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

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359)
should perhaps be mentioned in this connection. This Court there held that while
contributory negligence on the part of the person injured did not constitute a bar to
recovery, it could be received in evidence to reduce the damages which would
otherwise have been assessed wholly against the other party. The defendant
company had there employed the plaintiff, as a laborer, to assist in transporting iron
rails from a barge in Manila harbor to the company's yards located not far away. The
rails were conveyed upon cars which were hauled along a narrow track. At certain
spot near the water's edge the track gave way by reason of the combined effect of the
weight of the car and the insecurity of the road bed. The car was in consequence
upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in
evidence that the accident was due to the effects of the typhoon which had dislodged
one of the supports of the track. The court found that the defendant company was
negligent in having failed to repair the bed of the track and also that the plaintiff was,
at the moment of the accident, guilty of contributory negligence in walking at the side
of the car instead of being in front or behind. It was held that while the defendant was
liable to the plaintiff by reason of its negligence in having failed to keep the track in
proper repair nevertheless the amount of the damages should be reduced on account
of the contributory negligence in the plaintiff. As will be seen the defendant's
negligence in that case consisted in an omission only. The liability of the company
arose from its responsibility for the dangerous condition of its track. In a case like the
one now before us, where the defendant was actually present and operating the
automobile which caused the damage, we do not feel constrained to attempt to weigh
the negligence of the respective parties in order to apportion the damage according to
the degree of their relative fault. It is enough to say that the negligence of the
defendant was in this case the immediate and determining cause of the accident and
that the antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in
the defendant's answer, to the effect that the subject matter of the action had been
previously adjudicated in the court of a justice of the peace. In this connection it
appears that soon after the accident in question occurred, the plaintiff caused criminal
proceedings to be instituted before a justice of the peace charging the defendant with
the infliction of serious injuries (lesiones graves). At the preliminary investigation the
 [G.R. No. 143008. June 10, 2002]
SMITH BELL DODWELL SHIPPING AGENCY CORPORATION, petitioner,
vs. CATALINO BORJA and INTERNATIONAL TO WAGE AND
TRANSPORT CORPORATION, respondents.
Common Carriers; Quasi-Delicts; Torts; Negligence; Words and
Phrases; Negligence is conduct that creates undue risk of harm to another, the
failure to observe that degree of care, precaution and vigilance that the
circumstances justly demand, whereby that other person suffers injury.—
Negligence is conduct that creates undue risk of harm to another. It is the failure
to observe that degree of care, precaution and vigilance that the circumstances
justly demand, whereby that other person suffers injury. Petitioner’s vessel was
carrying chemical cargo—alkyl benzene and methyl methacrylate monomer.
While knowing that their vessel was carrying dangerous inflammable chemicals,
its officers and crew failed to take all the necessary precautions to prevent an
accident. Petitioner was, therefore, negligent.
Same; Same; Same; Same; Three Elements of Quasi-Delicts.—The three
elements of quasi delict are: (a) damages suffered by the plaintiff, (b) fault or
negligence of the defendant, and (c) the connection of cause and effect between the
fault or negligence of the defendant and the damages inflicted on the plaintiff. All
these elements were established in this case. Knowing fully well that it was
carrying dangerous chemicals, petitioner was negligent in not taking all the
necessary precautions in transporting the cargo.
Same; Same; Same; Same; The owner or the person in possession and control
of a vessel and the vessel are liable for all natural and proximate damage caused
to persons and property by reason of negligent management or navigation.—The
owner or the person in possession and control of a vessel and the vessel are liable
for all natural and proximate damage caused to persons and property by reason of
negligent management or navigation.
Damages; Life Expectancy; Factors in determining reasonableness of
damages awarded under Article 1764 in conjunction with Article 2206 of the Civil
Code.—Both parties have a point. In determining the reasonableness of the
damages awarded under Article 1764 in conjunction with Article 2206 of the Civil
Code, the factors to be considered are: (a) life expectancy (considering the health
of the victim and the mortality table which is deemed conclusive) and loss of
earning capacity; (b) pecuniary loss, loss of support and service; and (c) moral and
mental sufferings. The loss of earning capacity is based mainly on the number of
years remaining in the person’s expected life span. In turn, this number is the
basis of the damages that shall be computed and the rate at which the loss
sustained by the heirs shall be fixed. The formula for the computation of loss of
earning capacity is as follows: Net earning capacity = Life expectancy x [Gross
Annual Income - Living Expenses (50% of gross annual income)], where life
expectancy = 2/3 (80 - the age of the deceased).
Same; Same; Loss of Income; It is net income (or gross income less living
expenses which is the one used in the computation of the award for loss of income;
When there is no showing that the living expenses constituted a smaller percentage
of the gross income, the Court fixes the living expenses at half of the gross income—
to hold that one would have used only a small part of the income, with the larger
part going to the support of one’s children, would be conjectural and
unreasonable.—Petitioner is correct in arguing that it is net income (or gross
income less living expenses) which is to be used in the computation of the award
for loss of income. Villa Rey Transit v. Court of Appeals explained that “the
amount recoverable is not the loss of the entire earning, but rather the loss of that
portion of the earnings which the beneficiary would have received.” Hence, in
fixing the amount of the said damages, the necessary expenses of the deceased
should be deducted from his earnings. In other words, only net earnings, not gross
earnings, are to be considered; that is, the total of the earnings less expenses
necessary in the creation of such earnings or income, less living and other
incidental expenses. When there is no showing that the living expenses
constituted a smaller percentage of the gross income, we fix the living expenses at
half of the gross income. To hold that one would have used only a small part of the
income, with the larger part going to the support of one’s children, would be
conjectural and unreasonable.
Same; Same; Same; Retirement; Life expectancy should not be based on the
retirement age of government employees, which is pegged at 65; In calculating the
life expectancy of an individual for the purpose of determining loss of earning
capacity under Article 2206(1) of the Civil Code, it is assumed that the deceased
would have earned income even after retirement from a particular job.—Counsel
for Respondent Borja is also correct in saying that life expectancy should not be
based on the retirement age of government employees, which is pegged at 65.
In Negros Navigation Co, Inc. v. CA, the Court resolved that in calculating the life
expectancy of an individual for the purpose of determining loss of earning
capacity under Article 2206(1) of the Civil Code, it is assumed that the deceased
would have earned income even after retirement from a particular job.
Respondent Borja should not be situated differently just because he was a
government employee. Private employees, given the retirement packages provided
by their companies, usually retire earlier than government employees; yet, the life
expectancy of the former is not pegged at 65 years.
Same; Same; Same; A person’s demise earlier than the estimated life span is
of no moment for purposes of determining loss of earning capacity, life expectancy
remains at 80.—Petitioner avers that Respondent Borja died nine years after the
incident and, hence, his life expectancy of 80 years should yield to the reality that
he was only 59 when he actually died. We disagree. The Court uses the American
Experience/Expectancy Table of Mortality or the Actuarial or Combined
Experience Table of Mortality, which consistently pegs the life span of the
average Filipino at 80 years, from which it extrapolates the estimated income to
be earned by the deceased had he or she not been killed. Respondent Borja’s
demise earlier than the estimated life span is of no moment. For purposes of
determining loss of earning capacity, life expectancy remains at 80. Otherwise,
the computation of loss of earning capacity will never become final, being always
subject to the eventuality of the victim’s death. The computation should not
change even if Borja lived beyond 80 years. Fair is fair.

DECISION
PANGANIBAN, J.:
The owner or the person in possession and control of a vessel is liable for all
natural and proximate damages caused to persons and property by reason of
negligence in its management or navigation. The liability for the loss of the earning
capacity of the deceased is fixed by taking into account the net income of the victim at
the time of death -- of the incident in this case -- and that persons probable life
expectancy.
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of
[1]
Court, challenging the March 6, 2000 Decision and the April 25, 2000
[2] [3]
Resolution of the Court of Appeals (CA) in CA-GR CV No. 57470. The assailed
Decision disposed as follows:
WHEREFORE, premises considered, the instant appeal is hereby DENIED. The
questioned decision of the lower court is hereby AFFIRMED in toto. No
pronouncement as to costs.
[4]
Reconsideration was denied in the assailed Resolution.
The Facts
The facts of the case are set forth by the CA as follows:
It appears that on September 23, 1987, Smith Bell [herein petitioner] filed a written
request with the Bureau of Customs for the attendance of the latters inspection team
on vessel M/T King Family which was due to arrive at the port of Manila on
September 24, 1987.
Said vessel contained 750 metric tons of alkyl benzene and methyl methacrylate
monomer.
On the same day, Supervising Customs Inspector Manuel Ma. D. Nalgan instructed
[Respondent Catalino Borja] to board said vessel and perform his duties as inspector
upon the vessels arrival until its departure. At that time, [Borja] was a customs
inspector of the Bureau of Customs receiving a salary of P31,188.25 per annum.
"At about 11 oclock in the morning on September 24, 1987, while M/T King Family
was unloading chemicals unto two (2) barges [--] ITTC 101 and CLC-1002 [--] owned
by [Respondent] ITTC, a sudden explosion occurred setting the vessels afire. Upon
hearing the explosion, [Borja], who was at that time inside the cabin preparing reports,
ran outside to check what happened. Again, another explosion was heard.
Seeing the fire and fearing for his life, [Borja] hurriedly jumped over board to save
himself. However, the [water] [was] likewise on fire due mainly to the spilled
chemicals. Despite the tremendous heat, [Borja] swam his way for one (1) hour until
he was rescued by the people living in the squatters area and sent to San Juan De
Dios Hospital.
After weeks of intensive care at the hospital, his attending physician diagnosed [Borja]
to be permanently disabled due to the incident. [Borja] made demands against Smith
Bell and ITTC for the damages caused by the explosion. However, both denied
[5]
liabilities and attributed to each other negligence.
[6]
The trial court (RTC) ruled in favor of Respondent Borja and held petitioner
liable for damages and loss of income. The RTC disposed as follows:
WHEREFORE, premises considered, judgment is hereby rendered ordering
[Petitioner] Smith Bell Dodwell [S]hipping Agency Corporation to pay [Borja]:
1. The amount of P495,360.00 as actual damages for loss of earning capacity:
2. The amount of P100,000.00 for moral damages; and
3. The amount of P50,000.00 for and as reasonable attorneys fees.
The cross-claim of [Petitioner] Smith Bell Dodwell Shipping Agency Corporation
against co-defendant International Towage and Transport Corporation and the latters
counterclaim against [Borja] and cross-claim with compulsory counterclaim against
[7]
Smith Bell are hereby ordered dismissed.
Ruling of the Court of Appeals
Affirming the trial court, the CA rejected the plea of petitioner that it be
exonerated from liability for Respondent Borjas injuries. Contrary to the claim of
petitioner that no physical evidence was shown to prove that the explosion had
originated from its vessel, the CA held that the fire had originated from M/T King
Family. This conclusion was amply supported by the testimonies of Borja and Eulogio
Laurente (the eyewitness of International Towage and Transport Corporation or ITTC)
as well as by the investigation conducted by the Special Board of Marine Inquiry and
affirmed by the secretary of the Department of National Defense. On the other hand,
the RTC, which the CA sustained, had not given probative value to the evidence of
petitioner, whose sole eyewitness had not shown up for cross-examination.
Hence, this Petition.
[8]
The Issues
[9]
In its Memorandum, petitioner raises the following issues:
1. Whether petitioner should be held liable for the injuries of Respondent Catalino
Borja.
2. Whether Respondent ITTC should be held liable for the injuries of Respondent
Catalino Borja.
3. Assuming without admitting that Respondent Catalino Borja is entitled to damages,
whether Respondent Borja is entitled to the amount of damages awarded to him by
[10]
the trial court.
Simply put, these issues can be summed up in these two questions: (1) Who, if
any, is liable for Borjas injuries? (2) What is the proper amount of liability?
This Courts Ruling
The Petition is partly meritorious.
First Issue:
Responsibility for Injuries
Petitioner avers that both lower courts labored under a misapprehension of the
facts. It claims that the documents adduced in the RTC conclusively revealed that the
explosion that caused the fire on M/T King Family had originated from the
barge ITTC-101, a conclusion based on three grounds. First, the Survey Report (Exh.
10) dated October 21, 1987 submitted by the Admiral Surveyors and Adjusters, Inc.,
showed that no part of M/T King Family sustained any sharp or violent damage that
would otherwise be observed if indeed an explosion had occurred on it. On the other
hand, the fact that the vessel sustained cracks on its shell plating was noted in two
Survey Reports from Greutzman Divers Underwater Specialist, dated October 6, 1987
(Exh. 11), and during the underwater inspection on the sunken barge ITTC-101.
Second, external fire damage on the hull of M/T King Family indicated that the
fire had started from outside the vessel and from ITTC-101. The port side of the
vessel to which the ITTC barge was tied was completely gutted by fire, while the
starboard side to which the barge CLC-1002 was tied sustained only slight fire
damage.
Third, testimonial evidence proved that the explosion came from the barge of the
ITTC and not from its vessel. Security Guard Vivencio Estrella testified that he had
seen the sudden explosion of monomer on the barge with fire that went up to about
60 meters. Third Mate Choi Seong Hwan and Second Mate Nam Bang Choun of M/T
King Family narrated that while they were discharging the chemicals, they saw and
heard an explosion from the barge ITTC-101. Chief Security Guard Reynaldo Patron,
in turn, testified that he was 7 to 10 meters away from the barge when he heard the
explosion from the port side of M/T King Family and saw the barge already on fire.
We are not persuaded. Both the RTC and the CA ruled that the fire and the
explosion had originated from petitioners vessel. Said the trial court:
The attempts of [Petitioner] Smith Bell to shift the blame on x x x ITTC were all for
naught. First, the testimony of its alleged eyewitness was stricken off the record for
his failure to appear for cross-examination (p. 361, Record). Second, the documents
offered to prove that the fire originated from barge ITTC-101 were all denied
admission by the [c]ourt for being, in effect, hearsay (pp. 335 and 362). x x x Thus,
there is nothing in the record to support [petitioners] contention that the fire and
[11]
explosion originated from barge ITTC-101.
We find no cogent reason to overturn these factual findings. Nothing is more
settled in jurisprudence than that this Court is bound by the factual findings of the
Court of Appeals when these are supported by substantial evidence and are not
[12]
under any of the exceptions in Fuentes v. Court of Appeals; more so, when such
[13]
findings affirm those of the trial court. Verily, this Court reviews only issues of law.
Negligence is conduct that creates undue risk of harm to another. It is the failure
to observe that degree of care, precaution and vigilance that the circumstances justly
[14]
demand, whereby that other person suffers injury. Petitioners vessel was carrying
[15]
chemical cargo -- alkyl benzene and methyl methacrylate monomer. While knowing
that their vessel was carrying dangerous inflammable chemicals, its officers and crew
failed to take all the necessary precautions to prevent an accident. Petitioner was,
therefore, negligent.
The three elements of quasi delict are: (a) damages suffered by the plaintiff, (b)
fault or negligence of the defendant, and (c) the connection of cause and effect
between the fault or negligence of the defendant and the damages inflicted on the
[16]
plaintiff. All these elements were established in this case. Knowing fully well that it
was carrying dangerous chemicals, petitioner was negligent in not taking all the
necessary precautions in transporting the cargo.
As a result of the fire and the explosion during the unloading of the chemicals
from petitioners vessel, Respondent Borja suffered the following damage: and
injuries: (1) chemical burns of the face and arms; (2) inhalation of fumes from burning
chemicals; (3) exposure to the elements [while] floating in sea water for about three
(3) hours; (4) homonymous hemianopsia or blurring of the right eye [which was of]
possible toxic origin; and (5) [c]erebral infract with neo-vascularization, left occipital
[17]
region with right sided headache and the blurring of vision of right eye.
Hence, the owner or the person in possession and control of a vessel and the
vessel are liable for all natural and proximate damage caused to persons and
[18]
property by reason of negligent management or navigation.
Second Issue:
Amount of Liability
Petitioner insists that Borja is not entitled to the full amount of damages awarded
by the lower courts. It disputes the use of his gross earning as basis for the
computation of the award for loss of earning capacity. Both courts, in computing the
value of such loss, used the remaining years of the victim as a government employee
and the amount he had been receiving per annum at the time of the incident.
Counsel for Respondent Borja, on the other hand, claims that petitioner had no
cause to complain, because the miscomputation had ironically been in its favor. The
multiplier used in the computation was erroneously based on the remaining years in
government service, instead of the life expectancy, of the victim. Borjas counsel also
points out that the award was based on the formers meager salary in 1987, or about
23 years ago when the foreign exchange was still P14 to $1. Hence, the questioned
award is consistent with the primary purpose of giving what is just, moral and legally
due the victim as the aggrieved party.
 Both parties have a point. In determining the reasonableness of the damages
awarded under Article 1764 in conjunction with Article 2206 of the Civil Code, the
factors to be considered are: (1) life expectancy (considering the health of the victim
and the mortality table which is deemed conclusive) and loss of earning capacity; (b)
pecuniary loss, loss of support and service; and (c) moral and mental
[19]
sufferings. The loss of earning capacity is based mainly on the number of years
remaining in the persons expected life span. In turn, this number is the basis of the
damages that shall be computed and the rate at which the loss sustained by the heirs
[20]
shall be fixed.
[21]
The formula for the computation of loss of earning capacity is as follows:
Respondent Borjas demise earlier than the estimated life span is of no moment.
For purposes of determining loss of earning capacity, life expectancy remains at 80.
Otherwise, the computation of loss of earning capacity will never become final, being
always subject to the eventuality of the victims death. The computation should not
change even if Borja lived beyond 80 years. Fair is fair.
Based on the foregoing discussion, the award for loss of earning capacity should
be computed as follows:
Loss of earning = [2 (80-50)] x [(P2,752x12)-16,512]
capacity 3

Net earning capacity = Life expectancy x [Gross Annual Income - Living = P330,240
Expenses (50% of gross annual income)], where life expectancy =
[22]
2/3 (80 - the age of the deceased).
Having been duly proven, the moral damages and attorneys fees awarded are
justified under the Civil Codes Article 2219, paragraph 2; and Article 2208, paragraph
Petitioner is correct in arguing that it is net income (or gross income less living 11, respectively.
expenses) which is to be used in the computation of the award for loss of
[23]
income. Villa Rey Transit v. Court of Appeals explained that the amount WHEREFORE, the Petition is PARTLY GRANTED. The assailed Decision
recoverable is not the loss of the entire earning, but rather the loss of that portion of is AFFIRMED with the following MODIFICATIONS: petitioner is ordered to pay the
the earnings which the beneficiary would have received. Hence, in fixing the amount heirs of the victim damages in the amount of P320,240 as loss of earning capacity,
of the said damages, the necessary expenses of the deceased should be deducted moral damages in the amount of P100,000, plus another P50,000 as attorneys fees.
from his earnings. Costs against petitioner.
In other words, only net earnings, not gross earnings, are to be considered; that SO ORDERED.
is, the total of the earnings less expenses necessary in the creation of such earnings
or income, less living and other incidental expenses. When there is no showing that
the living expenses constituted a smaller percentage of the gross income, we fix the
living expenses at half of the gross income. To hold that one would have used only a
small part of the income, with the larger part going to the support of ones children,
[24]
would be conjectural and unreasonable.
Counsel for Respondent Borja is also correct in saying that life expectancy
should not be based on the retirement age of government employees, which is
[25]
pegged at 65. In Negros Navigation Co, Inc. v. CA, the Court resolved that in
calculating the life expectancy of an individual for the purpose of determining loss of
earning capacity under Article 2206(1) of the Civil Code, it is assumed that the
deceased would have earned income even after retirement from a particular job.
Respondent Borja should not be situated differently just because he was a
government employee. Private employees, given the retirement packages provided
by their companies, usually retire earlier than government employees; yet, the life
expectancy of the former is not pegged at 65 years.
Petitioner avers that Respondent Borja died nine years after the incident and,
hence, his life expectancy of 80 years should yield to the reality that he was only 59
when he actually died.
We disagree. The Court uses the American Experience/Expectancy Table of
Mortality or the Actuarial or Combined Experience Table of Mortality, which
consistently pegs the life span of the average Filipino at 80 years, from which it
extrapolates the estimated income to be earned by the deceased had he or she not
[26]
been killed.
 [G.R. No. 156034. October 1, 2003]
DELSAN TRANSPORT LINES, INC., petitioner, vs. C & A CONSTRUCTION,
INC., respondent.
Civil Law; Negligence; The test for determining the existence of negligence in
a particular case may be stated as follows: Did the defendant in doing the alleged
negligent act use the reasonable care and caution which an ordinary prudent
person would have used in the same situation? If not, then he is guilty of
negligence.—Article 2176 of the Civil Code provides that whoever by act or
omission causes damage to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict. The test for
determining the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use the reasonable
care and caution which an ordinary prudent person would have used in the same
situation? If not, then he is guilty of negligence.
Same; Same; Emergency Rule; Trial court erred in applying the emergency
rule; Under the rule, one who suddenly finds himself in a place of danger, and is
required to act without time to consider the best means that may be adopted to
avoid the impending danger is not guilty of negligence if he fails to adopt what
subsequently and upon reflection may appear to have been a better method unless
the danger in which he finds himself is brought about by his own negligence.—The
trial court erred in applying the emergency rule. Under this rule, one who
suddenly finds himself in a place of danger, and is required to act without time to
consider the best means that may be adopted to avoid the impending danger, is
not guilty of negligence, if he fails to adopt what subsequently and upon reflection
may appear to have been a better method, unless the danger in which he finds
himself is brought about by his own negligence. Clearly, the emergency rule is not
applicable to the instant case because the danger where Capt. Jusep found
himself was caused by his own negligence.
Same; Same; Quasi-delict; To avoid liability for a quasi-delict committed by
his employee an employer must overcome the presumption by presenting
convincing proof that he exercised the care and diligence of a good father of a
family in the selection and supervision of his employee.—Whenever an employee’s
negligence causes damage or injury to another, there instantly arises a
presumption juris tantumthat the employer failed to exercise diligentissimi patris
families in the selection (culpa in eligiendo) or supervision (culpa in vigilando) of
its employees. To avoid liability for a quasi-delictcommitted by his employee, an
employer must overcome the presumption by presenting convincing proof that he
exercised the care and diligence of a good father of a family in the selection and
supervision of his employee.
Same; Same; Same; The required diligence of a good father of a family
pertains not only to the selection but also to the supervision of employees.—There is
no question that petitioner, who is the owner/operator of M/V Delsan Express, is
also the employer of Capt. Jusep who at the time of the incident acted within the
scope of his duty. The defense raised by petitioner was that it exercised due
diligence in the selection of Capt. Jusep because the latter is a licensed and
competent Master Mariner. It should be stressed, however, that the required
diligence of a good father of a family pertains not only to the selection, but also to
the supervision of employees. It is not enough that the employees chosen be
competent and qualified, inasmuch as the employer is still required to exercise
due diligence in supervising its employees.
Same; Same; Same; Once negligence on the part of the employees is shown,
the burden of proving that he observed the diligence in the selection and
supervision of its employees shifts to the employer.—In Fabre, Jr. v. Court of
Appeals, it was held that due diligence in supervision requires the formulation of
rules and regulations for the guidance of employees and the issuance of proper
instructions as well as actual implementation and monitoring of consistent
compliance with the rules. Corollarily, in Ramos v. Court of Appeals, the Court
stressed that once negligence on the part of the employees is shown, the burden of
proving that he observed the diligence in the selection and supervision of its
employees shifts to the employer.
Same; Same; Same; It is not necessary to state that petitioner was negligent
in the supervision or selection of its employees inasmuch as its negligence is
presumed by operation of law; Allegations of negligence against the employee and
that of an employer-employee relation in the complaint are enough to make out a
case of quasi-delict under Articles 2180 of the Civil Code.—So also, petitioner
cannot disclaim liability on the basis of respondent’s failure to allege in its
complaint that the former did not exercise due diligence in the selection and
supervision of its employees. In Viron Transportation Co., Inc. v. Delos Santos, it
was held that it is not necessary to state that petitioner was negligent in the
supervision or selection of its employees, inasmuch as its negligence is presumed
by operation of law. Allegations of negligence against the employee and that of an
employer-employee relation in the complaint are enough to make out a
case:of quasi-delict under Article 2180 of the Civil Code.
DECISION
YNARES-SANTIAGO, J.:
Assailed in this petition for review under Rule 45 of the Revised Rules of Court
[1]
are the June 14, 2002 decision of the Court of Appeals in CA-G.R. CV No. 59034,
[2]
which reversed the decision of the Regional Trial Court of Manila, Branch 46, in Civil
[3]
Case No. 95-75565, and its November 7, 2002 resolution denying petitioners motion
for reconsideration.
The undisputed facts reveal that respondent C & A Construction, Inc. was
engaged by the National Housing Authority (NHA) to construct a deflector wall at the
[4]
Vitas Reclamation Area in Vitas, Tondo, Manila. The project was completed in 1994
but it was not formally turned over to NHA.
On October 9, 1994, M/V Delsan Express, a ship owned and operated by
petitioner Delsan Transport Lines, Inc., anchored at the Navotas Fish Port for the
purpose of installing a cargo pump and clearing the cargo oil tank. At around 12:00
midnight of October 20, 1994, Captain Demetrio T. Jusep of M/V Delsan Express
[5]
received a report from his radio head operator in Japan that a typhoon was going to
[6] [7]
hit Manila in about eight (8) hours. At approximately 8:35 in the morning of October
21, 1994, Capt. Jusep tried to seek shelter at the North Harbor but could not enter the
[8]
area because it was already congested. At 10:00 a.m., Capt. Jusep decided to drop
anchor at the vicinity of Vitas mouth, 4 miles away from a Napocor power barge. At
that time, the waves were already reaching 8 to 10 feet high. Capt. Jusep ordered his
crew to go full ahead to counter the wind which was dragging the ship towards the
Napocor power barge. To avoid collision, Capt. Jusep ordered a full stop of the
[9]
vessel. He succeeded in avoiding the power barge, but when the engine was re-
started and the ship was maneuvered full astern, it hit the deflector wall constructed
[10] [11]
by respondent. The damage caused by the incident amounted to P456,198.24.
Respondent demanded payment of the damage from petitioner but the latter
refused to pay. Consequently, respondent filed a complaint for damages with the
Regional Trial Court of Manila, Branch 46, which was docketed as Civil Case No. 95-
75565. In its answer, petitioner claimed that the damage was caused by a fortuitous
[12]
event.
On February 13, 1998, the complaint filed by respondent was dismissed. The
trial court ruled that petitioner was not guilty of negligence because it had taken all the
necessary precautions to avoid the accident. Applying the emergency rule, it absolved
petitioner of liability because the latter had no opportunity to adequately weigh the
best solution to a threatening situation. It further held that even if the maneuver
chosen by petitioner was a wrong move, it cannot be held liable as the cause of the
[13]
damage sustained by respondent was typhoon Katring, which is an act of God.
On appeal to the Court of Appeals, the decision of the trial court was reversed
[14]
and set aside. It found Capt. Jusep guilty of negligence in deciding to transfer the
vessel to the North Harbor only at 8:35 a.m. of October 21, 1994 and thus held
petitioner liable for damages.
Hence, petitioner filed the instant petition contending that Capt. Jusep was not
negligent in waiting until 8:35 in the morning of October 21, 1994 before transferring
the vessel to the North Harbor inasmuch as it was not shown that had the transfer
[15]
been made earlier, the vessel could have sought shelter. It further claimed that it
cannot be held vicariously liable under Article 2180 of the Civil Code because
respondent failed to allege in the complaint that petitioner was negligent in the
[16]
selection and supervision of its employees. Granting that Capt. Jusep was indeed
guilty of negligence, petitioner is not liable because it exercised due diligence in the
[17]
selection of Capt. Jusep who is a duly licensed and competent Master Mariner.
The issues to be resolved in this petition are as follows (1) Whether or not Capt.
Jusep was negligent; (2) If yes, whether or not petitioner is solidarily liable under
Article 2180 of the Civil Code for the quasi-delict committed by Capt. Jusep?
Article 2176 of the Civil Code provides that whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual relation between
the parties, is called a quasi-delict. The test for determining the existence of
negligence in a particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use the reasonable care and caution which an ordinary
prudent person would have used in the same situation? If not, then he is guilty of
[18]
negligence.
In the case at bar, the Court of Appeals was correct in holding that Capt. Jusep
was negligent in deciding to transfer the vessel only at 8:35 in the morning of October
21, 1994.As early as 12:00 midnight of October 20, 1994, he received a report from
[19] [20]
his radio head operator in Japan that a typhoon was going to hit Manila after 8
[21]
hours. This, notwithstanding, he did nothing, until 8:35 in the morning of October
21, 1994, when he decided to seek shelter at the North Harbor, which unfortunately
was already congested.The finding of negligence cannot be rebutted upon proof that
the ship could not have sought refuge at the North Harbor even if the transfer was
done earlier. It is not the speculative success or failure of a decision that determines
the existence of negligence in the present case, but the failure to take immediate and
appropriate action under the circumstances. Capt. Jusep, despite knowledge that the
typhoon was to hit Manila in 8 hours, complacently waited for the lapse of more than 8
[22]
hours thinking that the typhoon might change direction. He cannot claim that he
waited for the sun to rise instead of moving the vessel at midnight immediately after
receiving the report because of the difficulty of traveling at night. The hour of 8:35
a.m. is way past sunrise. Furthermore, he did not transfer as soon as the sun rose
[23]
because, according to him, it was not very cloudy and there was no weather
disturbance yet.
[24]
When he ignored the weather report notwithstanding reasonable foresight of
harm, Capt. Jusep showed an inexcusable lack of care and caution which an ordinary
[25]
prudent person would have observed in the same situation. Had he moved the
vessel earlier, he could have had greater chances of finding a space at the North
Harbor considering that the Navotas Port where they docked was very near North
[26]
Harbor. Even if the latter was already congested, he would still have time to seek
refuge in other ports.
The trial court erred in applying the emergency rule. Under this rule, one who
suddenly finds himself in a place of danger, and is required to act without time to
consider the best means that may be adopted to avoid the impending danger, is not
guilty of negligence, if he fails to adopt what subsequently and upon reflection may
appear to have been a better method, unless the danger in which he finds himself is
[27]
brought about by his own negligence. Clearly, the emergency rule is not applicable
to the instant case because the danger where Capt. Jusep found himself was caused
by his own negligence.
Anent the second issue, we find petitioner vicariously liable for the negligent act
of Capt. Jusep. Under Article 2180 of the Civil Code an employer may be held
solidarily liable for the negligent act of his employee. Thus
Art. 2180. The obligation imposed in Article 2176 is demandable not only for ones
own acts or omissions, but also for those of persons for whom one is responsible.
xxxxxxxxx
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are
not engaged in any business or industry.
xxxxxxxxx
The responsibility treated of in this article shall cease when the persons herein earn interest at 12% per year, the interim period being deemed equivalent to a
[34]
mentioned prove that they observed all the diligence of a good father of a family to forbearance of credit.
prevent damage.
Accordingly, the amount of P456,198.27 due the respondent shall earn 6%
interest per annum from October 3, 1995 until the finality of this decision. If the
Whenever an employees negligence causes damage or injury to another, there adjudged principal and the interest (or any part thereof) remain unpaid thereafter, the
instantly arises a presumption juris tantum that the employer failed to interest rate shall be twelve percent (12%) per annum computed from the time the
exercise diligentissimi patris families in the selection (culpa in eligiendo) or judgment becomes final and executory until it is fully satisfied.
supervision (culpa in vigilando) of its employees. To avoid liability for a quasi-
delict committed by his employee, an employer must overcome the presumption by WHEREFORE, in view of all the foregoing, the instant petition is DENIED. The
presenting convincing proof that he exercised the care and diligence of a good father June 14, 2002 decision of the Court of Appeals in CA-G.R. CV No. 59034 ordering
[28]
of a family in the selection and supervision of his employee. petitioner Delsan Transport Lines, Inc., to pay respondent C & A Construction, Inc.,
damages in the amount of P456,198.27, plus P30,000.00 as attorneys fees, is
There is no question that petitioner, who is the owner/operator of M/V Delsan AFFIRMED with the MODIFICATION that the award of P456,198.27 shall earn
Express, is also the employer of Capt. Jusep who at the time of the incident acted interest at the rate of 6% per annum from October 3, 1995, until finality of this
within the scope of his duty. The defense raised by petitioner was that it exercised decision, and 12% per annum thereafter on the principal and interest (or any part
due diligence in the selection of Capt. Jusep because the latter is a licensed and thereof) until full payment.
competent Master Mariner. It should be stressed, however, that the required diligence
of a good father of a family pertains not only to the selection, but also to the SO ORDERED.
supervision of employees. It is not enough that the employees chosen be competent
and qualified, inasmuch as the employer is still required to exercise due diligence in
supervising its employees.
[29]
In Fabre, Jr. v. Court of Appeals, it was held that due diligence in supervision
requires the formulation of rules and regulations for the guidance of employees and
the issuance of proper instructions as well as actual implementation and monitoring of
[30]
consistent compliance with the rules. Corollarily, in Ramos v. Court of Appeals, the
Court stressed that once negligence on the part of the employees is shown, the
burden of proving that he observed the diligence in the selection and supervision of its
employees shifts to the employer.
In the case at bar, however, petitioner presented no evidence that it formulated
rules/guidelines for the proper performance of functions of its employees and that it
strictly implemented and monitored compliance therewith. Failing to discharge the
burden, petitioner should therefore be held liable for the negligent act of Capt. Jusep.
So also, petitioner cannot disclaim liability on the basis of respondents failure to
allege in its complaint that the former did not exercise due diligence in the selection
and supervision of its employees. In Viron Transportation Co., Inc. v. Delos
[31]
Santos, it was held that it is not necessary to state that petitioner was negligent in
the supervision or selection of its employees, inasmuch as its negligence is presumed
by operation of law.Allegations of negligence against the employee and that of an
employer-employee relation in the complaint are enough to make out a case of quasi-
[32]
delict under Article 2180 of the Civil Code.
Considering that petitioner did not assail the damages awarded by the trial court,
we find no reason to alter the same. The interest imposed should, however, be
[33]
modified. In Eastern Shipping Lines, Inc. v. Court of Appeals, it was held that the
rate of interest on obligations not constituting a loan or forbearance of money is six
percent (6%) per annum.If the purchase price can be established with certainty at the
time of the filing of the complaint, the six percent (6%) interest should be computed
from the date the complaint was filed until finality of the decision. After the judgment
becomes final and executory until the obligation is satisfied, the amount due shall
G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-owned corporation,
the sum of P50,000 as damages, P5,000 as funeral expenses, and P11,000 as
attorneys' fees, for the death of their son Dominador Ong in one of the swimming
pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its swimming
pools but avers that his death was caused by his own negligence or by unavoidable
accident. Defendant also avers that it had exercised due diligence in the selection of,
and supervision over, its employees and that it had observed the diligence required
by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and dismissed
the complaint without pronouncement as to costs. Plaintiffs took the case on appeal
directly to this Court because the amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara filters,
Diliman, Quezon City, to which people are invited and for which a nominal fee of
P0.50 for adults and P0.20 for children is charged. The main pool it between two
small pools of oval shape known as the "Wading pool" and the "Beginners Pool."
There are diving boards in the big pools and the depths of the water at different parts
are indicated by appropriate marks on the wall. The care and supervision of the pools
and the users thereof is entrusted to a recreational section composed of Simeon
Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the
life-saving course given by the Philippine Red Cross at the YMCA in Manila. For the
safety of its patrons, defendant has provided the pools with a ring buoy, toy roof,
towing line, saving kit and a resuscitator. There is also a sanitary inspector who is in
charge of a clinic established for the benefit of the patrons. Defendant has also on
display in a conspicuous place certain rules and regulations governing the use of the
pools, one of which prohibits the swimming in the pool alone or without any attendant.
Although defendant does not maintain a full-time physician in the swimming pool
compound, it has however a nurse and a sanitary inspector ready to administer
injections or operate the oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old
high school student and boy scout, and his brothers Ruben and Eusebio, went to
defendant's swimming pools. This was not the first time that the three brothers had
gone to said natatorium for they had already been there four or five times before.
They arrived at the natatorium at about 1:45 p.m. After paying the requisite admission
fee, they immediately went to one of the small pools where the water was shallow. At
about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker
room in an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and
Eusebio went to the bigger pool leaving Dominador in the small pool and so they did
not see the latter when he left the pool to get a bottle of coke. In that afternoon, there
were two lifeguards on duty in the pool compound, namely, Manuel Abaño and Mario
Villanueva. The tour of duty of Abaño was from 8:00 to 12:00 in the morning and from
2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from
12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty
bathers inside the pool area and Manuel Abaño was going around the pools to
observe the bathers in compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather
by the name of Andres Hagad, Jr., that somebody was swimming under water for
quite a long time. Another boy informed lifeguard Manuel Abaño of the same
happening and Abaño immediately jumped into the big swimming pool and retrieved
the apparently lifeless body of Dominador Ong from the bottom. The body was placed
at the edge of the pool and Abaño immediately applied manual artificial respiration.
Soon after, male nurse Armando Rule came to render assistance, followed by
sanitary inspector Iluminado Vicente who, after being called by phone from the clinic
by one of the security guards, boarded a jeep carrying with him the resuscitator and a
medicine kit, and upon arriving he injected the boy with camphorated oil. After the
injection, Vicente left on a jeep in order to fetch Dr. Ayuyao from the University of the
Philippines. Meanwhile, Abaño continued the artificial manual respiration, and when
this failed to revive him, they applied the resuscitator until the two oxygen tanks were
exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the
same became of no use because he found the boy already dead. The doctor ordered
that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was investigated by the
Police Department of Quezon City and in the investigation boys Ruben Ong and
Andres Hagad, Jr. gave written statements. On the following day, July 6, 1952, an
autopsy was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal
Division, National Bureau of Investigation, who found in the body of the deceased the
following: an abrasion on the right elbow lateral aspect; contusion on the right
forehead; hematoma on the scalp, frontal region, right side; a congestion in the brain
with petechial subcortical hemorrhage, frontal lobe; cyanosis on the face and on the
nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood in the
heart; congestion in the visceral organs, and brownish fluid in the stomach. The death
was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor Dominador Ong can be
attributed to the negligence of defendant and/or its employees so as to entitle
plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of the new
Civil Code. The first article provides that "whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to pay for the damages done."
Such fault or negligence is called quasi-delict. Under the second article, this obligation
is demandable not only for one's own acts or omissions but also for those of persons
for whom one is responsible. In addition, we may quote the following authorities cited
in the decision of the trial court:
 "The rule is well settled that the owners of resorts to which people generally
are expressly or by implication invited are legally bound to exercise ordinary
care and prudence in the management and maintenance of such resorts, to
the end of making them reasonably safe for visitors" (Larkin vs. Saltair
Beach Co., 30 Utah 86, 83 Pac. 686).
"Although the proprietor of a natatorium is liable for injuries to a patron,
resulting from lack of ordinary care in providing for his safety, without the
fault of the patron, he is not, however, in any sense deemed to be the insurer
of the safety of patrons. And the death of a patron within his premises does
not cast upon him the burden of excusing himself from any presumption of
negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs.
Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare,
supra, it was held that there could be no recovery for the death by drowning
of a fifteen-year boy in defendant's natatorium, where it appeared merely
that he was lastly seen alive in water at the shallow end of the pool, and
some ten or fifteen minutes later was discovered unconscious, and perhaps
lifeless, at the bottom of the pool, all efforts to resuscitate him being without
avail.
Since the present action is one for damages founded on culpable negligence, the
principle to be observed is that the person claiming damages has the burden of
proving that the damage is caused by the fault or negligence of the person from
whom the damage is claimed, or of one of his employees (Walter A. Smith & Co. vs.
Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that arises is:
Have appellants established by sufficient evidence the existence of fault or
negligence on the part of appellee so as to render it liable for damages for the death
of Dominador Ong?
There is no question that appellants had striven to prove that appellee failed to take
the necessary precaution to protect the lives of its patrons by not placing at the
swimming pools efficient and competent employees who may render help at a
moment's notice, and they ascribed such negligence to appellee because the
lifeguard it had on the occasion minor Ong was drowning was not available or was
attending to something else with the result that his help came late. Thus, appellants
tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when
Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom
of the big swimming pool and shouted to the lifeguard for help, lifeguard Manuel
Abaño did not immediately respond to the alarm and it was only upon the third call
that he threw away the magazine he was reading and allowed three or four minutes to
elapse before retrieving the body from the water. This negligence of Abaño, they
contend, is attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by lifeguard
Abaño, but is belied by the written statements given by them in the investigation
conducted by the Police Department of Quezon City approximately three hours after
the happening of the accident. Thus, these two boys admitted in the investigation that
they narrated in their statements everything they knew of the accident, but, as found
by the trial, nowhere in said statements do they state that the lifeguard was chatting
with the security guard at the gate of the swimming pool or was reading a comic
magazine when the alarm was given for which reason he failed to immediately
respond to the alarm. On the contrary, what Ruben Ong particularly emphasized
therein was that after the lifeguard heard the shouts for help, the latter immediately
dived into the pool to retrieve the person under water who turned out to be his
brother. For this reason, the trial court made this conclusion: "The testimony of Ruben
Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abaño to
immediately respond to their call may therefore be disregarded because they are
belied by their written statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that appellee has taken all
necessary precautions to avoid danger to the lives of its patrons or prevent accident
which may cause their death. Thus, it has been shown that the swimming pools of
appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and
a first aid medicine kit. The bottom of the pools is painted with black colors so as to
insure clear visibility. There is on display in a conspicuous place within the area
certain rules and regulations governing the use of the pools. Appellee employs six
lifeguards who are all trained as they had taken a course for that purpose and were
issued certificates of proficiency. These lifeguards work on schedule prepared by their
chief and arranged in such a way as to have two guards at a time on duty to look after
the safety of the bathers. There is a male nurse and a sanitary inspector with a clinic
provided with oxygen resuscitator. And there are security guards who are available
always in case of emergency.
The record also shows that when the body of minor Ong was retrieved from the
bottom of the pool, the employees of appellee did everything possible to bring him
back to life. Thus, after he was placed at the edge of the pool, lifeguard Abaño
immediately gave him manual artificial respiration. Soon thereafter, nurse Armando
Rule arrived, followed by sanitary inspector Iluminado Vicente who brought with him
an oxygen resuscitator. When they found that the pulse of the boy was abnormal, the
inspector immediately injected him with camphorated oil. When the manual artificial
respiration proved ineffective they applied the oxygen resuscitator until its contents
were exhausted. And while all these efforts were being made, they sent for Dr.
Ayuyao from the University of the Philippines who however came late because upon
examining the body he found him to be already dead. All of the foregoing shows that
appellee has done what is humanly possible under the circumstances to restore life to
minor Ong and for that reason it is unfair to hold it liable for his death.
Sensing that their former theory as regards the liability of appellee may not be of
much help, appellants now switch to the theory that even if it be assumed that the
deceased is partly to be blamed for the unfortunate incident, still appellee may be
held liable under the doctrine of "last clear chance" for the rea
son that, having the last opportunity to save the victim, it failed to do so.
We do not see how this doctrine may apply considering that the record does not show
how minor Ong came into the big swimming pool. The only thing the record discloses
is that minor Ong informed his elder brothers that he was going to the locker room to
drink a bottle of coke but that from that time on nobody knew what happened to him
until his lifeless body was retrieved. The doctrine of last clear chance simply means
that the negligence of a claimant does not preclude a recovery for the negligence of
defendant where it appears that the latter, by exercising reasonable care and
prudence, might have avoided injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a person who has the last clear
chance or opportunity of avoiding an accident, notwithstanding the negligent acts of
his opponent or the negligence of a third person which is imputed to his opponent, is
considered in law solely responsible for the consequences of the accident." (38 Am.
Jur. pp. 900-902)

