standard of corporate
conduct, PSI's duty to initiate the review was non-delegable.
While Dr. Ampil may have had the primary responsibility of
notifying Natividad about the missing gauzes, PSI imposed
upon itself the separate and independent responsibility of
initiating the inquiry into the missing gauzes. The purpose of
the first would have been to apprise Natividad of what
transpired during her surgery, while the purpose of the
second would have been to pinpoint any lapse in procedure
that led to the gauze count discrepancy, so as to prevent a
recurrence thereof and to determine corrective measures
that would ensure the safety of Natividad. That Dr. Ampil
negligently failed to notify Natividad did not release PSI from
its self-imposed separate responsibility.
Corollary to its non-delegable undertaking to review potential
incidents of negligence committed within its premises, PSI
had the duty to take notice of medical records prepared by
its own staff and submitted to its custody, especially when
these bear earmarks of a surgery gone awry. Thus, the
record taken during the operation of Natividad which
reported a gauze count discrepancy should have given PSI
sufficient reason to initiate a review. It should not have
waited for Natividad to complain.
As it happened, PSI took no heed of the record of operation
and consequently did not initiate a review of what transpired
during Natividads operation. Rather, it shirked its
responsibility and passed it on to others to Dr. Ampil whom
it expected to inform Natividad, and to Natividad herself to
complain before it took any meaningful step. By its inaction,
therefore, PSI failed its own standard of hospital care. It
committed corporate negligence.
It should be borne in mind that the corporate negligence
ascribed to PSI is different from the medical negligence
attributed to Dr. Ampil. The duties of the hospital are distinct
from those of the doctor-consultant practicing within its
premises in relation to the patient; hence, the failure of PSI
to fulfill its duties as a hospital corporation gave rise to a
direct liability to the Aganas distinct from that of Dr. Ampil.
All this notwithstanding, we make it clear that PSIs hospital
liability based on ostensible agency and corporate
negligence applies only to this case, pro hac vice. It is not
intended to set a precedent and should not serve as a basis
to hold hospitals liable for every form of negligence of their
doctors-consultants under any and all circumstances. The
ruling is unique to this case, for the liability of PSI arose from
an implied agency with Dr. Ampil and an admitted corporate
duty to Natividad.64
Other circumstances peculiar to this case warrant this
ruling,65 not the least of which being that the agony wrought
upon the Aganas has gone on for 26 long years, with
Natividad coming to the end of her days racked in pain and
agony. Such wretchedness could have been avoided had
PSI simply done what was logical: heed the report of a
guaze count discrepancy, initiate a review of what went
wrong and take corrective measures to ensure the safety of
Nativad. Rather, for 26 years, PSI hemmed and hawed at
every turn, disowning any such responsibility to its patient.
Meanwhile, the options left to the Aganas have all but
dwindled, for the status of Dr. Ampil can no longer be
ascertained.66
Therefore, taking all the equities of this case into
consideration, this Court believes P15 million would be a fair
and reasonable liability of PSI, subject to 12% p.a. interest
from the finality of this resolution to full satisfaction.
WHEREFORE, the second motion for reconsideration
is DENIED and the motions for intervention are NOTED.
Professional Services, Inc. is ORDERED pro hac vice to pay
Natividad (substituted by her children Marcelino Agana III,
Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and
Raymund Agana) and Enrique Agana the total amount
of P15 million, subject to 12% p.a. interest from the finality of
this resolution to full satisfaction.
No further pleadings by any party shall be entertained in this
case.
Let the long-delayed entry of judgment be made in this case
upon receipt by all concerned parties of this resolution. SO
ORDERED.
G.R. No. 122445 November 18, 1997
DR. NINEVETCH CRUZ, petitioner,
vs.
COURT OF APPEALS and LYDIA UMALI, respondents.
FRANCISCO, J.:
Doctors are protected by a special rule of law. They are not
guarantors of care. They do not even warrant a good result.
They are not insurers against mishaps or unusual
consequences. Furthermore they are not liable for honest
mistakes of judgment . . . 1
The present case against petitioner is in the nature of a
medical malpractice suit, which in simplest terms is the type
of claim which a victim has available to him or her to redress
a wrong committed by a medical professional which has
caused bodily harm. 2 In this jurisdiction, however, such
claims are most often brought as a civil action for damages
under Article 2176 of the Civil Code, 3 and in some
instances, as a criminal case under Article 365 of the
Revised Penal Code 4 with which the civil action for
damages is impliedly instituted. It is via the latter type of
action that the heirs of the deceased sought redress for the
petitioner's alleged imprudence and negligence in treating
the deceased thereby causing her death. The petitioner and
one Dr. Lina Ercillo who was the attending anaesthesiologist
during the operation of the deceased were charged with
"reckless imprudence and negligence resulting to (sic)
homicide" in an information which reads:
That on or about March 23, 1991, in the
City of San Pablo, Republic of the
Philippines and within the jurisdiction of
this Honorable Court, the accused
above named, being then the attending
anaesthesiologist and surgeon,
respectively, did then and there, in a
negligence (sic), careless, imprudent,
and incompetent manner, and failing to
supply or store sufficient provisions and
facilities necessary to meet any and all
exigencies apt to arise before, during
and/or after a surgical operation causing
by such negligence, carelessness,
imprudence, and incompetence, and
causing by such failure, including the
lack of preparation and foresight needed
to avert a tragedy, the untimely death of
said Lydia Umali on the day following
said surgical operation. 5
Trial ensued after both the petitioner and Dr. Lina Ercillo
pleaded not guilty to the above-mentioned charge. On March
4, 1994, the Municipal Trial Court in Cities (MTCC) of San
Pablo City rendered a decision, the dispositive portion of
which is hereunder quoted as follows:
WHEREFORE, the court finds the
accused Dra. Lina Ercillo not guilty of
the offense charged for insufficiency of
evidence while her co-accused Dra.
Ninevetch Cruz is hereby held
responsible for the death of Lydia Umali
on March 24, 1991, and therefore guilty
under Art. 365 of the Revised Penal
Code, and she is hereby sentenced to
suffer the penalty of 2 months and 1 day
imprisonment of arresto mayor with
costs. 6
 The petitioner appealed her conviction to the
Regional Trial Court (RTC) which affirmed in
toto the decision of the MTCC 7 prompting the
petitioner to file a petition for review with the Court
of Appeals but to no avail. Hence this petition for
review on certiorari assailing the decision
promulgated by the Court of Appeals on October
24, 1995 affirming petitioner's conviction with
modification that she is further directed to pay the
heirs of Lydia Umali P50,000.00 as indemnity for
her death. 8
In substance, the petition brought before this Court
raises the issue of whether or not petitioner's
conviction of the crime of reckless imprudence
resulting in homicide, arising from an alleged
medical malpractice, is supported by the evidence
on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De
Ocampo, accompanied her mother to the Perpetual Help
Clinic and General Hospital situated in Balagtas Street, San
Pablo City, Laguna. They arrived at the said hospital at
around 4:30 in the afternoon of the same day. 9 Prior to
March 22, 1991, Lydia was examined by the petitioner who
found a "myoma" 10 in her uterus, and scheduled her for a
hysterectomy operation on March 23,
1991. 11 Rowena and her mother slept in the clinic on the
evening of March 22, 1991 as the latter was to be operated
on the next day at 1:00 o'clock in the afternoon. 12 According
to Rowena, she noticed that the clinic was untidy and the
window and the floor were very dusty prompting her to ask
the attendant for a rag to wipe the window and the floor
with. 13 Because of the untidy state of the clinic, Rowena
tried to persuade her mother not to proceed with the
operation. 14 The following day, before her mother was
wheeled into the operating room, Rowena asked the
petitioner if the operation could be postponed. The petitioner
called Lydia into her office and the two had a conversation.
Lydia then informed Rowena that the petitioner told her that
she must be operated on as scheduled. 15
Rowena and her other relatives, namely her husband, her
sister and two aunts waited outside the operating room while
Lydia underwent operation. While they were waiting, Dr.
Ercillo went out of the operating room and instructed them to
buy tagamet ampules which Rowena's sister immediately
bought. About one hour had passed when Dr. Ercillo came
out again this time to ask them to buy blood for Lydia. They
bought type "A" blood from the St. Gerald Blood Bank and
the same was brought by the attendant into the operating
room. After the lapse of a few hours, the petitioner informed
them that the operation was finished. The operating staff
then went inside the petitioner's clinic to take their snacks.
Some thirty minutes after, Lydia was brought out of the
operating room in a stretcher and the petitioner asked
Rowena and the other relatives to buy additional blood for
Lydia. Unfortunately, they were not able to comply with
petitioner's order as there was no more type "A" blood
available in the blood bank. Thereafter, a person arrived to
donate blood which was later transfused to Lydia. Rowena
then noticed her mother, who was attached to an oxygen
tank, gasping for breath. Apparently the oxygen supply had
run out and Rowena's husband together with the driver of
the accused had to go to the San Pablo District Hospital to
get oxygen. Lydia was given the fresh supply of oxygen as
soon as it arrived. 16 But at around 10:00 o'clock P.M. she
went into shock and her blood pressure dropped to 60/50.
Lydia's unstable condition necessitated her transfer to the
San Pablo District Hospital so she could be connected to a
respirator and further examined. 17 The transfer to the San
Pablo District Hospital was without the prior consent of
Rowena nor of the other relatives present who found out
about the intended transfer only when an ambulance arrived
to take Lydia to the San Pablo District Hospital. Rowena and
her other relatives then boarded a tricycle and followed the
ambulance. 18
Upon Lydia's arrival at the San Pablo District Hospital, she
was wheeled into the operating room and the petitioner and
Dr. Ercillo re-operated on her because there was blood
oozing from the abdominal incision. 19 The attending
physicians summoned Dr. Bartolome Angeles, head of the
Obstetrics and Gynecology Department of the San Pablo
District Hospital. However, when Dr. Angeles arrived, Lydia
was already in shock and possibly dead as her blood
pressure was already 0/0. Dr. Angeles then informed
petitioner and Dr. Ercillo that there was nothing he could do
to help save the patient.20 While the petitioner was closing
the abdominal wall, the patient died. 21 Thus, on March 24,
1991, at 3:00 o'clock in the morning, Lydia Umali was
pronounced dead. Her death certificate states "shock" as the
immediate cause of death and "Disseminated Intravascular
Coagulation (DIC)" as the antecedent cause. 22
In convicting the petitioner, the MTCC found the following
circumstances as sufficient basis to conclude that she was
indeed negligent in the performance of the operation:
. . . , the clinic was untidy, there was lack
of provision like blood and oxygen to
prepare for any contingency that might
happen during the operation. The
manner and the fact that the patient was
brought to the San Pablo District
Hospital for reoperation indicates that
there was something wrong in the
manner in which Dra. Cruz conducted
the operation. There was no showing
that before the operation, accused Dra.
Cruz had conducted a cardio pulmonary
clearance or any typing of the blood of
the patient. It was (sic) said in medical
parlance that the "the abdomen of the
person is a temple of surprises"
because you do not know the whole
thing the moment it was open (sic) and
surgeon must be prepared for any
eventuality thereof. The patient (sic)
chart which is a public document was
not presented because it is only there
that we could determine the condition of
the patient before the surgery. The court
also noticed in Exh. "F-1" that the sister
of the deceased wished to postpone the
operation but the patient was prevailed
upon by Dra. Cruz to proceed with the
surgery. The court finds that Lydia Umali
died because of the negligence and
carelessness of the surgeon Dra.
Ninevetch Cruz because of loss of blood
during the operation of the deceased for
evident unpreparedness and for lack of
skill, the reason why the patient was
brought for operation at the San Pablo
City District Hospital. As such, the
surgeon should answer for such
negligence. With respect to Dra. Lina
Ercillo, the anaesthesiologist, there is no
evidence to indicate that she should be
held jointly liable with Dra. Cruz who
actually did the operation. 23
The RTC reiterated the abovementioned findings of the
MTCC and upheld the latter's declaration of "incompetency,
negligence and lack of foresight and skill of appellant (herein
petitioner) in handling the subject patient before and after the
operation." 24 And likewise affirming the petitioner's
conviction, the Court of Appeals echoed similar
observations, thus:
. . . While we may grant that the
untidiness and filthiness of the clinic
may not by itself indicate negligence, it
nevertheless shows the absence of due
care and supervision over her
subordinate employees. Did this
unsanitary condition permeate the
operating room? Were the surgical
instruments properly sterilized? Could
the conditions in the OR have
contributed to the infection of the
patient? Only the petitioner could
answer these, but she opted not to
testify. This could only give rise to the
presumption that she has nothing good
to testify on her defense. Anyway, the
alleged "unverified statement of the
prosecution witness" remains
unchallenged and unrebutted.
 Likewise undisputed is the prosecution's
version indicating the following facts:
that the accused asked the patient's
relatives to buy Tagamet capsules while
the operation was already in progress;
that after an hour, they were also asked
to buy type "A" blood for the patient; that
after the surgery, they were again asked
to procure more type "A" blood, but such
was not anymore available from the
source; that the oxygen given to the
patient was empty; and that the son-in-
law of the patient, together with a driver
of the petitioner, had to rush to the San
Pablo City District Hospital to get the
much-needed oxygen. All these
conclusively show that the petitioner had
not prepared for any unforeseen
circumstances before going into the first
surgery, which was not emergency in
nature, but was elective or pre-
scheduled; she had no ready antibiotics,
no prepared blood, properly typed and
cross-matched, and no sufficient oxygen
supply.
Moreover, there are a lot of questions
that keep nagging Us. Was the patient
given any cardio-pulmonary clearance,
or at least a clearance by an internist,
which are standard requirements before
a patient is subjected to surgery. Did the
petitioner determine as part of the pre-
operative evaluation, the bleeding
parameters of the patient, such as
bleeding time and clotting time? There is
no showing that these were done. The
petitioner just appears to have been in a
hurry to perform the operation, even as
the family wanted a postponement to
April 6, 1991. Obviously, she did not
prepare the patient; neither did she get
the family's consent to the operation.
Moreover, she did not prepare a medical
chart with instructions for the patient's
care. If she did all these, proof thereof
should have been offered. But there is
none. Indeed, these are overwhelming
evidence of recklessness and
imprudence. 25
This Court, however, holds differently and finds the foregoing
circumstances insufficient to sustain a judgment of conviction
against the petitioner for the crime of reckless imprudence
resulting in homicide. The elements of reckless imprudence
are: (1) that the offender does or fails to do an act; (2) that
the doing or the failure to do that act is voluntary; (3) that it
be without malice; (4) that material damage results from the
reckless imprudence; and (5) that there is inexcusable lack
of precaution on the part of the offender, taking into
consideration his employment or occupation, degree of
intelligence, physical condition, and other circumstances
regarding persons, time and place.
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. 26 In the recent case of Leonila Garcia-
Rueda v. Wilfred L. Pascasio, et al., 27 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. 28 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. 29
Immediately apparent from a review of the records of this
case is the absence of any expert testimony on the matter of
the standard of care employed by other physicians of good
standing in the conduct of similar operations. The
prosecution's expert witnesses in the persons of Dr. Floresto
Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of
Investigation (NBI) only testified as to the possible cause of
death but did not venture to illuminate the court on the
matter of the standard of care that petitioner should have
exercised.
All three courts below bewail the inadequacy of the facilities
of the clinic and its untidiness; the lack of provisions such as
blood, oxygen, and certain medicines; the failure to subject
the patient to a cardio-pulmonary test prior to the operation;
the omission of any form of blood typing before transfusion;
and even the subsequent transfer of Lydia to the San Pablo
Hospital and the reoperation performed on her by the
petitioner. But while it may be true that the circumstances
pointed out by the courts below seemed beyond cavil to
constitute reckless imprudence on the part of the surgeon,
this conclusion is still best arrived at not through the
educated surmises nor conjectures of laymen, including
judges, but by the unquestionable knowledge of expert
witnesses. For whether a physician or surgeon has
exercised the requisite degree of skill and care in the
treatment of his patient is, in the generality of cases, a
matter of expert opinion. 30 The deference of courts to the
expert opinion of qualified physicians stems from its
realization that the latter possess unusual technical skills
which laymen in most instances are incapable of intelligently
evaluating. 31 Expert testimony should have been offered to
prove that the circumstances cited by the courts below are
constitutive of conduct falling below the standard of care
employed by other physicians in good standing when
performing the same operation. It must be remembered that
when the qualifications of a physician are admitted, as in the
instant case, there is an inevitable presumption that in
proper cases he takes the necessary precaution and
employs the best of his knowledge and skill in attending to
his clients, unless the contrary is sufficiently
established. 32 This presumption is rebuttable by expert
opinion which is so sadly lacking in the case at bench.
Even granting arguendo that the inadequacy of the facilities
and untidiness of the clinic; the lack of provisions; the failure
to conduct pre-operation tests on the patient; and the
subsequent transfer of Lydia to the San Pablo Hospital and
the reoperation performed on her by the petitioner do
indicate, even without expert testimony, that petitioner was
recklessly imprudent in the exercise of her duties as a
surgeon, no cogent proof exists that any of these
circumstances caused petitioner's death. Thus, the absence
of the fourth element of reckless imprudence: that the injury
to the person or property was a consequence of the reckless
imprudence.
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. 33 In Chan Lugay v. St. Luke's Hospital, Inc., 34 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." 35 (Emphasis supplied.)
Dr. Arizala who conducted an autopsy on the body of the
deceased summarized his findings as follows:
Atty. Cachero:
Q. You mentioned about your Autopsy
Report which has been marked as Exh.
"A-1-b". There appears here a signature
above the typewritten name Floresto
Arizala, Jr., whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the
contents of Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-
09, the time and place and everything
after the post mortem findings, sir.
Q. You mentioned on your "Post Mortem
Findings" about surgical incision, 14:0
cm., infraumbilical area, anterior
abdominal area, midline, will you please
explain that in your own language?
A. There was incision wound (sic) the
area just below the navel, sir.
Q. And the last paragraph of the
postmortem findings which I read:
Uterus, pear-shaped and pale
measuring 7.5 x 5.5 x 5.0 cm. with some
surface nodulation of the fundic area
posteriorly. Cut-section shows diffusely
pale myometrium with areas of streak
induration. The ovaries and adnexal
structures are missing with the raw
surfaces patched with clotted blood.
Surgical sutures were noted on the
operative site.
Intestines and mesenteries are pale with
blood clots noted between the mesentric
folds.
Hemoperitoneum: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.,
will you please explain that on (sic) your
own language or in
ordinary. . . . . . . . . . . .
A. There was a uterus which was not
attached to the adnexal structures
namely ovaries which were not present
and also sign of previous surgical
operation and there were (sic) clotted
blood, sir.
Q. How about the ovaries and adnexal
structures?
A. They are missing, sir.
Q. You mean to say there are no
ovaries?
A. During that time there are no ovaries,
sir.
Q. And there were likewise sign of
surgical sutures?
A. Yes, sir.
Q. How about the intestines and
mesenteries are place (sic) with blood
clots noted between the mesenteric
folds, will you please explain on (sic)
this?
A. In the peritoneal cavity, they are
mostly perritonial blood . . . . . . . .
Q. And what could have caused this
blood?
A. Well, ordinarily blood is found inside
the blood vessel. Blood were (sic)
outside as a result of the injuries which
destroyed the integrity of the vessel
allowing blood to sip (sic) out, sir.
Q. By the nature of the postmortem
findings indicated in Exh. A-1-B, can
you tell the court the cause of death?
A. Yes, sir. The cause of death is: Gross
findings are compatible with
hemorrhagic shock.
Q. Can you tell the us what could have
caused this hemorrhagic shock?
A. Well hemorrhagic shock is the result
of blood loss.
Q. What could have the effect of that
loss of blood?
A. Unattended hemorrhage,
sir. 36 (Emphasis supplied.)
The foregoing was corroborated by Dr. Nieto Salvador:
Q. And were you able to determine the
cause of death by virtue of the
examination of the specimen submitted
by Dr. Arizala?
A. Without knowledge of the autopsy
findings it would be difficult for me to
determine the cause of death, sir.
Q. Have you also examined the post
mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy
report in connection with your pathology
report.
Q. What could have caused the death of
the victim?
A. This pathologic examination are (sic)
compatible with the person who died,
sir.
Q. Will you explain to us the meaning of
hemorrhagic compatible?
A. It means that a person died of blood
loss. Meaning a person died of non-
replacement of blood and so the victim
before she died there was shock of
diminish of blood of the circulation. She
died most probably before the actual
complete blood loss, sir.
Court: Is it possible doctor that the loss
of the blood was due on (sic) operation?
A. Based on my pathologist finding, sir.
Q. What could have caused this loss of
blood?
A. Many, sir. A patient who have
undergone surgery. Another may be a
blood vessel may be cut while on
operation and this cause (sic) bleeding,
 or may be set in the course of operation,
or may be (sic) he died after the
operation. Of course there are other
cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was
no blood replacement?
A. Yes, sir. 37 (Emphasis supplied.)
The testimonies of both doctors establish hemorrhage or
hemorrhagic shock as the cause of death. However, as
likewise testified to by the expert witnesses in open court,
hemorrhage or hemorrhagic shock during surgery may be
caused by several different factors. Thus, Dr. Salvador's
elaboration on the matter:
Atty. Pascual:
Q. Doctor, among the causes of
hemorrhage that you mentioned you
said that it could be at the moment of
operation when one losses (sic) control
of the presence, is that correct? During
the operation there is lost (sic) of control
of the cut vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel
of considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the
knot may have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may
be possible also to some clotting defect,
is that correct?
A. May be (sic). 38 (Emphasis supplied).
Defense witness, Dr. Bu C. Castro also gave the following
expert opinion:
Q. Doctor even a patient after an
operations (sic) would suffer hemorrage
what would be the possible causes of
such hemorrage (sic)?
A. Among those would be what we call
Intravascular Coagulation and this is the
reason for the bleeding, sir, which
cannot be prevented by anyone, it will
happen to anyone, anytime and to any
persons (sic), sir.
COURT:
What do you think of the cause of the
bleeding, the cutting or the operations
done in the body?
A. Not related to this one, the bleeding
here is not related to any cutting or
operation that I (sic) have done.
Q. Aside from the DIC what could
another causes (sic) that could be the
cause for the hemorrhage or bleeding in
a patient by an operations (sic)?
A. In general sir, if there was an
operations (sic) and it is possible that
the ligature in the suture was (sic)
become (sic) loose, it is (sic) becomes
loose if proven..
xxx xxx xxx
Q. If the person who performed an
autopsy does not find any untight (sic)
clot (sic) blood vessel or any suture that
become (sic) loose the cause of the
bleeding could not be attributed to the
fault of the subject?
A. Definitely, sir. 39 (Emphasis supplied.)
According to both doctors, the possible causes of
hemorrhage during an operation are: (1) the failure of the
surgeon to tie or suture a cut blood vessel; (2) allowing a cut
blood vessel to get out of control; (3) the subsequent
loosening of the tie or suture applied to a cut blood vessel;
and (4) and a clotting defect known as DIC. It is significant to
state at this juncture that the autopsy conducted by Dr.
Arizala on the body of Lydia did not reveal any untied or
unsutured cut blood vessel nor was there any indication that
the tie or suture of a cut blood vessel had become loose
thereby causing the hemorrhage. 40 Hence the following
pertinent portion of Dr. Arizala's testimony:
Q: Doctor, in examining these structures
did you know whether these were
sutured ligature or plain ligature
A: Ligature, sir.
Q: We will explain that later on. Did you
recall if the cut structures were tied by
first suturing it and then tying a knot or
the tie was merely placed around the cut
structure and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall
because you did not even bothered (sic)
to examine, is that correct?
A: Well, I bothered enough to know that
they were sutured, sir.
Q: So, therefore, Doctor, you would not
know whether any of the cut structures
were not sutured or tied neither were
you able to determine whether any
loose suture was found in the peritoneal
cavity?
A: I could not recall any loose sutured
(sic), sir. 41
On the other hand, the findings of all three doctors do not
preclude the probability that DIC caused the hemorrhage
and consequently, Lydia's death. DIC which is a clotting
defect creates a serious bleeding tendency and when
massive DIC occurs as a complication of surgery leaving raw
surface, major hemorrhage occurs. 42And as testified to by
defense witness, Dr. Bu C. Castro, hemorrhage due to DIC
"cannot be prevented, it will happen to anyone,
anytime." 43 He testified further:
Q. Now, under that circumstance one of
the possibility as you mentioned in (sic)
DIC?
A. Yes, sir.
Q. And you mentioned that this cannot
be prevented?
A. Yes, sir.
Q. Can you even predict if it really
happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of
autopsy that will tell you whether this
patient suffered among such things as
DIC?
 A. Well, I did reserve because of the
condition of the patient.
Q. Now, Doctor you said that you went
through the record of the deceased
Lydia Umali looking for the chart, the
operated (sic) records, the post mortem
findings on the histophanic (sic)
examination based on your examination
of record, doctor, can you more or less
says (sic) what part are (sic) concerned
could have been the caused (sic) of
death of this Lydia Umali?
A. As far as the medical record is
concern (sic) the caused (sic) of death is
dessimulated (sic) Intra Vascular
Coagulation or the DIC which resulted to
hemorrhage or bleedings, sir.
Q. Doctor based on your findings then
there is knowing (sic) the doctor would
say whether the doctor her (sic) has
been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic)
based on finding they just read the chart
as well as the other record.
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of
the surgeon, sir. 44
This Court has no recourse but to rely on the expert
testimonies rendered by both prosecution and defense
witnesses that substantiate rather than contradict petitioner's
allegation that the cause of Lydia's death was DIC which, as
attested to by an expert witness, cannot be attributed to the
petitioner's fault or negligence. The probability that Lydia's
death was caused by DIC was unrebutted during trial and
has engendered in the mind of this Court a reasonable doubt
as to the petitioner's guilt. Thus, her acquittal of the crime of
reckless imprudence resulting in homicide. While we condole
with the family of Lydia Umali, our hands are bound by the
dictates of justice and fair dealing which hold inviolable the
right of an accused to be presumed innocent until proven
guilty beyond reasonable doubt. Nevertheless, this Court
finds the petitioner civilly liable for the death of Lydia Umali,
for while a conviction of a crime requires proof beyond
reasonable doubt, only a preponderance of evidence is
required to establish civil liability. 45
The petitioner is a doctor in whose hands a patient puts his
life and limb. For insufficiency of evidence this Court was not
able to render a sentence of conviction but it is not blind to
the reckless and imprudent manner in which the petitioner
carried out her duties. A precious life has been lost and the
circumstances leading thereto exacerbated the grief of those
left behind. The heirs of the deceased continue to feel the
loss of their mother up to the present time 46 and this Court is
aware that no amount of compassion and commiseration nor
words of bereavement can suffice to assuage the sorrow felt
for the loss of a loved one. Certainly, the award of moral and
exemplary damages in favor of the heirs of Lydia Umali are
proper in the instant case.
WHEREFORE, premises considered, petitioner DR.
NINEVETCH CRUZ is hereby ACQUITTED of the crime of
reckless imprudence resulting in homicide but is ordered to
pay the heirs of the deceased Lydia Umali the amount of
FIFTY THOUSAND PESOS (P50,000.00) as civil liability,
ONE HUNDRED THOUSAND PESOS (P100,000.00) as
moral damages, and FIFTY THOUSAND PESOS
(P50,000.00) as exemplary damages.
Let a copy of this decision be furnished to the Professional
Regulation Commission (PRC) for appropriate action. SO
ORDERED.
G.R. No. 165279 June 7, 2011
DR. RUBI LI, Petitioner,
vs.
SPOUSES REYNALDO and LINA SOLIMAN, as
parents/heirs of deceased Angelica
Soliman, Respondents.
DECISION
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the
Decision1 dated June 15, 2004 as well as the
Resolution2dated September 1, 2004 of the Court of Appeals
(CA) in CA-G.R. CV No. 58013 which modified the
Decision3dated September 5, 1997 of the Regional Trial
Court of Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents 11-year old daughter, Angelica
Soliman, underwent a biopsy of the mass located in her
lower extremity at the St. Lukes Medical Center (SLMC).
Results showed that Angelica was suffering from
osteosarcoma, osteoblastic type,4 a high-grade (highly
malignant) cancer of the bone which usually afflicts teenage
children. Following this diagnosis and as primary
intervention, Angelicas right leg was amputated by Dr. Jaime
Tamayo in order to remove the tumor. As adjuvant treatment
to eliminate any remaining cancer cells, and hence minimize
the chances of recurrence and prevent the disease from
spreading to other parts of the patients body (metastasis),
chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo
referred Angelica to another doctor at SLMC, herein
petitioner Dr. Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC.
However, she died on September 1, 1993, just eleven (11)
days after the (intravenous) administration of the first cycle
of the chemotherapy regimen. Because SLMC refused to
release a death certificate without full payment of their
hospital bill, respondents brought the cadaver of Angelica to
the Philippine National Police (PNP) Crime Laboratory at
Camp Crame for post-mortem examination. The Medico-
Legal Report issued by said institution indicated the cause of
death as "Hypovolemic shock secondary to multiple organ
hemorrhages and Disseminated Intravascular Coagulation."5
On the other hand, the Certificate of Death 6 issued by SLMC
stated the cause of death as follows:
Immediate cause : a. Osteosarcoma, Status Post
AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy
On February 21, 1994, respondents filed a damage
suit7 against petitioner, Dr. Leo Marbella, Mr. Jose Ledesma,
a certain Dr. Arriete and SLMC. Respondents charged them
with negligence and disregard of Angelicas safety, health
and welfare by their careless administration of the
chemotherapy drugs, their failure to observe the essential
precautions in detecting early the symptoms of fatal blood
platelet decrease and stopping early on the chemotherapy,
which bleeding led to hypovolemic shock that caused
Angelicas untimely demise. Further, it was specifically
averred that petitioner assured the respondents that
Angelica would recover in view of 95% chance of healing
with chemotherapy ("Magiging normal na ang anak nyo
basta ma-chemo. 95% ang healing") and when asked
regarding the side effects, petitioner mentioned only slight
vomiting, hair loss and weakness ("Magsusuka ng kaunti.