It goes without saying that the plaintiff himself was not free from fault, for he
was guilty of antecedent negligence in planting himself in the wrong side of
the road. But as we have already stated, the defendant was also negligent;
and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts
of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable
interval. Under these circumstances, the law is that a person who has the
last clear chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior negligence
of the other party. (Picart vs. Smith, 37 Phil., 809)

Since it is not known how minor Ong came into the big swimming pool and it being
apparent that he went there without any companion in violation of one of the
regulations of appellee as regards the use of the pools, and it appearing that lifeguard
Aba_¤_o responded to the call for help as soon as his attention was called to it and
immediately after retrieving the body all efforts at the disposal of appellee had been
put into play in order to bring him back to life, it is clear that there is no room for the
application of the doctrine now invoked by appellants to impute liability to appellee..

The last clear chance doctrine can never apply where the party charged is
required to act instantaneously, and if the injury cannot be avoided by the
application of all means at hand after the peril is or should have been
discovered; at least in cases in which any previous negligence of the party
charged cannot be said to have contributed to the injury. O'Mally vs. Eagan,
77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-
956)

Before closing, we wish to quote the following observation of the trial court, which we
find supported by the evidence: "There is (also) a strong suggestion coming from the
expert evidence presented by both parties that Dominador Ong might have dived
where the water was only 5.5 feet deep, and in so doing he might have hit or bumped
his forehead against the bottom of the pool, as a consequence of which he was
stunned, and which to his drowning. As a boy scout he must have received
instructions in swimming. He knew, or have known that it was dangerous for him to
dive in that part of the pool."

Wherefore, the decision appealed from being in accordance with law and the
evidence, we hereby affirm the same, without pronouncement as to costs.
G.R. No. 152040 March 31, 2006
MARIKINA AUTO LINE TRANSPORT CORPORATION and FREDDIE L.
SUELTO, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES and ERLINDA V. VALDELLON, Respondents.
Civil Law; Quasi-Delicts; Torts; Sudden Emergency Rule; One who suddenly
finds himself in a place of danger, and is required to act without time to consider
the best means that may be adopted to avoid the impending danger, is not guilty of
negligence if he fails to adopt what subsequently and upon reflection may appear
to have been a better method unless the emergency in which he finds himself is
brought about by his own negligence.—It was the burden of petitioners herein to
prove petitioner Suelto’s defense that he acted on an emergency, that is, he had to
swerve the bus to the right to avoid colliding with a passenger jeep coming from
EDSA that had overtaken another vehicle and intruded into the lane of the bus.
The sudden emergency rule was enunciated by this Court in Gan v. Court of
Appeals, 165 SCRA 378 (1988), thus: [O]ne who suddenly finds himself in a place
of danger, and is required to act without time to consider the best means that may
be adopted to avoid the impending danger, is not guilty of negligence if he fails to
adopt what subsequently and upon reflection may appear to have been a better
method unless the emergency in which he finds himself is brought about by his
own negligence.
Same; Same; Same; Traffic; Land Transportation and Traffic Code (R.A. No.
4136); Statutes; Under Section 37 of Republic Act No. 4136, as amended, otherwise
known as the Land Transportation and Traffic Code, motorists are mandated to
drive and operate vehicles on the right side of the road or highway.—Under
Section 37 of Republic Act No. 4136, as amended, otherwise known as the Land
Transportation and Traffic Code, motorists are mandated to drive and operate
vehicles on the right side of the road or highway: SEC. 37. Driving on right side of
highway.—Unless a different course of action is required in the interest of the
safety and the security of life, person or property, or because of unreasonable
difficulty of operation in compliance herewith, every person operating a motor
vehicle or an animal-drawn vehicle on a highway shall pass to the right when
meeting persons or vehicles coming toward him, and to the left when overtaking
persons or vehicles going the same direction, and when turning to the left in going
from one highway to another, every vehicle shall be conducted to the right of the
center of the intersection of the highway.
Same; Same; Same; Damages; Actual Damages; Daño Emergente; Lucro
Cesante; Actual damages include all the natural and probable consequences of the
act or omission complained of, classified as one for the loss of what a person
already possesses (daño emergente) and the other, for the failure to receive, as a
benefit, that which would have pertained to him (lucro cesante).—Under Article
2199 of the New Civil Code, actual damages include all the natural and probable
consequences of the act or omission complained of, classified as one for the loss of
what a person already possesses (daño emergente) and the other, for the failure to
receive, as a benefit, that which would have pertained to him (lucro cesante). As
expostulated by the Court in PNOC Shipping and Transport Corporation v. Court
of Appeals, 297 SCRA 402 (1998): Under Article 2199 of the Civil Code, actual or
compensatory damages are those awarded in satisfaction of, or in recompense for,
loss or injury sustained. They proceed from a sense of natural justice and are
designed to repair the wrong that has been done, to compensate for the injury
inflicted and not to impose a penalty. In actions based on torts or quasi-delicts,
actual damages include all the natural and probable consequences of the act or
omission complained of. There are two kinds of actual or compensatory damages:
one is the loss of what a person already possesses (daño emergente), and the other
is the failure to receive as a benefit that which would have pertained to him (lucro
cesante).
Civil Procedure; Evidence; Burden of Proof; Damages; Actual Damages; The
burden of proof is on the party who would be defeated if no evidence would be
presented on either side; Actual damages cannot be anchored on mere surmises,
speculations or conjectures.—The burden of proof is on the party who would be
defeated if no evidence would be presented on either side. The burden is to
establish one’s case by a preponderance of evidence which means that the
evidence, as a whole, adduced by one side, is superior to that of the other. Actual
damages are not presumed. The claimant must prove the actual amount of loss
with a reasonable degree of certainty premised upon competent proof and on the
best evidence obtainable. Specific facts that could afford a basis for measuring
whatever compensatory or actual damages are borne must be pointed out. Actual
damages cannot be anchored on mere surmises, speculations or conjectures.
DECISION
CALLEJO, SR., J.:
1
Before the Court is a Petition for Review on Certiorari of the Decision of the Court of
Appeals (CA) in CA-G.R. CR No. 16739 affirming the Joint Decision of the Regional
Trial Court (RTC) in Criminal Case No. Q-93-42629 and Civil Case No. Q-93-16051,
where Freddie Suelto was convicted of reckless imprudence resulting in damages to
property.
Erlinda V. Valdellon is the owner of a two-door commercial apartment located at No.
31 Kamias Road, Quezon City. The Marikina Auto Line Transport Corporation
(MALTC) is the owner-operator of a passenger bus with Plate Number NCV-849.
Suelto, its employee, was assigned as the regular driver of the bus.
2
At around 2:00 p.m. on October 3, 1992, Suelto was driving the aforementioned
passenger bus along Kamias Road, Kamuning, Quezon City, going towards Epifanio
de los Santos Avenue (EDSA). The bus suddenly swerved to the right and struck the
terrace of the commercial apartment owned by Valdellon located along Kamuning
3
Road. Upon Valdellon’s request, the court ordered Sergio Pontiveros, the Senior
Building Inspection Officer of the City Engineer’s Office, to inspect the damaged
terrace. Pontiveros submitted a report enumerating and describing the damages:
 (1) The front exterior and the right side concrete columns of the covered
terrace were vertically displaced from its original position causing exposure
of the vertical reinforcement.
(2) The beams supporting the roof and parapet walls are found with cracks
on top of the displaced columns.
(3) The 6″ CHB walls at [the] right side of the covered terrace were found
with cracks caused by this accident.
(4) The front iron grills and concrete balusters were found totally damaged
and the later [sic] beyond repair.
4 the legal rate from the date of the formal demand until the whole obligation is
He recommended that since the structural members made of concrete had been
displaced, the terrace would have to be demolished "to keep its monolithicness, and
to insure the safety and stability of the building."
5 exemplary damages;
6
Photographs of the damaged terrace were taken. Valdellon commissioned Engr.
Jesus R. Regal, Jr. to estimate the cost of repairs, inclusive of labor and painting, and
7
the latter pegged the cost at P171,088.46.
In a letter dated October 19, 1992 addressed to the bus company and Suelto,
Valdellon demanded payment of P148,440.00, within 10 days from receipt thereof, to
8 12
cover the cost of the damage to the terrace. The bus company and Suelto offered
9
a P30,000.00 settlement which Valdellon refused.
Valdellon filed a criminal complaint for reckless imprudence resulting in damage to
property against Suelto. After the requisite preliminary investigation, an Information
was filed with the RTC of Quezon City. The accusatory portion of the Information
reads:
That on or about the 3rd day of October 1992, in Quezon City, Philippines, the said
accused, being then the driver and/or person in charge of a Marikina Auto Line bus
bearing Plate No. NVC-849, did then and there unlawfully, and feloniously drive,
manage, and operate the same along Kamias Road, in said City, in a careless,
reckless, negligent, and imprudent manner, by then and there making the said vehicle
run at a speed greater than was reasonable and proper without taking the necessary
precaution to avoid accident to person/s and damage to property, and considering the
condition of the traffic at said place at the time, causing as a consequence of his said
carelessness, negligence, imprudence and lack of precaution, the said vehicle so
driven, managed and operated by him to hit and bump, as in fact it hit and bump a
commercial apartment belonging to ERLINDA V. VALDELLON located at No. 31
Kamias Road, this City, thereby causing damages to said apartment in the total
amount of P171,088.46, Philippine Currency, to her damage and prejudice in the total
amount aforementioned.
CONTRARY TO LAW.
10
Valdellon also filed a separate civil complaint against Suelto and the bus company for
damages. She prayed that after due proceedings, judgment be rendered in her favor,
thus:
WHEREFORE, it is respectfully prayed of this Honorable Court to issue a writ of
preliminary attachment against the defendants upon approval of plaintiff’s bond, and
after trial on the merits, to render a decision in favor of the plaintiff, ordering the
defendants, jointly and severally, to pay –
a) the total sum of P171,088.46 constituting the expenses for the repair of
the damaged apartment of plaintiff, with interests to be charged thereon at
fully paid;
b) the sum of not less than P20,000.00 each as compensatory and
c) the sum of P20,000.00 as attorney’s fees and the sum of P1,000.00 for
each appearance of plaintiff’s counsel; and costs of suit;
PLAINTIFF further prays for such other reliefs as may be just and equitable in the
11
premises.
A joint trial of the two cases was ordered by the trial court.
The trial court conducted an ocular inspection of the damaged terrace, where
defendants offered to have it repaired and restored to its original state. Valdellon,
however, disagreed because she wanted the building demolished to give way for the
13
construction of a new one.
During the trial, Valdellon testified on the damage caused to the terrace of her
apartment, and, in support thereof, adduced in evidence a receipt for P35,000.00,
dated October 20, 1993, issued by the BB Construction and Steel Fabricator for
14
"carpentry, masonry, welding job and electrical [work]."
Pontiveros of the Office of the City Engineer testified that there was a need to change
the column of the terrace, but that the building should also be demolished because "if
concrete is destroyed, [one] cannot have it restored to its original position."
15
Engr. Jesus Regal, Jr., the proprietor of the SSP Construction, declared that he
inspected the terrace and estimated the cost of repairs, including labor,
at P171,088.46.
Suelto testified that at 2:00 p.m. on October 3, 1992, he was driving the bus on its
way to Ayala Avenue, Makati, Metro Manila. When he reached the corner of K-H
Street at Kamias Road, Quezon City, a passenger jeepney suddenly crossed from
EDSA going to V. Luna and swerved to the lane occupied by the bus. Suelto had to
swerve the bus to the right upon which it hit the side front of the terrace of Valdellon’s
 16
two-door apartment. Based on his estimate, the cost to the damage on the terrace
17
of the apartment amounted to P40,000.00. On cross-examination, Suelto declared
that he saw the passenger jeepney when it was a meter away from the bus. Before
then, he had seen some passenger jeepneys on the right trying to overtake one
18
another.
Architect Arnulfo Galapate testified that the cost of the repair of the damaged terrace
amounted to P55,000.00.
19
On April 28, 1994, the trial court rendered judgment finding Suelto guilty beyond
reasonable doubt of reckless imprudence resulting in damage to property, and
ordered MALTC and Suelto to pay, jointly and severally, P150,000.00 to Valdellon, by
way of actual and compensatory damages, as well as attorney’s fees and costs of
suit. The fallo of the decision reads:
WHEREFORE, finding the accused FREDDIE SUELTO Y LIWAG guilty beyond
reasonable doubt of the crime of Reckless Imprudence Resulting in Damage to
Property, said accused is hereby sentenced to suffer imprisonment of ONE (1) YEAR.
With respect to the civil liability, judgment is hereby rendered in favor of plaintiff
Erlinda Valdellon and against defendant Marikina Auto Line Transport Corporation
and accused Freddie Suelto, where both are ordered, jointly and severally, to pay
plaintiff:
a. the sum of P150,000.00, as reasonable compensation sustained by
plaintiff for her damaged apartment;
b. the sum of P20,000.00, as compensatory and exemplary damages;
c. the sum of P20,000.00, as attorney’s fees; and,
d. the costs of suit.
20
SO ORDERED.
MALTC and Suelto, now appellants, appealed the decision to the CA, alleging that the
prosecution failed to prove Suelto’s guilt beyond reasonable doubt. They averred that
the prosecution merely relied on Valdellon, who testified only on the damage caused
to the terrace of her apartment which appellants also alleged was excessive.
Appellant Suelto further alleged that he should be acquitted in the criminal case for
the prosecution’s failure to prove his guilt beyond reasonable doubt. He maintained
that, in an emergency case, he was not, in law, negligent. Even if the appellate court
affirmed his conviction, the penalty of imprisonment imposed on him by the trial court
is contrary to law.
In its Brief for the People of the Philippines, the Office of the Solicitor General (OSG)
submitted that the appealed decision should be affirmed with modification. On
Suelto’s claim that the prosecution failed to prove his guilt for the crime of reckless
imprudence resulting in damage to property, the OSG contended that, applying the
principle of res ipsa loquitur, the prosecution was able to prove that he drove the bus
with negligence and recklessness. The OSG averred that the prosecution was able to
prove that Suelto’s act of swerving the bus to the right was the cause of damage to
the terrace of Valdellon’s apartment, and in the absence of an explanation to the
contrary, the accident was evidently due to appellant’s want of care. Consequently,
the OSG posited, the burden was on the appellant to prove that, in swerving the bus
to the right, he acted on an emergency, and failed to discharge this burden. However,
the OSG averred that the trial court erred in sentencing appellant to a straight penalty
of one year, and recommended a penalty of fine.
On June 20, 2000, the CA rendered judgment affirming the decision of the trial court,
but the award for actual damages was reduced to P100,000.00. The fallo of the
decision reads:
WHEREFORE, premises considered, the decision dated April 28, 1994, rendered by
the court a quo is AFFIRMED with the modification that the sum of P150,000.00 as
compensation sustained by the plaintiff-appellee for her damaged apartment be
reduced to P100,000.00 without pronouncement as to costs.
21
SO ORDERED.
22
Appellants filed a Motion for Reconsideration, but the CA denied the same.
MALTC and Suelto, now petitioners, filed the instant petition reiterating its
submissions in the CA: (a) the prosecution failed to prove the crime charged against
petitioner Suelto; (b) the prosecution failed to adduce evidence to prove that
respondent suffered actual damages in the amount of P100,000.00; and (c) the trial
court erred in sentencing petitioner Suelto to one (1) year prison term.
On the first issue, petitioners aver that the prosecution was mandated to prove that
petitioner Suelto acted with recklessness in swerving the bus to the right thereby
hitting the terrace of private respondent’s apartment. However, the prosecution failed
to discharge its burden. On the other hand, petitioner Suelto was able to prove that he
acted in an emergency when a passenger jeepney coming from EDSA towards the
direction of the bus overtook another vehicle and, in the process, intruded into the
lane of the bus.
On the second issue, petitioners insist that private respondent was able to prove only
the amount of P35,000.00 by way of actual damages; hence, the award
of P100,000.00 is barren of factual basis.
On the third issue, petitioner Suelto posits that the straight penalty of imprisonment
recommended by the trial court, and affirmed by the CA, is contrary to Article 365 of
the Revised Penal Code.
The petition is partially granted.
On the first issue, we find and so resolve that respondent People of the Philippines
was able to prove beyond reasonable doubt that petitioner Suelto swerved the bus to
the right with recklessness, thereby causing damage to the terrace of private
respondent’s apartment. Although she did not testify to seeing the incident as it
happened, petitioner Suelto himself admitted this in his answer to the complaint in
Civil Case No. Q-93-16051, and when he testified in the trial court.
Suelto narrated that he suddenly swerved the bus to the right of the road causing it to
hit the column of the terrace of private respondent. Petitioners were burdened to
prove that the damage to the terrace of private respondent was not the fault of
petitioner Suelto.
We have reviewed the evidence on record and find that, as ruled by the trial court and
the appellate court, petitioners failed to prove that petitioner acted on an emergency
caused by the sudden intrusion of a passenger jeepney into the lane of the bus he
was driving.
It was the burden of petitioners herein to prove petitioner Suelto’s defense that he
acted on an emergency, that is, he had to swerve the bus to the right to avoid
colliding with a passenger jeep coming from EDSA that had overtaken another vehicle
and intruded into the lane of the bus. The sudden emergency rule was enunciated by
23
this Court in Gan v. Court of Appeals, thus:
[O]ne who suddenly finds himself in a place of danger, and is required to act without
time to consider the best means that may be adopted to avoid the impending danger,
is not guilty of negligence if he fails to adopt what subsequently and upon reflection
may appear to have been a better method unless the emergency in which he finds
himself is brought about by his own negligence.
Under Section 37 of Republic Act No. 4136, as amended, otherwise known as the
Land Transportation and Traffic Code, motorists are mandated to drive and operate
vehicles on the right side of the road or highway:
SEC. 37. Driving on right side of highway. – Unless a different course of action is
required in the interest of the safety and the security of life, person or property, or
because of unreasonable difficulty of operation in compliance herewith, every person
operating a motor vehicle or an animal-drawn vehicle on a highway shall pass to the
right when meeting persons or vehicles coming toward him, and to the left when
overtaking persons or vehicles going the same direction, and when turning to the left
in going from one highway to another, every vehicle shall be conducted to the right of
the center of the intersection of the highway.
Section 35 of the law provides, thus:
Sec. 35. Restriction as to speed.—(a) Any person driving a motor vehicle on a
highway shall drive the same at a careful and prudent speed, not greater nor less
than is reasonable and proper, having due regard for the traffic, the width of the
highway, and of any other condition then and there existing; and no person shall drive
any motor vehicle upon a highway at such a speed as to endanger the life, limb and
property of any person, nor at a speed greater than will permit him to bring the vehicle
to a stop within the assured clear distance ahead (emphasis supplied).
In relation thereto, Article 2185 of the New Civil Code provides that "unless there is
proof to the contrary, it is presumed that a person driving a motor vehicle has been
negligent, if at the time of mishap, he was violating any traffic regulation." By his own
admission, petitioner Suelto violated the Land Transportation and Traffic Code when
he suddenly swerved the bus to the right, thereby causing damage to the property of
private respondent.
However, the trial court correctly rejected petitioner Suelto’s defense, in light of his
contradictory testimony vis-à-vis his Counter-Affidavit submitted during the preliminary
investigation:
It is clear from the photographs submitted by the prosecution (Exhs. C, D, G, H & I)
that the commercial apartment of Dr. Valdellon sustained heavy damage caused by
the bus being driven by Suelto. "It seems highly improbable that the said damages
were not caused by a strong impact. And, it is quite reasonable to conclude that, at
the time of the impact, the bus was traveling at a high speed when Suelto tried to
avoid the passenger jeepney." Such a conclusion finds support in the decision of the
Supreme Court in People vs. Ison, 173 SCRA 118, where the Court stated that
"physical evidence is of the highest order. It speaks more eloquently than a hundred
witnesses." The pictures submitted do not lie, having been taken immediately after
the incident. The damages could not have been caused except by a speeding bus.
Had the accused not been speeding, he could have easily reduced his speed and
come to a full stop when he noticed the jeep. Were he more prudent in driving, he
could have avoided the incident or even if he could not avoid the incident, the
damages would have been less severe.
In addition to this, the accused has made conflicting statements in his counter-
affidavit and his testimony in court. In the former, he stated that the reason why he
swerved to the right was because he wanted to avoid the passenger jeepney in front
of him that made a sudden stop. But, in his testimony in court, he said that it was to
avoid a passenger jeepney coming from EDSA that was overtaking by occupying his
lane. Such glaring inconsistencies on material points render the testimony of the
witness doubtful and shatter his credibility. Furthermore, the variance between
testimony and prior statements renders the witness unreliable. Such inconsistency
results in the loss in the credibility of the witness and his testimony as to his prudence
and diligence.
As already maintained and concluded, the severe damages sustained could not have
resulted had the accused acted as a reasonable and prudent man would. The
accused was not diligent as he claims to be. What is more probable is that the
accused had to swerve to the right and hit the commercial apartment of the plaintiff
because he could not make a full stop as he was driving too fast in a usually crowded
24
street.
Moreover, if the claim of petitioners were true, they should have filed a third-party
complaint against the driver of the offending passenger jeepney and the
owner/operator thereof.
Petitioner Suelto’s reliance on the sudden emergency rule to escape conviction for
the crime charged and his civil liabilities based thereon is, thus, futile.
On the second issue, we agree with the contention of petitioners that respondents
failed to prove that the damages to the terrace caused by the incident amounted
to P100,000.00. The only evidence adduced by respondents to prove actual damages
claimed by private respondent were the summary computation of damage made by
Engr. Jesus R. Regal, Jr. amounting to P171,088.46 and the receipt issued by the BB
Construction and Steel Fabricator to private respondent for P35,000.00 representing
cost for carpentry works, masonry, welding, and electrical works. Respondents failed
to present Regal to testify on his estimation. In its five-page decision, the trial court
awarded P150,000.00 as actual damages to private respondent but failed to state the
factual basis for such award. Indeed, the trial court merely declared in the decretal
portion of its decision that the "sum of P150,000.00 as reasonable compensation
sustained by plaintiff for her damaged apartment." The appellate court, for its part,
failed to explain how it arrived at the amount of P100,000.00 in its three-page
decision. Thus, the appellate court merely declared:
With respect to the civil liability of the appellants, they contend that there was no
urgent necessity to completely demolish the apartment in question considering the
nature of the damages sustained as a result of the accident. Consequently, appellants
continue, the award of P150,000.00 as compensation sustained by the plaintiff-
appellee for her damaged apartment is an unconscionable amount.
The damaged portions of the apartment in question are not disputed.
Considering the aforesaid damages which are the direct result of the accident, the
reasonable, and adequate compensation due is hereby fixed at P100,000.00.
25
Under Article 2199 of the New Civil Code, actual damages include all the natural and
probable consequences of the act or omission complained of, classified as one for the
loss of what a person already possesses (daño emergente) and the other, for the
failure to receive, as a benefit, that which would have pertained to him (lucro
cesante). As expostulated by the Court in PNOC Shipping and Transport Corporation
v. Court of Appeals:
26
Under Article 2199 of the Civil Code, actual or compensatory damages are those
awarded in satisfaction of, or in recompense for, loss or injury sustained. They
proceed from a sense of natural justice and are designed to repair the wrong that has
been done, to compensate for the injury inflicted and not to impose a penalty. In
actions based on torts or quasi-delicts, actual damages include all the natural and
probable consequences of the act or omission complained of. There are two kinds of
actual or compensatory damages: one is the loss of what a person already possesses
(daño emergente), and the other is the failure to receive as a benefit that which would
27
have pertained to him (lucro cesante).
The burden of proof is on the party who would be defeated if no evidence would be
presented on either side. The burden is to establish one’s case by a preponderance
of evidence which means that the evidence, as a whole, adduced by one side, is
superior to that of the other. Actual damages are not presumed. The claimant must
prove the actual amount of loss with a reasonable degree of certainty premised upon
competent proof and on the best evidence obtainable. Specific facts that could afford
a basis for measuring whatever compensatory or actual damages are borne must be
pointed out. Actual damages cannot be anchored on mere surmises, speculations or
conjectures. As the Court declared:
As stated at the outset, to enable an injured party to recover actual or compensatory
damages, he is required to prove the actual amount of loss with reasonable degree of
certainty premised upon competent proof and on the best evidence available. The
burden of proof is on the party who would be defeated if no evidence would be
presented on either side. He must establish his case by a preponderance of evidence
which means that the evidence, as a whole, adduced by one side is superior to that of
the other. In other words, damages cannot be presumed and courts, in making an
award, must point out specific facts that could afford a basis for measuring whatever
28
compensatory or actual damages are borne.
The Court further declared that "where goods are destroyed by the wrongful act of
defendant, the plaintiff is entitled to their value at the time of the destruction, that is,
normally, the sum of money which he would have to pay in the market for identical or
essentially similar goods, plus in a proper case, damages for the loss of the use
29
during the period before replacement.
While claimants’ bare testimonial assertions in support of their claims for damages
should not be discarded altogether, however, the same should be admitted with
extreme caution. Their testimonies should be viewed in light of claimants’ self-interest,
hence, should not be taken as gospel truth. Such assertion should be buttressed by
independent evidence. In the language of the Court:
For this reason, Del Rosario’s claim that private respondent incurred losses in the
total amount of P6,438,048.00 should be admitted with extreme caution considering
that, because it was a bare assertion, it should be supported by independent
evidence. Moreover, because he was the owner of private respondent corporation
whatever testimony he would give with regard to the value of the lost vessel, its
equipment and cargoes should be viewed in the light of his self-interest therein. We
agree with the Court of Appeals that his testimony as to the equipment installed and
the cargoes loaded on the vessel should be given credence considering his familiarity
thereto. However, we do not subscribe to the conclusion that his valuation of such
equipment, cargo, and the vessel itself should be accepted as gospel truth. We must,
therefore, examine the documentary evidence presented to support Del Rosario’s
claim as regards the amount of losses.
30
An estimate of the damage cost will not suffice:
Private respondents failed to adduce adequate and competent proof of the pecuniary
loss they actually incurred. It is not enough that the damage be capable of proof but
must be actually proved with a reasonable degree of certainty, pointing out specific
facts that afford a basis for measuring whatever compensatory damages are borne.
Private respondents merely sustained an estimated amount needed for the repair of
the roof of their subject building. What is more, whether the necessary repairs were
caused only by petitioner’s alleged negligence in the maintenance of its school
building, or included the ordinary wear and tear of the house itself, is an essential
31
question that remains indeterminable.
We note, however, that petitioners adduced evidence that, in their view, the cost of
the damage to the terrace of private respondent would amount
32
to P55,000.00. Accordingly, private respondent is entitled to P55,000.00 actual
damages.
IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The
joint decision of the Regional Trial Court of Quezon City is AFFIRMED WITH THE
MODIFICATION that petitioner Suelto is sentenced to pay a fine of P55,000.00 with
subsidiary imprisonment in case of insolvency. Petitioners are ORDERED to pay to
Erlinda V. Valdellon, jointly and severally, the total amount of P55,000.00 by way of
actual damages, and P20,000.00 by way of exemplary damages.
No pronouncement as to costs.

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

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

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

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

A fine not exceeding two hundred pesos and censure shall be imposed upon any
person who, by simple imprudence or negligence, shall cause some wrong which, if
done maliciously, would have constituted a light felony.

In the imposition of these penalties, the courts shall exercise their sound discretion,
without regard to the rules prescribed in Article 64 (Emphasis supplied).