Malulugas ang buhok. Manghihina"). Respondents thus
claimed that they would not have given their consent to
chemotherapy had petitioner not falsely assured them of its
side effects.
In her answer,8 petitioner denied having been negligent in
administering the chemotherapy drugs to Angelica and
asserted that she had fully explained to respondents how the
chemotherapy will affect not only the cancer cells but also
the patients normal body parts, including the lowering of
white and red blood cells and platelets. She claimed that
what happened to Angelica can be attributed to malignant
tumor cells possibly left behind after surgery. Few as they
may be, these have the capacity to compete for nutrients
such that the body becomes so weak structurally (cachexia)
and functionally in the form of lower resistance of the body to
combat infection. Such infection becomes uncontrollable and
triggers a chain of events (sepsis or septicemia) that may
lead to bleeding in the form of Disseminated Intravascular
Coagulation (DIC), as what the autopsy report showed in the
case of Angelica.
Since the medical records of Angelica were not produced in
court, the trial and appellate courts had to rely on testimonial
evidence, principally the declarations of petitioner and
respondents themselves. The following chronology of events
was gathered:
On July 23, 1993, petitioner saw the respondents at the
hospital after Angelicas surgery and discussed with them
Angelicas condition. Petitioner told respondents that
Angelica should be given two to three weeks to recover from
the operation before starting chemotherapy. Respondents
were apprehensive due to financial constraints as Reynaldo
earns only from P70,000.00 to P150,000.00 a year from his
jewelry and watch repairing business.9Petitioner, however,
assured them not to worry about her professional fee and
told them to just save up for the medicines to be used.
Petitioner claimed that she explained to respondents that
even when a tumor is removed, there are still small lesions
undetectable to the naked eye, and that adjuvant
chemotherapy is needed to clean out the small lesions in
order to lessen the chance of the cancer to recur. She did
not give the respondents any assurance that chemotherapy
will cure Angelicas cancer. During these consultations with
respondents, she explained the following side effects of
chemotherapy treatment to respondents: (1) falling hair; (2)
nausea and vomiting; (3) loss of appetite; (4) low count of
white blood cells [WBC], red blood cells [RBC] and platelets;
(5) possible sterility due to the effects on Angelicas ovary;
(6) damage to the heart and kidneys; and (7) darkening of
the skin especially when exposed to sunlight. She actually
talked with respondents four times, once at the hospital after
the surgery, twice at her clinic and the fourth time when
Angelicas mother called her through long distance. 10 This
was disputed by respondents who countered that petitioner
gave them assurance that there is 95% chance of healing for
Angelica if she undergoes chemotherapy and that the only
side effects were nausea, vomiting and hair loss. 11Those
were the only side-effects of chemotherapy treatment
mentioned by petitioner.12
On July 27, 1993, SLMC discharged Angelica, with
instruction from petitioner that she be readmitted after two or
three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC
for chemotherapy, bringing with them the results of the
laboratory tests requested by petitioner: Angelicas chest x-
ray, ultrasound of the liver, creatinine and complete liver
function tests.13 Petitioner proceeded with the chemotherapy
by first administering hydration fluids to Angelica.14
The following day, August 19, petitioner began administering
three chemotherapy drugs Cisplatin,15Doxorubicin16 and
Cosmegen17 intravenously. Petitioner was supposedly
assisted by her trainees Dr. Leo Marbella 18 and Dr. Grace
Arriete.19 In his testimony, Dr. Marbella denied having any
participation in administering the said chemotherapy drugs.20
On the second day of chemotherapy, August 20,
respondents noticed reddish discoloration on Angelicas
face.21They asked petitioner about it, but she merely
quipped, "Wala yan. Epekto ng gamot."22 Petitioner recalled
noticing the skin rashes on the nose and cheek area of
Angelica. At that moment, she entertained the possibility that
Angelica also had systemic lupus and consulted Dr. Victoria
Abesamis on the matter.23
On the third day of chemotherapy, August 21, Angelica had
difficulty breathing and was thus provided with oxygen
inhalation apparatus. This time, the reddish discoloration on
Angelicas face had extended to her neck, but petitioner
dismissed it again as merely the effect of
medicines.24 Petitioner testified that she did not see any
discoloration on Angelicas face, nor did she notice any
difficulty in the childs breathing. She claimed that Angelica
merely complained of nausea and was given ice
chips.251avvphi1
On August 22, 1993, at around ten oclock in the morning,
upon seeing that their child could not anymore bear the pain,
respondents pleaded with petitioner to stop the
chemotherapy. Petitioner supposedly replied: "Dapat 15
Cosmegen pa iyan. Okay, lets observe. If pwede na, bigyan
uli ng chemo." At this point, respondents asked petitioners
permission to bring their child home. Later in the evening,
Angelica passed black stool and reddish urine.26 Petitioner
countered that there was no record of blackening of stools
but only an episode of loose bowel movement (LBM).
Petitioner also testified that what Angelica complained of
was carpo-pedal spasm, not convulsion or epileptic attack,
as respondents call it (petitioner described it in the
vernacular as "naninigas ang kamay at paa"). She then
requested for a serum calcium determination and stopped
the chemotherapy. When Angelica was given calcium
gluconate, the spasm and numbness subsided.27
The following day, August 23, petitioner yielded to
respondents request to take Angelica home. But prior to
discharging Angelica, petitioner requested for a repeat
serum calcium determination and explained to respondents
that the chemotherapy will be temporarily stopped while she
observes Angelicas muscle twitching and serum calcium
level. Take-home medicines were also prescribed for
Angelica, with instructions to respondents that the serum
calcium test will have to be repeated after seven days.
Petitioner told respondents that she will see Angelica again
after two weeks, but respondents can see her anytime if any
immediate problem arises.28
However, Angelica remained in confinement because while
still in the premises of SLMC, her "convulsions" returned and
she also had LBM. Angelica was given oxygen and
administration of calcium continued.29
The next day, August 24, respondents claimed that Angelica
still suffered from convulsions. They also noticed that she
had a fever and had difficulty breathing. 30 Petitioner insisted
it was carpo-pedal spasm, not convulsions. She verified that
at around 4:50 that afternoon, Angelica developed difficulty
in breathing and had fever. She then requested for an
electrocardiogram analysis, and infused calcium gluconate
on the patient at a "stat dose." She further ordered that
Angelica be given Bactrim,31 a synthetic antibacterial
combination drug,32 to combat any infection on the childs
body.33
By August 26, Angelica was bleeding through the mouth.
Respondents also saw blood on her anus and urine. When
Lina asked petitioner what was happening to her daughter,
petitioner replied, "Bagsak ang platelets ng anak mo." Four
units of platelet concentrates were then transfused to
Angelica. Petitioner prescribed Solucortef. Considering that
Angelicas fever was high and her white blood cell count was
low, petitioner prescribed Leucomax. About four to eight
bags of blood, consisting of packed red blood cells, fresh
whole blood, or platelet concentrate, were transfused to
Angelica. For two days (August 27 to 28), Angelica
continued bleeding, but petitioner claimed it was lesser in
amount and in frequency. Petitioner also denied that there
were gadgets attached to Angelica at that time.34
On August 29, Angelica developed ulcers in her mouth,
which petitioner said were blood clots that should not be
removed. Respondents claimed that Angelica passed about
half a liter of blood through her anus at around seven oclock
that evening, which petitioner likewise denied.
On August 30, Angelica continued bleeding. She was
restless as endotracheal and nasogastric tubes were
inserted into her weakened body. An aspiration of the
nasogastric tube inserted to Angelica also revealed a bloody
content. Angelica was given more platelet concentrate and
fresh whole blood, which petitioner claimed improved her
condition. Petitioner told Angelica not to remove the
endotracheal tube because this may induce further
bleeding.35 She was also transferred to the intensive care
unit to avoid infection.
The next day, respondents claimed that Angelica became
hysterical, vomited blood and her body turned black. Part of
Angelicas skin was also noted to be shredding by just
rubbing cotton on it. Angelica was so restless she removed
those gadgets attached to her, saying "Ayaw ko na"; there
were tears in her eyes and she kept turning her head.
Observing her daughter to be at the point of death, Lina
asked for a doctor but the latter could not answer her
anymore.36 At this time, the attending physician was Dr.
Marbella who was shaking his head saying that Angelicas
platelets were down and respondents should pray for their
daughter. Reynaldo claimed that he was introduced to a
pediatrician who took over his daughters case, Dr. Abesamis
who also told him to pray for his daughter. Angelica
continued to have difficulty in her breathing and blood was
being suctioned from her stomach. A nurse was posted
inside Angelicas room to assist her breathing and at one
point they had to revive Angelica by pumping her chest.
Thereafter, Reynaldo claimed that Angelica already
experienced difficulty in urinating and her bowel consisted of
blood-like fluid. Angelica requested for an electric fan as she
was in pain. Hospital staff attempted to take blood samples
from Angelica but were unsuccessful because they could not
even locate her vein. Angelica asked for a fruit but when it
was given to her, she only smelled it. At this time, Reynaldo
claimed he could not find either petitioner or Dr. Marbella.
That night, Angelica became hysterical and started removing
those gadgets attached to her. At three oclock in the
morning of September 1, a priest came and they prayed
before Angelica expired. Petitioner finally came back and
supposedly told respondents that there was "malfunction" or
bogged-down machine.37
By petitioners own account, Angelica was merely irritable
that day (August 31). Petitioner noted though that Angelicas
skin was indeed sloughing off.38 She stressed that at 9:30 in
the evening, Angelica pulled out her endotracheal tube. 39 On
September 1, exactly two weeks after being admitted at
SLMC for chemotherapy, Angelica died.40 The cause of
death, according to petitioner, was septicemia, or
overwhelming infection, which caused Angelicas other
organs to fail.41 Petitioner attributed this to the patients poor
defense mechanism brought about by the cancer itself.42
While he was seeking the release of Angelicas cadaver from
SLMC, Reynaldo claimed that petitioner acted arrogantly
and called him names. He was asked to sign a promissory
note as he did not have cash to pay the hospital bill.43
Respondents also presented as witnesses Dr. Jesusa
Nieves-Vergara, Medico-Legal Officer of the PNP-Crime
Laboratory who conducted the autopsy on Angelicas
cadaver, and Dr. Melinda Vergara Balmaceda who is a
Medical Specialist employed at the Department of Health
(DOH) Operations and Management Services.
Testifying on the findings stated in her medico-legal report,
Dr. Vergara noted the following: (1) there were fluids
recovered from the abdominal cavity, which is not normal,
and was due to hemorrhagic shock secondary to bleeding;
(2) there was hemorrhage at the left side of the heart; (3)
bleeding at the upper portion of and areas adjacent to, the
esophagus; (4) lungs were heavy with bleeding at the back
and lower portion, due to accumulation of fluids; (4)
yellowish discoloration of the liver; (5) kidneys showed
appearance of facial shock on account of hemorrhages; and
(6) reddishness on external surface of the spleen. All these
were the end result of "hypovolemic shock secondary to
multiple organ hemorrhages and disseminated intravascular
coagulation." Dr. Vergara opined that this can be attributed to
the chemical agents in the drugs given to the victim, which
caused platelet reduction resulting to bleeding sufficient to
cause the victims death. The time lapse for the production of
DIC in the case of Angelica (from the time of diagnosis of
sarcoma) was too short, considering the survival rate of
about 3 years. The witness conceded that the victim will also
die of osteosarcoma even with amputation or chemotherapy,
but in this case Angelicas death was not caused by
osteosarcoma. Dr. Vergara admitted that she is not a
pathologist but her statements were based on the opinion of
an oncologist whom she had interviewed. This oncologist
supposedly said that if the victim already had DIC prior to the
chemotherapy, the hospital staff could have detected it.44
On her part, Dr. Balmaceda declared that it is the physicians
duty to inform and explain to the patient or his relatives every
known side effect of the procedure or therapeutic agents to
be administered, before securing the consent of the patient
or his relatives to such procedure or therapy. The physician
thus bases his assurance to the patient on his personal
assessment of the patients condition and his knowledge of
the general effects of the agents or procedure that will be
allowed on the patient. Dr. Balmaceda stressed that the
patient or relatives must be informed of all known side
effects based on studies and observations, even if such will
aggravate the patients condition.45
Dr. Jaime Tamayo, the orthopaedic surgeon who operated
on Angelicas lower extremity, testified for the defendants. He
explained that in case of malignant tumors, there is no
guarantee that the ablation or removal of the amputated part
will completely cure the cancer. Thus, surgery is not enough.
The mortality rate of osteosarcoma at the time of modern
chemotherapy and early diagnosis still remains at 80% to
90%. Usually, deaths occur from metastasis, or spread of the
cancer to other vital organs like the liver, causing systemic
complications. The modes of therapy available are the
removal of the primary source of the cancerous growth and
then the residual cancer cells or metastasis should be
treated with chemotherapy. Dr. Tamayo further explained that
patients with osteosarcoma have poor defense mechanism
due to the cancer cells in the blood stream. In the case of
Angelica, he had previously explained to her parents that
after the surgical procedure, chemotherapy is imperative so
that metastasis of these cancer cells will hopefully be
addressed. He referred the patient to petitioner because he
felt that petitioner is a competent oncologist. Considering
that this type of cancer is very aggressive and will
metastasize early, it will cause the demise of the patient
should there be no early intervention (in this case, the
patient developed sepsis which caused her death). Cancer
cells in the blood cannot be seen by the naked eye nor
detected through bone scan. On cross-examination, Dr.
Tamayo stated that of the more than 50 child patients who
had osteogenic sarcoma he had handled, he thought that
probably all of them died within six months from amputation
because he did not see them anymore after follow-up; it is
either they died or had seen another doctor.46
In dismissing the complaint, the trial court held that petitioner
was not liable for damages as she observed the best known
procedures and employed her highest skill and knowledge in
the administration of chemotherapy drugs on Angelica but
despite all efforts said patient died. It cited the testimony of
Dr. Tamayo who testified that he considered petitioner one of
the most proficient in the treatment of cancer and that the
patient in this case was afflicted with a very aggressive type
of cancer necessitating chemotherapy as adjuvant
treatment. Using the standard of negligence laid down in
Picart v. Smith,47 the trial court declared that petitioner has
taken the necessary precaution against the adverse effect of
chemotherapy on the patient, adding that a wrong decision is
not by itself negligence. Respondents were ordered to pay
their unpaid hospital bill in the amount ofP139,064.43.48
Respondents appealed to the CA which, while concurring
with the trial courts finding that there was no negligence
committed by the petitioner in the administration of
chemotherapy treatment to Angelica, found that petitioner as
her attending physician failed to fully explain to the
respondents all the known side effects of chemotherapy. The
appellate court stressed that since the respondents have
been told of only three side effects of chemotherapy, they
readily consented thereto. Had petitioner made known to
respondents those other side effects which gravely affected
their child -- such as carpo-pedal spasm, sepsis, decrease in
the blood platelet count, bleeding, infections and eventual
death -- respondents could have decided differently or
adopted a different course of action which could have
delayed or prevented the early death of their child.
The CA thus declared:
Plaintiffs-appellants child was suffering from a malignant
disease. The attending physician recommended that she
undergo chemotherapy treatment after surgery in order to
increase her chances of survival. Appellants consented to
the chemotherapy treatment because they believed in Dr.
Rubi Lis representation that the deceased would have a
strong chance of survival after chemotherapy and also
because of the representation of appellee Dr. Rubi Li that
there were only three possible side-effects of the treatment.
However, all sorts of painful side-effects resulted from the
treatment including the premature death of Angelica. The
appellants were clearly and totally unaware of these other
side-effects which manifested only during the chemotherapy
treatment. This was shown by the fact that every time a
problem would take place regarding Angelicas condition (like
an unexpected side-effect manifesting itself), they would
immediately seek explanation from Dr. Rubi Li. Surely, those
unexpected side-effects culminating in the loss of a love[d]
one caused the appellants so much trouble, pain and
suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi
Li negligent which would entitle plaintiffs-appellants to their
claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED.
Accordingly, the assailed decision is hereby modified to the
extent that defendant-appellee Dr. Rubi Li is ordered to pay
the plaintiffs-appellants the following amounts:
1. Actual damages of P139,064.43, plus
P9,828.00 for funeral expenses;
2. Moral damages of P200,000.00;
3. Exemplary damages of P50,000.00;
4. Attorneys fee of P30,000.00.
SO ORDERED.49 (Emphasis supplied.)
Petitioner filed a motion for partial reconsideration which the
appellate court denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in
not explaining to the respondents all the possible side effects
of the chemotherapy on their child, and in holding her liable
for actual, moral and exemplary damages and attorneys
fees. Petitioner emphasized that she was not negligent in the
pre-chemotherapy procedures and in the administration of
chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects
of chemotherapy, including death, petitioner argues that it
was foolhardy to imagine her to be all-knowing/omnipotent.
While the theoretical side effects of chemotherapy were
explained by her to the respondents, as these should be
known to a competent doctor, petitioner cannot possibly
predict how a particular patients genetic make-up, state of
mind, general health and body constitution would respond to
the treatment. These are obviously dependent on too many
known, unknown and immeasurable variables, thus requiring
that Angelica be, as she was, constantly and closely
monitored during the treatment. Petitioner asserts that she
did everything within her professional competence to attend
to the medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in
her field and her current position as co-director for clinical
affairs of the Medical Oncology, Department of Medicine of
SLMC, petitioner contends that in the absence of any clear
showing or proof, she cannot be charged with negligence in
not informing the respondents all the side effects of
chemotherapy or in the pre-treatment procedures done on
Angelica.
As to the cause of death, petitioner insists that Angelica did
not die of platelet depletion but of sepsis which is a
complication of the cancer itself. Sepsis itself leads to
bleeding and death. She explains that the response rate to
chemotherapy of patients with osteosarcoma is high, so
much so that survival rate is favorable to the patient.
Petitioner then points to some probable consequences if
Angelica had not undergone chemotherapy. Thus, without
chemotherapy, other medicines and supportive treatment,
the patient might have died the next day because of massive
infection, or the cancer cells might have spread to the brain
and brought the patient into a coma, or into the lungs that
the patient could have been hooked to a respirator, or into
her kidneys that she would have to undergo dialysis. Indeed,
respondents could have spent as much because of these
complications. The patient would have been deprived of the
chance to survive the ailment, of any hope for life and her
"quality of life" surely compromised. Since she had not been
shown to be at fault, petitioner maintains that the CA erred in
holding her liable for the damages suffered by the
respondents.50
The issue to be resolved is whether the petitioner can be
held liable for failure to fully disclose serious side effects to
the parents of the child patient who died while undergoing
chemotherapy, despite the absence of finding that petitioner
was negligent in administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical
malpractice or, more appropriately, medical negligence, is
that type of claim which a victim has available to him or her
to redress a wrong committed by a medical professional
which has caused bodily harm. In order to successfully
pursue such a claim, a patient must prove that a health care
provider, in most cases a physician, either failed to do
something which a reasonably prudent health care provider
would have done, or that he or she did something that a
reasonably prudent provider would not have done; and that
that failure or action caused injury to the patient.51
This Court has recognized that medical negligence cases
are best proved by opinions of expert witnesses belonging in
the same general neighborhood and in the same general line
of practice as defendant physician or surgeon. The
deference of courts to the expert opinion of qualified
physicians stems from the formers realization that the latter
possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating, hence the
indispensability of expert testimonies.52
In this case, both the trial and appellate courts concurred in
finding that the alleged negligence of petitioner in the
administration of chemotherapy drugs to respondents child
was not proven considering that Drs. Vergara and
Balmaceda, not being oncologists or cancer specialists,
were not qualified to give expert opinion as to whether
petitioners lack of skill, knowledge and professional
competence in failing to observe the standard of care in her
line of practice was the proximate cause of the patients
death. Furthermore, respondents case was not at all helped
by the non-production of medical records by the hospital
(only the biopsy result and medical bills were submitted to
the court). Nevertheless, the CA found petitioner liable for
her failure to inform the respondents on all possible side
effects of chemotherapy before securing their consent to the
said treatment.
The doctrine of informed consent within the context of
physician-patient relationships goes far back into English
common law. As early as 1767, doctors were charged with
the tort of "battery" (i.e., an unauthorized physical contact
with a patient) if they had not gained the consent of their
patients prior to performing a surgery or procedure. In the
United States, the seminal case was Schoendorff v. Society
of New York Hospital53 which involved unwanted treatment
performed by a doctor. Justice Benjamin Cardozos oft-
quoted opinion upheld the basic right of a patient to give
consent to any medical procedure or treatment: "Every
human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a
surgeon who performs an operation without his patients
consent, commits an assault, for which he is liable in
damages."54 From a purely ethical norm, informed consent
evolved into a general principle of law that a physician has a
duty to disclose what a reasonably prudent physician in the
medical community in the exercise of reasonable care would
disclose to his patient as to whatever grave risks of injury
might be incurred from a proposed course of treatment, so
that a patient, exercising ordinary care for his own welfare,
and faced with a choice of undergoing the proposed
treatment, or alternative treatment, or none at all, may
intelligently exercise his judgment by reasonably balancing
the probable risks against the probable benefits.55
Subsequently, in Canterbury v. Spence56 the court observed
that the duty to disclose should not be limited to medical
usage as to arrogate the decision on revelation to the
physician alone. Thus, respect for the patients right of self-
determination on particular therapy demands a standard set
by law for physicians rather than one which physicians may
or may not impose upon themselves.57 The scope of
disclosure is premised on the fact that patients ordinarily are
persons unlearned in the medical sciences. Proficiency in
diagnosis and therapy is not the full measure of a physicians
responsibility. It is also his duty to warn of the dangers
lurking in the proposed treatment and to impart information
which the patient has every right to expect. Indeed, the
patients reliance upon the physician is a trust of the kind
which traditionally has exacted obligations beyond those
associated with armslength transactions.58 The physician is
not expected to give the patient a short medical education,
the disclosure rule only requires of him a reasonable
explanation, which means generally informing the patient in
nontechnical terms as to what is at stake; the therapy
alternatives open to him, the goals expectably to be
achieved, and the risks that may ensue from particular
treatment or no treatment.59 As to the issue of demonstrating
what risks are considered material necessitating disclosure,
it was held that experts are unnecessary to a showing of the
materiality of a risk to a patients decision on treatment, or to
the reasonably, expectable effect of risk disclosure on the
decision. Such unrevealed risk that should have been made
known must further materialize, for otherwise the omission,
however unpardonable, is without legal consequence. And,
as in malpractice actions generally, there must be a causal
relationship between the physicians failure to divulge and
damage to the patient.60
Reiterating the foregoing considerations, Cobbs v.
Grant61 deemed it as integral part of physicians overall
obligation to patient, the duty of reasonable disclosure of
available choices with respect to proposed therapy and of
dangers inherently and potentially involved in each.
However, the physician is not obliged to discuss relatively
minor risks inherent in common procedures when it is
common knowledge that such risks inherent in procedure of
very low incidence. Cited as exceptions to the rule that the
patient should not be denied the opportunity to weigh the
risks of surgery or treatment are emergency cases where it
is evident he cannot evaluate data, and where the patient is
a child or incompetent.62 The court thus concluded that the
patients right of self-decision can only be effectively
exercised if the patient possesses adequate information to
enable him in making an intelligent choice. The scope of the
physicians communications to the patient, then must be
measured by the patients need, and that need is whatever
information is material to the decision. The test therefore for
determining whether a potential peril must be divulged is its
materiality to the patients decision.63
Cobbs v. Grant further reiterated the pronouncement in
Canterbury v. Spence that for liability of the physician for
failure to inform patient, there must be causal relationship
between physicians failure to inform and the injury to patient
and such connection arises only if it is established that, had
revelation been made, consent to treatment would not have
been given.
There are four essential elements a plaintiff must prove in a
malpractice action based upon the doctrine of informed
consent: "(1) the physician had a duty to disclose material
risks; (2) he failed to disclose or inadequately disclosed
those risks; (3) as a direct and proximate result of the failure
to disclose, the patient consented to treatment she otherwise
would not have consented to; and (4) plaintiff was injured by
the proposed treatment." The gravamen in an informed
consent case requires the plaintiff to "point to significant
undisclosed information relating to the treatment which
would have altered her decision to undergo it.64
Examining the evidence on record, we hold that there was
adequate disclosure of material risks inherent in the
chemotherapy procedure performed with the consent of
Angelicas parents. Respondents could not have been
unaware in the course of initial treatment and amputation of
Angelicas lower extremity, that her immune system was
already weak on account of the malignant tumor in her knee.
When petitioner informed the respondents beforehand of the
side effects of chemotherapy which includes lowered counts
of white and red blood cells, decrease in blood platelets,
possible kidney or heart damage and skin darkening, there is
reasonable expectation on the part of the doctor that the
respondents understood very well that the severity of these
side effects will not be the same for all patients undergoing
the procedure. In other words, by the nature of the disease
itself, each patients reaction to the chemical agents even
with pre-treatment laboratory tests cannot be precisely
determined by the physician. That death can possibly result
from complications of the treatment or the underlying cancer
itself, immediately or sometime after the administration of
chemotherapy drugs, is a risk that cannot be ruled out, as
with most other major medical procedures, but such
conclusion can be reasonably drawn from the general side
effects of chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the
respondents to have considered the variables in the
recommended treatment for their daughter afflicted with a
life-threatening illness. On the other hand, it is difficult to give
credence to respondents claim that petitioner told them of
95% chance of recovery for their daughter, as it was unlikely
for doctors like petitioner who were dealing with grave
conditions such as cancer to have falsely assured patients of
chemotherapys success rate. Besides, informed consent
laws in other countries generally require only a reasonable
explanation of potential harms, so specific disclosures such
as statistical data, may not be legally necessary.65
The element of ethical duty to disclose material risks in the
proposed medical treatment cannot thus be reduced to one
simplistic formula applicable in all instances. Further, in a
medical malpractice action based on lack of informed
consent, "the plaintiff must prove both the duty and the
breach of that duty through expert testimony. 66Such expert
testimony must show the customary standard of care of
physicians in the same practice as that of the defendant
doctor.67
In this case, the testimony of Dr. Balmaceda who is not an
oncologist but a Medical Specialist of the DOHs Operational
and Management Services charged with receiving
complaints against hospitals, does not qualify as expert
testimony to establish the standard of care in obtaining
consent for chemotherapy treatment. In the absence of
expert testimony in this regard, the Court feels hesitant in
defining the scope of mandatory disclosure in cases of
malpractice based on lack of informed consent, much less
set a standard of disclosure that, even in foreign
jurisdictions, has been noted to be an evolving one.
As society has grappled with the juxtaposition between
personal autonomy and the medical profession's intrinsic
impetus to cure, the law defining "adequate" disclosure has
undergone a dynamic evolution. A standard once guided
solely by the ruminations of physicians is now dependent on
what a reasonable person in the patients position regards as
significant. This change in perspective is especially important
as medical breakthroughs move practitioners to the cutting
edge of technology, ever encountering new and heretofore
unimagined treatments for currently incurable diseases or
ailments. An adaptable standard is needed to account for
this constant progression. Reasonableness analyses
permeate our legal system for the very reason that they are
determined by social norms, expanding and contracting with
the ebb and flow of societal evolution.
As we progress toward the twenty-first century, we now
realize that the legal standard of disclosure is not subject to
construction as a categorical imperative. Whatever formulae
or processes we adopt are only useful as a foundational
starting point; the particular quality or quantity of disclosure
will remain inextricably bound by the facts of each case.
Nevertheless, juries that ultimately determine whether a
physician properly informed a patient are inevitably guided
by what they perceive as the common expectation of the
medical consumer"a reasonable person in the patients
position when deciding to accept or reject a recommended
medical procedure."68(Emphasis supplied.)
WHEREFORE, the petition for review on certiorari is
GRANTED. The Decision dated June 15, 2004 and the
Resolution dated September 1, 2004 of the Court of Appeals
in CA-G.R. CV No. 58013 are SET ASIDE.
The Decision dated September 5, 1997 of the Regional Trial
Court of Legazpi City, Branch 8, in Civil Case No. 8904 is
REINSTATED and UPHELD.
No costs. SO ORDERED.
G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own
behalf and as natural guardians of the minors, ROMMEL
RAMOS, ROY RODERICK RAMOS and RON RAYMOND
RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL
CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial
consideration to the health and welfare of their patients. If a
doctor fails to live up to this precept, he is made accountable
for his acts. A mistake, through gross negligence or
incompetence or plain human error, may spell the difference
between life and death. In this sense, the doctor plays God
on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a
surgeon, an anesthesiologist and a hospital should be made
liable for the unfortunate comatose condition of a patient
scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of
Appeals, dated 29 May 1995, which overturned the
decision 4 of the Regional Trial Court, dated 30 January
1992, finding private respondents liable for damages arising
from negligence in the performance of their professional
duties towards petitioner Erlinda Ramos resulting in her
comatose condition.
The antecedent facts as summarized by the trial court are
reproduced hereunder:
Plaintiff Erlinda Ramos was, until the
afternoon of June 17, 1985, a 47-year
old (Exh. "A") robust woman (TSN,
October 19, 1989, p. 10). Except for
occasional complaints of discomfort due
to pains allegedly caused by the
presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she
was as normal as any other woman.
Married to Rogelio E. Ramos, an
executive of Philippine Long Distance
Telephone Company, she has three
children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19,
1989, pp. 5-6).