In the present case, the only damage caused by petitioner Suelto’s act was to the
terrace of private respondent’s apartment, costing P55,000.00. Consequently,
petitioner’s contention that the CA erred in awarding P100,000.00 by way of actual
damages to private respondent is correct. We agree that private respondent is entitled
to exemplary damages, and find that the award given by the trial court, as affirmed by
the CA, is reasonable. Considering the attendant circumstances, we rule that private
respondent Valdellon is entitled to only P20,000.00 by way of exemplary damages.
G.R. No. L-12986 March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS
OF DOMINGA ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF
APPEALS, respondents-appellees.
Evidence; Requisites for admissibility of entries in official records.—There
are three requisites for admissibility of evidence under Section 35, Rule 123,
Rules of Court: (a) that the entry was made by a public officer, or by another
person, specially enjoined by law to do so; (b) that it was made by the public
officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and (c) that the public officer or
other person had sufficient knowledge of the facts by him slated, which must have
been acquired by him personally or through official information (Moran,
Comments on the Rules of Court, Vol. 3, p. 393).
Same; Hearsay rule; Reports not considered an exception to hearsay rule.—
The reports of the police and fire departments do not constitute an exception to
the hearsay rule. For, the facts stated therein were not acquired by the reporting
officers through official information, not having been given by the informants
pursuant to any duty to do so.
Same; Report submitted by a police officer in the performonce of his duties.—
The report submitted by a police officer in the performance of his duties, on the
basis of his own personal observation of the facts reported, may properly be
considered as an exception to the hearsay rule.
Same; Presumption of negligence under the doctrine of res ipsa loquitur.—
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 the
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 want of care (45 C.J.
1193).
Same; Application of principle to the case at bar.—The gasoline-station, with
all its appliances, equipment and employees, was under the control of appellees. A
fire occurred therein and spread to and burned the neighboring houses. The
person who knew or could have known how the fire started were the appellees
and their employees, but they gave no explanation thereof whatsoever. It is a fair
and reasonable inference that the incident happened because of want of care.
Torts; Quasi-delicts; Force majeure; Intervention of unforeseen and
unexpected cause.—The intervention of an unforeseen and unexpected cause is not
sufficient to relieve a wrongdoer from consequences of negligence, if such
negligence directly and proximately cooperates with the independent cause in the
resulting injury. (MacAfee v. Traver’s Gas Corporation, 153 S.W. 2nd 442.)
Damages; Liability of owner of gasoline station; Case at bar.—A fire broke
out at the Caltex service station. It started while gasoline was being hosed from a
tank into the underground storage. The fire spread to and burned several
neighboring houses owned by appellants. Issue: Whether Caltex should be held
liable for the damages caused to appellants. Held: This question depends on
whether the operator of the gasoline station was an independent contractor or an
agent of Caltex. Under the license agreement the operator would pay Caltex the
purely nominal sum of P1.00 for the use of the premises and all equipment
therein. The operator could sell only Caltex products. Maintenance of the station
and its equipment was subject to the approval, in other words control, of Caltex.
The operator could not assign or transfer his rights as licensee without the
consent of Caltex. Termination of the contract was a right granted only to Caltex
but not to the operator. These provisions of the contract show that the operator
was virtually an employee of the Caltex, not an independent contractor. Hence,
Caltex should be liable for damages caused to appellants.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals,
which affirmed that of the Court of First Instance of Manila dismissing petitioners'
second amended complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It
appears that in the afternoon of March 18, 1948 a fire broke out at the Caltex service
station at the corner of Antipolo street and Rizal Avenue, Manila. It started while
gasoline was being hosed from a tank truck into the underground storage, right at the
opening of the receiving tank where the nozzle of the hose was inserted. The fire
spread to and burned several neighboring houses, including the personal properties
and effects inside them. Their owners, among them petitioners here, sued
respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the
station and the second as its agent in charge of operation. Negligence on the part of
both of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove
negligence and that respondents had exercised due care in the premises and with
respect to the supervision of their employees.
The first question before Us refers to the admissibility of certain reports on the fire
prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of
the Armed Forces of the Philippines. Portions of the first two reports are as follows:
1. Police Department report: —
Investigation disclosed that at about 4:00 P.M. March 18, 1948,
while Leandro Flores was transferring gasoline from a tank truck,
plate No. T-5292 into the underground tank of the Caltex Gasoline
Station located at the corner of Rizal Avenue and Antipolo Street,
this City, an unknown Filipino lighted a cigarette and threw the
burning match stick near the main valve of the said underground
 tank. Due to the gasoline fumes, fire suddenly blazed. Quick action
of Leandro Flores in pulling off the gasoline hose connecting the
truck with the underground tank prevented a terrific explosion.
However, the flames scattered due to the hose from which the
gasoline was spouting. It burned the truck and the following
accessorias and residences.
2. The Fire Department report: —
In connection with their allegation that the premises was (sic) subleased for
the installation of a coca-cola and cigarette stand, the complainants
furnished this Office a copy of a photograph taken during the fire and which
is submitted herewith. it appears in this picture that there are in the premises
a coca-cola cooler and a rack which according to information gathered in the
neighborhood contained cigarettes and matches, installed between the
gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales
regarding the history of the gasoline station and what the chief of the fire department
had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and
hence inadmissible. This ruling is now assigned as error. It is contended: first, that
said reports were admitted by the trial court without objection on the part of
respondents; secondly, that with respect to the police report (Exhibit V-Africa) which
appears signed by a Detective Zapanta allegedly "for Salvador Capacillo," the latter
was presented as witness but respondents waived their right to cross-examine him
although they had the opportunity to do so; and thirdly, that in any event the said
reports are admissible as an exception to the hearsay rule under section 35 of Rule
123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of
September 17, 1953 (pp. 167-170) shows that the reports in question, when offered
as evidence, were objected to by counsel for each of respondents on the ground that
they were hearsay and that they were "irrelevant, immaterial and impertinent." Indeed,
in the court's resolution only Exhibits J, K, K-5 and X-6 were admitted without
objection; the admission of the others, including the disputed ones, carried no such
explanation.
On the second point, although Detective Capacillo did take the witness stand, he was
not examined and he did not testify as to the facts mentioned in his alleged report
(signed by Detective Zapanta). All he said was that he was one of those who
investigated "the location of the fire and, if possible, gather witnesses as to the
occurrence, and that he brought the report with him. There was nothing, therefore, on
which he need be cross-examined; and the contents of the report, as to which he did
not testify, did not thereby become competent evidence. And even if he had testified,
his testimony would still have been objectionable as far as information gathered by
him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further
testimonial evidence on their contents, fall within the scope of section 35, Rule 123,
which provides that "entries in official records made in the performance of his duty by
a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the
entry was made by a public officer, or by another person specially enjoined by law to
do so; (b) that it was made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined by law; and (c) that
the public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information
(Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously
the material facts recited in the reports as to the cause and circumstances of the fire
were not within the personal knowledge of the officers who conducted the
investigation. Was knowledge of such facts, however, acquired by them through
official information? As to some facts the sources thereof are not even identified.
Others are attributed to Leopoldo Medina, referred to as an employee at the gas
station were the fire occurred; to Leandro Flores, driver of the tank truck from which
gasoline was being transferred at the time to the underground tank of the station; and
to respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any
reason as to the origin of the fire. To qualify their statements as "official information"
acquired by the officers who prepared the reports, the persons who made the
statements not only must have personal knowledge of the facts stated but must have
the duty to give such statements for record.
1
The reports in question do not constitute an exception to the hearsay rule; the facts
stated therein were not acquired by the reporting officers through official information,
not having been given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the
fire, the doctrine of res ipsa loquitur should apply so as to presume negligence on the
part of appellees. Both the trial court and the appellate court refused to apply the
doctrine in the instant case on the grounds that "as to (its) applicability ... in the
Philippines, there seems to he nothing definite," and that while the rules do not
prohibit its adoption in appropriate cases, "in the case at bar, however, we find no
practical use for such doctrine." The question deserves more than such summary
dismissal. The doctrine has actually been applied in this jurisdiction, in the case
of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R,
September 20, 1949), wherein the decision of the Court of Appeals was penned by
Mr. Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other
companions were loading grass between the municipalities of Bay and
Calauan, in the province of Laguna, with clear weather and without any wind
blowing, an electric transmission wire, installed and maintained by the
 defendant Philippine Power and Development Co., Inc. alongside the road,
suddenly parted, and one of the broken ends hit the head of the plaintiff as
he was about to board the truck. As a result, plaintiff received the full shock
of 4,400 volts carried by the wire and was knocked unconscious to the
ground. The electric charge coursed through his body and caused extensive
and serious multiple burns from skull to legs, leaving the bone exposed in
some parts and causing intense pain and wounds that were not completely
healed when the case was tried on June 18, 1947, over one year after the
mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to
show any specific act of negligence, but the appellate court overruled the defense
under the doctrine of res ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's evidence to
place appellant on its defense. While it is the rule, as contended by the
appellant, that in case of noncontractual negligence, or culpa aquiliana, the
burden of proof is on the plaintiff to establish that the proximate cause of his
injury was the negligence of the defendant, it is also a recognized principal
that "where the thing which caused injury, without fault of the injured person,
is under the exclusive control of the defendant and the injury is such as in
the ordinary course of things does not occur if he having such control use
proper care, it affords reasonable evidence, in the absence of the
explanation, that the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has
observed due care and diligence. (San Juan Light & Transit Co. v. Requena,
244, U.S. 89, 56 L. ed. 680.) This rule is known by the name of res ipsa
loquitur (the transaction speaks for itself), and is peculiarly applicable to the
case at bar, where it is unquestioned that the plaintiff had every right to be
on the highway, and the electric wire was under the sole control of defendant
company. In the ordinary course of events, electric wires do not part
suddenly in fair weather and injure people, unless they are subjected to
unusual strain and stress or there are defects in their installation,
maintenance and supervision; just as barrels do not ordinarily roll out of the
warehouse windows to injure passersby, unless some one was negligent.
(Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that
established that rule). Consequently, in the absence of contributory
negligence (which is admittedly not present), the fact that the wire snapped
suffices to raise a reasonable presumption of negligence in its installation,
care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if
there are any facts inconsistent with negligence, it is for the defendant to
prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines
binding on the Supreme Court, but we do not consider this a reason for not applying
the particular doctrine of res ipsa loquitur in the case at bar. Gasoline is a highly
combustible material, in the storage and sale of which extreme care must be taken.
On the other hand, fire is not considered a fortuitous event, as it arises almost
invariably from some act of man. A case strikingly similar to the one before Us is
Jones vs. Shell Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon which in the
year 1934 was leased to the Shell Petroleum Corporation for a gasoline
filling station. On October 8, 1934, during the term of the lease, while
gasoline was being transferred from the tank wagon, also operated by the
Shell Petroleum Corporation, to the underground tank of the station, a fire
started with resulting damages to the building owned by Jones. Alleging that
the damages to his building amounted to $516.95, Jones sued the Shell
Petroleum Corporation for the recovery of that amount. The judge of the
district court, after hearing the testimony, concluded that plaintiff was entitled
to a recovery and rendered judgment in his favor for $427.82. The Court of
Appeals for the First Circuit reversed this judgment, on the ground the
testimony failed to show with reasonable certainty any negligence on the
part of the Shell Petroleum Corporation or any of its agents or employees.
Plaintiff applied to this Court for a Writ of Review which was granted, and the
case is now before us for decision.1äwphï1.ñët
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence — one relating
to the cause of the fire and the other relating to the spreading of the gasoline
about the filling station.
Other than an expert to assess the damages caused plaintiff's building by
the fire, no witnesses were placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we
find it established by the record that the filling station and the tank truck were
under the control of the defendant and operated by its agents or employees.
We further find from the uncontradicted testimony of plaintiff's witnesses that
fire started in the underground tank attached to the filling station while it was
being filled from the tank truck and while both the tank and the truck were in
charge of and being operated by the agents or employees of the defendant,
extended to the hose and tank truck, and was communicated from the
burning hose, tank truck, and escaping gasoline to the building owned by the
plaintiff.
Predicated on these circumstances and the further circumstance of
defendant's failure to explain the cause of the fire or to show its lack of
knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur.
There are many cases in which the doctrine may be successfully invoked
and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be under
the management of defendant or his servants and the accident is such as in
the ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in
 absence of explanation by defendant, that the accident arose from want of
care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and
adopted by the courts of last resort. Some of the cases in this jurisdiction in
which the doctrine has been applied are the following, viz.: Maus v.
Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc.,
Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v.
Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560,
39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The
gasoline station, with all its appliances, equipment and employees, was under the
control of appellees. A fire occurred therein and spread to and burned the neighboring
houses. The persons who knew or could have known how the fire started were
appellees and their employees, but they gave no explanation thereof whatsoever. It is
a fair and reasonable inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department
(Exh. X-1 Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline
Station complained of occupies a lot approximately 10 m x 10 m at the
southwest corner of Rizal Avenue and Antipolo. The location is within a very
busy business district near the Obrero Market, a railroad crossing and very
thickly populated neighborhood where a great number of people mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot be
excluded and this constitute a secondary hazard to its operation which in
turn endangers the entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the
concrete walls south and west adjoining the neighborhood are only 2-1/2
meters high at most and cannot avoid the flames from leaping over it in case
of fire.
Records show that there have been two cases of fire which caused not only
material damages but desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service
station is also used by its operator as a garage and repair shop for his fleet
of taxicabs numbering ten or more, adding another risk to the possible
outbreak of fire at this already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of
his duties on the basis of his own personal observation of the facts reported, may
properly be considered as an exception to the hearsay rule. These facts, descriptive
of the location and objective circumstances surrounding the operation of the gasoline
station in question, strengthen the presumption of negligence under the doctrine of
res ipsa loquitur, since on their face they called for more stringent measures of
caution than those which would satisfy the standard of due diligence under ordinary
circumstances. There is no more eloquent demonstration of this than the statement of
Leandro Flores before the police investigator. Flores was the driver of the gasoline
tank wagon who, alone and without assistance, was transferring the contents thereof
into the underground storage when the fire broke out. He said: "Before loading the
underground tank there were no people, but while the loading was going on, there
were people who went to drink coca-cola (at the coca-cola stand) which is about a
meter from the hole leading to the underground tank." He added that when the tank
was almost filled he went to the tank truck to close the valve, and while he had his
back turned to the "manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it
not for another negligent omission on the part of defendants, namely, their failure to
provide a concrete wall high enough to prevent the flames from leaping over it. As it
was the concrete wall was only 2-1/2 meters high, and beyond that height it consisted
merely of galvanized iron sheets, which would predictably crumple and melt when
subjected to intense heat. Defendants' negligence, therefore, was not only with
respect to the cause of the fire but also with respect to the spread thereof to the
neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second
amended complaint that "the fire was caused through the acts of a stranger who,
without authority, or permission of answering defendant, passed through the gasoline
station and negligently threw a lighted match in the premises." No evidence on this
point was adduced, but assuming the allegation to be true — certainly any
unfavorable inference from the admission may be taken against Boquiren — it does
not extenuate his negligence. A decision of the Supreme Court of Texas, upon facts
analogous to those of the present case, states the rule which we find acceptable here.
"It is the rule that those who distribute a dangerous article or agent, owe a degree of
protection to the public proportionate to and commensurate with a danger involved ...
we think it is the generally accepted rule as applied to torts that 'if the effects of the
actor's negligent conduct actively and continuously operate to bring about harm to
another, the fact that the active and substantially simultaneous operation of the
effects of a third person's innocent, tortious or criminal act is also a substantial factor
in bringing about the harm, does not protect the actor from liability.' (Restatement of
the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention of an
unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer from
consequences of negligence, if such negligence directly and proximately cooperates
with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas
Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to
appellants. This issue depends on whether Boquiren was an independent contractor,
as held by the Court of Appeals, or an agent of Caltex. This question, in the light of
the facts not controverted, is one of law and hence may be passed upon by this
Court. These facts are: (1) Boquiren made an admission that he was an agent of
Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the
equipment therein; (3) Caltex exercised control over Boquiren in the management of
the state; (4) the delivery truck used in delivering gasoline to the station had the name
of CALTEX painted on it; and (5) the license to store gasoline at the station was in the
name of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit
X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he
directed one of his drivers to remove gasoline from the truck into the tank and alleged
that the "alleged driver, if one there was, was not in his employ, the driver being an
employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true
that Boquiren later on amended his answer, and that among the changes was one to
the effect that he was not acting as agent of Caltex. But then again, in his motion to
dismiss appellants' second amended complaint the ground alleged was that it stated
no cause of action since under the allegations thereof he was merely acting as agent
of Caltex, such that he could not have incurred personal liability. A motion to dismiss
on this ground is deemed to be an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but
claims that the business conducted at the service station in question was owned and
operated by Boquiren. But Caltex did not present any contract with Boquiren that
would reveal the nature of their relationship at the time of the fire. There must have
been one in existence at that time. Instead, what was presented was a license
agreement manifestly tailored for purposes of this case, since it was entered into
shortly before the expiration of the one-year period it was intended to operate. This
so-called license agreement (Exhibit 5-Caltex) was executed on November 29, 1948,
but made effective as of January 1, 1948 so as to cover the date of the fire, namely,
March 18, 1948. This retroactivity provision is quite significant, and gives rise to the
conclusion that it was designed precisely to free Caltex from any responsibility with
respect to the fire, as shown by the clause that Caltex "shall not be liable for any
injury to person or property while in the property herein licensed, it being understood
and agreed that LICENSEE (Boquiren) is not an employee, representative or agent of
LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered
an independent contractor. Under that agreement Boquiren would pay Caltex the
purely nominal sum of P1.00 for the use of the premises and all the equipment
therein. He could sell only Caltex Products. Maintenance of the station and its
equipment was subject to the approval, in other words control, of Caltex. Boquiren
could not assign or transfer his rights as licensee without the consent of Caltex. The
license agreement was supposed to be from January 1, 1948 to December 31, 1948,
and thereafter until terminated by Caltex upon two days prior written notice. Caltex
could at any time cancel and terminate the agreement in case Boquiren ceased to sell
Caltex products, or did not conduct the business with due diligence, in the judgment
of Caltex. Termination of the contract was therefore a right granted only to Caltex but
not to Boquiren. These provisions of the contract show the extent of the control of
Caltex over Boquiren. The control was such that the latter was virtually an employee
of the former.
Taking into consideration the fact that the operator owed his position to the
company and the latter could remove him or terminate his services at will;
that the service station belonged to the company and bore its tradename and
the operator sold only the products of the company; that the equipment used
by the operator belonged to the company and were just loaned to the
operator and the company took charge of their repair and maintenance; that
an employee of the company supervised the operator and conducted
periodic inspection of the company's gasoline and service station; that the
price of the products sold by the operator was fixed by the company and not
by the operator; and that the receipts signed by the operator indicated that
he was a mere agent, the finding of the Court of Appeals that the operator
was an agent of the company and not an independent contractor should not
be disturbed.
To determine the nature of a contract courts do not have or are not bound to
rely upon the name or title given it by the contracting parties, should thereby
a controversy as to what they really had intended to enter into, but the way
the contracting parties do or perform their respective obligations stipulated or
agreed upon may be shown and inquired into, and should such performance
conflict with the name or title given the contract by the parties, the former
must prevail over the latter. (Shell Company of the Philippines, Ltd. vs.
Firemens' Insurance Company of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of creating the
apparent relationship of employer and independent contractor, and of
avoiding liability for the negligence of the employees about the station; but
the company was not satisfied to allow such relationship to exist. The
evidence shows that it immediately assumed control, and proceeded to
direct the method by which the work contracted for should be performed. By
reserving the right to terminate the contract at will, it retained the means of
compelling submission to its orders. Having elected to assume control and to
direct the means and methods by which the work has to be performed, it
must be held liable for the negligence of those performing service under its
direction. We think the evidence was sufficient to sustain the verdict of the
jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But
no cash invoices were presented to show that Boquiren had bought said gasoline
from Caltex. Neither was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting
the amount of P2,000.00 collected by them on the insurance of the house. The
deduction is now challenged as erroneous on the ground that Article 2207 of the New
Civil Code, which provides for the subrogation of the insurer to the rights of the
insured, was not yet in effect when the loss took place. However, regardless of the
silence of the law on this point at that time, the amount that should be recovered be
measured by the damages actually suffered, otherwise the principle prohibiting unjust
enrichment would be violated. With respect to the claim of the heirs of Ong P7,500.00
was adjudged by the lower court on the basis of the assessed value of the property
destroyed, namely, P1,500.00, disregarding the testimony of one of the Ong children
that said property was worth P4,000.00. We agree that the court erred, since it is of
common knowledge that the assessment for taxation purposes is not an accurate
gauge of fair market value, and in this case should not prevail over positive evidence
of such value. The heirs of Ong are therefore entitled to P10,000.00.

Wherefore, the decision appealed from is reversed and respondents-appellees are

held liable solidarily to appellants, and ordered to pay them the aforesaid sum of
P9,005.80 and P10,000.00, respectively, with interest from the filing of the complaint,
and costs.
G.R. No. 121964 June 17, 1997
DRA. ABDULIA RODRIGUEZ, LEONOR PRIETOS, LEONORA RODRIGUEZ
NOLASCO, LUZVIMINDA ANTIG and JUANITA RODRIGUEZ, petitioners,
vs.
COURT OF APPEALS, HARRY VILORIA, MARGARITA MILAGROS VILORIA and
JOHN P. YOUNG, respondents.
Remedial Law; Evidence; Credibility of Witnesses; Court will not interfere
with the judgment of the trial court in passing on the credibility of opposing
witnesses unless there appears in the record some facts or circumstances of weight
and influence which have been overlooked, which if considered, could affect the
result of the case.—One of the highly revered dicta in our jurisprudence is that
this Court will not interfere with the judgment of the trial court in passing on the
credibility of opposing witnesses unless there appears in the record some facts or
circumstances of weight and influence which have been overlooked, which, if
considered, could affect the result of the case. The reason therefor is founded on
practical and empirical considerations. The trial judge is in a better position to
decide the question of credibility since he personally heard the witnesses and
observed their deportment and manner of testifying. Petitioners have offered no
convincing arguments to accommodate their case within the exception; they did
not even dare to refute the above observations and findings of the trial court.
Same; Same; Requisites for admissibility of entries on official records.—
Petitioners assert that the Fire Investigation Report by an official of the Cebu
City Fire Station should have been admitted in evidence as an exception to the
hearsay rule. The trial and appellate courts rejected this applying Africa v. Caltex
(Phil.), Inc., wherein this Court laid down the three requisites for admissibility
under the aforesaid section, viz.: (1) that the entry was made by a police officer, or
by another person especially enjoined by law to do so; (2) that it was made by the
police officer in the performance of his duties, or by such other person in the
performance of a duty especially enjoined by law; and (3) that the public officer or
other person had sufficient knowledge of the facts by him stated, which must have
been acquired by him personally or through official information. Elaborating on
the third requisite, this Court further stated that for the statements acquired by
the public officer under the third requisite to qualify as “official information,” it is
necessary that the persons who gave the statements “not only must have personal
knowledge of the facts stated but must have the duty to give such statements for
record.”
Same; Same; Doctrine of Res Ipsa Loquitur; The doctrine of res ipsa loquitur
can be invoked when and only when under the circumstances involved, direct
evidence is absent or not readily available.—The trial court itself concluded that
the fire could not have started at the generator and that the bunkhouse was not
burned. It then declared that “the fire was not caused by an instrumentality
within the exclusive control of defendants,” which is one of the requisites for the
application of the doctrine of res ipsa loquitur in the law of negligence. It may
further be emphasized that this doctrine is not intended to and does not dispense
with the requirement of proof of culpable negligence on the party charged. It
merely determines and regulates what shall be prima facie evidence thereof and
facilitates the burden of plaintiff of proving a breach of the duty of due care. The
doctrine can be invoked when and only when, under the circumstances involved,
direct evidence is absent or not readily available.
DAVIDE, JR. J.:
In this petition for review under Rule 45 of the Rules of Court, petitioners seek
1
reversal of that portion of the 14 March 1995 decision of respondent Court of
2
Appeals in CA-G.R. CV No. 36247 dismissing petitioners' complaint in Civil
Case No. CEB-8095 of the Cebu Regional Trial Court, Branch 21. The latter was
an action for damages based on quasi-delict filed by petitioners against private
respondents due to a fire which allegedly started in private respondents'
construction site and damaged petitioners' building.
After trial on the merits, the trial court found that the fire was not caused by an
instrumentality within the exclusive control of defendants (private respondents)
3
and rendered a decisions against petitioners. The dispositive portion of the
decision reads as follows:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered:
(1) Dismissing plaintiff's complaint;
(2) Condemning plaintiffs to pay defendants,
(a) Moral damages of P500,000 for defendants Vilorias, and moral damages
of P200,000 for defendant John P. Young;
(b) Exemplary damages of P75,000;
(c) Attorney's fees of P30,000
(3) Ordering plaintiffs to pay, jointly and severally, the costs.
4
SO ORDERED.
Plaintiffs, herein petitioners, appealed from the judgment to respondent Court of
Appeals which docketed the appeal as CA-G.R. CV No. 36247. In asking for the
reversal of the judgment they imputed upon the trial court the commission of the
following errors:
I
THE LOWER COURT GRAVELY ERRED IN EVALUATING THE
TESTIMONY OF EYEWITNESSES.
 II
THE TRIAL COURT ERRED IN NOT ADMITTING IN EVIDENCE
THE FIRE INVESTIGATION REPORT DONE BY THE FIRE
DEPARTMENT OFFICIAL.
III
THE TRIAL COURT ERRED IN AWARDING DAMAGES TO
DEFENDANTS-APPELLEES (PRIVATE RESPONDENTS
HEREIN).
IV
ASSUMING ARGUENDO THAT DEFENDANTS-APPELLEES
COULD LAWFULLY PRESENT EVIDENCE ON THEIR
COUNTERCLAIM, THE TRIAL COURT SERIOUSLY ERRED IN
AWARDING ASTRONOMICAL DAMAGES.
V control of the defendants-appellants. The decision stated that
THE TRIAL COURT ERRED IN NOT FINDING A CASE FOR
5
DAMAGES IN FAVOR OF PLAINTIFFS (HEREIN PETITIONERS).
Respondent Court of Appeals sustained petitioners only on the third assigned error.
Its discussion on the assigned errors was as follows:
Respondent Court of Appeals summarized the antecedents in this case as
follows:
On March 15, 1989, a fire broke out which razed two apartment
buildings, owned by plaintiffs-appellants Abdulia Rodriguez,
Leonora Rodriguez Nolasco and Juanita Rodriguez, and partially
destroying a commercial building.
Plaintiffs-appellants, with co-plaintiffs-appellants Leonora Prietos
and Luzviminda Antig who were lessees of the apartment units,
filed a case for damages against defendants-appellees Harry John
Viloriam [sic], Margarita Milagros Viloria, and John P. Young. The
complaint alleged that by reason of the gross negligence and want
of care of the construction workers and employees of the
defendants-appellees, the bunkhouse or workers' quarters in the
construction site caught fire spreading rapidly, burning the adjacent
buildings owned by plaintiffs-appellants. Due to the negligence of
defendants-appellees which resulted in the fire, plaintiffs-appellants
suffered actual damages representing the value of the buildings
and other personal properties.
Defendant-appellee John Young, the building contractor, in his
answer, contended that he can not be held responsible even if
there was negligence on the part of the employees for he had
exercised the diligence of a good father of a family in the selection
and supervision of his workers. Plaintiffs-appellants had no cause
of action against him. As counterclaim, defendant-appellee Young
sought for moral damages in the amount of P200,000.00, and
exemplary damages of P50,000.00 and attorney's fees of
P10,000.00.
Defendants-appell[ees] Harry and Margarita Viloria also alleged
that plaintiffs-appellants had no cause of action against them. The
fire court not have been caused by gross negligence of their
workers for they did not have any worker in the construction of their
building. The said construction was being undertaken by the
independent contractor, John Young, who hired and supervised his
own workers. The newly constructed building was partially
destroyed by the fire. As counterclaim, defendants-appell[ees]
prayed for moral damages in the sum of P2,500,000.00, exemplary
damages of P100,000.00 and attorney's fees of P20,000.00.
After trial and reception of evidence, the court a quo resolved that
the fire was not caused by an instrumentality within the exclusive
plaintiffs-appellants failed to establish that the fire was the result of
6
defendants-appellees' or their workers' negligence.
As to the first assigned error, the trial court did not err in the
evaluation of the testimonies of the witnesses, specially in the
testimony of applicants' witness, Noel Villarin. It seemed
unbelievable that witness Villarin was able to see Paner pour
gasoline on the generator through a five-inch wide hole which was
four meters away from where the former was eating. As pointed out
by the appellees how could Villarin see what was going on at the
ground floor which is about ten or eleven feet below. No other
witness had testified having seen the same. No one had even
pinpointed the real source of the fire. As it is, the conclusions
reached by the trial court which has the opportunity to observe the
witnesses when they testified as to what transpired [is] entitled to
7
full respect is applied. Where the issue is on the credibility of
witnesses, generally the findings of a court a quo will not be
8
disturbed on appeal.
As to the second assigned error stating that the report was an
exception to the hearsay rule is [sic] untenable. The report was not
obtained from informants who had the duty to do so. Even the
reporting officer had no personal knowledge of what actually took
place. Admittedly, the said report was merely hearsay as it failed to
comply with the third requisite of admissibility pursuant to Sec. 35,
Rule 123, to the effect that a public officer or other person had
 sufficient knowledge of the facts by him stated, which must have
9
been acquired by him personally or through official information. To
qualify the statements as "official information" acquired by the
officers who prepared the reports, the persons who made the
statements not only must have personal knowledge of the facts
stated but must have the duty to give such statements for [the]
record.
10
We find the third assigned error to be meritorious. In the absence of
a wrongful act or omission or of fraud or bad faith, moral damages
cannot be awarded and that the adverse result of an action does
not per se make the action wrongful and subject the actor to the
payment of damages for the law could not have meant to impose a
11
penalty on the right to litigate. Neither may exemplary damages
be awarded where there is no evidence of the other party having
acted in [a] wanton, fraudulent or reckless or oppressive
12
manner. Since the award of exemplary damages is unwarranted,
the award of attorney's fees must necessarily be disallowed. We
13
find the award of damages to be without adequate evidential
[sic] basis.
And more, appellants failed to establish that the proximate cause of
their loss was due to defendants-appellees' negligence. Strangely
however, it was not even ascertained with definiteness the actual
cause or even source of the fire. In sum, appellants failed to prove
that the fire which damaged their apartment buildings was due to
the fault of the appellees.
Considering the foregoing premises, We find as proper the
dismissal of the complaint, however, as to the damages awarded to
defendants-appellees, We find no legal basis to grant the same.
In Dela Paz vs. Intermediate Appellate Court, [G.R. No. L-71537,
17 September 1987] it was held that —
The questioned decision, however, is silent as to
how the court arrived at these damages.
Nowhere in the decision did the trial court discuss
the merit of the damages prayed for by the
petitioners. There should be clear factual and
legal bases for any award of considerable
14
damages.
The Court of Appeals thus decreed:
ACCORDINGLY, the decision dated September 19, 1991 is hereby
AFFIRMED. The award of damages in favor of defendants-
appellees including the award of attorney's fees are hereby
15
DELETED and SET ASIDE.
Rebuffed in their bid for reconsideration of the decision, petitioners filed the instant
petition, and as grounds therefor allege that:
I
THE COURT OF APPEALS ERRED IN MISAPPLYING FACTS OF
WEIGHT AND SUBSTANCE AFFECTING THE CASE AT BAR.
II
THE COURT OF APPEALS ERRED IN RULING THAT THE FIRE
INVESTIGATION REPORT IS INADMISSIBLE IN EVIDENCE.
III
THE COURT OF APPEALS ERRED IN RULING THAT SECTION
44, RULE 130 OF THE RULES OF COURT IS NOT APPLICABLE
TO THE CASE AT BAR.
After private respondents filed their respective comments to the petition as required,
we resolved to give due course to the petition and required the parties to submit their
respective memoranda, which they subsequently did.
Under the first assigned error petitioners want us to give full credit to the testimony of
Noel Villarin, their principal witness, who, they claimed, "maintained his straight-
forward and undisguised manner of answering the questions" despite the "intense
cross-examination." The trial court, however, refused to believe Villarin, not only
because he had an ulterior motive to testify against private respondent Young, for
which reason the trial court observed:
It may be worth recalling that principal and lone plaintiff's witness
Noel Villarin did testify that only during the hearing did he tell his
story about the fire because all his tools were burned, and John
Young neither had replenish [sic] those tools with sympathy on
[sic] him nor had visited him in the hospital (supra, p. 4). The Court,
observing Villarin, could only sense the spitful tone in his voice,
manifesting released pent-up'ill-will against defendant Young.
16
but more importantly, because the trial court found that "defendants"
witnesses have belied Villarin's word," thus:
"Talino" Reville told the Court that it was impossible to see the
generator when one was upstairs of the bunkhouse — "it could not
be seen because it was under the floor of the bunkhouse; it was not
possible for Villarin to see it." He was with Villarin eating their
supper then, and they were "already through eating but we were
still sitting down" and so, how could Villarin have "peeped" through
that "hole on the wall" high above them? All defendants's [sic]
 witnesses testified that the generator never caught fire, and no one
at all had heard any explosion anywhere before the fire was
discerned. Exhibit 1 (a photograph of the fire while it was raging)
reveals that the bunkhouse was intact.
And Paner — who, said Villarin, brought the gasoline which caught
fire from a stove as it was poured by Villarin to [sic] the generator —
was neither impleaded as another defendant nor called as a
witness, or charged as an accused in a criminal action. Which
omission also strikes the Court as strange. Such suppression of
evidence gives rise to the presumption that if presented Paner
would prove to be adverse to the plaintiffs (by analogy: People v.
17
Camalog, G.R. 77116, 31 January 1989).
The trial court explained why it had to accept the version of defendants' witnesses in
this wise:
The Court needs [sic] not suffer a paralysis of analysis as it
compares the two conflicting claims. Plaintiffs have relied so much
on their own assessment of the integrity and weight of Villarin's
testimony. But the court has found the same to be, under close
scrutiny, not only less weighty but also a piece of evidence that
taxes belief. Villarin said he saw Paner pour the gasoline, this while
he and three other fellow-workers were sitting on the second floor
of the bunkhouse and eating their supper, and Villarin elaborated by
adding that he saw Paner doing this through a hole on the wall.
What wall? Paner said the hole on the wall was at least four (4)
meters from the floor of the bunkhouse on which they were eating,
and he could "peep" through that hole which was higher than by
more than double his height! And he did not reveal all this to the
firemen who investigated him. The credibility of the witness may be
affected where he tends to exaggerate, or displays propensity for
18
needlessly detailed observation (People v. Wong, 23 SCRA 146).
One of the highly revered dicta in our jurisprudence is that this Court will not interfere
with the judgment of the trial court in passing on the credibility of opposing witnesses
unless there appears in the record some facts or circumstances of weight and
influence which have been overlooked, which, if considered, could affect the result of
the case. The reason therefor is founded on practical and empirical considerations.
The trial judge is in a better position to decide the question of credibility since he
personally heard the witnesses and observed their deportment and manner of
19
testifying. Petitioners have offered no convincing arguments to accommodate their
case within the exception; they did not even dare to refute the above observations
and findings of the trial court.
The second and third assigned error are interrelated, involving the application of
Section 44 of Rule 130, which reads as follows:
Sec. 44. Entries in official records. — Entries in official records
made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein
20
stated.
21
Petitioners assert that the Fire Investigation Report by an official of the
Cebu City Fire Station should have been admitted in evidence as an
exception to the hearsay rule. The trial and appellate courts rejected this
22
applying Africa v. Caltex (Phil.) Inc., wherein this Court laid down the three
requisites for admissibility under the aforesaid section, viz.:
(1) that the entry was made by a police officer, or by another person
especially enjoined by law to do so;
(2) that it was made by the police officer in the performance of his
duties, or by such other person in the performance of a duty
especially enjoined by law; and
(3) that the public officer or other person had sufficient knowledge
of the facts by him stated, which must have been acquired by him
personally or through official information.
23
Elaborating on the third requisite, this Court further stated that for the
statements acquired by the public officer under the third requisite to qualify
as "official information," it is necessary that the persons who gave the
statements "not only must have personal knowledge of the facts stated but
24
must have the duty to give such statements for record."
The Court of Appeals ruled here that the reporting officer who prepared the Fire
Investigation Report "had no personal knowledge of what actually took place;"
besides, the information he received did not qualify as "official information" since
those who gave the statements to the reporting officer had no personal knowledge of
the facts stated and no duty to give such statements for the record.
Some confusion surrounds the issue of admissibility of the Fire Investigation Report
(Exhibits "A," "A-1" to "A-4" inclusive). The record discloses that the officer who
signed the report, Fire Major Eduardo P. Enriquez, was subpoenaed at the request of
and testified in open court for petitioners. He identified the Report, which petitioners
25
offered in their Offer of Exhibits as:
(1) Part of the testimony of Major Eduardo P. Enriquez;
(2) To prove that an impartial investigation has determined that the
"fire started at the generator . . . within the construction site"
(Exhibit "A-3").
Private respondents objected to Exhibits "A," "A-1" to "A-4," inclusive, for
26
being "hearsay and incompetent evidence." The trial court then denied
their admission "for being hearsay, this fact admitted by witness himself,
 F/Maj. Eduardo Enriquez, as part of whose testimony said exhibits were
27
offered."
In light of the purposes for which the exhibits in question were offered, as aforestated,
the trial court erred in rejecting all of them as hearsay. Since Major Enriquez himself
took the witness stand and was available for cross-examination, the portions of the
report which were of his personal knowledge or which consisted of his perceptions
and conclusions were not hearsay. The rest of the report, such as the summary of the
statements of the parties based on their sworn statements (which were annexed to
the Report) as well as the latter, having been included in the first purpose of the offer,
may then be considered as independently relevant statements which were gathered
in the course of the investigation and may thus be admitted as such, but not
necessarily to prove the truth thereof. It has been said that:
Where, regardless of the truth or falsity of a statement, the fact that
it has been made is relevant, the hearsay rule does not apply, but
the statement may be shown. Evidence as to the making of such
statement is not secondary but primary, for the statement itself may
constitute a fact in issue, or be circumstantially relevant as to the
28
existence of such a fact.
When Major Enriquez took the witness stand, testified for petitioners on his Report
and made himself available for cross-examination by the adverse party, the Report,
insofar as it proved that certain utterances were made (but not their truth), was
effectively removed from the ambit of the aforementioned Section 44 of Rule 130.
Properly understood, this section does away with the testimony in open court of the
officer who made the official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record admissible in evidence
as prima facie evidence of the facts therein stated. The underlying reasons for this
exceptionary rule are necessity and trustworthiness, as explained in Antillon
29
v. Barcelon.
The litigation is unlimited in which testimony by officials is daily
needed; the occasions in which the officials would be summoned
from his ordinary duties to declare as a witness are numberless.
The public officers are few in whose daily work something is not
done in which testimony is not needed from official sources. Were
there no exception for official statements, hosts of officials would be
found devoting the greater part of their time to attending as
witnesses in court or delivering their deposition before an officer.
The work of administration of government and the interest of the
public having business with officials would alike suffer in
consequence. For these reasons, and for many others, a certain
verity is accorded such documents, which is not extended to private
documents. (3 Wigmore on Evidence, sec. 1631).
The law reposes a particular confidence in public officers that it
presumes they will discharge their several trusts with accuracy and
fidelity; and, therefore, whatever acts they do in discharge of their
duty may be given in evidence and shall be taken to be true under
such a degree of caution as the nature and circumstances of each
case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to
testify on his report. In that case the applicability of Section 44 of Rule 130 would
have been ripe for determination, and this Court would have agreed with the Court of
Appeals that said report was inadmissible since the aforementioned third requisite
was not satisfied. The statements given by the sources of information of Major
Enriquez failed to qualify as "official information," there being no showing that, at the
very least, they were under a duty to give the statements for record.
What appears to us to be the underlying purpose of petitioners in soliciting affirmance
of their thesis that the Report of Major Enriquez should be admitted as an exception
to the hearsay rule, is to shift the burden of evidence to private respondents under the
doctrine of res ipsa loquitur in negligence cases. They claim, as stated in their offer of
Exhibits, that "the fire started at the generator. . . within the construction site." This
quotation is based on the penultimate paragraph of page 4 of the Report of Major
Enriquez and is obviously misleading as there is nothing in said paragraph that
unequivocally asserts that the generator was located within the construction site. The
paragraph reads:
After analyzing the evidences [sic] and the circumstances
underlying the situation, one can easily came [sic] to the conclusion
that the fire started at the generator and extended to the bunkhouse
and spread among the combustible stored materials within the
construction site. Among the combustible materials were the plastic
(PVC) pipes and plywoods [sic].
Clearly, the phrase within the construction site could only refer to the
immediately preceding term "combustible stored materials."
The trial court itself concluded that the fire could not have started at the generator and
that the bunkhouse was not burned, thus:
All the defendants's witness testified that the generator never
caught fire, and no one at all had heard any explosion anywhere
before the fire was discerned. Exhibit 1 (a photograph of the fire
while it was raging reveals that the bunkhouse was
30
intact. (emphasis supplied)
It then declared that "the fire was not caused by an instrumentality within the
31
exclusive control of defendants," which is one of the requisites for the
32
application of the doctrine of res ipsa loquitur in the law of negligence. It
may further be emphasized that this doctrine is not intended to and does not
dispense with the requirement of proof of culpable negligence on the party
charged. It merely determines and regulates what shall be prima
facie evidence thereof and facilitates the burden of plaintiff of proving a
breach of the duty of due care. The doctrine can be invoked when and only
 when, under the circumstances involved, direct evidence is absent or not
33
readily available.