Because the discomforts somehow
interfered with her normal ways, she
sought professional advice. She was
advised to undergo an operation for the
removal of a stone in her gall bladder
(TSN, January 13, 1988, p. 5). She
underwent a series of examinations
which included blood and urine tests
(Exhs. "A" and "C") which indicated she
was fit for surgery.
Through the intercession of a mutual
friend, Dr. Buenviaje (TSN, January 13,
1988, p. 7), she and her husband
Rogelio met for the first time Dr. Orlino
Hozaka (should be Hosaka; see TSN,
February 20, 1990, p. 3), one of the
defendants in this case, on June 10,
1985. They agreed that their date at the
operating table at the DLSMC (another
defendant), would be on June 17, 1985
at 9:00 A.M.. Dr. Hosaka decided that
she should undergo a the arrival of Dr. Hosaka. Herminda then
"cholecystectomy" operation after
examining the documents (findings from
the Capitol Medical Center, FEU
Hospital and DLSMC) presented to him.
Rogelio E. Ramos, however, asked Dr.
Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn,
assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a
fee of P16,000.00, which was to include
the anesthesiologist's fee and which
was to be paid after the operation (TSN,
October 19, 1989, pp. 14-15, 22-23, 31-
33; TSN, February 27, 1990, p. 13; and
TSN, November 9, 1989, pp. 3-4, 10,
17).
A day before the scheduled date of
operation, she was admitted at one of
the rooms of the DLSMC, located along
E. Rodriguez Avenue, Quezon City
(TSN, October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985
and while still in her room, she was
prepared for the operation by the
hospital staff. Her sister-in-law,
Herminda Cruz, who was the Dean of
the College of Nursing at the Capitol
Medical Center, was also there for moral
support. She reiterated her previous
request for Herminda to be with her
even during the operation. After praying,
she was given injections. Her hands
were held by Herminda as they went
down from her room to the operating
room (TSN, January 13, 1988, pp. 9-11).
Her husband, Rogelio, was also with her
(TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about
two or three nurses and Dr. Perfecta
Gutierrez, the other defendant, who was
to administer anesthesia. Although not a
member of the hospital staff, Herminda
introduced herself as Dean of the
College of Nursing at the Capitol
Medical Center who was to provide
moral support to the patient, to them.
Herminda was allowed to stay inside the
operating room.
At around 9:30 A.M., Dr. Gutierrez
reached a nearby phone to look for Dr.
Hosaka who was not yet in (TSN,
January 13, 1988, pp. 11-12). Dr.
Gutierrez thereafter informed Herminda
Cruz about the prospect of a delay in
went back to the patient who asked,
"Mindy, wala pa ba ang Doctor"? The
former replied, "Huwag kang mag-
alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the
operating room and informed the
patient's husband, Rogelio, that the
doctor was not yet around (id., p. 13).
When she returned to the operating
room, the patient told her, "Mindy, inip
na inip na ako, ikuha mo ako ng ibang
Doctor." So, she went out again and told
Rogelio about what the patient said (id.,
p. 15). Thereafter, she returned to the
operating room.
At around 10:00 A.M., Rogelio E.
Ramos was "already dying [and] waiting
for the arrival of the doctor" even as he
did his best to find somebody who will
allow him to pull out his wife from the
operating room (TSN, October 19, 1989,
pp. 19-20). He also thought of the
feeling of his wife, who was inside the
operating room waiting for the doctor to
arrive (ibid.). At almost 12:00 noon, he
met Dr. Garcia who remarked that he
(Dr. Garcia) was also tired of waiting for
Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10
P.M., he came to know that Dr. Hosaka
arrived as a nurse remarked, "Nandiyan
na si Dr. Hosaka, dumating na raw."
Upon hearing those words, he went
down to the lobby and waited for the
operation to be completed (id., pp. 16,
29-30).
At about 12:15 P.M., Herminda Cruz,
who was inside the operating room with
the patient, heard somebody say that
"Dr. Hosaka is already here." She then
saw people inside the operating room
"moving, doing this and that, [and]
preparing the patient for the operation"
(TSN, January 13, 1988, p. 16). As she
held the hand of Erlinda Ramos, she
then saw Dr. Gutierrez intubating the
hapless patient. She thereafter heard
Dr. Gutierrez say, "ang hirap ma-
intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan"
(id., p. 17). Because of the remarks of
Dra. Gutierrez, she focused her
attention on what Dr. Gutierrez was
doing. She thereafter noticed bluish
discoloration of the nailbeds of the left
hand of the hapless Erlinda even as Dr.
Hosaka approached her. She then
heard Dr. Hosaka issue an order for
someone to call Dr. Calderon, another
anesthesiologist (id., p. 19). After Dr.
Calderon arrived at the operating room,
she saw this anesthesiologist trying to
intubate the patient. The patient's
nailbed became bluish and the patient
was placed in a trendelenburg position
a position where the head of the
patient is placed in a position lower than
her feet which is an indication that there
is a decrease of blood supply to the
patient's brain (Id., pp. 19-20).
Immediately thereafter, she went out of
the operating room, and she told
Rogelio E. Ramos "that something
wrong was . . . happening" (Ibid.). Dr.
Calderon was then able to intubate the
patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside
the operating room, saw a respiratory
machine being rushed towards the door
of the operating room. He also saw
several doctors rushing towards the
operating room. When informed by
Herminda Cruz that something wrong
was happening, he told her (Herminda)
to be back with the patient inside the
operating room (TSN, October 19, 1989,
pp. 25-28).
Herminda Cruz immediately rushed
back, and saw that the patient was still
in trendelenburg position (TSN, January
13, 1988, p. 20). At almost 3:00 P.M. of
that fateful day, she saw the patient
taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E.
Ramos was able to talk to Dr. Hosaka.
The latter informed the former that
something went wrong during the
intubation. Reacting to what was told to
him, Rogelio reminded the doctor that
the condition of his wife would not have
happened, had he (Dr. Hosaka) looked
for a good anesthesiologist (TSN,
October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were
also asked by the hospital to explain
what happened to the patient. The
doctors explained that the patient had
bronchospasm (TSN, November 15,
1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a
month. About four months thereafter or
on November 15, 1985, the patient was
released from the hospital.
During the whole period of her
confinement, she incurred hospital bills
amounting to P93,542.25 which is the
subject of a promissory note and
affidavit of undertaking executed by
Rogelio E. Ramos in favor of DLSMC.
Since that fateful afternoon of June 17,
1985, she has been in a comatose
condition. She cannot do anything. She
cannot move any part of her body. She
cannot see or hear. She is living on
mechanical means. She suffered brain
damage as a result of the absence of
oxygen in her brain for four to five
minutes (TSN, November 9, 1989, pp.
21-22). After being discharged from the
hospital, she has been staying in their
residence, still needing constant medical
attention, with her husband Rogelio
incurring a monthly expense ranging
from P8,000.00 to P10,000.00 (TSN,
October 19, 1989, pp. 32-34). She was
also diagnosed to be suffering from
"diffuse cerebral parenchymal damage"
(Exh. "G"; see also TSN, December 21,
1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for
damages with the Regional Trial Court of Quezon City
against herein private respondents alleging negligence in the
management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the
possible cause of Erlinda's injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano Gavino
to prove that the sustained by Erlinda was due to lack of
oxygen in her brain caused by the faulty management of her
airway by private respondents during the anesthesia phase.
On the other hand, private respondents primarily relied on
the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage
was Erlinda's allergic reaction to the anesthetic agent,
Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional
Trial Court rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown
in the finding of facts set forth earlier,
and applying the aforecited provisions of
law and jurisprudence to the case at bar,
this Court finds and so holds that
defendants are liable to plaintiffs for
damages. The defendants were guilty
of, at the very least, negligence in the
performance of their duty to plaintiff-
patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez,
this Court finds that she omitted to
exercise reasonable care in not only
intubating the patient, but also in not
repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10),
without due regard to the fact that the
patient was inside the operating room
for almost three (3) hours. For after she
committed a mistake in intubating [the]
patient, the patient's nailbed became
bluish and the patient, thereafter, was
placed in trendelenburg position,
because of the decrease of blood supply
to the patient's brain. The evidence
further shows that the hapless patient
suffered brain damage because of the
absence of oxygen in her (patient's)
brain for approximately four to five
minutes which, in turn, caused the
patient to become comatose.
On the part of Dr. Orlino Hosaka, this
Court finds that he is liable for the acts
of Dr. Perfecta Gutierrez whom he had
chosen to administer anesthesia on the
patient as part of his obligation to
provide the patient a good
anesthesiologist', and for arriving for the
scheduled operation almost three (3)
hours late.
On the part of DLSMC (the hospital),
this Court finds that it is liable for the
acts of negligence of the doctors in their
"practice of medicine" in the operating
room. Moreover, the hospital is liable for
failing through its responsible officials, to
cancel the scheduled operation after Dr.
Hosaka inexcusably failed to arrive on 4) the costs of the that plaintiffs/appellees received a copy
time. suit. of the decision as early as June 9, 1995.
Computation wise, the period to file a
In having held thus, this Court rejects SO ORDERED. 7 Motion for Reconsideration expired on
the defense raised by defendants that June 24. The Motion for
they have acted with due care and Private respondents seasonably interposed an appeal to the Reconsideration, in turn, was received
prudence in rendering medical services Court of Appeals. The appellate court rendered a Decision, by the Court of Appeals already on July
to plaintiff-patient. For if the patient was dated 29 May 1995, reversing the findings of the trial court. 4, necessarily, the 15-day period already
properly intubated as claimed by them, The decretal portion of the decision of the appellate court passed. For that alone, the latter should
the patient would not have become reads: be denied.
comatose. And, the fact that another
anesthesiologist was called to try to WHEREFORE, for the foregoing Even assuming admissibility of the
intubate the patient after her (the premises the appealed decision is Motion for the Reconsideration, but after
patient's) nailbed turned bluish, belie hereby REVERSED, and the complaint considering the Comment/Opposition,
their claim. Furthermore, the defendants below against the appellants is hereby the former, for lack of merit, is hereby
should have rescheduled the operation ordered DISMISSED. The counterclaim DENIED.
to a later date. This, they should have of appellant De Los Santos Medical
done, if defendants acted with due care Center is GRANTED but only insofar as SO ORDERED. 10
and prudence as the patient's case was appellees are hereby ordered to pay the
an elective, not an emergency case. unpaid hospital bills amounting to A copy of the above resolution was received by Atty. Sillano
P93,542.25, plus legal interest for on 11 April 1996. The next day, or on 12 April 1996, Atty.
xxx xxx xxx justice must be tempered with mercy. Sillano filed before this Court a motion for extension of time
to file the present petition for certiorari under Rule 45. The
WHEREFORE, and in view of the SO ORDERED. 8 Court granted the motion for extension of time and gave
foregoing, judgment is rendered in favor petitioners additional thirty (30) days after the expiration of
of the plaintiffs and against the The decision of the Court of Appeals was received on 9 June the fifteen-day (15) period counted from the receipt of the
defendants. Accordingly, the latter are 1995 by petitioner Rogelio Ramos who was mistakenly resolution of the Court of Appeals within which to submit the
ordered to pay, jointly and severally, the addressed as "Atty. Rogelio Ramos." No copy of the petition. The due date fell on 27 May 1996. The petition was
former the following sums of money, to decision, however, was sent nor received by the Coronel filed on 9 May 1996, well within the extended period given by
wit: Law Office, then counsel on record of petitioners. Rogelio the Court.
referred the decision of the appellate court to a new lawyer,
1) the sum of Atty. Ligsay, only on 20 June 1995, or four (4) days before Petitioners assail the decision of the Court of Appeals on the
P8,000.00 as actual the expiration of the reglementary period for filing a motion following grounds:
monthly expenses for reconsideration. On the same day, Atty. Ligsay, filed with
for the plaintiff the appellate court a motion for extension of time to file a I
Erlinda Ramos motion for reconsideration. The motion for reconsideration
reckoned from was submitted on 4 July 1995. However, the appellate court IN PUTTING MUCH RELIANCE ON
November 15, 1985 denied the motion for extension of time in its Resolution THE TESTIMONIES OF
or in the total sum dated 25 July 1995. 9Meanwhile, petitioners engaged the RESPONDENTS DRA. GUTIERREZ,
of P632,000.00 as services of another counsel, Atty. Sillano, to replace Atty. DRA. CALDERON AND DR. JAMORA;
of April 15, 1992, Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit
subject to its being the motion for reconsideration contending that the period to II
updated; file the appropriate pleading on the assailed decision had not
yet commenced to run as the Division Clerk of Court of the IN FINDING THAT THE NEGLIGENCE
2) the sum of Court of Appeals had not yet served a copy thereof to the OF THE RESPONDENTS DID NOT
P100,000.00 as counsel on record. Despite this explanation, the appellate CAUSE THE UNFORTUNATE
reasonable court still denied the motion to admit the motion for COMATOSE CONDITION OF
attorney's fees; reconsideration of petitioners in its Resolution, dated 29 PETITIONER ERLINDA RAMOS;
March 1996, primarily on the ground that the fifteen-day (15)
3) the sum of period for filing a motion for reconsideration had already III
P800,000.00 by expired, to wit:
way of moral IN NOT APPLYING THE DOCTRINE
damages and the We said in our Resolution on July 25, OF RES IPSA LOQUITUR. 11
further sum of 1995, that the filing of a Motion for
P200,000,00 by Reconsideration cannot be extended; Before we discuss the merits of the case, we shall first
way of exemplary precisely, the Motion for Extension dispose of the procedural issue on the timeliness of the
damages; and, (Rollo, p. 12) was denied. It is, on the petition in relation to the motion for reconsideration filed by
other hand, admitted in the latter Motion
petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition
should not be given due course since the motion for
reconsideration of the petitioners on the decision of the
Court of Appeals was validly dismissed by the appellate
court for having been filed beyond the reglementary period.
We do not agree.
A careful review of the records reveals that the reason
behind the delay in filing the motion for reconsideration is
attributable to the fact that the decision of the Court of
Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the
decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995
wherein he was mistakenly addressed as Atty. Rogelio
Ramos. Based on the other communications received by
petitioner Rogelio Ramos, the appellate court apparently
mistook him for the counsel on record. Thus, no copy of the
decision of the counsel on record. Petitioner, not being a
lawyer and unaware of the prescriptive period for filing a
motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel,
all notices should be sent to the party's lawyer at his given
address. With a few exceptions, notice to a litigant without
notice to his counsel on record is no notice at all. In the
present case, since a copy of the decision of the appellate
court was not sent to the counsel on record of petitioner,
there can be no sufficient notice to speak of. Hence, the
delay in the filing of the motion for reconsideration cannot be
taken against petitioner. Moreover, since the Court of
Appeals already issued a second Resolution, dated 29
March 1996, which superseded the earlier resolution issued
on 25 July 1995, and denied the motion for reconsideration
of petitioner, we believed that the receipt of the former
should be considered in determining the timeliness of the
filing of the present petition. Based on this, the petition
before us was submitted on time.