More damaging to petitioners, which could have been enough reason for them to
desist from insisting that the Report of Major Enriquez be admitted as an exception to
the hearsay rule, are the officer's conclusion and recommendation in his report, viz.:

V. CONCLUSION:
From the foregoing facts and all other evidences [sic] on hand, the
investigator discerned that the cause of the fire
was ACCIDENTAL in nature.

VI. RECOMMENDATION:
It is hereby recommended that the investigation of the case shall be
closed.

Obviously then, the second and third assigned errors are likewise without
merit.

IN VIEW OF THE FOREGOING, the instant petition is DENIED and the challenged
decision of respondent Court of Appeals in CA-G.R CV No. 36247 is AFFIRMED in
toto.

Cost against petitioners.

SO ORDERED.
 [G.R. No. 141910. August 6, 2002]
FGU INSURANCE CORPORATION, petitioner, vs. G.P. SARMIENTO TRUCKING
CORPORATION and LAMBERT M. EROLES, respondents.
Transportation; Common Carriers; A trucking company which is an
exclusive contractor and hauler of another company, rendering or offering its
services to no other individual or entity, cannot be considered a common carrier.—
On the first issue, the Court finds the conclusion of the trial court and the Court
of Appeals to be amply justified. GPS, being an exclusive contractor and hauler of
Concepcion Industries, Inc., rendering or offering its services to no other
individual or entity, cannot be considered a common carrier. Common carriers are
persons, corporations, firms or associations engaged in the business of carrying or
transporting passengers or goods or both, by land, water, or air, for hire or
compensation, offering their services to the public, whether to the public in
general or to a limited clientele in particular, but never on an exclusive basis. The
true test of a common carrier is the carriage of passengers or goods, providing
space for those who opt to avail themselves of its transportation service for a fee.
Given accepted standards, GPS scarcely falls within the term “common carrier.”
Same; Contracts; Breach of Contracts; In culpa contractual, the mere proof of
the existence of the contract and the failure of its compliance justify, prima facie, a
corresponding right of relief; Indeed, agreements can accomplish little, either for
their makers or for society, unless they are made the basis for action—the effect of
every infraction is to create a new duty, that is, to make recompense to the one who
has been injured by the failure of another to observe his contractual obligation
unless he can show extenuating circumstances, like proof of his exercise of due
diligence or of the attendance of fortuitous event, to excuse him from his ensuing
liability.—In culpa contractual, upon which the action of petitioner rests as being
the subrogee of Concepcion Industries, Inc., the mere proof of the existence of the
contract and the failure of its compliance justify, prima facie, a corresponding
right of relief. The law, recognizing the obligatory force of contracts, will not
permit a party to be set free from liability for any kind of misperformance of the
contractual undertaking or a contravention of the tenor thereof. A breach upon
the contract confers upon the injured party a valid cause for recovering that
which may have been lost or suffered. The remedy serves to preserve the interests
of the promisee that may include his “expectation interest,” which is his interest
in having the benefit of his bargain by being put in as good a position as he would
have been in had the contract been performed, or his “reliance interest,” which is
his interest in being reimbursed for loss caused by reliance on the contract by
being put in as good a position as he would have been in had the contract not been
made; or his “restitution interest,” which is his interest in having restored to him
any benefit that he has conferred on the other party. Indeed, agreements can
accomplish little, either for their makers or for society, unless they are made the
basis for action. The effect of every infraction is to create a new duty, that is, to
make recompense to the one who has been injured unless he can show
extenuating circumstances, like proof of his exercise of due diligence (normally
that of the diligence of a good father of a family or, exceptionally by stipulation or
by law such as in the case of common carriers, that of extraordinary diligence) or
of the attendance of fortuitous event, to excuse him from his ensuing liability.
Same; Same; Same; Quasi-Delicts; Torts; The driver, not being a party to the
contract of carriage, may not be held liable under the agreement—action against
him can only be based on culpa aquiliana, which, unlike culpa contractual, would
require the claimant for damages to prove negligence or fault on his part.—
Respondent driver, on the other hand, without concrete proof of his negligence or
fault, may not himself be ordered to pay petitioner. The driver, not being a party
to the contract of carriage between petitioner’s principal and defendant, may not
be held liable under the agreement. A contract can only bind the parties who have
entered into it or their successors who have assumed their personality or their
juridical position. Consonantly with the axiom res inter alios acta aliis neque nocet
prodest, such contract can neither favor nor prejudice a third person. Petitioner’s
civil action against the driver can only be based on culpa aquiliana,which,
unlike culpa contractual,would require the claimant for damages to prove
negligence or fault on the part of the defendant.
Same; Same; Same; Same; Same; Res Ipsa Loquitur; Requisites; Words and
Phrases; Res ipsa loquitur is not a rule of substantive law and, as such, it does not
create an independent ground of liability—instead, it is regarded as a mode of
proof, and relieves the plaintiff of the burden of producing specific proof of
negligence.—A word in passing. Res ipsa loquitur, a doctrine being invoked by
petitioner, holds a defendant liable where the thing which caused the injury
complained of is shown to be under the latter’s management and the accident is
such that, in the ordinary course of things, cannot be expected to 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 want of care. It is not a rule of substantive law and, as such, it does not
create an independent ground of liability. Instead, it is regarded as a mode of
proof, or a mere procedural convenience since it furnishes a substitute for, and
relieves the plaintiff of, the burden of producing specific proof of negligence. The
maxim simply places on the defendant the burden of going forward with the
proof.Resort to the doctrine, however, may be allowed only when (a) the event is
of a kind which does not ordinarily occur in the absence of negligence; (b) other
responsible causes, including the conduct of the plaintiff and third persons, are
sufficiently eliminated by the evidence; and (c) the indicated negligence is within
the scope of the defendant’s duty to the plaintiff. Thus, it is not applicable when
an unexplained accident may be attributable to one of several causes, for some of
which the defendant could not be responsible.
Same; Same; Same; Same; Same; Same; While res ipsa loquitur generally
finds relevance whether or not a contractual relationship exists between the
plaintiff and the defendant—for the inference of negligence arises from the
circumstances and nature of the occurrence and not from the nature of the relation
of the parties—the requirement that responsible causes other than those due to
defendant’s conduct must first be eliminated, for the doctrine to apply, should be
understood as being confined only to cases of pure (non-contractual) tort since
obviously the presumption of negligence in culpa contractual immediately attaches
by a failure of the covenant or its tenor.—Res ipsa loquitur generally finds
relevance whether or not a contractual relationship exists between the plaintiff

and the defendant, for the inference of negligence arises from the circumstances
and nature of the occurrence and not from the nature of the relation of the
parties. Nevertheless, the requirement that responsible causes other than those
due to defendant’s conduct must first be eliminated, for the doctrine to apply,
should be understood as being confined only to cases of pure (non-contractual) tort
since obviously the presumption of negligence in culpa contractual,as previously
so pointed out, immediately attaches by a failure of the covenant or its tenor. In
the case of the truck driver, whose liability in a civil action is predicated on culpa
acquiliana,while he admittedly can be said to have been in control and
management of the vehicle which figured in the accident, it is not equally shown,
however, that the accident could have been exclusively due to his negligence, a
matter that can allow, forthwith, res ipsa loquitur to work against him.
Actions; Pleadings and Practice; Demurrer to Evidence; If a demurrer to
evidence is granted but on appeal the order of dismissal is reversed, the movant
shall be deemed to have waived the right to present evidence.—If a demurrer to
evidence is granted but on appeal the order of dismissal is reversed, the movant
shall be deemed to have waived the right to present evidence. Thus, respondent
corporation may no longer offer proof to establish that it has exercised due care in
transporting the cargoes of the assured so as to still warrant a remand of the case
to the trial court.
DECISION
VITUG, J.:
G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on 18 June
1994 thirty (30) units of Condura S.D. white refrigerators aboard one of its Isuzu truck,
driven by Lambert Eroles, from the plant site of Concepcion Industries, Inc., along
South Superhighway in Alabang, Metro Manila, to the Central Luzon Appliances in
Dagupan City.While the truck was traversing the north diversion road along McArthur
highway in Barangay Anupol, Bamban, Tarlac, it collided with an unidentified truck,
causing it to fall into a deep canal, resulting in damage to the cargoes.
FGU Insurance Corporation (FGU), an insurer of the shipment, paid to
Concepcion Industries, Inc., the value of the covered cargoes in the sum of
P204,450.00. FGU, in turn, being the subrogee of the rights and interests of
Concepcion Industries, Inc., sought reimbursement of the amount it had paid to the
latter from GPS. Since the trucking company failed to heed the claim, FGU filed a
complaint for damages and breach of contract of carriage against GPS and its driver
Lambert Eroles with the Regional Trial Court, Branch 66, of Makati City. In its answer,
respondents asserted that GPS was the exclusive hauler only of Concepcion
Industries, Inc., since 1988, and it was not so engaged in business as a common
carrier. Respondents further claimed that the cause of damage was purely accidental.
The issues having thus been joined, FGU presented its evidence, establishing
the extent of damage to the cargoes and the amount it had paid to the assured. GPS,
instead of submitting its evidence, filed with leave of court a motion to dismiss the
complaint by way of demurrer to evidence on the ground that petitioner had failed to
prove that it was a common carrier.
[1]
The trial court, in its order of 30 April 1996, granted the motion to dismiss,
explaining thusly:
Under Section 1 of Rule 131 of the Rules of Court, it is provided that Each party must
prove his own affirmative allegation, xxx.
In the instant case, plaintiff did not present any single evidence that would prove that
defendant is a common carrier.
xxxxxxxxx
Accordingly, the application of the law on common carriers is not warranted and the
presumption of fault or negligence on the part of a common carrier in case of loss,
damage or deterioration of goods during transport under 1735 of the Civil Code is not
availing.
Thus, the laws governing the contract between the owner of the cargo to whom the
plaintiff was subrogated and the owner of the vehicle which transports the cargo are
the laws on obligation and contract of the Civil Code as well as the law on quasi
delicts.
Under the law on obligation and contract, negligence or fault is not presumed. The
law on quasi delict provides for some presumption of negligence but only upon the
attendance of some circumstances. Thus, Article 2185 provides:
Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a
motor vehicle has been negligent if at the time of the mishap, he was violating any
traffic regulation.
Evidence for the plaintiff shows no proof that defendant was violating any traffic
regulation. Hence, the presumption of negligence is not obtaining.
Considering that plaintiff failed to adduce evidence that defendant is a common
carrier and defendants driver was the one negligent, defendant cannot be made liable
for the damages of the subject cargoes.
[2]
[3]
The subsequent motion for reconsideration having been denied, plaintiff
interposed an appeal to the Court of Appeals, contending that the trial court had erred
(a) in holding that the appellee corporation was not a common carrier defined under
the law and existing jurisprudence; and (b) in dismissing the complaint on a demurrer
to evidence.
The Court of Appeals rejected the appeal of petitioner and ruled in favor of
[4]
GPS. The appellate court, in its decision of 10 June 1999, discoursed, among other
things, that -
"x x x in order for the presumption of negligence provided for under the law governing
common carrier (Article 1735, Civil Code) to arise, the appellant must first prove that
the appellee is a common carrier. Should the appellant fail to prove that the appellee
is a common carrier, the presumption would not arise; consequently, the appellant
would have to prove that the carrier was negligent.
"x x x x x x x x x
"Because it is the appellant who insists that the appellees can still be considered as a
common carrier, despite its `limited clientele, (assuming it was really a common
carrier), it follows that it (appellant) has the burden of proving the same. It (plaintiff-
appellant) `must establish his case by a preponderance of evidence, which means
that the evidence as a whole adduced by one side is superior to that of the other.
(Summa Insurance Corporation vs. Court of Appeals, 243 SCRA 175).This,
unfortunately, the appellant failed to do -- hence, the dismissal of the plaintiffs
complaint by the trial court is justified.
"x x x x x x x x x
"Based on the foregoing disquisitions and considering the circumstances that the
appellee trucking corporation has been `its exclusive contractor, hauler since 1970,
defendant has no choice but to comply with the directive of its principal, the inevitable
conclusion is that the appellee is a private carrier.
"x x x x x x x x x
"x x x the lower court correctly ruled that 'the application of the law on common
carriers is not warranted and the presumption of fault or negligence on the part of a
common carrier in case of loss, damage or deterioration of good[s] during transport
under [article] 1735 of the Civil Code is not availing.' x x x.
"Finally, We advert to the long established rule that conclusions and findings of fact of
a trial court are entitled to great weight on appeal and should not be disturbed unless
for strong and valid reasons."
[5]
[6]
Petitioner's motion for reconsideration was likewise denied; hence, the instant
[7]
petition, raising the following issues:
I the diligence of a good father of a family or, exceptionally by stipulation or by law such
WHETHER RESPONDENT GPS MAY BE CONSIDERED AS A COMMON
CARRIER AS DEFINED UNDER THE LAW AND EXISTING JURISPRUDENCE.
II
WHETHER RESPONDENT GPS, EITHER AS A COMMON CARRIER OR A
PRIVATE CARRIER, MAY BE PRESUMED TO HAVE BEEN NEGLIGENT WHEN
THE GOODS IT UNDERTOOK TO TRANSPORT SAFELY WERE SUBSEQUENTLY
DAMAGED WHILE IN ITS PROTECTIVE CUSTODY AND POSSESSION.
III
WHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS APPLICABLE IN THE
INSTANT CASE.
On the first issue, the Court finds the conclusion of the trial court and the Court
of Appeals to be amply justified. GPS, being an exclusive contractor and hauler of
Concepcion Industries, Inc., rendering or offering its services to no other individual or
entity, cannot be considered a common carrier. Common carriers are persons,
corporations, firms or associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air, for hire or compensation, offering
[8]
their services to the public, whether to the public in general or to a limited clientele
[9]
in particular, but never on an exclusive basis. The true test of a common carrier is
the carriage of passengers or goods, providing space for those who opt to avail
[10]
themselves of its transportation service for a fee. Given accepted standards, GPS
scarcely falls within the term common carrier.
The above conclusion nothwithstanding, GPS cannot escape from liability.
In culpa contractual, upon which the action of petitioner rests as being the
subrogee of Concepcion Industries, Inc., the mere proof of the existence of the
contract and the failure of its compliance justify, prima facie, a corresponding right of
[11] [12]
relief. The law, recognizing the obligatory force of contracts, will not permit a
party to be set free from liability for any kind of misperformance of the contractual
[13]
undertaking or a contravention of the tenor thereof. A breach upon the contract
confers upon the injured party a valid cause for recovering that which may have been
lost or suffered. The remedy serves to preserve the interests of the promisee that may
include his expectation interest, which is his interest in having the benefit of his
bargain by being put in as good a position as he would have been in had the contract
been performed, or his reliance interest, which is his interest in being reimbursed for
loss caused by reliance on the contract by being put in as good a position as he
would have been in had the contract not been made; or his restitution interest, which
is his interest in having restored to him any benefit that he has conferred on the other
[14]
party. Indeed, agreements can accomplish little, either for their makers or for
[15]
society, unless they are made the basis for action. The effect of every infraction is
to create a new duty, that is, to make recompense to the one who has been injured by
[16]
the failure of another to observe his contractual obligation unless he can show
extenuating circumstances, like proof of his exercise of due diligence (normally that of
as in the case of common carriers, that of extraordinary diligence) or of the
attendance of fortuitous event, to excuse him from his ensuing liability.
Respondent trucking corporation recognizes the existence of a contract of
carriage between it and petitioners assured, and admits that the cargoes it has
assumed to deliver have been lost or damaged while in its custody. In such a
situation, a default on, or failure of compliance with, the obligation in this case, the
delivery of the goods in its custody to the place of destination - gives rise to a
presumption of lack of care and corresponding liability on the part of the contractual
obligor the burden being on him to establish otherwise. GPS has failed to do so.
Respondent driver, on the other hand, without concrete proof of his negligence
or fault, may not himself be ordered to pay petitioner. The driver, not being a party to
the contract of carriage between petitioners principal and defendant, may not be held hereby ordered to pay FGU Insurance Corporation the value of the damaged and lost
liable under the agreement. A contract can only bind the parties who have entered cargoes in the amount of P204,450.00. No costs.
into it or their successors who have assumed their personality or their juridical
[17]
position. Consonantly with the axiom res inter alios acta aliis neque nocet prodest, SO ORDERED.
such contract can neither favor nor prejudice a third person. Petitioners civil action
against the driver can only be based on culpa aquiliana, which, unlike culpa
contractual, would require the claimant for damages to prove negligence or fault on
[18]
the part of the defendant.
A word in passing. Res ipsa loquitur, a doctrine being invoked by petitioner,
holds a defendant liable where the thing which caused the injury complained of is
shown to be under the latters management and the accident is such that, in the
ordinary course of things, cannot be expected to 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 want of
[19]
care. It is not a rule of substantive law and, as such, it does not create an
independent ground of liability. Instead, it is regarded as a mode of proof, or a mere
procedural convenience since it furnishes a substitute for, and relieves the plaintiff of,
the burden of producing specific proof of negligence. The maxim simply places on the
[20]
defendant the burden of going forward with the proof. Resort to the doctrine,
however, may be allowed only when (a) the event is of a kind which does not
ordinarily occur in the absence of negligence; (b) other responsible causes, including
the conduct of the plaintiff and third persons, are sufficiently eliminated by the
evidence; and (c) the indicated negligence is within the scope of the defendant's duty
[21]
to the plaintiff. Thus, it is not applicable when an unexplained accident may be
attributable to one of several causes, for some of which the defendant could not be
[22]
responsible.
Res ipsa loquitur generally finds relevance whether or not a contractual
relationship exists between the plaintiff and the defendant, for the inference of
negligence arises from the circumstances and nature of the occurrence and not from
[23]
the nature of the relation of the parties. Nevertheless, the requirement that
responsible causes other than those due to defendants conduct must first be
eliminated, for the doctrine to apply, should be understood as being confined only to
cases of pure (non-contractual) tort since obviously the presumption of negligence
in culpa contractual, as previously so pointed out, immediately attaches by a failure of
the covenant or its tenor. In the case of the truck driver, whose liability in a civil action
is predicated on culpa acquiliana, while he admittedly can be said to have been in
control and management of the vehicle which figured in the accident, it is not equally
shown, however, that the accident could have been exclusively due to his negligence,
a matter that can allow, forthwith, res ipsa loquitur to work against him.
If a demurrer to evidence is granted but on appeal the order of dismissal is
reversed, the movant shall be deemed to have waived the right to present
[24]
evidence. Thus, respondent corporation may no longer offer proof to establish that
it has exercised due care in transporting the cargoes of the assured so as to still
warrant a remand of the case to the trial court.
WHEREFORE, the order, dated 30 April 1996, of the Regional Trial Court,
Branch 66, of Makati City, and the decision, dated 10 June 1999, of the Court of
Appeals, are AFFIRMED only insofar as respondent Lambert M. Eroles is concerned,
but said assailed order of the trial court and decision of the appellate court are
REVERSED as regards G.P. Sarmiento Trucking Corporation which, instead, is
PERLA COMPANIA DE SEGUROS, G.R. No. 147746
INC. and BIENVENIDO S. PASCUAL,
Petitioners, Present :
PANGANIBAN, J., Chairman,
SANDOVAL-GUTIERREZ,
- versus - CORONA,
CARPIO MORALES and
GARCIA, JJ.
SPS. GAUDENCIO SARANGAYA III
and PRIMITIVA B. SARANGAYA,
Respondents. Promulgated :
October 25, 2005
Civil Law; Quasi-Delicts; Torts; Res Ipsa Loquitur; Words and Phrases; Res
ipsa loquitur is a Latin phrase which literally means “the thing or the transaction
speaks for itself.”—Res ipsa loquitur is a Latin phrase which literally means “the
thing or the transaction speaks for itself.” It relates to the fact of an injury that
sets out an inference to the cause thereof or establishes the plaintiff’s prima
facie case. The doctrine rests on inference and not on presumption. The facts of
the occurrence warrant the supposition of negligence and they furnish
circumstantial evidence of negligence when direct evidence is lacking. The
doctrine is based on the theory that the defendant either knows the cause of the
accident or has the best opportunity of ascertaining it and the plaintiff, having no
knowledge thereof, is compelled to allege negligence in general terms. In such
instance, the plaintiff relies on proof of the happening of the accident alone to
establish negligence.
Same; Same; Same; Test to determine the existence of negligence.— The test
to determine the existence of negligence in a particular case may be stated as
follows: did the defendant in committing the alleged negligent act, use reasonable
care and caution which an ordinarily prudent person in the same situation would
have employed? If not, then he is guilty of negligence.
Same; Same; Same; Fortuitous Event; Exempting Circumstances; In a
vehicular accident, a mechanical defect will not release the defendant from
liability if it is shown that the accident could have been prevented had he properly
maintained and taken good care of the vehicle.—The exempting circumstance
of caso fortuito may be availed only when: (a) the cause of the unforeseen and
unexpected occurrence was independent of the human will; (b) it was impossible
to foresee the event which constituted the caso fortuito or, if it could be foreseen,
it was impossible to avoid; (c) the occurrence must be such as to render it
impossible to perform an obligation in a normal manner and (d) the person tasked
to perform the obligation must not have participated in any course of conduct that
aggravated the accident. In fine, human agency must be entirely excluded as the
proximate cause or contributory cause of the injury or loss. In a vehicular
accident, for example, a mechanical defect will not release the defendant from
liability if it is shown that the accident could have been prevented had he
properly maintained and taken good care of the vehicle.
Same; Same; Same; Vicarious Liability; In the supervision of employees, the
employer must formulate standard operating procedures, monitor their
implementation and impose disciplinary measures for the breach thereof.—In the
supervision of employees, the employer must formulate standard operating
procedures, monitor their implementation and impose disciplinary measures for
the breach thereof. To fend off vicarious liability, employers must submit concrete
proof, including documentary evidence, that they complied with everything that
was incumbent on them. Here, petitioner-corporation’s evidence hardly included
any rule or regulation that Pascual should have observed in performing his
functions. It also did not have any guidelines for the maintenance and upkeep of
company property like the vehicle that caught fire. Petitioner-corporation did not
require periodic reports on or inventories of its properties either. Based on these
circumstances, petitioner-corporation clearly did not exert effort to be apprised of
the condition of Pascual’s car or its serviceability.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CORONA, J.:
This is an appeal by certiorari under Rule 45 of the 1997 Rules of Civil
Procedure seeking to annul the decisions of the Court of Appeals (CA) dated June 29,
2000 and March 31, 2001, respectively, which affirmed the decision of the Regional
Trial Court (RTC), Branch 21 of Santiago, Isabela.
In 1986, respondent spouses Gaudencio Sarangaya III and Primitiva
Sarangaya erected a semi-concrete, semi-narra, one-storey commercial building
fronting the provincial road of Santiago, Isabela. The building was known as Super A
Building and was subdivided into three doors, each of which was leased out. The two-
storey residence of the Sarangayas was behind the second and third doors of the
building. On the left side of the commercial building stood the office of the Matsushita
Electric Philippine Corporation (Matsushita).
In 1988, petitioner Perla Compania de Seguros, Inc. (petitioner-corporation),
through its branch manager and co-petitioner Bienvenido Pascual, entered into a
contract of lease of the first door of the Super A Building, abutting the office of
Matsushita. Petitioner-corporation renovated its rented space and divided it into two.
The left side was converted into an office while the right was used by Pascual as a
garage for a 1981 model 4-door Ford Cortina, a company-provided vehicle he used in
covering the different towns within his area of supervision.
On July 7, 1988, Pascual left for San Fernando, Pampanga but did not bring
the car with him. Three days later, he returned to Santiago and, after checking his
appointments the next day, decided to warm up the car. When he pulled up the
handbrake and switched on the ignition key, the engine made an odd sound and did
not start. Thinking it was just the gasoline percolating into the engine, he again
stepped on the accelerator and started the car. This revved the engine but petitioner
again heard an unusual sound. He then saw a small flame coming out of the engine.
Startled, he turned it off, alighted from the vehicle and started to push it out of the
garage when suddenly, fire spewed out of its rear compartment and engulfed the
whole garage. Pascual was trapped inside and suffered burns on his face, legs and
arms.
Meanwhile, respondents were busy watching television when they heard two
loud explosions. The smell of gasoline permeated the air and, in no time, fire spread
inside their house, destroying all their belongings, furniture and appliances.
The city fire marshall conducted an investigation and thereafter submitted a
report to the provincial fire marshall. He concluded that the fire was accidental. The
report also disclosed that petitioner-corporation had no fire permit as required by law.
Based on the same report, a criminal complaint for Reckless Imprudence
[1]
Resulting to (sic) Damage in (sic) Property was filed against petitioner Pascual. On
the other hand, petitioner-corporation was asked to pay the amount of P7,992,350,
inclusive of the value of the commercial building. At the prosecutors office, petitioner
Pascual moved for the withdrawal of the complaint, which was granted.
Respondents later on filed a civil complaint based on quasi-delict against
petitioners for a sum of money and damages, alleging that Pascual acted with gross
negligence while petitioner-corporation lacked the required diligence in the selection
and supervision of Pascual as its employee. They prayed for payment of the following
damages:
1. P2,070,000.00 - representing the value of the 2-storey residential building
and the 3-door apartment;
2. P5,922,350.00 - representing the value of the jewelries, appliances,
[furniture], fixtures and cash;
3. P8,300.00 a month for [lost rental] income from July 1995 until such time
that the premises is restored to its former condition or payment
for its value, whichever comes first;
4. P2,000,000.00 for moral damages;
5. P1,000,000.00 for exemplary damages, and
6. Attorneys fees equivalent to 15% of the total amount to be awarded to the
[2]
plaintiffs.
During the trial, respondents presented witnesses who testified that a few
days before the incident, Pascual was seen buying gasoline in a container from a
nearby gas station. He then placed the container in the rear compartment of the car.
In his answer, Pascual insisted that the fire was purely an accident, a caso
fortuito, hence, he was not liable for damages. He also denied putting a container of
gasoline in the cars rear compartment. For its part, petitioner-corporation refused
liability for the accident on the ground that it exercised due diligence of a good father
of a family in the selection and supervision of Pascual as its branch manager.
After the trial, the court a quo ruled in favor of respondents. The decretal
portion of the decision read:
WHEREFORE, in the light of the foregoing considerations
judgment is hereby rendered ORDERING the defendants,
Bienvenido Pascual and Perla Compania de Seguros, Inc. to
pay jointly and solidarily to the plaintiffs spouses Gaudencio and
Primitiva Sarangaya the total sum of Two Million Nine Hundred
Four Thousand Eight Hundred and Eighty Pesos ([P]2,904,880.00)
as actual damages with legal interest thereon from December 12,
[3]
1995 until fully paid. (emphasis supplied)
The court a quo declared that, although the respondents failed to prove the
precise cause of the fire that engulfed the garage, Pascual was nevertheless
[4]
negligent based on the doctrine of res ipsa loquitur. It did not, however, categorically
rule that the gasoline container allegedly placed in the rear compartment of the car
caused the fire. The trial court instead declared that both petitioners failed to adduce
sufficient evidence to prove that they employed the necessary care and diligence in
[5]
the upkeep of the car. Contrary to the claims of petitioner-corporation, the trial court
also found that it failed to employ the diligence of a good father of a family, as
required by law, in the selection and supervision of Pascual.
With respect to the amount of damages, the trial court awarded to
respondents no more than their claim for actual damages covering the cost of the 2-
storey residential building and the commercial building, including their personal
properties. It explained:
According to the plaintiff Gaudencio Sarangaya III, he
made a list of what was lost. His list includes the commercial
building that was burned which he valued at P2,070,000.00. The
defendants take exception to the value given by the plaintiff and for
this purpose they submitted the tax declaration of the building which
states that the market value is P183,770.00. The Court takes
judicial notice that the valuation appearing on the tax declaration of
property is always lower [than] the correct value thereof.
Considering that the building that was burned was a two-storey
residential house with a commercial building annex with a total floor
area of 241 square meters as stated in the tax declaration, mostly
concrete mixed with narra and other lumber materials, the value
given by the plaintiffs of P2,070,000.00 is reasonable and credible
and it shall be awarded to the plaintiffs.
The other items listed are assorted [furniture] and fixtures
totaling P307,000.00 assorted appliances worth P358,350.00; two
filing cabinets worth P7,000.00 and clothing and other personal
effects costing P350,000.00, household utensils
costing P15,000.00. The Court finds them reasonable and credible
considering the social and financial stature of the plaintiffs who are
businessmen. There could be no question that they were able to
acquire and own quite a lot of home furnishings and personal
belongings. The costing however is high considering that these
belongings were already used for quite some time so a 20%
depreciation should be equitably deducted from the cost of
acquisition submitted by plaintiffs. Thus, the total amount
recoverable would be P1,037,350.00 less 20% or a total
 of P829,880.00. The P5,000.00 representing foodstock can also be
[6]
ordered paid to the plaintiffs. x x x. (a) THE COURT OF APPEALS ERRED IN APPLYING THE
DOCTRINE OF [RES IPSA LOQUITUR] IN THE
On appeal to the Court of Appeals, the appellate court again ruled in favor of PRESENT CASE;
respondents but modified the amount of damages awarded by the trial court. It held:
(b) THE COURT OF APPEALS ERRED WHEN IT FOUND
x x x the Decision of the Court a quo is AFFIRMED, with the PERLA NEGLIGENT IN THE SUPERVISION OF
modification that the Appellants are hereby ordered to pay the PASCUAL, AND CONSEQUENTLY, VICARIOUSLY
Appellees, jointly and severally, the total amount of P600,000.00 by LIABLE FOR THE FIRE BECAUSE PERLA FAILED TO
way of nominal damages under Articles 2222 and 2223 of the New ADDUCE EVIDENCE OF SUPERVISION OF
Civil Code, with interest thereon, at the rate of 6% per annum from EMPLOYEES CARE AND UPKEEP OF COMPANY
[7]
the date of the Decision of this Court. VEHICLES REQUIRED BY THE SUPREME COURT ON
TRANSPORTATION COMPANIES; AND

The appellate court was in accord with the trial courts findings that the (c) THE COURT OF APPEALS ERRED WHEN IT ORDERED
doctrine of res ipsa loquitur was correctly applied in determining the liability of THE REMAND OF THE CASE TO RTC ISABELA FOR
Pascual and that petitioner-corporation, as the employer, was vicariously liable to RECEPTION OF ADDITIONAL EVIDENCE BY THE
respondents. Nonetheless, for respondents failure to substantiate their actual loss, SARANGAYA SPOUSES ON THEIR CLAIM FOR
[9]
the appellate court granted nominal damages of P600,000 to them. ACTUAL DAMAGES.