After resolving the foregoing procedural issue, we shall now
look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the
issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two assigned
errors shall be tackled in relation to the res ipsa
loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the
thing or the transaction speaks for itself." The phrase "res
ipsa loquitur'' is a maxim for the rule that the fact of the
occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff's prima
faciecase, and present a question of fact for defendant to
meet with an explanation. 13 Where the thing which caused
the injury complained of is shown to be under the
management of the defendant or his servants and the
accident is such as in ordinary course of things does not
happen if those who have its management or control use
proper care, it affords reasonable evidence, in the absence
of explanation by the defendant, that the accident arose from
or was caused by the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the
postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences
may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in
the absence of some explanation by the defendant who is
charged with negligence. 15 It is grounded in the superior
logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident
itself. 16 Hence, res ipsa loquitur is applied in conjunction
with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a
rule of substantive law and, as such, does not create or
constitute an independent or separate ground of
liability. 17 Instead, it is considered as merely evidentiary or in
the nature of a procedural rule. 18 It is regarded as a mode of
proof, or a mere procedural of convenience since it furnishes
a substitute for, and relieves a plaintiff of, the burden of
producing specific proof of negligence. 19 In other words,
mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence. It is
simply a step in the process of such proof, permitting the
plaintiff to present along with the proof of the accident,
enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence,
and to thereby place on the defendant the burden of going
forward with the proof. 20 Still, before resort to the doctrine
may be allowed, the following requisites must be
satisfactorily shown:
1. The accident is of a kind which ordinarily does
not occur in the absence of someone's negligence;
2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
3. The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated. 21
In the above requisites, the fundamental element is the
"control of instrumentality" which caused the damage. 22Such
element of control must be shown to be within the dominion
of the defendant. In order to have the benefit of the rule, a
plaintiff, in addition to proving injury or damage, must show a
situation where it is applicable, and must establish that the
essential elements of the doctrine were present in a
particular incident. 23
Medical malpractice 24 cases do not escape the application
of this doctrine. Thus, res ipsa loquitur has been applied
when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference of
negligence as the cause of that harm. 25 The application
of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to determine
whether a certain set of circumstances does, as a matter of
law, permit a given inference. 26
Although generally, expert medical testimony is relied upon
in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard
medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony
is dispensed with because the injury itself provides the proof
of negligence. 27 The reason is that the general rule on the
necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to
matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the
facts. 28 Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient
has been treated or operated upon with a reasonable degree
of skill and care. However, testimony as to the statements
and acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one
may be given by non-expert witnesses. 29 Hence, in cases
where theres ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof of
injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can
determine the proper standard of care. 30 Where common
knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had been
exercised, an inference of negligence may be drawn giving
rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it
occurred. 31 When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act
or omission complained of and the injury sustained while
under the custody and management of the defendant without
need to produce expert medical testimony to establish the
standard of care. Resort to res ipsa loquitur is allowed
because there is no other way, under usual and ordinary
conditions, by which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the doctrine
in the following situations: leaving of a foreign object in the
body of the patient after an operation, 32 injuries sustained on
a healthy part of the body which was not under, or in the
area, of treatment, 33 removal of the wrong part of the body
when another part was intended, 34 knocking out a tooth
while a patient's jaw was under anesthetic for the removal of
his tonsils, 35 and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an
operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to
show that he is not guilty of the ascribed negligence. Res
ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases where
a layman is able to say, as a matter of common knowledge
and observation, that the consequences of professional care
were not as such as would ordinarily have followed if due
care had been
exercised. 37 A distinction must be made between the failure
to secure results, and the occurrence of something more
unusual and not ordinarily found if the service or treatment
rendered followed the usual procedure of those skilled in that
particular practice. It must be conceded that the doctrine
of res ipsa loquitur can have no application in a suit against
a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. 38 The physician or
surgeon is not required at his peril to explain why any
particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired
result. 39 Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result
of an operation or treatment was not accomplished. 40 The
real question, therefore, is whether or not in the process of
the operation any extraordinary incident or unusual event
outside of the routine performance occurred which is beyond
the regular scope of customary professional activity in such
operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent
cause or causes of the untoward consequence. 41 If there
was such extraneous interventions, the doctrine of res ipsa
loquitur may be utilized and the defendant is called upon to
explain the matter, by evidence of exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the
case at bar. As will hereinafter be explained, the damage
sustained by Erlinda in her brain prior to a scheduled gall
bladder operation presents a case for the application of res
ipsa loquitur.
A case strikingly similar to the one before us is Voss
vs. Bridwell, 43 where the Kansas Supreme Court in applying
theres ipsa loquitur stated:
The plaintiff herein submitted himself for
a mastoid operation and delivered his
person over to the care, custody and
control of his physician who had
complete and exclusive control over
him, but the operation was never
performed. At the time of submission he
was neurologically sound and physically
fit in mind and body, but he suffered
irreparable damage and injury rendering
him decerebrate and totally
incapacitated. The injury was one which
does not ordinarily occur in the process
of a mastoid operation or in the absence
of negligence in the administration of an
anesthetic, and in the use and
employment of an endoctracheal tube.
Ordinarily a person being put under
anesthesia is not rendered decerebrate
as a consequence of administering such
anesthesia in the absence of
negligence. Upon these facts and under
these circumstances a layman would be
able to say, as a matter of common
knowledge and observation, that the
consequences of professional treatment
were not as such as would ordinarily
have followed if due care had been
exercised.
Here the plaintiff could not have been
guilty of contributory negligence
because he was under the influence of
anesthetics and unconscious, and the
circumstances are such that the true
explanation of event is more accessible
to the defendants than to the plaintiff for
they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and
circumstances alleged in Count II it is
held that a cause of action is stated
under the doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case
apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a
routine general surgery to be performed on her gall bladder.
On that fateful day she delivered her person over to the care,
custody and control of private respondents who exercised
complete and exclusive control over her. At the time of
submission, Erlinda was neurologically sound and, except
for a few minor discomforts, was likewise physically fit in
mind and body. However, during the administration of
anesthesia and prior to the performance of cholecystectomy
she suffered irreparable damage to her brain. Thus, without
undergoing surgery, she went out of the operating room
already decerebrate and totally incapacitated. Obviously,
brain damage, which Erlinda sustained, is an injury which
does not normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not in the
absence of negligence of someone in the administration of
anesthesia and in the use of endotracheal tube. Normally, a
person being put under anesthesia is not rendered
decerebrate as a consequence of administering such
anesthesia if the proper procedure was followed.
Furthermore, the instruments used in the administration of
anesthesia, including the endotracheal tube, were all under
the exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could not
have been guilty of contributory negligence because she
was under the influence of anesthetics which rendered her
unconscious.
Considering that a sound and unaffected member of the
body (the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive control
of the physicians, we hold that a practical administration of
justice dictates the application of res ipsa loquitur. Upon
these facts and under these circumstances the Court would
be able to say, as a matter of common knowledge and
observation, if negligence attended the management and
care of the patient. Moreover, the liability of the physicians
and the hospital in this case is not predicated upon an
alleged failure to secure the desired results of an operation
nor on an alleged lack of skill in the diagnosis or treatment
as in fact no operation or treatment was ever performed on
Erlinda. Thus, upon all these initial determination a case is
made out for the application of the doctrine of res ipsa
loquitur.
Nonetheless, in holding that res ipsa loquitur is available to
the present case we are not saying that the doctrine is
applicable in any and all cases where injury occurs to a
patient while under anesthesia, or to any and all anesthesia
cases. Each case must be viewed in its own light and
scrutinized in order to be within the res ipsa
loquitur coverage.
Having in mind the applicability of the res ipsa
loquitur doctrine and the presumption of negligence allowed
therein, the Court now comes to the issue of whether the
Court of Appeals erred in finding that private respondents
were not negligent in the care of Erlinda during the
anesthesia phase of the operation and, if in the affirmative,
whether the alleged negligence was the proximate cause of
Erlinda's comatose condition. Corollary thereto, we shall also
determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of
Appeals relied on the testimonies of Dra. Gutierrez, Dra.
Calderon and Dr. Jamora. In giving weight to the testimony
of Dra. Gutierrez, the Court of Appeals rationalized that she
was candid enough to admit that she experienced some
difficulty in the endotracheal intubation 45 of the patient and
thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private
respondents were able to show that the brain damage
sustained by Erlinda was not caused by the alleged faulty
intubation but was due to the allergic reaction of the patient
to the drug Thiopental Sodium (Pentothal), a short-acting
barbiturate, as testified on by their expert witness, Dr.
Jamora. On the other hand, the appellate court rejected the
testimony of Dean Herminda Cruz offered in favor of
petitioners that the cause of the brain injury was traceable to
the wrongful insertion of the tube since the latter, being a
nurse, was allegedly not knowledgeable in the process of
intubation. In so holding, the appellate court returned a
verdict in favor of respondents physicians and hospital and
absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We
hold that private respondents were unable to disprove the
presumption of negligence on their part in the care of Erlinda
and their negligence was the proximate cause of her piteous
condition.
In the instant case, the records are helpful in furnishing not
only the logical scientific evidence of the pathogenesis of the
injury but also in providing the Court the legal nexus upon
which liability is based. As will be shown hereinafter, private
respondents' own testimonies which are reflected in the
transcript of stenographic notes are replete of signposts
indicative of their negligence in the care and management of
Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the
care of Erlinda during the anesthesia phase. As borne by the
records, respondent Dra. Gutierrez failed to properly intubate
the patient. This fact was attested to by Prof. Herminda
Cruz, Dean of the Capitol Medical Center School of Nursing
and petitioner's sister-in-law, who was in the operating room
right beside the patient when the tragic event occurred.
Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta
Gutierrez do, if any on the patient?
A: In particular, I could see that she was
intubating the patient.
Q: Do you know what happened to that
intubation process administered by Dra.
Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I
was beside the stretcher holding the left
hand of the patient and all of a sudden
heard some remarks coming from Dra.
Perfecta Gutierrez herself. She was
saying "Ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O lumalaki ang
tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those
words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki
ang tiyan," what did you notice on the
person of the patient?
A: I notice (sic) some bluish
discoloration on the nailbeds of the left
hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then
at that particular time?
A: I saw him approaching the patient
during that time.
Q: When he approached the patient,
what did he do, if any?
A: He made an order to call on the
anesthesiologist in the person of Dr.
Calderon.
Q: Did Dr. Calderon, upon being called,
arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to
intubate the patient, after a while the
patient's nailbed became bluish and I
saw the patient was placed in
trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the
patient was placed in that trendelenburg
position?
A: As far as I know, when a patient is in
that position, there is a decrease of
blood supply to the brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's
testimony in the trial court by declaring that:
A perusal of the standard nursing
curriculum in our country will show that
intubation is not taught as part of
nursing procedures and techniques.
Indeed, we take judicial notice of the
fact that nurses do not, and cannot,
intubate. Even on the assumption that
she is fully capable of determining
whether or not a patient is properly
intubated, witness Herminda Cruz,
admittedly, did not peep into the throat
of the patient. (TSN, July 25, 1991, p.
13). More importantly, there is no
evidence that she ever auscultated the
patient or that she conducted any type
of examination to check if the
endotracheal tube was in its proper
place, and to determine the condition of
the heart, lungs, and other organs.
Thus, witness Cruz's categorical
statements that appellant Dra. Gutierrez
failed to intubate the appellee Erlinda
Ramos and that it was Dra. Calderon
who succeeded in doing so clearly suffer
from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress
is that being a nurse, and considered a layman in the
process of intubation, witness Cruz is not competent to
testify on whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate
court. Although witness Cruz is not an anesthesiologist, she
can very well testify upon matters on which she is capable of
observing such as, the statements and acts of the physician
and surgeon, external appearances, and manifest conditions
which are observable by any one. 48 This is precisely allowed
under the doctrine of res ipsa loquitur where the testimony of
expert witnesses is not required. It is the accepted rule that
expert testimony is not necessary for the proof of negligence
in non-technical matters or those of which an ordinary
person may be expected to have knowledge, or where the
lack of skill or want of care is so obvious as to render expert
testimony unnecessary. 49 We take judicial notice of the fact
that anesthesia procedures have become so common, that
even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if the tube
was properly inserted. This kind of observation, we believe,
does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an
experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol
Medical Center School at Nursing, was fully capable of
determining whether or not the intubation was a success.
She had extensive clinical experience starting as a staff
nurse in Chicago, Illinois; staff nurse and clinical instructor in
a teaching hospital, the FEU-NRMF; Dean of the Laguna
College of Nursing in San Pablo City; and then Dean of the
Capitol Medical Center School of Nursing. 50Reviewing
witness Cruz' statements, we find that the same were
delivered in a straightforward manner, with the kind of detail,
clarity, consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a nurse,
the Court is satisfied that she was able to demonstrate
through her testimony what truly transpired on that fateful
day.
Most of all, her testimony was affirmed by no less than
respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlinda's
trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while
you were intubating at your first attempt
(sic), you did not immediately see the
trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube
immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito,"
what were you referring to?
A: "Mahirap yata itong i-intubate," that
was the patient.
Q: So, you found some difficulty in
inserting the tube?
A: Yes, because of (sic) my first attempt,
I did not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made
the haphazard defense that she encountered hardship in the
insertion of the tube in the trachea of Erlinda because it was
positioned more anteriorly (slightly deviated from the normal
anatomy of a person) 52 making it harder to locate and, since
Erlinda is obese and has a short neck and protruding teeth, it
made intubation even more difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a means
of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Pre-operative
evaluation and preparation for anesthesia begins when the
anesthesiologist reviews the patient's medical records and
visits with the patient, traditionally, the day before elective
surgery. 53 It includes taking the patient's medical history,
review of current drug therapy, physical examination and
interpretation of laboratory data. 54 The physical examination
performed by the anesthesiologist is directed primarily
toward the central nervous system, cardiovascular system,
lungs and upper airway. 55 A thorough analysis of the
patient's airway normally involves investigating the following:
cervical spine mobility, temporomandibular mobility,
prominent central incisors, diseased or artificial teeth, ability
to visualize uvula and the thyromental distance. 56 Thus,
physical characteristics of the patient's upper airway that
could make tracheal intubation difficult should be
studied. 57 Where the need arises, as when initial
assessment indicates possible problems (such as the
alleged short neck and protruding teeth of Erlinda) a
thorough examination of the patient's airway would go a long
way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that
she saw Erlinda for the first time on the day of the operation
itself, on 17 June 1985. Before this date, no prior
consultations with, or pre-operative evaluation of Erlinda was
done by her. Until the day of the operation, respondent Dra.
Gutierrez was unaware of the physiological make-up and
needs of Erlinda. She was likewise not properly informed of
the possible difficulties she would face during the
administration of anesthesia to Erlinda. Respondent Dra.