Petitioners and respondents filed their respective motions for

reconsideration.
In their MR, petitioners contested the findings of fact of the appellate court.
They denied any liability whatsoever to respondents but this was rejected by the CA
for lack of merit. Thus, the present appeal.
Respondents, on the other hand, argued in their MR that the award of
nominal damages was erroneous. They prayed that, in lieu of the award of nominal
damages, the case should instead be remanded to the trial court for reception of
additional evidence on their claim for actual damages. The CA granted respondents
MR. Hence they did not appeal the CAs decision to us. According to the CA:
Anent Plaintiffs-Appellees plea that, in lieu of the Courts
award of nominal damages, the case be remanded to the Court a
quo, in the interest of justice, to enable them to adduce evidence to
prove their claim for actual damages, we find the same meritorious.
Accordingly, the Decision of the Court is hereby amended
to read as follows:
IN THE LIGHT OF ALL THE FOREGOING, the Decision
of the Court a quo appealed from is AFFIRMED. The award of
nominal damages is set aside. Let the records be remanded to
the Court a quo for the reception of additional evidence by the
Plaintiffs-Appellees and the Defendants-Appellants anent
[8]
Plaintiffs-Appellees claim for actual damages. (emphasis
supplied)
Via this petition, petitioners ascribe the following errors to the appellate
court:
Res ipsa loquitur is a Latin phrase which literally means the thing or the
[10]
transaction speaks for itself. It relates to the fact of an injury that sets out an
[11]
inference to the cause thereof or establishes the plaintiffs prima facie case. The
[12]
doctrine rests on inference and not on presumption. The facts of the occurrence
warrant the supposition of negligence and they furnish circumstantial evidence of
[13]
negligence when direct evidence is lacking.
The doctrine is based on the theory that the defendant either knows the
cause of the accident or has the best opportunity of ascertaining it and the plaintiff,
[14]
having no knowledge thereof, is compelled to allege negligence in general terms. In
such instance, the plaintiff relies on proof of the happening of the accident alone to
[15]
establish negligence.
The doctrine provides a means by which a plaintiff can pin liability on a
defendant who, if innocent, should be able to explain the care he exercised to prevent
the incident complained of. Thus, it is the defendants responsibility to show that there
[16]
was no negligence on his part.
To sustain the allegation of negligence based on the doctrine of res ipsa
loquitur, the following requisites must concur:
1) the accident is of a kind which does not ordinarily occur unless someone
is negligent;
2) the cause of the injury was under the exclusive control of the person in
charge and
3) the injury suffered must not have been due to any voluntary action or
[17]
contribution on the part of the person injured.
 Under the first requisite, the occurrence must be one that does not ordinarily
occur unless there is negligence. Ordinary refers to the usual course of
[18]
events. Flames spewing out of a car engine, when it is switched on, is obviously
not a normal event. Neither does an explosion usually occur when a car engine is
revved. Hence, in this case, without any direct evidence as to the cause of the
accident, the doctrine of res ipsa loquitur comes into play and, from it, we draw the
inference that based on the evidence at hand, someone was in fact negligent and
responsible for the accident.
The test to determine the existence of negligence in a particular case may
be stated as follows: did the defendant in committing the alleged negligent act, use
reasonable care and caution which an ordinarily prudent person in the same situation
[19]
would have employed? If not, then he is guilty of negligence.
Here, the fact that Pascual, as the caretaker of the car, failed to submit any
proof that he had it periodically checked (as its year-model and condition required)
revealed his negligence. A prudent man should have known that a 14-year-old car,
constantly used in provincial trips, was definitely prone to damage and other defects.
For failing to prove care and diligence in the maintenance of the vehicle, the
necessary inference was that Pascual had been negligent in the upkeep of the car.
Pascual attempted to exculpate himself from liability by insisting that the
incident was a caso fortuito. We disagree.
The exempting circumstance of caso fortuito may be availed only when: (a)
the cause of the unforeseen and unexpected occurrence was independent of the
human will; (b) it was impossible to foresee the event which constituted the caso
fortuito or, if it could be foreseen, it was impossible to avoid; (c) the occurrence must
be such as to render it impossible to perform an obligation in a normal manner and (d)
the person tasked to perform the obligation must not have participated in any course
[20]
of conduct that aggravated the accident.
In fine, human agency must be entirely excluded as the proximate cause or
[21]
contributory cause of the injury or loss. In a vehicular accident, for example, a
mechanical defect will not release the defendant from liability if it is shown that the
accident could have been prevented had he properly maintained and taken good care
[22]
of the vehicle.
The circumstances on record do not support the defense of Pascual. Clearly,
there was no caso fortuito because of his want of care and prudence in maintaining
the car.
Under the second requisite, the instrumentality or agency that triggered the
occurrence must be one that falls under the exclusive control of the person in charge
thereof. In this case, the car where the fire originated was under the control of
Pascual. Being its caretaker, he alone had the responsibility to maintain it and ensure
its proper functioning. No other person, not even the respondents, was charged with
that obligation except him.
Where the circumstances which caused the accident are shown to have
been under the management or control of a certain person and, in the normal course
of events, the incident would not have happened had that person used proper care,
[23]
the inference is that it occurred because of lack of such care. The burden of
evidence is thus shifted to defendant to establish that he observed all that was
necessary to prevent the accident from happening. In this aspect, Pascual utterly
failed.
Under the third requisite, there is nothing in the records to show that
respondents contributed to the incident. They had no access to the car and had no
responsibility regarding its maintenance even if it was parked in a building they
owned.
On the second assigned error, we find no reason to reverse the decision of
the Court of Appeals. The relationship between the two petitioners was based on the
principle of pater familias according to which the employer becomes liable to the party
aggrieved by its employee if he fails to prove due diligence of a good father of a family
[24]
in the selection and supervision of his employees. The burden of proof that such
diligence was observed devolves on the employer who formulated the rules and
procedures for the selection and hiring of his employees.
In the selection of prospective employees, employers are required to
[25]
examine them as to their qualifications, experience and service records. While the
petitioner-corporation does not appear to have erred in considering Pascual for his
position, its lack of supervision over him made it jointly and solidarily liable for the fire.
In the supervision of employees, the employer must formulate standard
operating procedures, monitor their implementation and impose disciplinary measures
[26]
for the breach thereof. To fend off vicarious liability, employers must submit
concrete proof, including documentary evidence, that they complied with everything
[27]
that was incumbent on them. Here, petitioner-corporations evidence hardly
included any rule or regulation that Pascual should have observed in performing his
functions. It also did not have any guidelines for the maintenance and upkeep of
company property like the vehicle that caught fire. Petitioner-corporation did not
require periodic reports on or inventories of its properties either. Based on these
circumstances, petitioner-corporation clearly did not exert effort to be apprised of the
condition of Pascuals car or its serviceability.
Petitioner-corporations argument that the liability attached to employers only
applies in cases involving the supervision of employees in the transportation business
is incorrect. Article 2180 of the Civil Code states that employers shall be liable for the
damage caused by their employees. The liability is imposed on all those who by their
industry, profession or other enterprise have other persons in their service or
[28]
supervision. Nowhere does it state that the liability is limited to employers in the
transportation business.
WHEREFORE, the petition is hereby DENIED and the
[29]
decision of the Court of Appeals affirmed in toto.
Costs against petitioners.
SO ORDERED.
G.R. No. L-22533 February 9, 1967
PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners,
vs.
PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES
BONIFACIO, respondents.
Courts; Appeals; Factual findings of Court of Appeals are binding on
Supreme Court; Exceptions.—In an appeal from the Court of Appeals to the
Supreme Court an issue of fact and credibility cannot be raised because, with a
few exceptions, the Supreme Court has consistently respected the findings of the
Court of Appeals. Such exceptions are where there is a grave abuse of discretion
(Buyco vs. People, 95 Phil. 453); when the finding is grounded entirely on
speculation, surmises or conjectures (Joaquin vs. Navarro, 93 Phil. 257); when the
inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatoc,
74 Phil. 15); when the judgment of the Court of Appeals was based on a
misapprehension of facts (De la Cruz vs. Sosing, 94 Phil. 26); when the factual
findings are conflicting (Casica vs. Villaseca, 101 Phil. 1205); or when the Court of
Appeals, in making its findings, went beyond the issues of the case and the same
are contrary to the admissions of both appellant and appellee (Evangelista vs.
Alto Surety & Insurance Co., L-11139, April 23, 1958).
Same; Questions of law and questions of fact distinguished.—A question of
law does not involve any examination of the probative value of the evidence
presented by the litigants on any of them. There is a question of law when the
doubt or difference of opinion arises as to what is the law on a certain state of
facts. There is a question of fact when the doubt or difference arises as to the
truth or the falsehood of the alleged facts.
Same; Factual finding of the Court of Appeals in a negligence case.—The
finding of the Court of Appeals that a witness in a negligence suit truthfully
testified that he examined carefully the driver-applicant, who was later involved
in the accident, cannot be disturbed by the Supreme Court.
Quasi-delicts; When employer proved that it exercised due diligence in the
selection of its driver.—Where it was proven that the employer had carefully
examined the erring driver as to his qualifications, experience and record of
service, such evidence is sufficient to show that the employer exercised the
diligence of a good father of a family in the selection of the driver and rebuts
the juris tantum presumption that the employer was negligent in selecting said
driver
Appeals; Issue not raised in Court of Appeals cannot be raised for the first
time in this Court.—In a negligence case, the issue of whether the employer
violated the Motor Vehicle Law, not having been raised and argued in the Court
of Appeals, cannot be ventilated in this Court for the’ first time.
BENGZON, J.P., J.:
On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola Bottling Co. of the
1
P.I. and Andres Bonifacio in the Court of First Instance of Manila as a consequence
of a collision, on May 10, 1958, involving the car of Placido Ramos and a tractor-truck
and trailer of PEPESI-COLA. Said car was at the time of the collision driven by
Augusto Ramos, son and co-plaintiff of Placido. PEPSI-COLA's tractor-truck was then
driven by its driver and co-defendant Andres Bonifacio.
After trial the Court of First Instance rendered judgment on April 15, 1961, finding
Bonifacio negligent and declaring that PEPSI-COLA had not sufficiently proved its
having exercised the due diligence of a good father of a family to prevent the damage.
PEPSI-COLA and Bonifacio, solidarily, were ordered to pay the plaintiffs P2,638.50
actual damages; P2,000.00 moral damages; P2,000.00 as exemplary damages; and,
P1,000.00 attorney's fees, with costs.
Not satisfied with this decision, the defendants appellee to the Court of Appeals.
Said Court, on January 15, 1964, affirmed the trial court's judgment insofar as it found
defendant Bonifacio negligent, but modified it by absolving defendant PEPSI-COLA
from liability, finding that, contrary to the plaintiffs' contention, PEPSI-COLA
sufficiently proved due diligence in the selection of its driver Bonifacio.
Plaintiffs thereupon appealed to Us through this petition for review of the Court of
Appeals' decision. And appellants would argue before this Court that defendant
PEPSI-COLA's evidence failed to show that it had exercised due diligence in the
selection of its driver in question.
Said point, as stated, was resolved by the Court of Appeals in PEPSI-COLA's favor,
thus:
The uncontradicted testimony of Juan T. Anasco, personnel manager of
defendant company, was to the effect that defendant driver was first hired as
a member of the bottle crop in the production department; that when he was
hired as a driver, 'we had size [sic] him by looking into his background,
asking him to submit clearances, previous experience, physical examination
and later on, he was sent to the pool house to take the usual driver's
examination, consisting of: First, theoretical examination and second, the
practical driving examination, all of which he had undergone, and that the
defendant company was a member of the Safety Council. In view hereof, we
are of the sense that defendant company had exercised the diligence of a
good father of a family in the choice or selection of defendant driver'. In the
case of Campo vs. Camarote No. L-9147 (1956), 53 O.G. 2794, cited in
appellee's brief, our Supreme Court had occasion to put it down as a rule
that "In order that the defendant may be considered as having exercised all
the diligence of a good father of a family, he should not have been satisfied
with the mere possession of a professional driver's license; he should have
carefully examined the applicant for employment as to his qualifications, his
 experiences and record of service." Defendant Company has taken all these
2
steps.
Appellants herein seek to assail the foregoing portion of the decision under review by
taking issue with the testimony of Anasco upon which the findings of due diligence
aforestated are rested. Thus, it is now contended that Añasco being PEPSI-COLA's
employee, is a biased and interested witness; and that his testimony is not believable.
It is rather clear, therefore, that appellants would raise herein an issue of fact and
credibility, something as to which this Court has consistently respected the findings of
3
the Court of Appeals, with some few exceptions, which do not obtain herein.
Stated differently, Añascos credibility is not for this Court now to re-examine. And said
witness having been found credible by the Court of Appeals, his testimony, as
accepted by said Court, cannot at this stage be assailed. As We said in Co Tao vs.
Court of Appeals, L-9194, April 25, 1957, assignments of error involving the credibility
of witnesses and which in effect dispute the findings of fact of the Court of Appeals,
cannot be reviewed in these proceedings. For a question to be one of law it must
involve no examination of the probative value of the evidence presented by the
litigants or any of them. 4 And the distinction is well-known: There is a question of law
in a given case when the doubt or difference arises as to what the law is on a certain
state of facts; there is a question of fact when the doubt or difference arises as to the
5
truth or the falsehood of alleged facts.
From all this it follows that for the purposes of this appeal, it must be taken as
established that, as testified to by Añasco, PEPSI-COLA did in fact carefully examine
the driver-applicant Bonifacio as to his qualifications, experiences and record of
service, taking all steps mentioned by the Court of Appeals in its decision already
quoted.1äwphï1.ñët
Such being the case, there can be no doubt that PEPSI-COLA exercised the required
due diligence in the selection of its driver. As ruled by this Court in Campo vs.
Camarote 53 O.G. 2794, 2797: "In order that the defendant may be considered as
having exercised all diligence of a good father of a family, he should not be satisfied
with the mere possession of a professional driver's license; he should have carefully
examined the applicant for employment as to his qualifications, his experience and
record of service."
It should perhaps be stated that in the instant case no question is raised as to due
diligence in the supervision by PEPSI-COLA of its driver. Article 2180 of the Civil
Code provides inter alia:
... The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.
xxx xxx xxx
The responsibility treated of in this Article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father
of a family to prevent damage.
And construing a similar provision of the old Civil Code, this Court said
in Bahia vs. Litonjua, 30 Phil. 624, 627:
From this article two things are apparent: (1) That when an injury is caused
by the negligence of a servant or employee there instantly arises a
presumption of law that there was negligence on the part of the master or
employer either in the selection of the servant or employee, or in supervision
over him after the selection, or both; and (2) that the presumption is juris
tantum and not juris et de jure, and consequently may be rebutted. It follows
necessarily that if the employer shows to the satisfaction of the court that in
selection and supervision he has exercised the care and diligence of a good
father of a family, the presumption is overcome and he is relieved from
liability.
As pointed out, what appellants here contend as not duly proved by PEPSI-COLA is
only due diligence in the selection of its driver. And, parenthetically, it is not surprising
that appellants thus confine their arguments to this aspect of due diligence, since the
record — as even appellants' brief (pp. 13-17) reflects in quoting in part the testimony
of PEPSI-COLA's witness — would show sufficient evidence to establish due
diligence in the supervision by PEPSI-COLA of its drivers, including Bonifacio.
Appellants' other assignment of errors are likewise outside the purview of this Court's
reviewing power. Thus, the question of whether PEPSI- COLA violated the Revised
Motor Vehicle Law and rules and regulations related thereto, not having been raised
and argued in the Court of Appeals, cannot be ventilated herein for the first time. 6
And the matter of whether or not PEPSI-COLA did acts to ratify the negligent act of its
driver is a factual issue not proper herein.
Wherefore, the decision of the Court of Appeals is hereby affirmed, with costs against
appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and
Castro, JJ., concur.
RESOLUTION ON MOTION FOR RECONSIDERATION
May 16, 1967
BENGZON, J.P., J.:
1 2
Petitioners seek a reconsideration of Our decision in the instant case affirming in
toto the challenged decision of the Court of Appeals absolving respondent PEPSI-
COLA from liability. In Our decision, We refrained from passing on the merits of the
question whether PEPSI-COLA, in operating the tractor-truck and trailer, violated the
 3
Rev. Motor Vehicle Law and the rules and regulations related thereto, for the
procedural reason that it did not appear to have been raised before the Court of
Appeals.
It now appears, however, that said question was raised in a motion to reconsider filed
with the Court of Appeals which resolved the same against petitioners. Due
consideration of the matter on its merits, convinces Us that the decision of the Court
of Appeals should still be affirmed in toto.
Petitioners impute to PEPSI-COLA the violation of subpars. 1 and 4(d), par. (a), Sec.
27 of M.V.O. Administrative Order No. 1, dated Sept. 1, 1951, in that at the time of the
collision, the trailer-truck, which had a total weight of 30,000 kgms., was (a) being
driven at a speed of about 30 k.p.h. or beyond the 15 k.p.h. limit set and (b) was not
equipped with a rear-vision mirror nor provided with a helper for the driver.
The cited provisions read:
SECTION 27. Registration, operation, and inspection of truck-trailer
combinations, semi-trailers, and tractors.
(a) No trailer or semi-trailer having a gross weight of more than 2,000
kilograms and is not equipped with effective brakes on at least two opposite
wheels of the rear axle and are so controlled that the brakes will act in
unison with or preceding the effective action of the brakes of the tractor-truck
shall be registered for operation on public highways of the Philippines;
provided, that the trialers without brakes may be registered from year to year
for operation under the following conditions:
1. No such trailer shall be operated at any time at a speed in excess of 15
kilometers per hour in conjunction with a tractor-truck, the actual gross
weight of which is less than twice the weight of the trailer.
xxx xxx xxx
4(d) Tractor-trucks shall be either equipped with rear-vision mirror to enable
the driver to see vehicles approaching mirror the rear or shall carry a helper
who shall be so stationed on the truck or trailer that he will constantly have a
view of the rear. He shall be provided with means of effectively signalling to
the driver to give way to overtaking vehicles.
4(e) No truck and trailer combination shall be operated at a speed greater
than 30 kilometers per hour.
It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers only to
trailers or semi-trailers having a gross weight of more than 2,000 kgms.,
AND which are "not equipped with effective brakes on at least two opposite
wheels, of the rear axle and are so controlled that the brakes will act in
unison with or preceding the effective action of the brakes of the tractor-
truck..." This is the condition set in the proviso in par. (a), supra, wherein
"trailers without [such] brakes may be registered from year to year for
operation ..." i.e., they should not "be operated at any time at a speed in
excess of 15 kilometers per hour in conjunction with a tractor-truck ...". But
there was no finding by the Court of Appeals that the truck-trailer here did
not have such brakes. In the absence of such fact, it is subpar. 4(e), supra,
that will apply. And petitioners admit that the truck-trailer was being driven at
about 30 k.p.h.
It is a fact that driver Bonifacio was not accompanied by a helper on the night of the
collision since he was found to be driving alone. However, there is no finding that the
tractor-truck did not have a rear-vision mirror. To be sure, the records disclose that
Pat. Rodolfo Pahate, the traffic policeman who went to the collision scene, testified
that he saw the tractor-truck there but he does not remember if it had any rear vision
4
mirror. This cannot prove lack of rear-vision mirror. And the cited provision —
subpar. 4(d) — is complied if either of the two alternatives, i.e., having a rear-vision
mirror or a helper, is present. Stated otherwise, said provision is violated only where
there is a positive finding that the tractor-truck did not have both rear-vision mirror and
a helper for the driver.
Petitioners also charge PEPSI-COLA with having violated par. (b) of Sec. 8-A of the
Rev. Motor Vehicle Law, providing that:
No motor vehicle operating as a single unit shall exceed the following
dimensions:
Overall width ................ 2.5 meters.
xxx xxx xxx
since there was an express finding that the truck-trailer was 3 meters wide.
However, Sec. 9 (d) of the same law, as amended, providing that —
SEC. 9. Special permits, fees for.-The chief of the Motor Vehicles Office with
the approval of the Secretary of Public Works and Communications shall
establish regulations and a tariff of additional fees under which special
permits may be issued in the discretion of the Chief of the Motor Vehicles
Office or his deputies, for each of the following special cases, and without
such special permit, no such motor vehicles shall be operated on the public
highways.
xxx xxx xxx
(d) For registration or use of a motor vehicle exceeding the limit of
permissible dimensions specified in subsections (b) and (c) of section eight-
A hereof. (Emphasis supplied)
xxx xxx xxx
 expressly allows the registration, or use of motor vehicles exceeding the
limits of permissible dimensions specified in subsec. (b) of Sec. 8-A. So, to
conclude that there was a violation of law — which undisputably constitutes
negligence, at the very least — it is not enough that the width of the tractor-
truck exceed the limit in Sec. 8-A; in addition, it must also appear that there
was no special permit granted under Sec. 9. Unfortunately for petitioners,
that vital factual link is missing. There was no proof much less any finding to
that effect. And it was incumbent upon petitioners-appellants to have proved
lack of such permit since the tractor-truck and the trailer were
5
registered. Compliance with law and regularity in the performance of official
duty — in this case, the issuance of proper registration papers — are
6
presumed and prevail over mere surmises. Having charged a violation of
law, the onus of substantiating the same fell upon petitioners-appellants.
Hence, the conclusion that there was a violation of the law lacks factual
basis.

7
Petitioners would also have Us abandon the Bahia ruling. In its stead, We are urged
to apply the Anglo-American doctrine of respondent superior. We cannot however,
abandon the Bahia ruling without going against the explicit mandate of the law. A
motor vehicle owner is not an absolute insurer against all damages caused by its
driver. Article 2180 of our Civil Code is very explicit that the owner's responsibility
shall cease once it proves that it has observed the diligence of a good father of a
family to prevent damage. The Bahia case merely clarified what that diligence
consists of, namely, diligence in the selection and supervision of the driver-employee.

Neither could We apply the respondent superior principle. Under Article 2180 of the
Civil Code, the basis of an employer's liability is his own negligence, not that of his
employees. The former is made responsible for failing to properly and diligently select
and supervise his erring employees. We do not — and have never — followed the
8
respondent superior rule. So, the American rulings cited by petitioners, based as
they are on said doctrine, are not authoritative here.

In view of the foregoing, the motion for reconsideration is hereby denied.


[G.R. No. 118231. July 5, 1996]
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs. COURT OF
APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G.
VILLEGAS, respondents.
Civil Procedure; Evidence; Certiorari; There are exceptions to the rule that
only questions of law may be raised in a petition for review on certiorari.—While
the rule is that only questions of law may be raised in a petition for review
on certiorari, there are exceptions, among which are when the factual findings of
the trial court and the appellate court conflict, when the appealed decision is
clearly contradicted by the evidence on record, or when the appellate court
misapprehended the facts.
Same; Same; It is perfectly reasonable to believe the testimony of a witness
with respect to some facts and disbelieve his testimony with respect to other facts.—
The petitioners emphasize that the private respondents never reconciled Dr.
Kho’s testimony with Dr. Batiquin’s claim on the witness stand that when Dr.
Batiquin confronted Dr. Kho about the foreign body, the latter said that there was
a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin’s
claim was not objected to, and hence, the same is admissible but it carries no
probative value. Nevertheless, assuming otherwise, Dr. Batiquin’s statement
cannot belie the fact that Dr. Kho found a piece of rubber near private respondent
Villegas’s uterus. And even if we were to doubt Dr. Kho as to what she did to the
piece of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not
justified in distrusting her as to her recovery of a piece of rubber from private
respondent Villegas’s abdomen. On this score, it is perfectly reasonable to believe
the testimony of a witness with respect to some facts and disbelieve his testimony
with respect to other facts. And it has been aptly said that even when a witness is
found to have deliberately falsified in some material particulars, it is not required
that the whole of his uncorroborated testimony be rejected, but such portions
thereof deemed worthy of belief may be credited.
Same; Same; Well-settled is the rule that positive testimony is stronger than
negative testimony.—It is here worth noting that the trial court paid heed to the
following portions of Dr. Batiquin’s testimony: that no rubber drain was used in
the operation, and that there was neither any tear on Dr. Batiquin’s gloves after
the operation nor blood smears on her hands upon removing her gloves. Moreover,
the trial court pointed out that the absence of a rubber drain was corroborated by
Dr. Doris Sy, Dr. Batiquin’s assistant during the operation on private respondent
Villegas. But the trial court failed to recognize that the assertions of Drs.
Batiquin and Sy were denials or negative testimonies. Well-settled is the rule
that positive testimony is stronger than negative testimony.
DECISION
DAVIDE, JR., J.:
Throughout history, patients have consigned their fates and lives to the skill of
their doctors. For a breach of this trust, men have been quick to demand
[1]
retribution. Some 4,000 years ago, the Code of Hammurabi then already provided:
"If a physician make a deep incision upon a man with his bronze lancet and cause the
man's death, or operate on the eye socket of a man with his bronze lancet and
[2]
destroy the man's eyes, they shall cut off his hand." Subsequently,
[3]
Hippocrates wrote what was to become part of the healer's oath: "I will follow that
method of treatment which according to my ability and judgment, I consider for the
benefit of my patients, and abstain from whatever is deleterious and mischievous . . .
. While I continue to keep this oath unviolated may it be granted me to enjoy life and
practice the art, respected by all men at all times but should I trespass and violate this
oath, may the reverse be my lot." At present, the primary objective of the medical
[4]
profession is the preservation of life and maintenance of the health of the people.
Needless to say then, when a physician strays from his sacred duty and
endangers instead the life of his patient, he must be made to answer
therefor. Although society today cannot and will not tolerate the punishment meted
out by the ancients, neither will it and this Court, as this case would show, let the act
go uncondemned.
[5]
The petitioners appeal from the decision of the Court of Appeals of 11 May
[6]
1994 in CA-G.R. CV No. 30851, which reversed the decision of 21 December 1990
of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No.
9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital,
Dumaguete City from January 9, 1978 to September 1989. Between 1987 and
September, 1989 she was also the Actg. Head of the Department of Obstetrics and
Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care
as the latter's private patient sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr.
Doris Teresita Sy who was also a Resident Physician at the same Hospital, C.I. and
O.R. Nurse Arlene Diones and some student nurses performed a simple cesarean
section on Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45
minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45 that
morning. Thereafter, Plaintiff remained confined at the Hospital until September 27,
1988 during which period of confinement she was regularly visited by Dr. Batiquin. On
September 28, 1988, Mrs. Villegas checked out of the Hospital . . . and on the same
day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as
"professional fee" . . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains
and complained of being feverish. She also gradually lost her appetite, so she
consulted Dr. Batiquin at the latter's polyclinic who prescribed for her certain
medicines . . . which she had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin
on October 31, 1988 . . . certifying to her physical fitness to return to her work on
November 7, 1988. So, on the second week of November, 1988 Mrs. Villegas
returned to her work at the Rural Bank of Ayungon, Negros Oriental.
 The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no
end and despite the medications administered by Dr. Batiquin. When the pains
become unbearable and she was rapidly losing weight she consulted Dr. Ma. Salud
Kho at the Holy Child's Hospital in Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs.
Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to
be feverish, pale and was breathing fast. Upon examination she felt an abdominal
mass one finger below the umbilicus which she suspected to be either a tumor of the
uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray taken
of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A
blood count showed that Mrs. Villegas had [an] infection inside her abdominal
cavity. The result of all those examinations impelled Dr. Kho to suggest that Mrs.
Villegas submit to another surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow
discharge inside, an ovarian cyst on each of the left and right ovaries which gave out
pus, dirt and pus behind the uterus, and a piece of rubber materials on the right side
of the uterus embedded on [sic] the ovarian cyst, 2 inches by 3/4 inch in size. This
piece of rubber material which Dr. Kho described as a "foreign body" looked like a
piece of a "rubber glove" . . . and which is [sic] also "rubber-drain like . . . . It could
have been a torn section of a surgeon's gloves or could have come from other
sources. And this foreign body was the cause of the infection of the ovaries and
consequently of all the discomfort suffered by Mrs. Villegas after her delivery on
[7]
September 21, 1988.
The piece of rubber allegedly found near private respondent Flotilde Villegas'
uterus was not presented in court, and although Dr. Ma. Salud Kho testified that she
[8]
sent it to a pathologist in Cebu City for examination, it was not mentioned in the
[9]
pathologist's Surgical Pathology Report.
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of
[10] [11] [12]
rubber are a Medical Certificate, a Progress Record, an Anesthesia Record, a
[13] [14]
Nurse's Record, and a Physician's Discharge Summary. The trial court, however,
regarded these documentary evidence as mere hearsay, "there being no showing that
the person or persons who prepared them are deceased or unable to testify on the
facts therein stated . . . . Except for the Medical Certificate (Exhibit "F"), all the above
documents were allegedly prepared by persons other than Dr. Kho, and she merely
affixed her signature on some of them to express her agreement thereto . . . ." The
[15]
trial court also refused to give weight to Dr. Kho's testimony regarding the subject
[16]
piece of rubber as Dr. Kho "may not have had first-hand knowledge" thereof, as
could be gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that
[17]
goes with the tissues but unluckily I don't know where the rubber was.
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she
confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there was
[18]
rubber indeed but that she threw it away." This statement, the trial court noted, was
never denied nor disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of that offending "rubber"
(1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and
(2) that Dr. Kho threw it away as told by her to Defendant. The failure of the Plaintiffs
to reconcile these two different versions serve only to weaken their claim against
[19]
Defendant Batiquin.
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even
without admitting the private respondents' documentary evidence, deemed Dr. Kho's
positive testimony to definitely establish that a piece of rubber was found near private
respondent Villegas' uterus. Thus, the Court of Appeals reversed the decision of the
trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of
evidence. The trial court itself had narrated what happened to appellant Flotilde after
the cesarean operation made by appellee doctor . . . . After the second operation,
appellant Flotilde became well and healthy.Appellant Flotilde's troubles were caused
by the infection due to the "rubber" that was left inside her abdomen. Both appellants
testified that after the operation made by appellee doctor, they did not go to any other
doctor until they finally decided to see another doctor in January, 1989 when she was
not getting any better under the care of appellee Dr. Batiquin . . . . Appellee Dr.
Batiquin admitted on the witness stand that she alone decided when to close the
operating area; that she examined the portion she operated on before closing the
same . . . . Had she exercised due diligence, appellee Dr. Batiquin would have found
[20]
the rubber and removed it before closing the operating area.
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of
P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with doctor's
fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that
saved her life.
For the miseries appellants endured for more than three (3) months, due to the
negligence of appellee Dr. Batiquin, they are entitled to moral damages in the amount
of P100,000.00; exemplary damages in the amount of P20,000.00 and attorney's fees
in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children because her uterus and
ovaries were removed by Dr. Kho is not taken into consideration as it is not shown
that the removal of said organs were the direct result of the rubber left by appellee Dr.
Batiquin near the uterus. What is established is that the rubber left by appellee cause
infection, placed the life of appellant Flotilde in jeopardy and caused appellants fear,
worry and anxiety . . . .
WHEREFORE, the appealed judgment, dismissing the complaint for damages is
REVERSED and SET ASIDE. Another judgment is hereby entered ordering
defendants-appellees to pay plaintiffs-appellants the amounts of P17,000.00 as and
for actual damages; P100,000.00 as and for moral damages; P20,000.00 as and for
exemplary damages; and P25,000.00 as and for attorney's fees plus the cost of
litigation.
 [21]
SO ORDERED.
From the above judgment, the petitioners appealed to this Court claiming that
the appellate court; (1) committed grave abuse of discretion by resorting to findings of
fact not supported by the evidence on record, and (2) exceeded its discretion,
amounting to lack or excess of jurisdiction, when it gave credence to testimonies
punctured with contradictions and falsities.
The private respondents commented that the petition raised only questions of
fact, which were not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition for review
on certiorari, there are exceptions, among which are when the factual findings of the
trial court and the appellate court conflict, when the appealed decision is clearly
contradicted by the evidence on record, or when the appellate court misapprehended
[22]
the facts.
After deciphering the cryptic petition, we find that the focal point of the instant
appeal is the appreciation of Dr. Kho's testimony. The petitioners contend that the
Court of Appeals misappreciated the following portion of Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case this would
turn out to be a medico-legal case, I have heard somebody that [sic] says
[sic] there is [sic] a foreign body that goes with the tissues but unluckily I
don't know where the rubber was. It was not in the Lab, it was not in
[23]
Cebu. (Italics supplied)
The petitioners prefer the trial court's interpretation of the above testimony, i.e., that
Dr. Kho's knowledge of the piece of rubber was based on hearsay. The Court of
Appeals, on the other hand, concluded that the underscored phrase was taken out of
context by the trial court. According to the Court of Appeals, the trial court should
have likewise considered the other portions of Dr. Kho's testimony, especially the
following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside the
abdomen, there was an ovarian cyst on the left and side and there was
also an ovarian cyst on the right which, on opening up or freeing it up from
the uterus, turned out to be pus. Both ovaries turned out . . . to have
pus. And then, cleaning up the uterus, at the back of the uterus it was very
dirty, it was full of pus. And there was a [piece of] rubber, we found a
[24]
[piece of] rubber on the right side.
We agree with the Court of Appeals. The phrase relied upon by the trial court
does not negate the fact that Dr. Kho saw a piece of rubber in private respondent
Villegas' abdomen, and that she sent it to a laboratory and then to Cebu City for
[25]
examination by a pathologist. Not even the Pathologist's Report, although devoid of
any mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr.
Kho's knowledge of the piece of rubber could not be based on other than first hand
knowledge for, as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
[26]
A Oh yes. I was not the only one who saw it.
The petitioners emphasize that the private respondents never reconciled Dr.
Kho's testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin
confronted Dr. Kho about the foreign body, the latter said that there was a piece of
rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not
[27]
objected to, and hence, the same is admissible but it carries no probative
[28]
value. Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the
fact that Dr. Kho found a piece of rubber near private respondent Villegas' uterus. And
even if we were to doubt Dr. Kho as to what she did to the piece of
rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in
distrusting her as to her recovery of a piece of rubber from private respondent
Villegas' abdomen. On this score, it is perfectly reasonable to believe the testimony of
a witness with respect to some facts and disbelieve his testimony with respect to
other facts. And it has been aptly said that even when a witness is found to have
deliberately falsified in some material particulars, it is not required that the whole of
his uncorroborated testimony be rejected, but such portions thereof deemed worthy of
[29]
belief may be credited.
It is here worth nothing that the trial court paid heed to the following portions of
[30]
Dr. Batiquin's testimony: that no rubber drain was used in the operation, and that
there was neither any tear on Dr. Batiquin's gloves after the operation nor blood
[31]
smears on her hands upon removing her gloves. Moreover, the trial court pointed
out that the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr.
Batiquin's assistant during the operation on private respondent Villegas. But the
[32]
trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials
or negative testimonies. Well-settled is the rule that positive testimony is stronger than
[33]
negative testimony. Of course, as the petitioners advocate, such positive testimony
must come from a credible source, which leads us to the second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr. Kho's
testimony, a reading of the said testimony reveals no such infirmity and establishes
Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness
stand.Furthermore, no motive to state any untruth was ever imputed against Dr. Kho,
[34]
leaving her trustworthiness unimpaired. The trial court's following declaration
shows that while it was critical of the lack of care with which Dr. Kho handled the
piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting
out appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about her findings,
but it can also be said that she did not take the most appropriate precaution to
preserve that "piece of rubber" as an eloquent evidence of what she would reveal
[35]
should there be a "legal problem" which she claim[s] to have anticipated.
Considering that we have assessed Dr. Kho to be a credible witness, her
positive testimony [that a piece of rubber was indeed found in private respondent
Villegas' abdomen] prevails over the negative testimony in favor of the petitioners.
 As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion
to delve into the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes
injury is shown to be under the management of the defendant, and the accident is
such as in the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose from want of care." Or
as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or inference
that defendant was negligent, which arises upon proof that [the] instrumentality
causing injury was in defendant's exclusive control, and that the accident was one
which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule
of evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the]
mere fact that [the] accident happened provided [the] character of [the] accident and
circumstances attending it lead reasonably to belief that in [the] absence of
negligence it would not have occurred and that thing which caused injury is shown to
have been under [the] management and control of [the] alleged wrongdoer . . .
. Under [this] doctrine . . . the happening of an injury permits an inference of
negligence where plaintiff produces substantial evidence that [the] injury was caused
by an agency or instrumentality under [the] exclusive control and management of
defendant, and that the occurrence [sic] was such that in the ordinary course of things
would not happen if reasonable care had been used.
As a final word, this Court reiterates its recognition of the vital role the medical
[37]
profession plays in the lives of the people, and State's compelling interest to enact
measures to protect the public from "the potentially deadly effects of incompetence
and ignorance in those who would undertake to treat our bodies and minds for
[38]
disease or trauma." Indeed, a physician is bound to serve the interest of his
patients "with the greatest of solicitude, giving them always his best talent and
[39]
skill." Through her tortious conduct, the petitioner endangered the life of Flotilde
Villegas, in violation of her profession's rigid ethical code and in contravention of the
[40]
legal standards set forth for professionals, in the general, and members of the
[41]
medical profession, in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals
in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.

xxx xxx xxx

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of
negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence. The doctrine is
not a rule of substantive law, but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and circumstances of a particular
case, is not intended to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines and regulates what
shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a
breach of the duty of due care. The doctrine can be invoked when and only when,
under the circumstances involved, direct evidence is absent and not readily
[36]
available.
In the instant case, all the requisites for recourse to the doctrine are
present. First, the entire proceedings of the cesarean section were under the
exclusive control of Dr. Batiquin.In this light, the private respondents were bereft of
direct evidence as to the actual culprit or the exact cause of the foreign object finding
its way into private respondent Villegas' body, which, needless to say, does not occur
unless through the intervention of negligence.Second, since aside from the cesarean
section, private respondent Villegas underwent no other operation which could have
caused the offending piece of rubber to appear in her uterus, it stands to reason that
such could only have been a by-product of the cesarean section performed by Dr.
Batiquin. The petitioners, in this regard, failed to overcome the presumption of
negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is
therefore liable for negligently leaving behind a piece of rubber in private respondent
Villegas' abdomen and for all the adverse effects thereof.
 [G.R. No. 118141. September 5, 1997]
LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L. PASCASIO, RAUL R.
ARNAU, ABELARDO L. APORTADERA JR., Honorable CONDRADO M.
VASQUEZ, all of the Office of the Ombudsman; JESUS F. GUERRERO,
PORFIRIO MACARAEG, and GREGORIO A. ARIZALA, all of the Office
of the City Prosecutor, Manila, respondents.
Public Officers; Ombudsman; Nature of Office.—Preliminarily,
the powers and functions of the Ombudsman have generally been
categorized into the following: investigatory powers, prosecutory
power, public assistance function, authority to inquire and obtain
information, and function to adopt, institute and implement
preventive measures. As protector of the people, the Office of the
Ombudsman has the power, function and duty “to act promptly on
complaints filed in any form or manner against public officials”
and “to investigate any act or omission of any public official when
such act or omission appears to be illegal, unjust, improper or
inefficient.”
Same; Same; Same; Judicial Review; While the Ombudsman
has the full discretion to determine whether or not a criminal case
should be filed, the Supreme Court is not precluded from reviewing
the Ombudsman’s action when there is an abuse of discretion.—
While the Ombudsman has the full discretion to determine
whether or not a criminal case should be filed, this Court is not
precluded from reviewing the Ombudsman’s action when there is
an abuse of discretion, in which case Rule 65 of the Rules of Court
may exceptionally be invoked pursuant to Section 1, Article VIII of
the 1987 Constitution. In this regard, “grave abuse of discretion”
has been defined as “where a power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility so
patent and gross as to amount to evasion of positive duty or virtual
refusal to perform a duty enjoined by, or in contemplation of law.”
Same; Same; Same; Being the proper investigating authority
with respect to misfeasance, non-feasance and malfeasance of
public officials, the Ombudsman should have been more vigilant
and assiduous in determining the reasons behind the “buckpassing”
to ensure that no irregularity took place.—From a procedural
standpoint, it is certainly odd why the successive transfers from
one prosecutor to another were not sufficiently explained in the
Resolution of the Ombudsman. Being the proper investigating
authority with respect to misfeasance, non-feasance and
malfeasance of public officials, the Ombudsman should have been
more vigilant and assiduous in determining the reasons behind the
“buckpassing” to ensure that no irregularity took place. Whether
such transfers were due to any outside pressure or ulterior motive
is a matter of evidence. One would have expected the Ombudsman,
however, to inquire into what could hardly qualify as “standard
operating procedure,” given the surrounding circumstances of the
case.
Criminal Procedure; Preliminary Investigation; Words and
Phrases; “Probable Cause,” Explained.—While it is true that a
preliminary investigation is essentially inquisitorial, and is often
the only means to discover who may be charged with a crime, its
function is merely to determine the existence of probable cause.
Probable cause has been defined as “the existence of such fact and
circumstances as would excite the belief, in a reasonable mind,
acting on the facts within the knowledge of the prosecution, that
the person charged was guilty of the crime for which he was
prosecuted.” “Probable cause is a reasonable ground of
presumption that a matter is, or may be, well founded, such a state
of facts in the mind of the prosecutor as would lead a person of
ordinary caution and prudence to believe, or entertain an honest or
strong suspicion, that a thing is so.” The term does not
mean actual and positive cause nor does it import absolute
certainty. It is merely based on opinion and reasonable belief.
Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is
enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the
reception of evidence of the prosecution in support of the charge.
Same; Same; Evidence; Physicians; Medical Malpractice or
Negligence; The fact of want of competence or diligence is
evidentiary in nature, the veracity of which can best be passed upon
after a full-blown trial for it is virtually impossible to ascertain the
merits of a medical negligence case without extensive investigation,
research, evaluation and consultations with medical experts—
clearly, the City Prosecutors are not in a competent position to pass
judgment on such a technical matter, especially when there are
conflicting evidence and findings.—In the instant case, no less
than the NBI pronounced after conducting an autopsy that there
was indeed negligence on the part of the attending physicians in
administering the anaesthesia. The fact of want of competence or
diligence is evidentiary in nature, the veracity of which can best be
passed upon after a full-blown trial for it is virtually impossible to
ascertain the merits of a medical negligence case without extensive
investigation, research, evaluation and consultations with medical
experts. Clearly, the City Prosecutors are not in a competent
position to pass judgment on such a technical matter, especially
when there are conflicting evidence and findings. The bases of a
party’s accusation and defenses are better ventilated at the trial
proper than at the preliminary investigation.
Same; Same; Same; Same; Words and Phrases; “Medical
Malpractice or Negligence,” Explained.—A word on medical
malpractice or negligence cases. “In its simplest terms, the type of
lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a
victim has available to him or her to redress a wrong committed by
a medical professional which has caused bodily harm. In order to
successfully pursue such a claim, a patient must prove that a
health care provider, in most cases a physician, either failed to do
something which a reasonably prudent health care provider would
have done, or that he or she did something that a reasonably
prudent provider would not have done; and that that failure or
action caused injury to the patient.” Hence, there are four elements
involved in medical negligence cases: duty, breach, injury and
proximate causation.
Same; Same; Same; Same; In malpractice or negligence cases
involving the administration of anaesthesia, the necessity of expert
testimony and the availability of the charge of res ipsa loquitur to
the plaintiff, have been applied in actions against
anaesthesiologists to hold the defendant liable for the death or
injury of a patient under excessive or improper anaesthesia.—
Moreover, in malpractice or negligence cases involving the
administration of anaesthesia, the necessity of expert testimony
and the availability of the charge of res ipsa loquitur to the
plaintiff, have been applied in actions against anaesthesiologists to
hold the defendant liable for the death or injury of a patient under
excessive or improper anaesthesia. Essentially, it requires two-
pronged evidence: evidence as to the recognized standards of the
medical community in the particular kind of case, and a showing
that the physician in question negligently departed from this
standard in his treatment.
Same; Same; The better and more logical remedy from a
dismissal of a criminal complaint by a City Prosecutor would be an
appeal to the Secretary of Justice.—While a party who feels himself
aggrieved is at liberty to choose the appropriate “weapon from the
armory,” it is with no little surprise that this Court views the
choice made by the complainant widow. To our mind, the better
and more logical remedy under the circumstances would have been
to appeal the resolution of the City Prosecutors dismissing the
criminal complaint to the Secretary of Justice under the
Department of Justice’s Order No. 223, otherwise known as the
“1993 Revised Rules on Appeals From Resolutions In Preliminary
Investigations/Reinvestigations,” as amended by Department
Order No. 359, Section 1.
DECISION
ROMERO, J.:
May this Court review the findings of the Office of the Ombudsman? The general
[1]
rule has been enunciated in Ocampo v. Ombudsman which states:
In the exercise of its investigative power, this Court has consistently held that courts
will not interfere with the discretion of the fiscal or the Ombudsman to determine the
specificity and adequacy of the averments of the offense charged. He may dismiss
the complaint forthwith if he finds it to be insufficient in form and substance or if he
otherwise finds no ground to continue with the inquiry; or he may proceed with the
investigation of the complaint if, in his view, it is in due and proper form.
Does the instant case warrant a departure from the foregoing general
rule? When a patient dies soon after surgery under circumstances which indicate that
the attending surgeon and anaesthesiologist may have been guilty of negligence but
upon their being charged, a series of nine prosecutors toss the responsibility of
conducting a preliminary investigation to each other with contradictory
recommendations, ping-pong style, perhaps the distraught widow is not to be blamed
if she finally decides to accuse the City Prosecutors at the end of the line for partiality
under the Anti-Graft and Corrupt Practices Act. Nor may she be entirely faulted for
finally filing a petition before this Court against the Ombudsman for grave abuse of
discretion in dismissing her complaint against said City Prosecutors on the ground of
lack of evidence. Much as we sympathize with the bereaved widow, however, this
Court is of the opinion that the general rule still finds application in instant case. In
other words, the respondent Ombudsman did not commit grave abuse of discretion in
deciding against filing the necessary information against public respondents of the
Office of the City Prosecutor.
The following facts are borne out by the records.
Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent
surgical operation at the UST hospital for the removal of a stone blocking his
ureter. He was attended by Dr. Domingo Antonio, Jr. who was the surgeon, while Dr.
Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery,
however, Florencio died of complications of unknown cause, according to officials of
[2]
the UST Hospital.
Not satisfied with the findings of the hospital, petitioner requested the National
Bureau of Investigation (NBI) to conduct an autopsy on her husbands
body. Consequently, the NBI ruled that Florencios death was due to lack of care by
the attending physician in administering anaesthesia. Pursuant to its findings, the NBI
recommended that Dr. Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged
for Homicide through Reckless Imprudence before the Office of the City Prosecutor.
During the preliminary investigation, what transpired was a confounding series
of events which we shall try to disentangle. The case was initially assigned to
Prosecutor Antonio M. Israel, who had to inhibit himself because he was related to the
counsel of one of the doctors. As a result, the case was re-raffled to Prosecutor
Norberto G. Leono who was, however, disqualified on motion of the petitioner since
he disregarded prevailing laws and jurisprudence regarding preliminary
investigation. The case was then referred to Prosecutor Ramon O. Carisma, who
issued a resolution recommending that only Dr. Reyes be held criminally liable and
that the complaint against Dr. Antonio be dismissed.
The case took another perplexing turn when Assistant City Prosecutor Josefina
Santos Sioson, in the interest of justice and peace of mind of the parties,
recommended that the case be re-raffled on the ground that Prosecutor Carisma was
partial to the petitioner.Thus, the case was transferred to Prosecutor Leoncia R.
Dimagiba, where a volte faceoccurred again with the endorsement that the complaint
against Dr. Reyes be dismissed and instead, a corresponding information be filed
against Dr. Antonio. Petitioner filed a motion for reconsideration, questioning the
findings of Prosecutor Dimagiba.
Pending the resolution of petitioners motion for reconsideration regarding
Prosecutor Dimagibas resolution, the investigative pingpong continued when the case
was again assigned to another prosecutor, Eudoxia T. Gualberto, who recommended
that Dr. Reyes be included in the criminal information of Homicide through Reckless
Imprudence. While the recommendation of Prosecutor Gualberto was pending, the
case was transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to
exonerate Dr. Reyes from any wrongdoing, a resolution which was approved by both
City Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F. Guerrero.
Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e)
[3]
of Republic Act No. 3019 against Prosecutors Guerrero, Macaraeg, and Arizala for
manifest partiality in favor of Dr. Reyes before the Office of the
Ombudsman. However, on July 11, 1994, the Ombudsman issued the assailed
resolution dismissing the complaint for lack of evidence.
In fine, petitioner assails the exercise of the discretionary power of the
Ombudsman to review the recommendations of the government prosecutors and to
approve and disapprove the same. Petitioner faults the Ombudsman for, allegedly in
grave abuse of discretion, refusing to find that there exists probable cause to hold
public respondent City Prosecutors liable for violation of Section 3(e) of R.A. No.
3019.
Preliminarily, the powers and functions of the Ombudsman have generally been
categorized into the following: investigatory powers, prosecutory power, public
assistance function, authority to inquire and obtain information, and function to adopt,
[4]
institute and implement preventive measures.
As protector of the people, the Office of the Ombudsman has the power,
function and duty to act promptly on complaints filed in any form or manner against
public officials and to investigate any act or omission of any public official when such
[5]
act or omission appears to be illegal, unjust, improper or inefficient.
While the Ombudsman has the full discretion to determine whether or not a
criminal case should be filed, this Court is not precluded from reviewing the
Ombudsmans action when there is an abuse of discretion, in which case Rule 65 of
the Rules of Court may exceptionally be invoked pursuant to Section I, Article VIII of
[6]
the 1987 Constitution.
In this regard, grave abuse of discretion has been defined as where a power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility
so patent and gross as to amount to evasion of positive duty or virtual refusal to
[7]
perform a duty enjoined by, or in contemplation of law.
From a procedural standpoint, it is certainly odd why the successive transfers
from one prosecutor to another were not sufficiently explained in the Resolution of the
Ombudsman. Being the proper investigating authority with respect to misfeasance,
non-feasance and malfeasance of public officials, the Ombudsman should have been
more vigilant and assiduous in determining the reasons behind the buckpassing to
ensure that no irregularity took place.
Whether such transfers were due to any outside pressure or ulterior motive is a
matter of evidence. One would have expected the Ombudsman, however, to inquire
into what could hardly qualify as standard operating procedure, given the surrounding
circumstances of the case.
While it is true that a preliminary investigation is essentially inquisitorial, and is
often the only means to discover who may be charged with a crime, its function is
[8]
merely to determine the existence of probable cause. Probable cause has been
defined as the existence of such fact and circumstances as would excite the belief, in
a reasonable mind, acting on the facts within the knowledge of the prosecution, that
the person charged was guilty of the crime for which he was prosecuted.
[9]
Probable cause is a reasonable ground of presumption that a matter is, or may
be, well founded, such a state of facts in the mind of the prosecutor as would lead a
person of ordinary caution and prudence to believe, or entertain an honest or strong
suspicion, that a thing is so. The term does not mean actual and positive cause nor
does it import absolute certainty. It is merely based on opinion and reasonable
belief. Thus, a finding of probable cause does not require an inquiry into whether
there is sufficient evidence to procure a conviction. It is enough that it is believed that
the act or omission complained of constitutes the offense charged. Precisely, there is
a trial for the reception of evidence of the prosecution in support of the charge.
[10]
In the instant case, no less than the NBI pronounced after conducting an
autopsy that there was indeed negligence on the part of the attending physicians in
[11]
administering the anaesthesia. The fact of want of competence or diligence is
evidentiary in nature, the veracity of which can best be passed upon after a full-blown
trial for it is virtually impossible to ascertain the merits of a medical negligence case
without extensive investigation, research, evaluation and consultations with medical
experts. Clearly, the City Prosecutors are not in a competent position to pass
judgment on such a technical matter, especially when there are conflicting evidence
and findings. The bases of a partys accusation and defenses are better ventilated at
the trial proper than at the preliminary investigation.
A word on medical malpractice or negligence cases.
In its simplest terms, the type of lawsuit which has been called medical malpractice
or, more appropriately, medical negligence, is that type of claim which a victim has
available to him or her to redress a wrong committed by a medical professional which
has caused bodily harm.
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
[12]
caused injury to the patient.
Hence, there are four elements involved in medical negligence cases: duty,
breach, injury and proximate causation.
Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes,
a physician-patient relationship was created. In accepting the case, Dr. Antonio and
Dr. Reyes in effect represented that, having the needed training and skill possessed
by physicians and surgeons practicing in the same field, they will employ such
[13]
training, care and skill in the treatment of their patients. They have a duty to use at
least the same level of care that any other reasonably competent doctor would use to
treat a condition under the same circumstances. The breach of these professional
duties of skill and care, or their improper performance, by a physician surgeon
whereby the patient is injured in body or in health, constitutes actionable
[14]
malpractice. Consequently, in the event that any injury results to the patient from
want of due care or skill during the operation, the surgeons may be held answerable
[15]
in damages for negligence.
Moreover, in malpractice or negligence cases involving the administration of
anaesthesia, the necessity of expert testimony and the availability of the charge of res
ipsa loquitur to the plaintiff, have been applied in actions against anaesthesiologists to
hold the defendant liable for the death or injury of a patient under excessive or
[16]
improper anaesthesia. Essentially, it requires two-pronged evidence: evidence as
to the recognized standards of the medical community in the particular kind of case,
and a showing that the physician in question negligently departed from this standard
[17]
in his treatment.
Another element in medical negligence cases is causation which is divided into
two inquiries: whether the doctors actions in fact caused the harm to the patient and
[18]
whether these were the proximate cause of the patients injury. Indeed here, a
causal connection is discernible from the occurrence of the victims death after the
negligent act of the anaesthesiologist in administering the anesthesia, a fact which, if
confirmed, should warrant the filing of the appropriate criminal case. To be sure, the
allegation of negligence is not entirely baseless. Moreover, the NBI deduced that the
attending surgeons did not conduct the necessary interview of the patient prior to the
operation. It appears that the cause of the death of the victim could have been
averted had the proper drug been applied to cope with the symptoms of malignant
hyperthermia. Also, we cannot ignore the fact that an antidote was readily available to
[19]
counteract whatever deleterious effect the anaesthesia might produce. Why these
precautionary measures were disregarded must be sufficiently explained.
The City Prosecutors were charged with violating Section 3(e) of the Anti-Graft
and Corrupt Practices Act which requires the following facts:
1. The accused is a public officer discharging administrative or official functions or
private persons charged in conspiracy with them;
2. The public officer committed the prohibited act during the performance of his official
duty or in relation to his public position;
3. The public officer acted with manifest partiality, evident bad faith or gross,
inexcusable negligence; and
4. His action caused undue injury to the Government or any private party, or gave any
party any unwarranted benefit, advantage or preference to such parties.
[20]
Why did the complainant, petitioner in instant case, elect to charge respondents
under the above law?
While a party who feels himself aggrieved is at liberty to choose the appropriate
weapon from the armory, it is with no little surprise that this Court views the choice
made by the complainant widow.
To our mind, the better and more logical remedy under the circumstances would
have been to appeal the resolution of the City Prosecutors dismissing the criminal
complaint to the Secretary of Justice under the Department of Justices Order No.
223,
[21]
otherwise known as the 1993 Revised Rules on Appeals From Resolutions In
Preliminary Investigations/Reinvestigations, as amended by Department Order No.
359, Section 1 of which provides:
Section 1. What May Be Appealed. - Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice except
as otherwise provided in Section 4 hereof.
 What action may the Secretary of Justice take on the appeal? Section 9 of Order
No. 223 states: The Secretary of Justice may reverse, affirm or modify the appealed
resolution.On the other hand, He may motu proprio or on motion of the appellee,
[22]
dismiss outright the appeal on specified grounds.
In exercising his discretion under the circumstances, the Ombudsman acted
within his power and authority in dismissing the complaint against the Prosecutors
and this Court will not interfere with the same.
WHEREFORE, in view of the foregoing, the instant petition is
DISMISSED, without prejudice to the filing of an appeal by the petitioner with the
Secretary of Justice assailing the dismissal of her criminal complaint by the
respondent City Prosecutors. No costs.
SO ORDERED.
 [G.R. No. 124354. April 11, 2002]
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural
guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS,
and RON RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS, DE
LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DR.
PERFECTA GUTIERREZ, respondents.
Physicians; Anesthesiologists; MedicalMalpractice; Negligence; The conduct
of a preanesthetic/preoperative evaluation prior to an operation, whether elective or
emergency, cannot be dispensed with—such evaluation is necessary for the
formulation of a plan of anesthesia care suited to the needs of the patient
concerned.—The conduct of a preanesthetic/preoperative evaluation prior to an
operation, whether elective or emergency, cannot be dispensed with. Such
evaluation is necessary for the formulation of a plan of anesthesia care suited to
the needs of the patient concerned. Pre-evaluation for anesthesia involves taking
the patient’s medical history, reviewing his current drug therapy, conducting
physical examination, interpreting laboratory data, and determining the
appropriate prescription of preoperative medications as necessary to the conduct
of anesthesia. Physical examination of the patient entails not only evaluating the patient’s
central nervous system, cardiovascular system and lungs but also the upper airway.
Examination of the upper airway would in turn include an analysis of the patient’s cervical
spine mobility, temporomandibular mobility, prominent central incisors, deceased or artificial
teeth, ability to visualize uvula and the thyromental distance.
Same; Same; Same; Same; Words and Phrases.—To “auscultate” means to listen to the
sounds arising within organs as an aid to diagnosis and treatment, the examination being made
either by use of the stethoscope or by direct application of the ear to the body. (WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY, p. 145 [1976]).
Same; Same; Same; Same; Witnesses; Expert Testimony; A pulmonologist could not be
considered an authority on anesthesia practice and procedure and their complications.—
What is left to be determined therefore is whether Erlinda’s hapless condition was due to any
fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was under the latter’s care.
Dr. Gutierrez maintains that the bronchospasm and cardiac arrest resulting in the patient’s
comatose condition was brought about by the anaphylactic reaction of the patient to
Thiopental Sodium (pentothal). In the Decision, we explained why we found Dr. Gutierrez’
theory unacceptable. In the first place, Dr. Eduardo Jamora, the witness who was presented to
support her (Dr. Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an
authority on anesthesia practice and procedure and their complications.
Same; Same; Same; Same; The standard practice in anesthesia is that every single act
that the anesthesiologist performs must be recorded.—The Court has reservations on giving
evidentiary weight to the entries purportedly contained in Dr. Gutierrez’ synopsis. It is
significant to note that the said record prepared by Dr. Gutierrez was made only after Erlinda
was taken out of the operating room. The standard practice in anesthesia is that every single
act that the anesthesiologist performs must be recorded. In Dr. Gutierrez’ case, she could not
account for at least ten (10) minutes of what happened during the administration of anesthesia
on Erlinda.
Same; Same; Same; Same; “Captain of the Ship” Doctrine; Words and
Phrases; Under the Captain-of-the-Ship Doctrine, a surgeon is likened to a captain
of the ship, in that it is his duty to control everything going on in the operating
room.—The Captain-of-the-Ship Doctrine was discussed in McConnell v.
Williams (65 A 2d 243 [1949]), where the Supreme Court of Pennsylvania stated
that under this doctrine, a surgeon is likened to a captain of the ship, in that it is
his duty to control everything going on in the operating room.
Same; Same; Same; Same; Same; Judgments; That there is a trend in
American jurisprudence to do away with the Captain-of-the-Ship doctrine does not
mean that the Supreme Court will ipso facto follow said trend. Due regard for the
peculiar factual circumstances obtaining in the instant case justify the application
of the Captain-of-the-Ship doctrine.—That there is a trend in American
jurisprudence to do away with the Captain-of-the-Ship doctrine does not mean
that this Court will ipso facto follow said trend. Due regard for the peculiar
factual circumstances obtaining in this case justify the application of the Captain-
of-the-Ship doctrine. From the facts on record it can be logically inferred that Dr.
Hosaka exercised a certain degree of, at the very least, supervision over the
procedure then being performed on Erlinda. x x x While the professional services
of Dr. Hosaka and Dr. Gutierrez were secured primarily for their performance of
acts within their respective fields of expertise for the treatment of petitioner
Erlinda, and that one does not exercise control over the other, they were certainly
not completely independent of each other so as to absolve one from the negligent
acts of the other physician. x x x That they were working as a medical team is
evident from the fact that Dr. Hosaka was keeping an eye on the intubation of the
patient by Dr. Gutierrez, and while doing so, he observed that the patient’s nails
had become dusky and had to call Dr. Gutierrez’s attention thereto. The Court
also notes that the counsel for Dr. Hosaka admitted that in practice, the
anesthesiologist would also have to observe the surgeon’s acts during the surgical
process and calls the attention of the surgeon whenever necessary in the course of
the treatment. The duties of Dr. Hosaka and those of Dr. Gutierrez in the
treatment of petitioner Erlinda are therefore not as clear-cut as respondents
claim them to be. On the contrary, it is quite apparent that they have a common
responsibility to treat the patient, which responsibility necessitates that they call
each other’s attention to the condition of the patient while the other physician is
performing the necessary medical procedures.
Same; Same; Same; Same; The long period—three hours—that the surgeon
made the patient wait for him certainly aggravated the anxiety that the latter must
have been feeling at the time, such that it could be safely said that her anxiety
adversely affected the administration of anesthesia on her.—It is equally
important to point out that Dr. Hosaka was remiss in his duty of attending to
petitioner Erlinda promptly, for he arrived more than three (3) hours late for the
scheduled operation. The cholecystectomywas set for June 17, 1985 at 9:00 a.m.,
but he arrived at DLSMC only at around 12:10 p.m. In reckless disregard for his
patient’s well being, Dr. Hosaka scheduled two procedures on the same day, just thirty
minutes apart from each other, at different hospitals. Thus, when the first procedure
(protoscopy) at the Sta. Teresita Hospital did not proceed on time, Erlinda was kept in a state
of uncertainty at the DLSMC. The unreasonable delay in petitioner Erlinda’s scheduled
operation subjected her to continued starvation and consequently, to the risk of acidosis, or the
condition of decreased alkalinity of the blood and tissues, marked by sickly sweet breath,
headache, nausea and vomiting, and visual disturbances. The long period that Dr. Hosaka
made Erlinda wait for him certainly aggravated the anxiety that she must have been feeling at
the time. It could be safely said that her anxiety adversely affected the administration of
anesthesia on her. As explained by Dr. Camagay, the patient’s anxiety usually causes the
outpouring of adrenaline which in turn results in high blood pressure or disturbances in the
heart rhythm.
Same; Same; Same; Same; Human Relations; A surgeon’s irresponsible conduct of
arriving very late for a scheduled operation is violative, not only of his duty as a physician but
also of Article 19 of the Civil Code.—Dr. Hosaka’s irresponsible conduct of arriving very late
for the scheduled operation of petitioner Erlinda is violative, not only of his duty as a
physician “to serve the interest of his patients with the greatest solicitude, giving them always
his best talent and skill,” but also of Article 19 of the Civil Code which requires a person, in
the performance of his duties, to act with justice and give everyone his due.
Same; Same; Hospitals; Employer-Employee Relationship; Elements.—It has been
consistently held that in determining whether an employer-employee relationship exists
between the parties, the following elements must be present: (1) selection and engagement of
services; (2) payment of wages; (3) the power to hire and fire; and (4) the power to control not
only the end to be achieved, but the means to be used in reaching such an end.
Same; Same; Same; There is no employer-employee relationship between a
hospital and medical consultants.—DLSMC maintains that first, a hospital does
not hire or engage the services of a consultant, but rather, accredits the latter and
grants him or her the privilege of maintaining a clinic and/or admitting patients
in the hospital upon a showing by the consultant that he or she possesses the
necessary qualifications, such as accreditation by the appropriate board
(diplomate), evidence of fellowship and references. Second, it is not the hospital
but the patient who pays the consultant’s fee for services rendered by the latter.
Third, a hospital does not dismiss a consultant; instead, the latter may lose his or
her accreditation or privileges granted by the hospital. Lastly, DLSMC argues
that when a doctor refers a patient for admission in a hospital, it is the doctor
who prescribes the treatment to be given to said patient. The hospital’s obligation
is limited to providing the patient with the preferred room accommodation, the
nutritional diet and medications prescribed by the doctor, the equipment and
facilities necessary for the treatment of the patient, as well as the services of the
hospital staff who perform the ministerial tasks of ensuring that the doctor’s
orders are carried out strictly. After a careful consideration of the arguments
raised by DLSMC, the Court finds that respondent hospital’s position on this
issue is meritorious. There is no employer-employee relationship between DLSMC
and Drs. Gutierrez and Hosaka which would hold DLSMC solidarity liable for the
injury suffered by petitioner Erlinda under Article 2180 of the Civil Code.
Same; Same; Same; The contract between a medical consultant and his
patient is separate and distinct from the contract between the hospital and said
patient.—Neither is there any showing that it is DLSMC which pays any of its
consultants for medical services rendered by the latter to their respective
patients. Moreover, the contract between the consultant in respondent hospital
and his patient is separate and distinct from the contract between respondent
hospital and said patient. The first has for its object the rendition of medical
services by the consultant to the patient, while the second concerns the provision
by the hospital of facilities and services by its staff such as nurses and laboratory
personnel necessary for the proper treatment of the patient.
RESOLUTION
KAPUNAN, J.:
Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr.
Perfecta Gutierrez move for a reconsideration of the Decision, dated December 29,
1999, of this Court holding them civilly liable for petitioner Erlinda Ramos comatose
condition after she delivered herself to them for their professional care and
management.
For better understanding of the issues raised in private respondents respective
motions, we will briefly restate the facts of the case as follows:
Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical
help, was advised to undergo an operation for the removal of a stone in her gall
bladder (cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed
to perform the operation on her. The operation was scheduled for June 17, 1985 at
9:00 in the morning at private respondent De Los Santos Medical Center
(DLSMC). Since neither petitioner Erlinda nor her husband, petitioner Rogelio, knew
of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr.
Gutierrez.
Petitioner Erlinda was admitted to the DLSMC the day before the scheduled
operation. By 7:30 in the morning of the following day, petitioner Erlinda was already
being prepared for operation.Upon the request of petitioner Erlinda, her sister-in-law,
Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical
Center, was allowed to accompany her inside the operating room.
At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez
tried to get in touch with him by phone. Thereafter, Dr. Gutierrez informed Cruz that
the operation might be delayed due to the late arrival of Dr. Hosaka. In the meantime,
the patient, petitioner Erlinda said to Cruz, Mindy, inip na inip na ako, ikuha mo ako
ng ibang Doctor.
By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner
Rogelio already wanted to pull out his wife from the operating room. He met Dr.
Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka
finally arrived at the hospital at around 12:10 in the afternoon, or more than three (3)
hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about Dr. Hosakas
arrival. While she held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate
the patient. Cruz heard Dr. Gutierrez utter: ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan.Cruz noticed a bluish discoloration of Erlindas
nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct someone to call
Dr. Calderon, another anesthesiologist. When he arrived, Dr. Calderon attempted to
intubate the patient. The nailbeds of the patient remained bluish, thus, she was
placed in a trendelenburg position a position where the head of the patient is placed
in a position lower than her feet. At this point, Cruz went out of the operating room to
express her concern to petitioner Rogelio that Erlindas operation was not going well.
 Cruz quickly rushed back to the operating room and saw that the patient was still Private respondent Dr. Gutierrez, for her part, avers that:
in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being
wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was OVERLOOKED THE FACT THAT THE COURT OF APPEALS DECISION
released from the hospital only four months later or on November 15, 1985. Since the DATED 29 MAY 1995 HAD ALREADY BECOME FINAL AND
ill-fated operation, Erlinda remained in comatose condition until she died on August 3, EXECUTORY AS OF 25 JUNE 1995, THEREBY DEPRIVING THIS
[1]
1999. HONORABLE COURT OF JURISDICTION OVER THE INSTANT
Petitioners filed with the Regional Trial Court of Quezon City a civil case for PETITION;
damages against private respondents. After due trial, the court a quo rendered
judgment in favor of petitioners. Essentially, the trial court found that private B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
respondents were negligent in the performance of their duties to Erlinda. On appeal OVERLOOKED SEVERAL MATERIAL FACTUAL CIRCUMSTANCES
by private respondents, the Court of Appeals reversed the trial courts decision and WHICH, IF PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD
directed petitioners to pay their unpaid medical bills to private respondents. TO NO OTHER CONCLUSION BUT THAT PRIVATE RESPONDENT
DOCTORS WERE NOT GUILTY OF ANY NEGLIGENCE IN RESPECT
Petitioners filed with this Court a petition for review on certiorari. The private OF THE INSTANT CASE;
respondents were then required to submit their respective comments thereon. On
December 29, 1999, this Court promulgated the decision which private respondents
now seek to be reconsidered. The dispositive portion of said Decision states: B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ
HAS SUFFICIENTLY DISCHARGED THE BURDEN OF
EVIDENCE BY SUBSTANTIAL PROOF OF HER
WHEREFORE, the decision and resolution of the appellate court appealed from are COMPLIANCE WITH THE STANDARDS OF DUE CARE
hereby modified so as to award in favor of petitioners, and solidarily against private EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL
respondents the following: 1) P1,352,000.00 as actual damages computed as of the SPECIALIZATION.
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 B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ
as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each HAS SUFFICIENTLY DISCHARGED THE BURDEN OF
[2]
exemplary damages and attorneys fees; and 5) the costs of the suit. EVIDENCE BY SUBSTANTIAL PROOF OF HER
HAVING SUCCESSFULLY INTUBATED PATIENT
In his Motion for Reconsideration, private respondent Dr. Hosaka submits the ERLINDA RAMOS
following as grounds therefor:
C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO
I MUCH RELIANCE ON THE TESTIMONY OF PETITIONERS WITNESS
HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL
THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY
ERROR WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON THE
BASIS OF THE CAPTAIN-OF-THE-SHIP DOCTRINE. D. THE SUPREME COURT MAY HAVE INADVERTENTLY
DISREGARDED THE EXPERT TESTIMONY OF DR. JAMORA AND
II DRA. CALDERON