Gutierrez' act of seeing her patient for the first time only an
hour before the scheduled operative procedure was,
therefore, an act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the
physician's centuries-old Hippocratic Oath. Her failure to
follow this medical procedure is, therefore, a clear indicia of
her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over
this omission by playing around with the trial court's
ignorance of clinical procedure, hoping that she could get
away with it. Respondent Dra. Gutierrez tried to muddle the
difference between an elective surgery and an emergency
surgery just so her failure to perform the required pre-
operative evaluation would escape unnoticed. In her
testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is
good medical practice to see the patient
a day before so you can introduce
yourself to establish good doctor-patient
relationship and gain the trust and
confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it
depends on the operative procedure of
the anesthesiologist and in my case,
with elective cases and normal cardio-
pulmonary clearance like that, I usually
don't do it except on emergency and on
cases that have an abnormalities
(sic). 58
However, the exact opposite is true. In an emergency
procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an
anesthesiologist is able to see the patient only a few minutes
before surgery, if at all. Elective procedures, on the other
hand, are operative procedures that can wait for days,
weeks or even months. Hence, in these cases, the
anesthesiologist possesses the luxury of time to be at the
patient's beside to do a proper interview and clinical
evaluation. There is ample time to explain the method of
anesthesia, the drugs to be used, and their possible hazards
for purposes of informed consent. Usually, the pre-operative
assessment is conducted at least one day before the
intended surgery, when the patient is relaxed and
cooperative.
Erlinda's case was elective and this was known to
respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlinda's case prior to the
operation and prepare her for anesthesia. However, she
never saw the patient at the bedside. She herself admitted
that she had seen petitioner only in the operating room, and
only on the actual date of the cholecystectomy. She
negligently failed to take advantage of this important
opportunity. As such, her attempt to exculpate herself must
fail.
Having established that respondent Dra. Gutierrez failed to
perform pre-operative evaluation of the patient which, in turn,
resulted to a wrongful intubation, we now determine if the
faulty intubation is truly the proximate cause of Erlinda's
comatose condition.
Private respondents repeatedly hammered the view that the
cerebral anoxia which led to Erlinda's coma was due to
bronchospasm 59 mediated by her allergic response to the
drug, Thiopental Sodium, introduced into her system.
Towards this end, they presented Dr. Jamora, a Fellow of the
Philippine College of Physicians and Diplomate of the
Philippine Specialty Board of Internal Medicine, who
advanced private respondents' theory that the oxygen
deprivation which led to anoxic encephalopathy, 60 was due
to an unpredictable drug reaction to the short-acting
barbiturate. We find the theory of private respondents
unacceptable.
First of all, Dr. Jamora cannot be considered an authority in
the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he
could not have been capable of properly enlightening the
court about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and
could not therefore properly advance expert opinion on
allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been capable,
as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit,
Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr.
Jamora's testimony as an expert witness in the anesthetic
practice of Pentothal administration is further supported by
his own admission that he formulated his opinions on the
drug not from the practical experience gained by a specialist
or expert in the administration and use of Sodium Pentothal
on patients, but only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on
pulmonology, did you have any occasion
to use pentothal as a method of
management?
DR. JAMORA:
A: We do it in conjunction with the
anesthesiologist when they have to
intubate our patient.
Q: But not in particular when you
practice pulmonology?
A: No.
Q: In other words, your knowledge
about pentothal is based only on what
you have read from books and not by
your own personal application of the
medicine pentothal?
A: Based on my personal experience
also on pentothal.
Q: How many times have you used
pentothal?
A: They used it on me. I went into
bronchospasm during my
appendectomy.
Q: And because they have used it on
you and on account of your own
personal experience you feel that you
can testify on pentothal here with
medical authority?
A: No. That is why I used references to
support my claims. 61
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of anesthesia,
internal medicine-allergy, and clinical pharmacology. The
resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated
pulmonary diseases are within the expertise of pulmonary
medicine, Dr. Jamora's field, the anesthetic drug-induced,
allergic mediated bronchospasm alleged in this case is
within the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript, in
which the pulmonologist himself admitted that he could not
testify about the drug with medical authority, it is clear that
the appellate court erred in giving weight to Dr. Jamora's
testimony as an expert in the administration of Thiopental
Sodium.
The provision in the rules of evidence 62
regarding expert
witnesses states:
Sec. 49. Opinion of expert witness.
The opinion of a witness on a matter
requiring special knowledge, skill,
experience or training which he is
shown to possess, may be received in
evidence.
Generally, to qualify as an expert witness, one must have
acquired special knowledge of the subject matter about
which he or she is to testify, either by the study of recognized
authorities on the subject or by practical
experience.63 Clearly, Dr. Jamora does not qualify as an
expert witness based on the above standard since he lacks
the necessary knowledge, skill, and training in the field of
anesthesiology. Oddly, apart from submitting testimony from
a specialist in the wrong field, private respondents'
intentionally avoided providing testimony by competent and
independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental
Sodium may have produced Erlinda's coma by triggering an
allergic mediated response, has no support in evidence. No
evidence of stridor, skin reactions, or wheezing some of
the more common accompanying signs of an allergic
reaction appears on record. No laboratory data were ever
presented to the court.
In any case, private respondents themselves admit that
Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept private
respondents' hypothesis without supporting medical proof,
and against the weight of available evidence, then every
anesthetic accident would be an act of God. Evidently, the
Thiopental-allergy theory vigorously asserted by private
respondents was a mere afterthought. Such an explanation
was advanced in order to advanced in order to absolve them
of any and all responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to believe
petitioners' stand that it was the faulty intubation which was
the proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural
and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the
result would not have occurred. 64 An injury or damage is
proximately caused by an act or a failure to act, whenever it
appears from the evidence in the case, that the act or
omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury or
damage was either a direct result or a reasonably probable
consequence of the act or omission. 65 It is the dominant,
moving or producing cause.
Applying the above definition in relation to the evidence at
hand, faulty intubation is undeniably the proximate cause
which triggered the chain of events leading to Erlinda's brain
damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony
that the first intubation was a failure. This fact was likewise
observed by witness Cruz when she heard respondent Dra.
Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan." Thereafter,
witness Cruz noticed abdominal distention on the body of
Erlinda. The development of abdominal distention, together
with respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended
endotracheal intubation what actually took place was an
esophageal intubation. During intubation, such distention
indicates that air has entered the gastrointestinal tract
through the esophagus instead of the lungs through the
trachea. Entry into the esophagus would certainly cause
some delay in oxygen delivery into the lungs as the tube
which carries oxygen is in the wrong place. That abdominal
distention had been observed during the first intubation
suggests that the length of time utilized in inserting the
endotracheal tube (up to the time the tube was withdrawn for
the second attempt) was fairly significant. Due to the delay in
the delivery of oxygen in her lungs Erlinda showed signs of
cyanosis. 66 As stated in the testimony of Dr. Hosaka, the
lack of oxygen became apparent only after he noticed that
the nailbeds of Erlinda were already blue. 67 However, private
respondents contend that a second intubation was executed
on Erlinda and this one was successfully done. We do not
think so. No evidence exists on record, beyond private
respondents' bare claims, which supports the contention that
the second intubation was successful. Assuming that the
endotracheal tube finally found its way into the proper orifice
of the trachea, the same gave no guarantee of oxygen
delivery, the hallmark of a successful intubation. In fact,
cyanosis was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could
not be claimed, as private respondents insist, that the
second intubation was accomplished. Even granting that the
tube was successfully inserted during the second attempt, it
was obviously too late. As aptly explained by the trial court,
Erlinda already suffered brain damage as a result of the
inadequate oxygenation of her brain for about four to five
minutes. 68
The above conclusion is not without basis. Scientific studies
point out that intubation problems are responsible for one-
third (1/3) of deaths and serious injuries associated with
anesthesia. 69 Nevertheless, ninety-eight percent (98%) or
the vast majority of difficult intubations may be anticipated by
performing a thorough evaluation of the patient's airway prior
to the operation. 70 As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative protocol
which could have prevented this unfortunate incident. Had
appropriate diligence and reasonable care been used in the
pre-operative evaluation, respondent physician could have
been much more prepared to meet the contingency brought
about by the perceived anatomic variations in the patient's
neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together
with a change in technique. 71 In other words, an
experienced anesthesiologist, adequately alerted by a
thorough pre-operative evaluation, would have had little
difficulty going around the short neck and protruding
teeth. 72 Having failed to observe common medical standards
in pre-operative management and intubation, respondent
Dra. Gutierrez' negligence resulted in cerebral anoxia and
eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino
Hosaka as the head of the surgical team. As the so-called
"captain of the ship," 73 it is the surgeon's responsibility to
see to it that those under him perform their task in the proper
manner. Respondent Dr. Hosaka's negligence can be found
in his failure to exercise the proper authority (as the "captain"
of the operative team) in not determining if his
anesthesiologist observed proper anesthesia protocols. In
fact, no evidence on record exists to show that respondent
Dr. Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient. Furthermore, it does not escape us
that respondent Dr. Hosaka had scheduled another
procedure in a different hospital at the same time as
Erlinda's cholecystectomy, and was in fact over three hours
late for the latter's operation. Because of this, he had little or
no time to confer with his anesthesiologist regarding the
anesthesia delivery. This indicates that he was remiss in his
professional duties towards his patient. Thus, he shares
equal responsibility for the events which resulted in Erlinda's
condition.
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting "consultants," 74 who are allegedly not hospital
employees, presents problems in apportioning responsibility
for negligence in medical malpractice cases. However, the
difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the
hiring and firing of consultants and in the conduct of their
work within the hospital premises. Doctors who apply for
"consultant" slots, visiting or attending, are required to
submit proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are
carefully scrutinized by members of the hospital
administration or by a review committee set up by the
hospital who either accept or reject the application. 75 This is
particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-
pathological conferences, conduct bedside rounds for clerks,
interns and residents, moderate grand rounds and patient
audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital,
and/or for the privilege of admitting patients into the hospital.
In addition to these, the physician's performance as a
specialist is generally evaluated by a peer review committee
on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who regularly
falls short of the minimum standards acceptable to the
hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting "consultant" staff.
While "consultants" are not, technically employees, a point
which respondent hospital asserts in denying all
responsibility for the patient's condition, the control
exercised, the hiring, and the right to terminate consultants
all fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In
assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and
their attending and visiting physicians. This being the case,
the question now arises as to whether or not respondent
hospital is solidarily liable with respondent doctors for
petitioner's condition. 76
The basis for holding an employer solidarily responsible for
the negligence of its employee is found in Article 2180 of the
Civil Code which considers a person accountable not only
for his own acts but also for those of others based on the
former's responsibility under a relationship of patria
potestas. 77 Such responsibility ceases when the persons or
entity concerned prove that they have observed the diligence
of a good father of the family to prevent damage. 78 In other
words, while the burden of proving negligence rests on the
plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who
should prove that they observed the diligence of a good
father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general
denial of its responsibility over respondent physicians, failed
to adduce evidence showing that it exercised the diligence of
a good father of a family in the hiring and supervision of the
latter. It failed to adduce evidence with regard to the degree
of supervision which it exercised over its physicians. In
neglecting to offer such proof, or proof of a similar nature,
respondent hospital thereby failed to discharge its burden
under the last paragraph of Article 2180. Having failed to do
this, respondent hospital is consequently solidarily
responsible with its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals
erred in accepting and relying on the testimonies of the
witnesses for the private respondents. Indeed, as shown by
the above discussions, private respondents were unable to
rebut the presumption of negligence. Upon these
disquisitions we hold that private respondents are solidarily
liable for damages under Article 2176 79 of the Civil Code.
We now come to the amount of damages due petitioners.
The trial court awarded a total of P632,000.00 pesos (should
be P616,000.00) in compensatory damages to the plaintiff,
"subject to its being updated" covering the period from 15
November 1985 up to 15 April 1992, based on monthly
expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by
the trial court at the time of its decision would be grossly
inadequate to cover the actual costs of home-based care for
a comatose individual. The calculated amount was not even
arrived at by looking at the actual cost of proper hospice
care for the patient. What it reflected were the actual
expenses incurred and proved by the petitioners after they
were forced to bring home the patient to avoid mounting
hospital bills.
And yet ideally, a comatose patient should remain in a
hospital or be transferred to a hospice specializing in the
care of the chronically ill for the purpose of providing a
proper milieu adequate to meet minimum standards of care.
In the instant case for instance, Erlinda has to be constantly
turned from side to side to prevent bedsores and hypostatic
pneumonia. Feeding is done by nasogastric tube. Food
preparation should be normally made by a dietitian to
provide her with the correct daily caloric requirements and
vitamin supplements. Furthermore, she has to be seen on a
regular basis by a physical therapist to avoid muscle atrophy,
and by a pulmonary therapist to prevent the accumulation of
secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages
recoverable in suits arising from negligence should at least
reflect the correct minimum cost of proper care, not the cost
of the care the family is usually compelled to undertake at
home to avoid bankruptcy. However, the provisions of the
Civil Code on actual or compensatory damages present us
with some difficulties.
Well-settled is the rule that actual damages which may be
claimed by the plaintiff are those suffered by him as he has
duly proved. The Civil Code provides:
Art. 2199. Except as provided by law
or by stipulation, one is entitled to an
adequate compensation only for such
pecuniary loss suffered by him as he
has duly proved. Such compensation is
referred to as actual or compensatory
damages.
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed
and that the cost can be liquidated. However, these
provisions neglect to take into account those situations, as in
this case, where the resulting injury might be continuing and
possible future complications directly arising from the injury,
while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to
the injury caused, should be one which compensates for
pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be
suffered but which could not, from the nature of the case, be
made with certainty. 80 In other words, temperate damages
can and should be awarded on top of actual or
compensatory damages in instances where the injury is
chronic and continuing. And because of the unique nature of
such cases, no incompatibility arises when both actual and
temperate damages are provided for. The reason is that
these damages cover two distinct phases.
As it would not be equitable and certainly not in the best
interests of the administration of justice for the victim in
such cases to constantly come before the courts and invoke
their aid in seeking adjustments to the compensatory
damages previously awarded temperate damages are
appropriate. The amount given as temperate damages,
though to a certain extent speculative, should take into
account the cost of proper care.
In the instant case, petitioners were able to provide only
home-based nursing care for a comatose patient who has
remained in that condition for over a decade. Having
premised our award for compensatory damages on the
amount provided by petitioners at the onset of litigation, it
would be now much more in step with the interests of justice
if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a
facility which generally specializes in such care. They should
not be compelled by dire circumstances to provide
substandard care at home without the aid of professionals,
for anything less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in temperate
damages would therefore be reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was
confronted with a situation where the injury suffered by the
plaintiff would have led to expenses which were difficult to
estimate because while they would have been a direct result
of the injury (amputation), and were certain to be incurred by
the plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes
Valenzuela underwent a traumatic
amputation of her left lower extremity at
the distal left thigh just above the knee.
Because of this, Valenzuela will forever
be deprived of the full ambulatory
functions of her left extremity, even with
the use of state of the art prosthetic
technology. Well beyond the period of
hospitalization (which was paid for by
Li), she will be required to undergo
adjustments in her prosthetic devise due
to the shrinkage of the stump from the
process of healing.