THE HONORABLE SUPREME COURT ERRED IN HOLDING
RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT THAT NO
NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.
III
ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA
IS LIABLE, THE HONORABLE SUPREME COURT ERRED IN
AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND
[3]
WITHOUT LEGAL BASIS.
E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
AWARDED DAMAGES TO PETITIONERS DESPITE THE FACT THAT
THERE WAS NO NEGLIGENCE ON THE PART OF RESPONDENT
[4]
DOCTOR.
Private respondent De Los Santos Medical Center likewise moves for
reconsideration on the following grounds:
I
 THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE
INSTANT PETITION AS THE DECISION OF THE HONORABLE COURT
OF APPEALS HAD ALREADY BECOME FINAL AND EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN
EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN
RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS.
ORLINO HOSAKA AND PERFECTA GUTIERREZ
III
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT
RESPONDENT DE LOS SANTOS MEDICAL CENTER IS SOLIDARILY
LIABLE WITH RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED IN INCREASING THE
AWARD OF DAMAGES IN FAVOR OF PETITIONERS.
[5]
In the Resolution of February 21, 2000, this Court denied the motions for
reconsideration of private respondents Drs. Hosaka and Gutierrez. They then filed
their respective second motions for reconsideration. The Philippine College of
Surgeons filed its Petition-in-Intervention contending in the main that this Court erred
in holding private respondent Dr. Hosaka liable under the captain of the ship
doctrine. According to the intervenor, said doctrine had long been abandoned in the
United States in recognition of the developments in modern medical and hospital
[6] [7]
practice. The Court noted these pleadings in the Resolution of July 17, 2000.
On March 19, 2001, the Court heard the oral arguments of the parties, including
the intervenor.Also present during the hearing were the amicii curiae: Dr. Felipe A.
Estrella, Jr., Consultant of the Philippine Charity Sweepstakes, former Director of the
Philippine General Hospital and former Secretary of Health; Dr. Iluminada T.
Camagay, President of the Philippine Society of Anesthesiologists, Inc. and Professor
and Vice-Chair for Research, Department of Anesthesiology, College of Medicine-
Philippine General Hospital, University of the Philippines; and Dr. Lydia M. Egay,
Professor and Vice-Chair for Academics, Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of the Philippines.
The Court enumerated the issues to be resolved in this case as follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE
FOR NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ
(ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL
CENTER) IS LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED
BY THEIR VISITING CONSULTANT SURGEON AND
[8]
ANESTHESIOLOGIST.
We shall first resolve the issue pertaining to private respondent Dr.
Gutierrez. She maintains that the Court erred in finding her negligent and in holding
that it was the faulty intubation which was the proximate cause of Erlindas comatose
condition. The following objective facts allegedly negate a finding of negligence on her
part: 1) That the outcome of the procedure was a comatose patient and not a dead
one; 2) That the patient had a cardiac arrest; and 3) That the patient was revived from
[9]
that cardiac arrest. In effect, Dr. Gutierrez insists that, contrary to the finding of this
Court, the intubation she performed on Erlinda was successful.
Unfortunately, Dr. Gutierrez claim of lack of negligence on her part is belied by
the records of the case. It has been sufficiently established that she failed to exercise
the standards of care in the administration of anesthesia on a patient. Dr. Egay
enlightened the Court on what these standards are:
x x x What are the standards of care that an anesthesiologist should do before we
administer anesthesia? The initial step is the preparation of the patient for surgery
and this is a pre-operative evaluation because the anesthesiologist is responsible for
determining the medical status of the patient, developing the anesthesia plan and
acquainting the patient or the responsible adult particularly if we are referring with the
patient or to adult patient who may not have, who may have some mental handicaps
of the proposed plans. We do pre-operative evaluation because this provides for an
opportunity for us to establish identification and personal acquaintance with the
patient. It also makes us have an opportunity to alleviate anxiety, explain techniques
and risks to the patient, given the patient the choice and establishing consent to
proceed with the plan. And lastly, once this has been agreed upon by all parties
concerned the ordering of pre-operative medications. And following this line at the
end of the evaluation we usually come up on writing, documentation is very important
as far as when we train an anesthesiologist we always emphasize this because we
need records for our protection, well, records. And it entails having brief summary of
patient history and physical findings pertinent to anesthesia, plan, organize as a
problem list, the plan anesthesia technique, the plan post operative, pain
management if appropriate, special issues for this particular patient. There are needs
for special care after surgery and if it so it must be written down there and a request
must be made known to proper authorities that such and such care is necessary. And
the request for medical evaluation if there is an indication. When we ask for a cardio-
pulmonary clearance it is not in fact to tell them if this patient is going to be fit for
anesthesia, the decision to give anesthesia rests on the anesthesiologist. What we
ask them is actually to give us the functional capacity of certain systems which maybe
affected by the anesthetic agent or the technique that we are going to use. But the
burden of responsibility in terms of selection of agent and how to administer it rest on
[10]
the anesthesiologist.
The conduct of a preanesthetic/preoperative evaluation prior to an operation,
[11]
whether elective or emergency, cannot be dispensed with. Such evaluation is
necessary for the formulation of a plan of anesthesia care suited to the needs of the
patient concerned.
Pre-evaluation for anesthesia involves taking the patients medical history,
reviewing his current drug therapy, conducting physical examination,
interpreting laboratory data, and determining the appropriate prescription of
[12]
preoperative medications as necessary to the conduct of anesthesia.
Physical examination of the patient entails not only evaluating the patients
central nervous system, cardiovascular system and lungs but also the upper airway.
Examination of the upper airway would in turn include an analysis of the patients
cervical spine mobility, temporomandibular mobility, prominent central incisors,
[13]
deceased or artificial teeth, ability to visualize uvula and the thyromental distance.
Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative
evaluation on Erlinda.As she herself admitted, she saw Erlinda for the first time on the
day of the operation itself, one hour before the scheduled operation. She
[14]
auscultated the patients heart and lungs and checked the latters blood pressure to
[15]
determine if Erlinda was indeed fit for operation. However, she did not proceed to
examine the patients airway. Had she been able to check petitioner Erlindas airway
prior to the operation, Dr. Gutierrez would most probably not have experienced
difficulty in intubating the former, and thus the resultant injury could have been
avoided. As we have stated in our Decision:
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the
first time on the day of the operation itself, on 17 June 1985. Before this date, no prior
consultations with, or pre-operative evaluation of Erlinda was done by her. Until the
day of the operation, respondent Dra. Gutierrez was unaware of the physiological
make-up and needs of Erlinda. She was likewise not properly informed of the possible
difficulties she would face during the administration of anesthesia to
Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the first time only an
hour before the scheduled operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physicians centuries-old
Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a
[16]
clear indicia of her negligence.
Further, there is no cogent reason for the Court to reverse its finding that it was
the faulty intubation on Erlinda that caused her comatose condition. There is no
question that Erlinda became comatose after Dr. Gutierrez performed a medical
procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during the
oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this involves a comatose
patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose after any other acts
were done by Dr. Gutierrez or comatose before any act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some intervention,
professional acts have been done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of some acts
performed by D. Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
[17]
Thank you.
What is left to be determined therefore is whether Erlindas hapless condition
was due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was
under the latters care. Dr. Gutierrez maintains that the bronchospasm and cardiac
arrest resulting in the patients comatose condition was brought about by the
anaphylactic reaction of the patient to Thiopental Sodium (pentothal). In the
[18]
Decision, we explained why we found Dr. Gutierrez theory unacceptable. In the first
place, Dr. Eduardo Jamora, the witness who was presented to support her (Dr.
Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an authority
[19]
on anesthesia practice and procedure and their complications.
Secondly, there was no evidence on record to support the theory that Erlinda
developed an allergic reaction to pentothal. Dr. Camagay enlightened the Court as to
the manifestations of an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical terminology an allergic
reaction is something which is not usual response and it is further qualified
by the release of a hormone called histamine and histamine has an effect on
all the organs of the body generally release because the substance that
entered the body reacts with the particular cell, the mass cell, and the mass
cell secretes this histamine. In a way it is some form of response to take
away that which is not mine, which is not part of the body. So, histamine has
multiple effects on the body. So, one of the effects as you will see you will
have redness, if you have an allergy you will have tearing of the eyes, you
will have swelling, very crucial swelling sometimes of the larynges which is
your voice box main airway, that swelling may be enough to obstruct the
entry of air to the trachea and you could also have contraction, constriction
of the smaller airways beyond the trachea, you see you have the trachea this
way, we brought some visual aids but unfortunately we do not have a
projector. And then you have the smaller airways, the bronchi and then
eventually into the mass of the lungs you have the bronchus. The difference
is that these tubes have also in their walls muscles and this particular kind of
muscles is smooth muscle so, when histamine is released they close up like
this and that phenomenon is known as bronco spasm. However, the effects
of histamine also on blood vessels are different. They dilate blood vessel
open up and the patient or whoever has this histamine release has
hypertension or low blood pressure to a point that the patient may have
decrease blood supply to the brain and may collapse so, you may have
[20]
people who have this.
 These symptoms of an allergic reaction were not shown to have been extant in
Erlindas case. As we held in our Decision, no evidence of stridor, skin reactions, or
wheezing some of the more common accompanying signs of an allergic reaction
appears on record. No laboratory data were ever presented to the court.
[21]
Dr. Gutierrez, however, insists that she successfully intubated Erlinda as
evidenced by the fact that she was revived after suffering from cardiac arrest. Dr.
Gutierrez faults the Court for giving credence to the testimony of Cruz on the matter of
the administration of anesthesia when she (Cruz), being a nurse, was allegedly not
qualified to testify thereon. Rather, Dr. Gutierrez invites the Courts attention to her
synopsis on what transpired during Erlindas intubation:
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg)
given by slow IV. 02 was started by mask. After pentothal
injection this was followed by IV injection of Norcuron
4mg. After 2 minutes 02 was given by positive pressure for
about one minute.Intubation with endotracheal tube 7.5 m in
diameter was done with slight difficulty (short neck & slightly
prominent upper teeth) chest was examined for breath
sounds & checked if equal on both sides. The tube was then
anchored to the mouth by plaster & cuff inflated. Ethrane 2%
with 02 4 liters was given. Blood pressure was checked
120/80 & heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was
discontinued & 02 given alone.Cyanosis disappeared. Blood
pressure and heart beats stable.
12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous
rales all over the chest.D_5%_H20 & 1 ampule of
aminophyline by fast drip was started. Still the cyanosis was
persistent. Patient was connected to a cardiac
monitor. Another ampule of of [sic] aminophyline was given
and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage and
intercardiac injection of adrenalin was given & heart beat
reappeared in less than one minute. Sodium bicarbonate &
another dose of solu cortef was given by IV. Cyanosis slowly
disappeared & 02 continuously given & assisted positive
pressure. Laboratory exams done (see results in chart).
[22]
Patient was transferred to ICU for further management.
From the foregoing, it can be allegedly seen that there was no withdrawal
(extubation) of the tube. And the fact that the cyanosis allegedly disappeared after
pure oxygen was supplied through the tube proved that it was properly placed.
The Court has reservations on giving evidentiary weight to the entries
purportedly contained in Dr. Gutierrez synopsis. It is significant to note that the said
record prepared by Dr. Gutierrez was made only after Erlinda was taken out of the
operating room. The standard practice in anesthesia is that every single act that the
anesthesiologist performs must be recorded. In Dr. Gutierrez case, she could not
account for at least ten (10) minutes of what happened during the administration of
anesthesia on Erlinda. The following exchange between Dr. Estrella, one of the amicii
curiae, and Dr. Gutierrez is instructive:
DR. ESTRELLA
You mentioned that there were two (2) attempts in the intubation period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the first attempt was the tube inserted or was the
laryngoscope only inserted, which was inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right somewhere in the re-direct, a
certain lawyer, you were asked that you did a first attempt and the question
was did you withdraw the tube? And you said you never withdrew the tube,
is that right?
A Yes.
Q Yes. And so if you never withdrew the tube then there was no, there was no
insertion of the tube during that first attempt. Now, the other thing that we
have to settle here is when cyanosis occurred, is it recorded in the
anesthesia record when the cyanosis, in your recording when did the
cyanosis occur?
A (sic)
Q Is it a standard practice of anesthesia that whatever you do during that period or
from the time of induction to the time that you probably get the patient out of
the operating room that every single action that you do is so recorded in your
anesthesia record?
A I was not able to record everything I did not have time anymore because I did
that after the, when the patient was about to leave the operating room. When
there was second cyanosis already that was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at 12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was oxygenated for around one to two
minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start giving the pentothal very
slowly and that was around one minute.
Q So, that is about 12:13 no, 12:15, 12:17?
A Yes, and then, after one minute another oxygenation was given and after
(interrupted)
Q 12:18?
A Yes, and then after giving the oxygen we start the menorcure which is a
relaxant. After that relaxant (interrupted)
Q After that relaxant, how long do you wait before you do any manipulation?
A Usually you wait for two minutes or three minutes.
Q So, if our estimate of the time is accurate we are now more or less 12:19, is that
right?
A Maybe.
Q 12:19. And at that time, what would have been done to this patient?
A After that time you examine the, if there is relaxation of the jaw which you push
it downwards and when I saw that the patient was relax because that
monorcure is a relaxant, you cannot intubate the patient or insert the
laryngoscope if it is not keeping him relax. So, my first attempt when I put the
laryngoscope on I saw the trachea was deeply interiorly. So, what I did ask
mahirap ata ito ah. So, I removed the laryngoscope and oxygenated again
the patient.
Q So, more or less you attempted to do an intubation after the first attempt as you
claimed that it was only the laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the laryngoscope and now possible
intubation?
A Yes.
Q And at that point, you made a remark, what remark did you make?
A I said mahirap ata ito when the first attempt I did not see the trachea right
away. That was when I (interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away within two to three
seconds.
Q At what point, for purposes of discussion without accepting it, at what point did
you make the comment na mahirap ata to intubate, mali ata ang pinasukan
A I did not say mali ata ang pinasukan I never said that.
Q Well, just for the information of the group here the remarks I am making is
based on the documents that were forwarded to me by the Supreme
Court. That is why for purposes of discussion I am trying to clarify this for the
sake of enlightenment. So, at what point did you ever make that comment?
A Which one, sir?
Q The mahirap intubate ito assuming that you (interrupted)
A Iyon lang, that is what I only said mahirap intubate (interrupted)
Q At what point?
A When the first attempt when I inserted the laryngoscope for the first time.
Q So, when you claim that at the first attempt you inserted the laryngoscope,
right?
A Yes.
Q But in one of the recordings somewhere at the, somewhere in the transcript of
records that when the lawyer of the other party try to inquire from you during
the first attempt that was the time when mayroon ba kayong hinugot sa tube,
I do not remember the page now, but it seems to me it is there.So, that it
was on the second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time 12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and looking at the anesthesia
records from 12:20 to 12:30 there was no recording of the vital signs. And
can we presume that at this stage there was already some problems in
handling the patient?
A Not yet.
Q But why are there no recordings in the anesthesia record?
A I did not have time.
Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the witness is laughing)
Q No, I am just asking. Remember I am not here not to pin point on anybody I am
here just to more or less clarify certainty more ore less on the record.
A Yes, Sir.
Q And so it seems that there were no recording during that span of ten (10)
minutes. From 12:20 to 12:30, and going over your narration, it seems to me
that the cyanosis appeared ten (10) minutes after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going
over the record ano, kung mali ito kuwan eh di ano. So, ganoon po ano, that
it seems to me that there is no recording from 12:20 to 12:30, so, I am just
wondering why there were no recordings during the period and then of
course the second cyanosis, after the first cyanosis. I think that was the time
Dr. Hosaka came in?
[23]
A No, the first cyanosis (interrupted).
We cannot thus give full credence to Dr. Gutierrez synopsis in light of her
admission that it does not fully reflect the events that transpired during the
administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there was a
ten-minute gap in Dr. Gutierrez synopsis, i.e., the vital signs of Erlinda were not
recorded during that time. The absence of these data is particularly significant
because, as found by the trial court, it was the absence of oxygen supply for four (4)
to five (5) minutes that caused Erlindas comatose condition.
On the other hand, the Court has no reason to disbelieve the testimony of
Cruz. As we stated in the Decision, she is competent to testify on matters which she
is capable of observing such as, the statements and acts of the physician and
surgeon, external appearances and manifest conditions which are observable by any
[24]
one. Cruz, Erlindas sister-in-law, was with her inside the operating room. Moreover,
being a nurse and Dean of the Capitol Medical Center School of Nursing at that, she
is not entirely ignorant of anesthetic procedure. Cruz narrated that she heard Dr.
Gutierrez remark, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan. She observed that the nailbeds of Erlinda became bluish and
[25]
thereafter Erlinda was placed in trendelenburg position. Cruz further averred that
she noticed that the abdomen of Erlinda became distended.
[26]
The cyanosis (bluish discoloration of the skin or mucous membranes caused by
lack of oxygen or abnormal hemoglobin in the blood) and enlargement of the stomach
of Erlinda indicate that the endotracheal tube was improperly inserted into the
esophagus instead of the trachea. Consequently, oxygen was delivered not to the
lungs but to the gastrointestinal tract. This conclusion is supported by the fact that
Erlinda was placed in trendelenburg position. This indicates that there was a
decrease of blood supply to the patients brain. The brain was thus temporarily
deprived of oxygen supply causing Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not normally happen absent any
negligence in the administration of anesthesia and in the use of an endotracheal
tube. As was noted in our Decision, the instruments used in the administration of
anesthesia, including the endotracheal tube, were all under the exclusive control of
 [27] [28]
private respondents Dr. Gutierrez and Dr. Hosaka. In Voss vs. Bridwell, which
involved a patient who suffered brain damage due to the wrongful administration of
anesthesia, and even before the scheduled mastoid operation could be performed,
the Kansas Supreme Court applied the doctrine of res ipsa loquitur, reasoning that
the injury to the patient therein was one which does not ordinarily take place in the
absence of negligence in the administration of an anesthetic, and in the use and
employment of an endotracheal tube. The court went on to say that [o]rdinarily a
person being put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence. Upon these facts and
under these circumstances, a layman would be able to say, as a matter of common
knowledge and observation, that the consequences of professional treatment were
not as such as would ordinarily have followed if due care had been
[29]
exercised. Considering the application of the doctrine of res ipsa loquitur, the
testimony of Cruz was properly given credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred in finding him
[30]
negligent as a surgeon by applying the Captain-of-the-Ship doctrine. Dr. Hosaka
argues that the trend in United States jurisprudence has been to reject said doctrine
in light of the developments in medical practice. He points out that anesthesiology and
surgery are two distinct and specialized fields in medicine and as a surgeon, he is not
deemed to have control over the acts of Dr. Gutierrez. As anesthesiologist, Dr.
Gutierrez is a specialist in her field and has acquired skills and knowledge in the
[31]
course of her training which Dr. Hosaka, as a surgeon, does not possess. He
states further that current American jurisprudence on the matter recognizes that the
trend towards specialization in medicine has created situations where surgeons do
not always have the right to control all personnel within the operating
[32] [33]
room, especially a fellow specialist.
[34]
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital, which
involved a suit filed by a patient who lost his voice due to the wrongful insertion of the
endotracheal tube preparatory to the administration of anesthesia in connection with
the laparotomy to be conducted on him. The patient sued both the anesthesiologist
and the surgeon for the injury suffered by him. The Supreme Court of Appeals of
West Virginia held that the surgeon could not be held liable for the loss of the patients
voice, considering that the surgeon did not have a hand in the intubation of the
patient. The court rejected the application of the Captain-of-the-Ship Doctrine, citing
the fact that the field of medicine has become specialized such that surgeons can no
longer be deemed as having control over the other personnel in the operating room. It
held that [a]n assignment of liability based on actual control more realistically reflects
[35]
the actual relationship which exists in a modern operating room. Hence, only the
anesthesiologist who inserted the endotracheal tube into the patients throat was held
liable for the injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with the Captain-of-
the-Ship doctrine does not mean that this Court will ipso facto follow said trend. Due
regard for the peculiar factual circumstances obtaining in this case justify the
application of the Captain-of-the-Ship doctrine. From the facts on record it can be
logically inferred that Dr. Hosaka exercised a certain degree of, at the very least,
supervision over the procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the services of Dr.
Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed the
necessary competence and skills. Drs. Hosaka and Gutierrez had worked together
since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage the
[36]
services of Dr. Gutierrez to administer the anesthesia on his patient.
Second, Dr. Hosaka himself admitted that he was the attending physician of
Erlinda. Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave
instructions to call for another anesthesiologist and cardiologist to help resuscitate
[37]
Erlinda.
Third, it is conceded that in performing their responsibilities to the patient, Drs.
Hosaka and Gutierrez worked as a team. Their work cannot be placed in separate
watertight compartments because their duties intersect with each other.
[38]
While the professional services of Dr. Hosaka and Dr. Gutierrez were secured
primarily for their performance of acts within their respective fields of expertise for the
treatment of petitioner Erlinda, and that one does not exercise control over the other,
they were certainly not completely independent of each other so as to absolve one
from the negligent acts of the other physician.
That they were working as a medical team is evident from the fact that Dr.
Hosaka was keeping an eye on the intubation of the patient by Dr. Gutierrez, and
while doing so, he observed that the patients nails had become dusky and had to call
Dr. Gutierrezs attention thereto. The Court also notes that the counsel for Dr. Hosaka
admitted that in practice, the anesthesiologist would also have to observe the
surgeons acts during the surgical process and calls the attention of the surgeon
[39]
whenever necessary in the course of the treatment. The duties of Dr. Hosaka and
those of Dr. Gutierrez in the treatment of petitioner Erlinda are therefore not as clear-
cut as respondents claim them to be. On the contrary, it is quite apparent that they
have a common responsibility to treat the patient, which responsibility necessitates
that they call each others attention to the condition of the patient while the other
physician is performing the necessary medical procedures.
It is equally important to point out that Dr. Hosaka was remiss in his duty of
attending to petitioner Erlinda promptly, for he arrived more than three (3) hours late
for the scheduled operation.The cholecystectomy was set for June 17, 1985 at 9:00
a.m., but he arrived at DLSMC only at around 12:10 p.m. In reckless disregard for his
patients well being, Dr. Hosaka scheduled two procedures on the same day, just thirty
minutes apart from each other, at different hospitals. Thus, when the first procedure
(protoscopy) at the Sta. Teresita Hospital did not proceed on time, Erlinda was kept in
a state of uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlindas scheduled operation subjected
[40]
her to continued starvation and consequently, to the risk of acidosis, or the
condition of decreased alkalinity of the blood and tissues, marked by sickly sweet
[41]
breath, headache, nausea and vomiting, and visual disturbances. The long period
that Dr. Hosaka made Erlinda wait for him certainly aggravated the anxiety that she
must have been feeling at the time. It could be safely said that her anxiety adversely
affected the administration of anesthesia on her. As explained by Dr. Camagay, the
patients anxiety usually causes the outpouring of adrenaline which in turn results in
high blood pressure or disturbances in the heart rhythm:
DR. CAMAGAY:
 x x x Pre-operative medication has three main functions: One is to
alleviate anxiety. Second is to dry up the secretions and Third is to relieve
pain. Now, it is very important to alleviate anxiety because anxiety is
associated with the outpouring of certain substances formed in the body
called adrenalin. When a patient is anxious there is an outpouring of
adrenalin which would have adverse effect on the patient. One of it is high
blood pressure, the other is that he opens himself to disturbances in the
heart rhythm, which would have adverse implications. So, we would like to
alleviate patients anxiety mainly because he will not be in control of his body
there could be adverse results to surgery and he will be opened up; a knife is
going to open up his body. x x x
[42]
Dr. Hosaka cannot now claim that he was entirely blameless of what happened
to Erlinda. His conduct clearly constituted a breach of his professional duties to
Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking about anxiety, would
you consider a patient's stay on the operating table for three hours sufficient
enough to aggravate or magnify his or her anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that was the case,
three hours waiting and the patient was already on the operating table
(interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to the
aggravation of the anxiety of the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already a source of
anxiety and most operating tables are very narrow and that patients are
usually at risk of falling on the floor so there are restraints that are placed on
them and they are never, never left alone in the operating room by
themselves specially if they are already pre-medicated because they may
not be aware of some of their movement that they make which would
contribute to their injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to come on time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
[43]
Yes, Your Honor.
Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled
operation of petitioner Erlinda is violative, not only of his duty as a physician to serve
the interest of his patients with the greatest solicitude, giving them always his best
[44]
talent and skill, but also of Article 19 of the Civil Code which requires a person, in
the performance of his duties, to act with justice and give everyone his due.
Anent private respondent DLSMCs liability for the resulting injury to petitioner
Erlinda, we held that respondent hospital is solidarily liable with respondent doctors
[45]
therefor under Article 2180of the Civil Code since there exists an employer-
employee relationship between private respondent DLSMC and Drs. Gutierrez and
Hosaka:
In other words, private hospitals, hire, fire and exercise real control over their
attending and visiting consultant staff. While consultants are not, technically
employees, x x x the control exercised, the hiring and the right to terminate
consultants all fulfill the important hallmarks of an employer-employee relationship,
with the exception of the payment of wages. In assessing whether such a relationship
[46]
in fact exists, the control test is determining. x x x
DLSMC however contends that applying the four-fold test in determining
whether such a relationship exists between it and the respondent doctors, the
inescapable conclusion is that DLSMC cannot be considered an employer of the
respondent doctors.
It has been consistently held that in determining whether an employer-employee
relationship exists between the parties, the following elements must be present: (1)
selection and engagement of services; (2) payment of wages; (3) the power to hire
and fire; and (4) the power to control not only the end to be achieved, but the means
[47]
to be used in reaching such an end.
DLSMC maintains that first, a hospital does not hire or engage the services of a
consultant, but rather, accredits the latter and grants him or her the privilege of
maintaining a clinic and/or admitting patients in the hospital upon a showing by the
consultant that he or she possesses the necessary qualifications, such as
accreditation by the appropriate board (diplomate), evidence of fellowship and
[48]
references. Second, it is not the hospital but the patient who pays the consultants
[49]
fee for services rendered by the latter. Third, a hospital does not dismiss a
consultant; instead, the latter may lose his or her accreditation or privileges granted
[50]
by the hospital. Lastly, DLSMC argues that when a doctor refers a patient for
admission in a hospital, it is the doctor who prescribes the treatment to be given to
said patient. The hospitals obligation is limited to providing the patient with the
preferred room accommodation, the nutritional diet and medications prescribed by the
doctor, the equipment and facilities necessary for the treatment of the patient, as well
as the services of the hospital staff who perform the ministerial tasks of ensuring that
the doctors orders are carried out strictly.
[51]
After a careful consideration of the arguments raised by DLSMC, the Court finds
that respondent hospitals position on this issue is meritorious. There is no employer-
employee relationship between DLSMC and Drs. Gutierrez and Hosaka which would
hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article
2180 of the Civil Code.
 As explained by respondent hospital, that the admission of a physician to
membership in DLSMCs medical staff as active or visiting consultant is first decided
upon by the Credentials Committee thereof, which is composed of the heads of the
various specialty departments such as the Department of Obstetrics and Gynecology,
Pediatrics, Surgery with the department head of the particular specialty applied for as
chairman. The Credentials Committee then recommends to DLSMC's Medical
Director or Hospital Administrator the acceptance or rejection of the applicant
physician, and said director or administrator validates the committee's
[52]
recommendation. Similarly, in cases where a disciplinary action is lodged against a
consultant, the same is initiated by the department to whom the consultant concerned
belongs and filed with the Ethics Committee consisting of the department specialty
heads. The medical director/hospital administrator merely acts as ex-officio member
of said committee.
Neither is there any showing that it is DLSMC which pays any of its consultants
for medical services rendered by the latter to their respective patients. Moreover, the
contract between the consultant in respondent hospital and his patient is separate
and distinct from the contract between respondent hospital and said patient. The first
has for its object the rendition of medical services by the consultant to the patient,
while the second concerns the provision by the hospital of facilities and services by its
staff such as nurses and laboratory personnel necessary for the proper treatment of
the patient.
Further, no evidence was adduced to show that the injury suffered by petitioner
Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital
facilities and staff necessary for her treatment.
For these reasons, we reverse the finding of liability on the part of DLSMC for
the injury suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to modify the award of damages to
petitioners in view of the supervening event of petitioner Erlindas death. In the
assailed Decision, the Court awarded actual damages of One Million Three Hundred
Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner
Erlindas treatment and care from the date of promulgation of the Decision up to the
[53]
time the patient expires or survives. In addition thereto, the Court awarded
temperate damages of One Million Five Hundred Thousand Pesos (P1,500,000.00) in
view of the chronic and continuing nature of petitioner Erlindas injury and the certainty
of further pecuniary loss by petitioners as a result of said injury, the amount of which,
however, could not be made with certainty at the time of the promulgation of the
decision. The Court justified such award in this manner:
Our rules on actual or compensatory damages generally assume that at the time of
litigation, the injury suffered as a consequence of an act of negligence has been
completed and that the cost can be liquidated. However, these provisions neglect to
take into account those situations, as in this case, where the resulting injury might be
continuing and possible future complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to
adequately and correctly respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved, up to the time of trial; and one
which would meet pecuniary loss certain to be suffered but which could not, from the
nature of the case, be made with certainty. In other words, temperate damages can
and should be awarded on top of actual or compensatory damages in instances
where the injury is chronic and continuing. And because of the unique nature of such
cases, no incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases.
As it would not be equitableand certainly not in the best interests of the administration
of justicefor the victim in such cases to constantly come before the courts and invoke
their aid in seeking adjustments to the compensatory damages previously
awardedtemperate damages are appropriate.The amount given as temperate
damages, though to a certain extent speculative, should take into account the cost of
proper care.
In the instant case, petitioners were able to provide only home-based nursing care for
a comatose patient who has remained in that condition for over a decade. Having
premised our award for compensatory damages on the amount provided by
petitioners at the onset of litigation, it would be now much more in step with the
interests of justice if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a facility which generally
specializes in such care. They should not be compelled by dire circumstances to
provide substandard care at home without the aid of professionals, for anything less
would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in
temperate damages would therefore be reasonable.
[54]
However, subsequent to the promulgation of the Decision, the Court was
[55]
informed by petitioner Rogelio that petitioner Erlinda died on August 3, 1999. In
view of this supervening event, the award of temperate damages in addition to the
actual or compensatory damages would no longer be justified since the actual
damages awarded in the Decision are sufficient to cover the medical expenses
incurred by petitioners for the patient. Hence, only the amounts representing actual,
moral and exemplary damages, attorneys fees and costs of suit should be awarded to
petitioners.
WHEREFORE, the assailed Decision is hereby modified as follows:
(1) Private respondent De Los Santos Medical Center is hereby absolved from
liability arising from the injury suffered by petitioner Erlinda Ramos on June 17, 1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby
declared to be solidarily liable for the injury suffered by petitioner Erlinda on June 17,
1985 and are ordered to pay petitioners
(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorneys fees; and
(e) the costs of the suit.
SO ORDERED.
ROGELIO P. NOGALES, G.R. No. 142625
for himself and on behalf of the minors,
ROGER ANTHONY, Present:
ANGELICA, NANCY, and
MICHAEL CHRISTOPHER, QUISUMBING, J.,
all surnamed NOGALES, Chairperson,
Petitioners, CARPIO,
CARPIO MORALES,
- versus - TINGA, and
VELASCO, JR., JJ.
CAPITOL MEDICAL CENTER,
DR. OSCAR ESTRADA,
DR. ELY VILLAFLOR,
DR. ROSA UY,
DR. JOEL ENRIQUEZ,
DR. PERPETUA LACSON,
DR. NOE ESPINOLA, and Promulgated:
NURSE J. DUMLAO,
Respondents. December 19, 2006
x-----------------------------------------------------------------------------------------x
Hospitals; Medical Malpractice; Employer-Employee Relationship; The
control test essentially determines whether an employment relationship exists between
a physician and a hospital based on the exercise of control over the physician as to details.—
While the Court in Ramos did not expound on the control test, such test essentially determines
whether an employment relationship exists between a physician and a hospital based on the
exercise of control over the physician as to details. Specifically, the employer (or the hospital)
must have the right to control both the means and the details of the process by which the
employee (or the physician) is to accomplish his task.
Same; Same; Same; Doctrine of Apparent Authority; Words and Phrases; An
exception to the general rule that a hospital is not liable for the negligence of an
independent contractor-physician is when the physician is the “ostensible” agent of
the hospital, which exception is also known as the “doctrine of apparent
authority.”—In general, a hospital is not liable for the negligence of an
independent contractor-physician. There is, however, an exception to this
principle. The hospital may be liable if the physician is the “ostensible” agent of
the hospital. This exception is also known as the “doctrine of apparent authority.”
In Gilbert v. Sycamore Municipal Hospital, the Illinois Supreme Court explained
the doctrine of apparent authority in this wise: [U]nder the doctrine of apparent
authority a hospital can be held vicariously liable for the negligent acts of a
physician providing care at the hospital, regardless of whether the physician is an
independent contractor, unless the patient knows, or should have known, that the
physician is an independent contractor. The elements of the action have been set
out as follows: “For a hospital to be liable under the doctrine of apparent
authority, a plaintiff must show that: (1) the hospital, or its agent, acted in a
manner that would lead a reasonable person to conclude that the individual who
was alleged to be negligent was an employee or agent of the hospital; (2) where
the acts of the agent create the appearance of authority, the plaintiff must also
prove that the hospital had knowledge of and acquiesced in them; and (3) the
plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent
with ordinary care and prudence.” The element of “holding out” on the part of the
hospital does not require an express representation by the hospital that the
person alleged to be negligent is an employee. Rather, the element is satisfied if
the hospital holds itself out as a provider of emergency room care without
informing the patient that the care is provided by independent contractors. The
element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff
relies upon the hospital to provide complete emergency room care, rather than
upon a specific physician.
Same; Same; Same; Same; Estoppel; The doctrine of apparent authority is a
species of the doctrine of estoppel.—The doctrine of apparent authority is a species
of the doctrine of estoppel. Article 1431 of the Civil Code provides that “[t]hrough
estoppel, an admission or representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as against the person relying
thereon.” Estoppel rests on this rule: “Whenever a party has, by his own
declaration, act, or omission, intentionally and deliberately led another to believe
a particular thing true, and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to falsify it.”
Same; Same; Same; Same; The Court cannot close its eyes to the reality that
hospitals are in the business of treatment.—CMC’s defense that all it did was “to
extend to [Corazon] its facilities” is untenable. The Court cannot close its eyes to
the reality that hospitals, such as CMC, are in the business of treatment. In this
regard, the Court agrees with the observation made by the Court of Appeals of
North Carolina in Diggs v. Novant Health, Inc., to wit: “The conception that the
hospital does not undertake to treat the patient, does not undertake to act
through its doctors and nurses, but undertakes instead simply to procure them to
act upon their own responsibility, no longer reflects the fact. Present day
hospitals, as their manner of operation plainly demonstrates, do far
more than furnish facilities for treatment. They regularly employ on a
salary basis a large staff of physicians, nurses and internes [sic], as well
as administrative and manual workers, and they charge patients for
medical care and treatment, collecting for such services, if necessary, by
legal action. Certainly, the person who avails himself of ‘hospital
facilities’ expects that the hospital will attempt to cure him, not that its
nurses or other employees will act on their own responsibility.” x x x
Same; Same; Same; Same; Contracts of Adhesion; Consent and Release
Forms; A blanket release in favor of hospitals “from any and all claims,” which
includes claims due to bad faith or gross negligence, would be contrary to public
policy and thus void.—Likewise unconvincing is CMC’s argument that petitioners
are estopped from claiming damages based on the Consent on Admission and
Consent to Operation. Both release forms consist of two parts. The first part gave
CMC permission to administer to Corazon any form of recognized medical
treatment which the CMC medical staff deemed advisable. The second part of the
documents, which may properly be described as the releasing part, releases CMC
and its employees “from any and all claims” arising from or by reason of the
treatment and operation. The documents do not expressly release CMC from
liability for injury to Corazon due to negligence during her treatment or operation. Around midnight of 25 May 1976, Corazon started to experience mild labor pains
Neither do the consent forms expressly exempt CMC from liability for Corazon’s prompting Corazon and Rogelio Nogales (Spouses Nogales) to see Dr. Estrada at his
death due to negligence during such treatment or operation. Such release forms, home. After examining Corazon, Dr. Estrada advised her immediate admission to
being in the nature of contracts of adhesion, are construed strictly against the Capitol Medical Center (CMC).
hospitals. Besides, a blanket release in favor of hospitals “from any and all
claims,” which includes claims due to bad faith or gross negligence, would be On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse
[8]
contrary to public policy and thus void. noted the written admission request of Dr. Estrada. Upon Corazons admission at
the CMC, Rogelio Nogales (Rogelio) executed and signed the Consent on Admission
[9] [10]
and Agreement and Admission Agreement. Corazon was then brought to the
Same; Same; Same; Same; Same; Same; Even simple labor room of the CMC.
negligence is not subject to blanket release in favor of
establishments like hospitals but may only mitigate liability Dr. Rosa Uy (Dr. Uy), who was then a resident physician of CMC, conducted an
internal examination of Corazon. Dr. Uy then called up Dr. Estrada to notify him of her
depending on the circumstances.—Even simple negligence is not findings.
subject to blanket release in favor of establishments like hospitals
[11]
but may only mitigate liability depending on the circumstances. Based on the Doctors Order Sheet, around 3:00 a.m., Dr. Estrada ordered for 10
mg. of valium to be administered immediately by intramuscular injection. Dr. Estrada
When a person needing urgent medical attention rushes to a later ordered the start of intravenous administration of syntocinon admixed with
hospital, he cannot bargain on equal footing with the hospital on dextrose, 5%, in lactated Ringers solution, at the rate of eight to ten micro-drops per
the terms of admission and operation. Such a person is literally at minute.
the mercy of the hospital. There can be no clearer example of a [12]
According to the Nurses Observation Notes, Dr. Joel Enriquez (Dr. Enriquez), an
contract of adhesion than one arising from such a dire situation. anesthesiologist at CMC, was notified at 4:15 a.m. of Corazons
Thus, the release forms of CMC cannot relieve CMC from liability admission.Subsequently, when asked if he needed the services of an
for the negligent medical treatment of Corazon. anesthesiologist, Dr. Estrada refused. Despite Dr. Estradas refusal, Dr. Enriquez
stayed to observe Corazons condition.

At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC. At 6:10
DECISION
a.m., Corazons bag of water ruptured spontaneously. At 6:12 a.m., Corazons cervix
was fully dilated. At 6:13 a.m., Corazon started to experience convulsions.
CARPIO, J.:
At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium
The Case
sulfate.However, Dr. Ely Villaflor (Dr. Villaflor), who was assisting Dr. Estrada,
administered only 2.5 grams of magnesium sulfate.
[1] [2]
This petition for review assails the 6 February 1998 Decision and 21 March
[3] At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to extract
2000 Resolution of the Court of Appeals in CA-G.R. CV No. 45641. The Court of
[4] Corazons baby. In the process, a 1.0 x 2.5 cm. piece of cervical tissue was allegedly
Appeals affirmed in toto the 22 November 1993 Decision of the Regional Trial Court
torn. The baby came out in an apnic, cyanotic, weak and injured
of Manila, Branch 33, finding Dr. Oscar Estrada solely liable for damages for the
condition.Consequently, the baby had to be intubated and resuscitated by Dr.
death of his patient, Corazon Nogales, while absolving the remaining respondents of
Enriquez and Dr. Payumo.
any liability. The Court of Appeals denied petitioners motion for reconsideration.
At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which rapidly
became profuse. Corazons blood pressure dropped from 130/80 to 60/40 within five
The Facts
minutes. There was continuous profuse vaginal bleeding. The assisting nurse
administered hemacel through a gauge 19 needle as a side drip to the ongoing
Pregnant with her fourth child, Corazon Nogales (Corazon), who was then 37 years
intravenous injection of dextrose.
old, was under the exclusive prenatal care of Dr. Oscar Estrada (Dr. Estrada)
beginning on her fourth month of pregnancy or as early as December 1975. While
At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with bottled
Corazon was on her last trimester of pregnancy, Dr. Estrada noted an increase in her
[5] [6] blood.It took approximately 30 minutes for the CMC laboratory, headed by Dr.
blood pressure and development of leg edema indicating preeclampsia, which is a
[7] Perpetua Lacson (Dr. Lacson), to comply with Dr. Estradas order and deliver the
dangerous complication of pregnancy.
blood.
At 8:00 a.m., Dr. Noe Espinola (Dr. Espinola), head of the Obstetrics-Gynecology
Department of the CMC, was apprised of Corazons condition by telephone. Upon
being informed that Corazon was bleeding profusely, Dr. Espinola ordered immediate
[13]
hysterectomy. Rogelio was made to sign a Consent to Operation.
Due to the inclement weather then, Dr. Espinola, who was fetched from his residence
by an ambulance, arrived at the CMC about an hour later or at 9:00 a.m. He
examined the patient and ordered some resuscitative measures to be
administered. Despite Dr. Espinolas efforts, Corazon died at 9:15 a.m. The cause of
[14]
death was hemorrhage, post partum.
[15]
On 14 May 1980, petitioners filed a complaint for damages with the Regional Trial
[16]
Court of Manila against CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr.
Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the death of
Corazon. Petitioners mainly contended that defendant physicians and CMC personnel
were negligent in the treatment and management of Corazons condition. Petitioners
charged CMC with negligence in the selection and supervision of defendant
physicians and hospital staff.
For failing to file their answer to the complaint despite service of summons, the trial
[17]
court declared Dr. Estrada, Dr. Enriquez, and Nurse Dumlao in default. CMC, Dr.
Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their respective answers denying
and opposing the allegations in the complaint. Subsequently, trial ensued.
After more than 11 years of trial, the trial court rendered judgment on 22 November
1993 finding Dr. Estrada solely liable for damages. The trial court ruled as follows:
The victim was under his pre-natal care, apparently, his fault began
from his incorrect and inadequate management and lack of
treatment of the pre-eclamptic condition of his patient. It is not
disputed that he misapplied the forceps in causing the delivery
because it resulted in a large cervical tear which had caused the
profuse bleeding which he also failed to control with the application
of inadequate injection of magnesium sulfate by his assistant Dra.
Ely Villaflor. Dr. Estrada even failed to notice the erroneous
administration by nurse Dumlao of hemacel by way of side drip,
instead of direct intravenous injection, and his failure to consult a
senior obstetrician at an early stage of the problem.
On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel
Enriquez, Dr. Lacson, Dr. Espinola, nurse J. Dumlao and CMC, the
Court finds no legal justification to find them civilly liable.
On the part of Dra. Ely Villaflor, she was only taking orders from Dr.
Estrada, the principal physician of Corazon Nogales. She can only
make suggestions in the manner the patient maybe treated but she
cannot impose her will as to do so would be to substitute her good
judgment to that of Dr. Estrada. If she failed to correctly diagnose
the true cause of the bleeding which in this case appears to be a
cervical laceration, it cannot be safely concluded by the Court that
Dra. Villaflor had the correct diagnosis and she failed to inform Dr.
Estrada. No evidence was introduced to show that indeed Dra.
Villaflor had discovered that there was laceration at the cervical
area of the patients internal organ.
On the part of nurse Dumlao, there is no showing that when she
administered the hemacel as a side drip, she did it on her own. If
the correct procedure was directly thru the veins, it could only be
because this was what was probably the orders of Dr. Estrada.
While the evidence of the plaintiffs shows that Dr. Noe Espinola,
who was the Chief of the Department of Obstetrics and Gynecology
who attended to the patient Mrs. Nogales, it was only at 9:00 a.m.
That he was able to reach the hospital because of typhoon Didang
(Exhibit 2). While he was able to give prescription in the manner
Corazon Nogales may be treated, the prescription was based on
the information given to him by phone and he acted on the basis of
facts as presented to him, believing in good faith that such is the
correct remedy. He was not with Dr. Estrada when the patient was
brought to the hospital at 2:30 oclock a.m. So, whatever errors that
Dr. Estrada committed on the patient before 9:00 oclock a.m. are
certainly the errors of Dr. Estrada and cannot be the mistake of Dr.
Noe Espinola. His failure to come to the hospital on time was due
to fortuitous event.
On the part of Dr. Joel Enriquez, while he was present in the
delivery room, it is not incumbent upon him to call the attention of
Dr. Estrada, Dra. Villaflor and also of Nurse Dumlao on the alleged
errors committed by them. Besides, as anesthesiologist, he has no
authority to control the actuations of Dr. Estrada and Dra.
Villaflor. For the Court to assume that there were errors being
committed in the presence of Dr. Enriquez would be to dwell on
conjectures and speculations.
On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist
and in-charge of the blood bank of the CMC. The Court cannot
accept the theory of the plaintiffs that there was delay in delivering
the blood needed by the patient. It was testified, that in order that
this blood will be made available, a laboratory test has to be
conducted to determine the type of blood, cross matching and other
matters consistent with medical science so, the lapse of 30 minutes
maybe considered a reasonable time to do all of these things, and
not a delay as the plaintiffs would want the Court to believe.
Admittedly, Dra. Rosa Uy is a resident physician of
the Capitol Medical Center. She was sued because of her alleged
failure to notice the incompetence and negligence of Dr.
Estrada. However, there is no evidence to support such theory. No
evidence was adduced to show that Dra. Rosa Uy as a resident
physician of Capitol Medical Center, had knowledge of the
mismanagement of the patient Corazon Nogales, and that
notwithstanding such knowledge, she tolerated the same to
happen.