These adjustments entail costs,
prosthetic replacements and months of
physical and occupational rehabilitation
and therapy. During the lifetime, the
prosthetic devise will have to be
replaced and readjusted to changes in
the size of her lower limb effected by the
biological changes of middle-age,
menopause and aging. Assuming she
reaches menopause, for example, the
prosthetic will have to be adjusted to
respond to the changes in bone
resulting from a precipitate decrease in
calcium levels observed in the bones of
all post-menopausal women. In other
words, the damage done to her would
not only be permanent and lasting, it
would also be permanently changing
and adjusting to the physiologic
changes which her body would normally
undergo through the years. The
replacements, changes, and
adjustments will require corresponding
adjustive physical and occupational
therapy. All of these adjustments, it has
been documented, are painful.
xxx xxx xxx
A prosthetic devise, however
technologically advanced, will only allow
a reasonable amount of functional
restoration of the motor functions of the
lower limb. The sensory functions are
forever lost. The resultant anxiety,
sleeplessness, psychological injury,
mental and physical pain are
inestimable.83
The injury suffered by Erlinda as a consequence of private
respondents' negligence is certainly much more serious than
the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the
incident occurred. She has been in a comatose state for over
fourteen years now. The burden of care has so far been
heroically shouldered by her husband and children, who, in
the intervening years have been deprived of the love of a
wife and a mother.
Meanwhile, the actual physical, emotional and financial cost
of the care of petitioner would be virtually impossible to
quantify. Even the temperate damages herein awarded
would be inadequate if petitioner's condition remains
unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the
victim's actual injury would not even scratch the surface of
the resulting moral damage because it would be highly
speculative to estimate the amount of emotional and moral
pain, psychological damage and injury suffered by the victim
or those actually affected by the victim's condition. 84The
husband and the children, all petitioners in this case, will
have to live with the day to day uncertainty of the patient's
illness, knowing any hope of recovery is close to nil. They
have fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account
their life with a comatose patient. They, not the respondents,
are charged with the moral responsibility of the care of the
victim. The family's moral injury and suffering in this case is
clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the
amount of P100,000.00 are hereby awarded. Considering
the length and nature of the instant suit we are of the opinion
that attorney's fees valued at P100,000.00 are likewise
proper.
Our courts face unique difficulty in adjudicating medical
negligence cases because physicians are not insurers of life
and, they rarely set out to intentionally cause injury or death
to their patients. However, intent is immaterial in negligence
cases because where negligence exists and is proven, the
same automatically gives the injured a right to reparation for
the damage caused.
Established medical procedures and practices, though in
constant flux are devised for the purpose of preventing
complications. A physician's experience with his patients
would sometimes tempt him to deviate from established
community practices, and he may end a distinguished career
using unorthodox methods without incident. However, when
failure to follow established procedure results in the evil
precisely sought to be averted by observance of the
procedure and a nexus is made between the deviation and
the injury or damage, the physician would necessarily be
called to account for it. In the case at bar, the failure to
observe pre-operative assessment protocol which would
have influenced the intubation in a salutary way was fatal to
private respondents' case.
WHEREFORE, the decision and resolution of the appellate
court appealed from are hereby modified so as to award in
favor of petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00 as actual
damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the time
that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3)
P1,500,000.00 as temperate damages; 4) P100,000.00 each
as exemplary damages and attorney's fees; and, 5) the costs
of the suit. SO ORDERED.
G.R. No. 143196 November 26, 2002
STI DRIVERS ASSOCIATION, SALVADOR CARANZA,
MARIANO TAN, AMADO EVANGELISTA, MANUEL
EVANGELISTA, EUSEBIO TABULOD, JR., MANUEL T.
RODULFO, JOHNNY BUMATAY, FRANCISCO DOMINGO,
NOLITO BRANZUELA, DOMIZALDE BUMATAY,
FERNANDO ARIBON, JUNELIAM QUINANOLA, JESUS
FERRER, RAYMUNDO BUMATAY, JR., MANUEL
MOSTRALES, ROGELIO MAZO, ROLANDO EVASCO,
FELIXBERTO BADINAS, GERRY BOLIDO, GREGORIO
GALVEZ, JR., CHARITO MOSCOSA, MARCELINO
VILLANUEVA, IBARISTO LACATA, FELIX OROGAN,
GERRY CONDA, DENNIS SANCHEZ, PABLO ARAOS,
NARIO BERNALDEZ, LITO YAMBA, ANDRES NOVAL,
JUDY VICENTE, DAVID CAJES, and FELIPE
CASBADILLO, petitioners,
vs.
COURT OF APPEALS, SIMENT TRANSPORT, INC., ELY
CHUA, WILLIAM CHUA, SIMON CHUAHE, ELIZABETH
TAN, JRB MANPOWER AGENCY/ EDWIN
BUMATAY, respondents.
DECISION
CORONA, J.:
Before us is a petition for review of the decision 1 dated July
26, 1999 of the Court of Appeals 2 in CA-G.R. SP No. 51216
dismissing the petition for certiorari of the decision 3 dated
January 31, 1996 of the National Labor Relations
Commission in NLRC NCR Case No. 008951-95 which
affirmed the decision4 dated April 21, 1995 of Labor Arbiter
Romulus Protasio ruling in favor of the respondents.
The facts, as found by the appellate court, are as follows:
The petitioners are truck drivers and truck helpers of herein
respondents Siment Transport, Inc. (STI, for brevity), Family
Mercantile (FM, for brevity), Simon Enterprises (SE, for
brevity), and their owners, namely, Ely Chua, Willam Chua,
Simon Chuahe, and Elizabeth Tan. JRB Manpower Agency
and Edwin Bumatay were likewise included as respondents
in the instant petition. The petitioners are Salvador Caranza,
Mariano Tan, Amado Evangelista, Manuel Evangelista,
Eusebio Tabulod, Jr., Manuel T. Rodulfo, Johnny Bumatay,
Francisco Domingo, Nolito Branzuela, Domizalde Bumatay,
Fernando Aribon, Juneliam Quinanola, Jesus Ferrer,
Raymundo Bumatay, Jr., Manuel Mostrales, Rogelio Mazo,
Rolando Evasco, Felixberto Badinas, Gerry Bolido, Gregorio
Galvez, Jr., Charito Moscosa, Marcelino Villanueva, Ibaristo
Lacata, Felix Orogan, Gerry Conda, Dennis Sanchez, Pablo
Araos, Nario Bernaldez, Lito Yamba, Andres Noval, Judy
Vicente, David Cajes and Felipe Casbadillo.
The petitioner drivers formed STI Drivers Association which
was registered with the Department of Labor and
Employment (DOLE, for brevity) under Registration
Certificate No. NCR-UR-1-1 188-94. On May 2, 1994, the
said union filed a petition for certification election duly signed
by Atty. Ernesto Arellano. On June 13, 1994, Med-arbiter
Brigada Fadrigon issued an order dismissing the petition. On
appeal to the DOLE, Undersecretary Bienvenido Laguesma
affirmed the said order on August 25, 1994.
Pending resolution of the appeal to the DOLE, however, on
June 29, 1994, petitioner drivers Salvador Caranza, Mariano
Tan, Amado Evangelista, Manuel Rudolfo, Johnny Bumatay
and Eusebio Tabulod, Jr. were dismissed by respondent STI
for violation of the "Union Security Clause" provided for in
respondents Collective Bargaining Agreement (CBA, for
brevity) with the Federation of Democratic Trade Unions- STI
Workers Union Chapter (FDTU-STI, for brevity).
Subsequently, the concerned petitioners filed a complaint for
illegal dismissal, unfair labor practice and payment of
damages against the respondents before the Regional
Arbitration Branch of the NLRC. On the same day, the
petitioner drivers also filed a complaint for underpayment of
their vacation leave, sick leave and 13th month pay against
the respondents.
The petitioner truck helpers (pahinantes) were also
dismissed for abandonment of work when they failed to
report for work on July 13, 1994 on the ground that they
allegedly attended an organizational meeting of the drivers
union. Respondent JRB sent notices to the concerned
petitioners requiring them to report for work with a stern
warning that their employment would be terminated if they
failed to comply. Inasmuch as they disobeyed the said order,
they were dismissed for abandonment of work. On August 2,
1994, they filed a complaint for illegal dismissal, unfair labor
practice and payment of damages against the respondents
before the Regional Arbitration Branch of the NLRC.
On October 1, 1994, the petitioner drivers Francisco
Domingo, Nolito Branzuela, Domizalde Bumatay, Fernando
Aribon, Juneliam Quinanola, Jesus Ferrer, Manuel
Mostrales, Raymundo Bumatay, Jr., Rogelio Mazo, and
Rolando Evasco were also dismissed on the ground that
they failed to join FDTU-STI as required by the union
security clause of their CBA. They filed a complaint for illegal
dismissal, unfair labor practice and damages. This case was
consolidated with the first case filed by the first group of
petitioner drivers.
The three cases were consolidated and assigned to Labor
Arbiter Ernesto Dinopol. They were later on re-raffled and
assigned to Labor Arbiter Romulus Protasio. The parties
were required to submit their respective position papers.
However, petitioners failed to submit their position paper.
Hence, Labor Arbiter Protasio proceeded to hear the case ex
parte. On April 21, 1995, Labor Arbiter Protasio dismissed
the three consolidated complaints, the dispositive portion of
which reads:
"WHEREFORE, judgment is hereby rendered declaring the
dismissal of the complainants in Case No. 1 by JRB
Manpower Agency/Edwin Bumatay and the dismissal of
complainants by respondent Siment Transport, Inc. and its
officers, William Chua, Ely Chua, Simon Chuahe and
Elizabeth Tan in Case No. 2 as valid and legal. Paragraph
Case No. 3 is also dismissed since the benefits prayed for
have already been fully paid for as here before indicated."5
On May 9, 1995, the petitioners appealed the case to the
NLRC but, in a resolution dated June 30, 1995, the NLRC
dismissed the appeal for being filed out of time. The motion
for reconsideration was likewise denied.
They filed a petition for certiorari before the Court of Appeals
questioning the decision of the NLRC but the appellate court
dismissed the same. The Court of Appeals held that the
petitioners were not denied due process inasmuch as their
counsel, a certain Villamor Mostrales, was informed in open
court to submit petitioners position paper, but he did not. In
affirming the legality of the petitioners dismissal, the Court of
Appeals found that they committed an act of disloyalty when,
during the existence of the CBA, they organized another
union (the STI Drivers Association) and then filed a petition
for certification election outside the 60-day freedom period,
in violation of the "contract bar rule" under Articles 253 and
253-A of the Labor Code.
Hence, this petition for review of the decision of the Court of
Appeals based on this sole assignment of error:
"I
"PETITIONERS WERE DENIED DUE PROCESS
BECAUSE THEY WERE MISREPRESENTED BY
AN IMPOSTOR LAWYER OR A NON-LAWYER."6
The petitioners pray that the case be remanded to the
Regional Arbitration Branch of the NLRC on the ground that
they were denied due process for being represented by an
impostor lawyer who was negligent in attending to their case
from the moment it was filed up to its dismissal by the
appellate court. They claim that a certain Villamor Mostrales
led them to believe that he was a lawyer who could
represent them in the consolidated labor complaints against
herein respondents. However, Mr. Mostrales failed to file the
necessary position papers required by Labor Arbiter
Protasio. As a result, Labor Arbiter Protasio declared the
petitioners in default and ruled against them on the basis of
the position paper submitted by the respondents. The
petitioners discovered that Mr. Mostrales was not a lawyer
after they secured a certification from the Office of the Bar
Confidant that Mr. Mostrales name is not included in the Roll
of Attorneys. They now argue that the actions of the impostor
lawyer denied them due process for the reason that they
were not given competent representation during the hearing
of the case and thus the proceedings a quo were null and
void.
We deny the petition.
The records show that, aside from Mr. Mostrales, a counsel
named Atty. Ernesto R. Arellano, represented them in all the
stages of the proceedings. In fact, the Labor Arbiter issued
an order notifying Atty. Arellano of the reglementary period
within which to file the petitioners position papers. We herein
quote the judgment of the NLRC denying petitioners motion previous notice but the denial of the opportunity to be heard.
for reconsideration as proof of this fact, to wit: The question is not whether the petitioners succeeded in
defending their interest but whether the petitioners had the
"Records show that contrary to complainants allegations, opportunity to present their side.15
the Order of February 20, 1995 was served to their counsel,
Atty. Ernesto R. Arellano of Rm. 400, Jino Bldg., Timog Although nothing can be done to reverse the decision of the
Avenue, Quezon City. It was received by certain Edmond T. appellate court, the aggrieved petitioners can still explore the
Lao on February 27, 1995 (See Record, p. 268). xxx."7 feasibility of filing the appropriate criminal, civil and
administrative cases against Mr. Mostrales and Atty.
In addition, the petitioners failed to dispute the fact that the Arellano, as warranted. Damages, after all, can be recovered
written notification of the order of dismissal of the petition for as a result of fraud or inaction.
certification election was directed to Atty. Arellano as
petitioners counsel of record.8 And after the adverse WHEREFORE, premises considered, the petition is hereby
decision of the Labor Arbiter, Atty. Ernesto Arellano filed the DENIED. No costs. SO ORDERED.
appeal to the NLRC, as evidenced by his signature on the
appeal brief.9 Also, the NLRC directed the notice of its
resolution (dismissing the petitioners appeal for having been
filed out of time) to his law firm, Arellano and
Associates.10 The earlier petition that they filed before this
Court (involving the same parties and issues), which was
remanded to the Court of Appeals as a result of our ruling
in St. Martin Funeral Home vs. National Labor Relations
Commission,11 was likewise signed by the same Atty.
Ernesto R. Arellano.12 These undisputed facts prove that,
during the entire proceedings, a bona-fide lawyer
represented them and filed pleadings in their behalf.
Based on the foregoing, we find that the petitioners were
duly represented by a bona-fide lawyer and the latters
failure to file the required position papers before the Labor
Arbiter or to appeal on time to the NLRC is not a ground to
declare the proceedings a quo null and void. We have ruled
time and again that any act performed by a lawyer within the
scope of his general or implied authority is regarded as an
act of his client. Consequently, the mistake or negligence of
petitioners counsel may result in the rendition of an
unfavorable judgment against them.13 Exceptions to the
foregoing have been recognized by this Court in cases
where reckless or gross negligence of counsel deprives the
client of due process of law, or when its application "results
in the outright deprivation of ones property through a
technicality."14 None of these exceptions has been
sufficiently shown in the instant case.
In the case at bar, the petitioners merely claimed deprivation
of their rights as a result of misrepresentations perpetrated
by an impostor lawyer. But, as already discussed, we cannot
overlook the fact that they retained the services of Atty.
Arellano. The petitioners failed to show any evidence that
the services of Atty. Arellano violated their right to due
process or deprived them of their property through a
technicality. No gross negligence can be attributed to Atty.
Arellano inasmuch as he did not totally abandon or disregard
his clients cases. He filed pleadings for and in their behalf.
The petitioners should therefore, as far as this suit is
concerned, bear the consequences of their faulty option.
After all, in the application of the principle of due process,
what is sought to be safeguarded against is not the lack of