In the pre-trial order, plaintiffs and CMC agreed that defendant
CMC did not have any hand or participation in the selection or
hiring of Dr. Estrada or his assistant Dra. Ely Villaflor as attending
physician[s] of the deceased. In other words, the two (2) doctors
were not employees of the hospital and therefore the hospital did
not have control over their professional conduct. When Mrs.
Nogales was brought to the hospital, it was an emergency case
and defendant CMC had no choice but to admit her. Such being the
case, there is therefore no legal ground to apply the provisions of
Article 2176 and 2180 of the New Civil Code referring to the
vicarious liability of an employer for the negligence of its
employees. If ever in this case there is fault or negligence in the
treatment of the deceased on the part of the attending physicians
who were employed by the family of the deceased, such civil
liability should be borne by the attending physicians under the
principle of respondeat superior.
WHEREFORE, premises considered, judgment is hereby rendered
finding defendant Dr. Estrada of Number 13 Pitimini St. San
Francisco del Monte, Quezon City civilly liable to pay
plaintiffs: 1) By way of actual damages in the amount
of P105,000.00; 2)By way of moral damages in the amount
of P700,000.00; 3) Attorneys fees in the amount of P100,000.00
and to pay the costs of suit.
For failure of the plaintiffs to adduce evidence to support its [sic]
allegations against the other defendants, the complaint is hereby
ordered dismissed. While the Court looks with disfavor the filing of
the present complaint against the other defendants by the herein
plaintiffs, as in a way it has caused them personal inconvenience
and slight damage on their name and reputation, the Court cannot
accepts [sic] however, the theory of the remaining defendants that
plaintiffs were motivated in bad faith in the filing of this
complaint. For this reason defendants counterclaims are hereby
ordered dismissed.
[18]
SO ORDERED.
Petitioners appealed the trial courts decision. Petitioners claimed that aside from Dr.
Estrada, the remaining respondents should be held equally liable for
negligence.Petitioners pointed out the extent of each respondents alleged liability.
On 6 February 1998, the Court of Appeals affirmed the decision of the trial
[19]
court. Petitioners filed a motion for reconsideration which the Court of Appeals
[20]
denied in its Resolution of 21 March 2000.
Hence, this petition.
[21]
Meanwhile, petitioners filed a Manifestation dated 12 April 2002 stating that
respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao need no
longer be notified of the petition because they are absolutely not involved in the issue
[22]
raised before the [Court], regarding the liability of [CMC]. Petitioners stressed that
the subject matter of this petition is the liability of CMC for the negligence of Dr.
[23]
Estrada.
[24]
The Court issued a Resolution dated 9 September 2002 dispensing with the
requirement to submit the correct and present addresses of respondents Dr. Estrada,
Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated that with the filing of
petitioners Manifestation, it should be understood that they are claiming only against
respondents CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy who have filed their
respective comments. Petitioners are foregoing further claims against respondents Dr.
Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao.
The Court noted that Dr. Estrada did not appeal the decision of the Court of Appeals
affirming the decision of the Regional Trial Court. Accordingly, the decision of the
Court of Appeals, affirming the trial courts judgment, is already final as against Dr.
Oscar Estrada.
[25]
Petitioners filed a motion for reconsideration of the Courts 9 September
2002Resolution claiming that Dr. Enriquez, Dr. Villaflor and Nurse Dumlao were
notified of the petition at their counsels last known addresses. Petitioners reiterated
their imputation of negligence on these respondents. The Court denied petitioners
[26]
Motion for Reconsideration in its 18 February 2004 Resolution.
The Court of Appeals Ruling
In its Decision of 6 February 1998, the Court of Appeals upheld the trial courts
ruling.The Court of Appeals rejected petitioners view that the doctrine in Darling v.
[27]
Charleston Community Memorial Hospital applies to this case. According to the
Court of Appeals, the present case differs from the Darling case since Dr. Estrada is
an independent contractor-physician whereas the Darling case involved a physician
and a nurse who were employees of the hospital.
Citing other American cases, the Court of Appeals further held that the mere fact that
a hospital permitted a physician to practice medicine and use its facilities is not
[28]
sufficient to render the hospital liable for the physicians negligence. A hospital is
[29]
not responsible for the negligence of a physician who is an independent contractor.
[30]
The Court of Appeals found the cases of Davidson v. Conole and Campbell v.
[31]
Emma Laing Stevens Hospital applicable to this case. Quoting Campbell, the Court
of Appeals stated that where there is no proof that defendant physician was an
employee of defendant hospital or that defendant hospital had reason to know that
any acts of malpractice would take place, defendant hospital could not be held liable
for its failure to intervene in the relationship of physician-patient between defendant
physician and plaintiff.
On the liability of the other respondents, the Court of Appeals applied the borrowed
servant doctrine considering that Dr. Estrada was an independent contractor who
was merely exercising hospital privileges. This doctrine provides that once the
surgeon enters the operating room and takes charge of the proceedings, the acts or
omissions of operating room personnel, and any negligence associated with such
[32]
acts or omissions, are imputable to the surgeon. While the assisting physicians
and nurses may be employed by the hospital, or engaged by the patient, they
normally become the temporary servants or agents of the surgeon in charge while the
operation is in progress, and liability may be imposed upon the surgeon for their
[33]
negligent acts under the doctrine of respondeat superior.
The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as
the attending physician of his wife, any liability for malpractice must be Dr. Estradas
sole responsibility.
While it found the amount of damages fair and reasonable, the Court of
Appeals held that no interest could be imposed on unliquidated claims or damages.
The Issue
Basically, the issue in this case is whether CMC is vicariously liable for the negligence
of Dr. Estrada. The resolution of this issue rests, on the other hand, on the
ascertainment of the relationship between Dr. Estrada and CMC. The Court also
believes that a determination of the extent of liability of the other respondents is
inevitable to finally and completely dispose of the present controversy.
The Ruling of the Court
The petition is partly meritorious.
On the Liability of CMC
Dr. Estradas negligence in handling the treatment and management of Corazons
condition which ultimately resulted in Corazons death is no longer in issue. Dr.
Estrada did not appeal the decision of the Court of Appeals which affirmed the ruling
of the trial court finding Dr. Estrada solely liable for damages. Accordingly, the finding
of the trial court on Dr. Estradas negligence is already final.
Petitioners maintain that CMC is vicariously liable for Dr. Estradas negligence based
on Article 2180 in relation to Article 2176 of the Civil Code. These provisions
pertinently state:
Art. 2180. The obligation imposed by article 2176 is demandable
not only for ones own acts or omissions, but also for those of
persons for whom one is responsible.
xxxx
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry.
xxxx
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and
is governed by the provisions of this Chapter.
Similarly, in the United States, a hospital which is the employer, master, or principal of
a physician employee, servant, or agent, may be held liable for the physicians
[34]
negligence under the doctrine of respondeat superior.
In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to practice
and admit patients at CMC, should be liable for Dr. Estradas malpractice. Rogelio
claims that he knew Dr. Estrada as an accredited physician of CMC, though he
[35]
discovered later that Dr. Estrada was not a salaried employee of the CMC. Rogelio
further claims that he was dealing with CMC, whose primary concern was the
treatment and management of his wifes condition. Dr. Estrada just happened to be
[36]
the specific person he talked to representing CMC. Moreover, the fact that CMC
[37]
made Rogelio sign a Consent on Admission and Admission Agreement and a
Consent to Operation printed on the letterhead of CMC indicates that CMC
considered Dr. Estrada as a member of its medical staff.
On the other hand, CMC disclaims liability by asserting that Dr. Estrada was a mere
visiting physician and that it admitted Corazon because
[38]
her physical condition thenwas classified an emergency obstetrics case.
CMC alleges that Dr. Estrada is an independent contractor for whose actuations CMC
would be a total stranger. CMC maintains that it had no control or supervision over Dr.
Estrada in the exercise of his medical profession.
The Court had the occasion to determine the relationship between a hospital and a
consultant or visiting physician and the liability of such hospital for that physicians
[39]
negligence in Ramos v. Court of Appeals, to wit:
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.
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 physicians
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 patients
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
petitioners condition.
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 formers responsibility under a
[40]
relationship of patria potestas. x x x (Emphasis supplied)
While the Court in Ramos did not expound on the control test, such test essentially
determines whether an employment relationship exists between a physician and a
hospital based on the exercise of control over the physician as to details. Specifically,
the employer (or the hospital) must have the right to control both the means and the
details of the process by which the employee (or the physician) is to accomplish his
[41]
task.
After a thorough examination of the voluminous records of this case, the Court finds
no single evidence pointing to CMCs exercise of control over Dr. Estradas treatment
and management of Corazons condition. It is undisputed that throughout Corazons
pregnancy, she was under the exclusive prenatal care of Dr. Estrada. At the time of
Corazons admission at CMC and during her delivery, it was Dr. Estrada, assisted by
Dr. Villaflor, who attended to Corazon. There was no showing that CMC had a part in
diagnosing Corazons condition. While Dr. Estrada enjoyed staff privileges at CMC,
such fact alone did not make him an employee of CMC.[42] CMC merely allowed Dr.
Estrada to use its facilities[43] when Corazon was about to give birth, which CMC
considered an emergency. Considering these circumstances, Dr. Estrada is not an
employee of CMC, but an independent contractor.
The question now is whether CMC is automatically exempt from liability considering
that Dr. Estrada is an independent contractor-physician.
In general, a hospital is not liable for the negligence of an independent contractor-
physician. There is, however, an exception to this principle. The hospital may be liable
if the physician is the ostensible agent of the hospital.[44] This exception is also
known as the doctrine of apparent authority.[45] In Gilbert v. Sycamore Municipal
Hospital,[46] the Illinois Supreme Court explained the doctrine of apparent authority in
this wise:
[U]nder the doctrine of apparent authority a hospital can be held
vicariously liable for the negligent acts of a physician providing care
at the hospital, regardless of whether the physician is an
independent contractor, unless the patient knows, or should have
known, that the physician is an independent contractor. The
elements of the action have been set out as follows:
For a hospital to be liable under the doctrine of apparent authority, a
plaintiff must show that: (1) the hospital, or its agent, acted in a
manner that would lead a reasonable person to conclude that the
individual who was alleged to be negligent was an employee or
agent of the hospital; (2) where the acts of the agent create the
appearance of authority, the plaintiff must also prove that the
hospital had knowledge of and acquiesced in them; and (3) the
plaintiff acted in reliance upon the conduct of the hospital or its
agent, consistent with ordinary care and prudence.
The element of holding out on the part of the hospital does not
require an express representation by the hospital that the person
alleged to be negligent is an employee. Rather, the element is
satisfied if the hospital holds itself out as a provider of emergency
room care without informing the patient that the care is provided by
independent contractors.
The element of justifiable reliance on the part of the plaintiff is
satisfied if the plaintiff relies upon the hospital to provide complete
emergency room care, rather than upon a specific physician.
The doctrine of apparent authority essentially involves two factors to determine the
liability of an independent-contractor physician.
The first factor focuses on the hospitals manifestations and is sometimes described
as an inquiry whether the hospital acted in a manner which would lead a reasonable
person to conclude that the individual who was alleged to be negligent was an
employee or agent of the hospital.[47] In this regard, the hospital need not make
express representations to the patient that the treating physician is an
employee of the hospital; rather a representation may be general and
implied.[48]
The doctrine of apparent authority is a species of the doctrine of estoppel. Article
1431 of the Civil Code provides that [t]hrough estoppel, an admission or
representation is rendered conclusive upon the person making it, and cannot be
denied or disproved as against the person relying thereon. Estoppel rests on this rule:
Whenever a party has, by his own declaration, act, or omission, intentionally and
deliberately led another to believe a particular thing true, and to act upon such belief,
he cannot, in any litigation arising out of such declaration, act or omission, be
[49]
permitted to falsify it.
In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical
staff. Through CMCs acts, CMC clothed Dr. Estrada with apparent authority thereby
leading the Spouses Nogales to believe that Dr. Estrada was an employee or agent of
CMC. CMC cannot now repudiate such authority.
First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical staff and
facilities to Dr. Estrada. Upon Dr. Estradas request for Corazons admission, CMC,
through its personnel, readily accommodated Corazon and updated Dr. Estrada of her
condition.
Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to
Corazons admission and supposed hysterectomy, CMC asked Rogelio to sign release
forms, the contents of which reinforced Rogelios belief that Dr. Estrada was a
member of CMCs medical staff.[50] The Consent on Admission and Agreement
explicitly provides:
KNOW ALL MEN BY THESE PRESENTS:
I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar
St., Malate Mla., being the
father/mother/brother/sister/spouse/relative/ guardian/or person in
custody of Ma. Corazon, and representing his/her family, of my own
volition and free will, do consent and submit said Ma. Corazon to
Dr. Oscar Estrada (hereinafter referred to as Physician) for cure,
treatment, retreatment, or emergency measures, that the
Physician, personally or by and through the Capitol Medical
Center and/or its staff, may use, adapt, or employ such means,
forms or methods of cure, treatment, retreatment, or
emergency measures as he may see best and most expedient;
that Ma. Corazon and I will comply with any and all rules,
regulations, directions, and instructions of the Physician, the
Capitol Medical Center and/or its staff; and, that I will not hold
liable or responsible and hereby waive and forever discharge and
hold free the Physician, the Capitol Medical Center and/or its staff,
from any and all claims of whatever kind of nature, arising from
directly or indirectly, or by reason of said cure, treatment, or
retreatment, or emergency measures or intervention of said
physician, the Capitol Medical Center and/or its staff.
x x x x[51] (Emphasis supplied)
While the Consent to Operation pertinently reads, thus:
I, ROGELIO NOGALES, x x x, of my own volition and free will, do
consent and submit said CORAZON NOGALES to Hysterectomy,
by the Surgical Staff and Anesthesiologists of Capitol Medical
Center and/or whatever succeeding operations, treatment, or
emergency measures as may be necessary and most expedient;
and, that I will not hold liable or responsible and hereby waive and
forever discharge and hold free the Surgeon, his assistants,
anesthesiologists, the Capitol Medical Center and/or its staff, from
any and all claims of whatever kind of nature, arising from directly
or indirectly, or by reason of said operation or operations,
treatment, or emergency measures, or intervention of the Surgeon,
his assistants, anesthesiologists, the Capitol Medical Center and/or
its staff.[52] (Emphasis supplied)
Without any indication in these consent forms that Dr. Estrada was an independent
contractor-physician, the Spouses Nogales could not have known that Dr. Estrada
was an independent contractor. Significantly, no one from CMC informed the Spouses
Nogales that Dr. Estrada was an independent contractor. On the contrary, Dr.
Atencio, who was then a member of CMC Board of Directors, testified that Dr. Estrada
was part of CMCs surgical staff.[53]
Third, Dr. Estradas referral of Corazons profuse vaginal bleeding to Dr. Espinola, who
was then the Head of the Obstetrics and Gynecology Department of CMC, gave the
impression that Dr. Estrada as a member of CMCs medical staff was collaborating
with other CMC-employed specialists in treating Corazon.
The second factor focuses on the patients reliance. It is sometimes characterized as
an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or
itsagent, consistent with ordinary care and prudence.[54]
The records show that the Spouses Nogales relied upon a perceived employment
relationship with CMC in accepting Dr. Estradas services. Rogelio testified that he and
his wife specifically chose Dr. Estrada to handle Corazons delivery not only because
of their friends recommendation, but more importantly because of Dr. Estradas
connection with a reputable hospital, the [CMC].[55] In other words, Dr. Estradas
relationship with CMC played a significant role in the Spouses Nogales decision in
accepting Dr. Estradas services as the obstetrician-gynecologist for Corazons
delivery.Moreover, as earlier stated, there is no showing that before and during
Corazons confinement at CMC, the Spouses Nogales knew or should have known
that Dr. Estrada was not an employee of CMC.
Further, the Spouses Nogales looked to CMC to provide the best medical care and
support services for Corazons delivery. The Court notes that prior to Corazons fourth
pregnancy, she used to give birth inside a clinic. Considering Corazons age then, the
Spouses Nogales decided to have their fourth child delivered at CMC, which Rogelio
regarded one of the best hospitals at the time.[56] This is precisely because the
Spouses Nogales feared that Corazon might experience complications during her
delivery which would be better addressed and treated in a modern and big hospital
such as CMC. Moreover, Rogelios consent in Corazons hysterectomy to be
performed by a different physician, namely Dr. Espinola, is a clear indication of
Rogelios confidence in CMCs surgical staff.
CMCs defense that all it did was to extend to [Corazon] its facilities is untenable. The
Court cannot close its eyes to the reality that hospitals, such as CMC, are in the
business of treatment. In this regard, the Court agrees with the observation made by
the Court of Appeals of North Carolina in Diggs v. Novant Health, Inc.,[57] to wit:

The conception that the hospital does not undertake to treat the
patient, does not undertake to act through its doctors and nurses,
but undertakes instead simply to procure them to act upon their own
responsibility, no longer reflects the fact. Present day hospitals,
as their manner of operation plainly demonstrates, do far more
than furnish facilities for treatment. They regularly employ on a
salary basis a large staff of physicians, nurses and internes
[sic], as well as administrative and manual workers, and they
charge patients for medical care and treatment, collecting for
such services, if necessary, by legal action. Certainly, the
person who avails himself of hospital facilities expects that the
hospital will attempt to cure him, not that its nurses or other
employees will act on their own responsibility. x x x (Emphasis
supplied)
Likewise unconvincing is CMCs argument that petitioners are estopped from claiming
damages based on the Consent on Admission and Consent to Operation. Both
release forms consist of two parts. The first part gave CMC permission to administer
to Corazon any form of recognized medical treatment which the CMC medical staff
deemed advisable. The second part of the documents, which may properly be
described as the releasing part, releases CMC and its employees from any and all
claims arising from or by reason of the treatment and operation.
The documents do not expressly release CMC from liability for injury to
Corazon due to negligence during her treatment or operation. Neither do the consent
forms expressly exempt CMC from liability for Corazons death due to
negligenceduring such treatment or operation. Such release forms, being in the
nature of contracts of adhesion, are construed strictly against hospitals. Besides, a
blanket release in favor of hospitals from any and all claims, which includes claims
due to bad faith or gross negligence, would be contrary to public policy and thus void.
Even simple negligence is not subject to blanket release in favor of
establishments like hospitals but may only mitigate liability depending on the
[58]
circumstances. When a person needing urgent medical attention rushes to a
hospital, he cannot bargain on equal footing with the hospital on the terms of
admission and operation. Such a person is literally at the mercy of the hospital. There
can be no clearer example of a contract of adhesion than one arising from such a dire
situation. Thus, the release forms of CMC cannot relieve CMC from liability for the
negligent medical treatment of Corazon.
On the Liability of the Other Respondents
[59]
Despite this Courts pronouncement in its 9 September 2002 Resolution that the
filing of petitioners Manifestation confined petitioners claim only against CMC, Dr.
Espinola, Dr. Lacson, and Dr. Uy, who have filed their comments, the Court deems it
proper to resolve the individual liability of the remaining respondents to put an end
finally to this more than two-decade old controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of Corazons
[60]
bleeding and to suggest the correct remedy to Dr. Estrada. Petitioners assert that it
was Dr. Villaflors duty to correct the error of Nurse Dumlao in the administration of
hemacel.
The Court is not persuaded. Dr. Villaflor admitted administering a lower dosage of
magnesium sulfate. However, this was after informing Dr. Estrada that Corazon was
no longer in convulsion and that her blood pressure went down to a dangerous
[61]
level. At that moment, Dr. Estrada instructed Dr. Villaflor to reduce the dosage of
magnesium sulfate from 10 to 2.5 grams. Since petitioners did not dispute Dr.
Villaflors allegation, Dr. Villaflors defense remains uncontroverted. Dr. Villaflors act of
administering a lower dosage of magnesium sulfate was not out of her own volition or
was in contravention of Dr. Estradas order.
b) Dr. Rosa Uy
Dr. Rosa Uys alleged negligence consisted of her failure (1) to call the attention of Dr.
Estrada on the incorrect dosage of magnesium sulfate administered by Dr. Villaflor;
(2) to take corrective measures; and (3) to correct Nurse Dumlaos wrong method of
hemacel administration.
The Court believes Dr. Uys claim that as a second year resident physician then at
CMC, she was merely authorized to take the clinical history and physical examination
[62]
of Corazon. However, that routine internal examination did not ipso facto make Dr.
Uy liable for the errors committed by Dr. Estrada. Further, petitioners imputation of
negligence rests on their baseless assumption that Dr. Uy was present at the delivery
room. Nothing shows that Dr. Uy participated in delivering Corazons baby.Further, it is
unexpected from Dr. Uy, a mere resident physician at that time, to call the attention of
a more experienced specialist, if ever she was present at the delivery room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not calling the attention of Dr. Estrada, Dr.
[63]
Villaflor, and Nurse Dumlao about their errors. Petitioners insist that Dr. Enriquez
should have taken, or at least suggested, corrective measures to rectify such errors.
The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field of
expertise is definitely not obstetrics and gynecology. As such, Dr. Enriquez was not
expected to correct Dr. Estradas errors. Besides, there was no evidence of Dr.
Enriquezs knowledge of any error committed by Dr. Estrada and his failure to act
upon such observation.
d) Dr. Perpetua Lacson
Petitioners fault Dr. Perpetua Lacson for her purported delay in the delivery of blood
[64]
Corazon needed. Petitioners claim that Dr. Lacson was remiss in her duty of
supervising the blood bank staff.
As found by the trial court, there was no unreasonable delay in the delivery of blood
from the time of the request until the transfusion to Corazon. Dr. Lacson competently
 [65]
explained the procedure before blood could be given to the patient. Taking into SO ORDERED.
account the bleeding time, clotting time and cross-matching, Dr. Lacson stated that it
would take approximately 45-60 minutes before blood could be ready for
[66]
transfusion. Further, no evidence exists that Dr. Lacson neglected her duties as
head of the blood bank.

e) Dr. Noe Espinola

Petitioners argue that Dr. Espinola should not have ordered immediate hysterectomy
without determining the underlying cause of Corazons bleeding. Dr. Espinola should
have first considered the possibility of cervical injury, and advised a thorough
examination of the cervix, instead of believing outright Dr. Estradas diagnosis that the
cause of bleeding was uterine atony.

Dr. Espinolas order to do hysterectomy which was based on the information he

received by phone is not negligence. The Court agrees with the trial courts
observation that Dr. Espinola, upon hearing such information about Corazons
condition, believed in good faith that hysterectomy was the correct remedy. At any
rate, the hysterectomy did not push through because upon Dr. Espinolas arrival, it
was already too late. At the time, Corazon was practically dead.

f) Nurse J. Dumlao
[67]
In Moore v. Guthrie Hospital Inc., the US Court of Appeals, Fourth Circuit, held
that to recover, a patient complaining of injuries allegedly resulting when the nurse
negligently injected medicine to him intravenously instead of intramuscularly had to
show that (1) an intravenous injection constituted a lack of reasonable and ordinary
care; (2) the nurse injected medicine intravenously; and (3) such injection was the
proximate cause of his injury.

In the present case, there is no evidence of Nurse Dumlaos alleged failure to follow
Dr. Estradas specific instructions. Even assuming Nurse Dumlao defied Dr. Estradas
order, there is no showing that side-drip administration of hemacel proximately
caused Corazons death. No evidence linking Corazons death and the alleged
wrongful hemacel administration was introduced. Therefore, there is no basis to hold
Nurse Dumlao liable for negligence.

On the Award of Interest on Damages

The award of interest on damages is proper and allowed under Article 2211 of the
Civil Code, which states that in crimes and quasi-delicts, interest as a part of
[68]
the damages may, in a proper case, be adjudicated in the discretion of the court.

WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent
Capitol Medical Center vicariously liable for the negligence of Dr. Oscar Estrada. The
amounts of P105,000 as actual damages and P700,000 as moral damages should
each earn legal interest at the rate of six percent (6%) per annum computed from the
date of the judgment of the trial court. The Court affirms the rest of the Decision dated
6 February 1998 and Resolution dated 21 March 2000 of the Court of Appeals in CA-
G.R. CV No. 45641.
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.
Civil Law; Damages; Negligence; 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.— 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. 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.
Same; Same; Same; To the mind of the Court, what was initially an act of
negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his
patient.—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.
Same; Same; Same; Doctrine of Res Ipsa Loquitur; Requisites for the
Applicability of the Doctrine.—Literally, res ipsa loquitur means “the thing speaks
for itself.” It is the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a presumption of
negligence, or make out a plaintiff’s prima facie case, and present a question of
fact for defendant to meet with an explanation. Stated differently, where the
thing which caused the injury, without the fault of the injured, is under the
exclusive control of the defendant and the injury is such that it should not have
occurred if he, having such control used proper care, it affords reasonable
evidence, in the absence of explanation that the injury arose from the defendant’s
want of care, and the burden of proof is shifted to him to establish that he has
observed due care and diligence. From the foregoing statements of the rule, the
requisites for the applicability of the doctrine of res ipsa loquiturare: (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.”
Same; Same; Same; Same; 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.—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. 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.
Same; Same; Same; 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.—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.”
Same; Same; Same; In this jurisdiction, the nature of the relationship
between the hospital and the physicians is rendered inconsequential in view of the
pronouncement in Ramos vs. Court of Appeals, 321 SCRA 584 (1999), that for
purposes of apportioning responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their attending and
visiting physicians.—In our shores, the nature of the relationship between the
hospital and the physicians is rendered inconsequential in view of our categorical
pronouncement in Ramos v. Court of Appeals, 321 SCRA 584 (1999), that for
purposes of apportioning responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their attending and
visiting physicians.
Same;Same; Same; PSI’s liability is also anchored upon the agency principle
of apparent authority or agency by estoppel and the doctrine of corporate
negligence.—But the Ramospronouncement is not our only basis in sustaining
PSI’s liability. Its liability is also anchored upon the agency principle of apparent
authority or agency by estoppeland the doctrine of corporate negligence which have
gained acceptance in the determination of a hospital’s liability for negligent acts
of health professionals. The present case serves as a perfect platform to test the
applicability of these doctrines, thus, enriching our jurisprudence. Apparent
authority, or what is sometimes referred to as the “holding out” theory, or
doctrine of ostensible agency or agency by estoppel, has its origin from the law of
agency. It imposes liability, not as the result of the reality of a contractual
relationship, but rather because of the actions of a principal or an employer in
somehow misleading the public into believing that the relationship or the
authority exists. The concept is essentially one of estoppel and has been explained
in this manner: “The principal is bound by the acts of his agent with the apparent
authority which he knowingly permits the agent to assume, or which he holds the
agent out to the public as possessing. The question in every case is whether the
principal has by his voluntary act placed the agent in such a situation that a
person of ordinary prudence, conversant with business usages and the nature of
the particular business, is justified in presuming that such agent has authority to
perform the particular act in question.
Same; Same; Same; In cases where it can be shown that a hospital, by its
actions, has held out a particular physician as its agent and/or employee and that
a patient has accepted treatment from that physician in the reasonable belief that
it is being rendered in behalf of the hospital, then the hospital will be liable for the
physician’s negligence.—The applicability of apparent authority in the field of
hospital liability was upheld long time ago in Irving v. Doctor Hospital of Lake
Worth, Inc., 415 So. 2d 55 (1982). There, it was explicitly stated that “there does
not appear to be any rational basis for excluding the concept of apparent authority
from the field of hospital liability.” Thus, in cases where it can be shown that a
hospital, by its actions, has held out a particular physician as its agent and/or
employee and that a patient has accepted treatment from that physician in the
reasonable belief that it is being rendered in behalf of the hospital, then the
hospital will be liable for the physician’s negligence.
Same; Same; Same; 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.—In
this case, PSI publicly displays in the lobby of the Medical City Hospital the
names and specializations of the physicians associated or accredited by it,
including those of Dr. Ampil and Dr. Fuentes. We concur with the Court of
Appeals’ conclusion that it “is now estopped from passing all the blame to the
physicians whose names it proudly paraded in the public directory leading the
public to believe that it vouched for their skill and competence.” Indeed, PSI’s act is
tantamount to holding out to the public that Medical City Hospital, through its
accredited physicians, offers quality health care services. By accrediting Dr.
Ampil and Dr. Fuentes and publicly advertising their qualifications, the hospital
created the impression that they were its agents, authorized to perform medical
or surgical services for its patients. As expected, these patients, Natividad being
one of them, accepted the services on the reasonable belief that such were being
rendered by the hospital or its employees, agents, or servants.
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankind’s most important and delicate
endeavors, must assume the grave responsibility of pursuing it with appropriate care.
The care and service dispensed through this high trust, however technical, complex
and esoteric its character may be, must meet standards of responsibility
commensurate with the undertaking to preserve and protect the health, and indeed,
1
the very lives of those placed in the hospital’s keeping.
Assailed in these three consolidated petitions for review on certiorari is the Court of
2
Appeals’ Decision dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R.
3
SP No. 32198 affirming with modification the Decision 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."
4
On April 11, 1984, Dr. Ampil, assisted by the medical staff of the Medical City
Hospital, performed an anterior resection surgery on Natividad. He found that the
malignancy in her sigmoid area had spread on her left ovary, necessitating the
removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s
husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No.
126467, to perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed
the operation and closed the incision.
However, the operation appeared to be flawed. In the corresponding Record of
Operation dated April 11, 1984, the attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail continue for closure."
On April 24, 1984, Natividad was released from the hospital. Her hospital and medical
bills, including the doctors’ fees, amounted to P60,000.00.
After a couple of days, Natividad complained of excruciating pain in her anal region.
She consulted both Dr. Ampil and Dr. Fuentes about it. They told her that the pain
was the natural consequence of the surgery. Dr. Ampil then recommended that she
consult an oncologist to examine the cancerous nodes which were not removed
during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to the United States
to seek further treatment. After four months of consultations and laboratory
examinations, Natividad was told she was free of cancer. Hence, she was advised to
return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains.
Two weeks thereafter, her daughter found a piece of gauze protruding from her
vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he
managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then
assured her that the pains would soon vanish.
Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting
Natividad to seek treatment at the Polymedic General Hospital. While confined there,
Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina --
a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal
vault. A recto-vaginal fistula had formed in her reproductive organs which forced stool
to excrete through the vagina. Another surgical operation was needed to remedy the
damage. Thus, in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96,
Quezon City a complaint for damages against the Professional Services, Inc. (PSI),
owner of the Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil
Case No. Q-43322. They alleged that the latter are liable for negligence for leaving
two pieces of gauze inside Natividad’s body and malpractice for concealing their acts
of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation Commission
(PRC) an administrative complaint for gross negligence and malpractice against Dr.
Ampil and Dr. Fuentes, docketed as Administrative Case No. 1690. The PRC Board
of Medicine heard the case only with respect to Dr. Fuentes because it failed to
acquire jurisdiction over Dr. Ampil who was then in the United States.
On February 16, 1986, pending the outcome of the above cases, Natividad died and
was duly substituted by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding
PSI, Dr. Ampil and Dr. Fuentes liable for negligence and malpractice, the decretal part
of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants
PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES
to pay to the plaintiffs, jointly and severally, except in respect of the award for
exemplary damages and the interest thereon which are the liabilities of defendants
Dr. Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of
US$19,900.00 at the rate of P21.60-US$1.00, as reimbursement of
actual expenses incurred in the United States of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their
physician daughter;
c. The total sum of P45,802.50, representing the cost of
hospitalization at Polymedic Hospital, medical fees, and cost of the
saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorney’s fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date
of filing of the complaint until full payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of
Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial
execution of its Decision, which was granted in an Order dated May 11, 1993.
Thereafter, the sheriff levied upon certain properties of Dr. Ampil and sold them for
P451,275.00 and delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an agreement with PSI
and Dr. Fuentes to indefinitely suspend any further execution of the RTC Decision.
However, not long thereafter, the Aganas again filed a motion for an alias writ of
execution against the properties of PSI and Dr. Fuentes. On September 21, 1993, the
RTC granted the motion and issued the corresponding writ, prompting Dr. Fuentes to
file with the Court of Appeals a petition for certiorari and prohibition, with prayer for
preliminary injunction, docketed as CA-G.R. SP No. 32198. During its pendency, the
5
Court of Appeals issued a Resolution 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
6
Decision in Administrative Case No. 1690 dismissing the case against Dr. Fuentes.
The Board held that the prosecution failed to show that Dr. Fuentes was the one who
left the two pieces of gauze inside Natividad’s body; and that he concealed such fact
from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of
CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against defendant-appellant
Dr. Juan Fuentes is hereby DISMISSED, and with the pronouncement that defendant-
appellant Dr. Miguel Ampil is liable to reimburse defendant-appellant Professional
Services, Inc., whatever amount the latter will pay or had paid to the plaintiffs-
appellees, the decision appealed from is hereby AFFIRMED and the instant appeal
DISMISSED.
Concomitant with the above, the petition for certiorari and prohibition filed by herein
defendant-appellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED
and the challenged order of the respondent judge dated September 21, 1993, as well
as the alias writ of execution issued pursuant thereto are hereby NULLIFIED and SET
ASIDE. The bond posted by the petitioner in connection with the writ of preliminary
injunction issued by this Court on November 29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a
7
Resolution dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in
holding that: (1) it is estopped from raising the defense that Dr. Ampil is not its
employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is not entitled to its
counterclaim against the Aganas. PSI contends that Dr. Ampil is not its employee, but
a mere consultant or independent contractor. As such, he alone should answer for his
negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding
that Dr. Fuentes is not guilty of negligence or medical malpractice, invoking the
doctrine of res ipsa loquitur. They contend that the pieces of gauze are prima facie
proofs that the operating surgeons have been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in
finding him liable for negligence and malpractice sans evidence that he left the two
pieces of gauze in Natividad’s vagina. He pointed to other probable causes, such as:
(1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the
attending nurses’ failure to properly count the gauzes used during surgery; and (3) the
medical intervention of the American doctors who examined Natividad in the United
States of America.
For our resolution are these three vital issues: first, whether the Court of Appeals
erred in holding Dr. Ampil liable for negligence and malpractice; second, whether the
Court of Appeals erred in absolving Dr. Fuentes of any liability; and third, whether PSI
may be held solidarily liable for the negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other
possible causes of Natividad’s detriment. He argues that the Court should not
discount either of the following possibilities: first, Dr. Fuentes left the gauzes in
Natividad’s body after performing hysterectomy; second, the attending nurses erred in
counting the gauzes; and third, the American doctors were the ones who placed the
gauzes in Natividad’s body.
Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he
did not present any evidence to prove that the American doctors were the ones who
put or left the gauzes in Natividad’s body. Neither did he submit evidence to rebut the
correctness of the record of operation, particularly the number of gauzes used. As to
the alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his
(Dr. Fuentes’) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as specified by
the Court of Appeals, directly point to Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes as sponges to control
the bleeding of the patient during the surgical operation.
Second, immediately after the operation, the nurses who assisted in the
surgery noted in their report that the ‘sponge count (was) lacking 2’; that
such anomaly was ‘announced to surgeon’ and that a ‘search was done but
to no avail’ prompting Dr. Ampil to ‘continue for closure’ x x x.
Third, after the operation, two (2) gauzes were extracted from the same spot
of the body of Mrs. Agana where the surgery was performed.
An operation requiring the placing of sponges in the incision is not complete until the
sponges are properly removed, and it is settled that the leaving of sponges or other
foreign substances in the wound after the incision has been closed is at least prima
8
facie negligence by the operating surgeon. To put it simply, such act is considered so
inconsistent with due care as to raise an inference of negligence. There are even
9
legions of authorities to the effect that such act is negligence per se.
Of course, the Court is not blind to the reality that there are times when danger to a
patient’s life precludes a surgeon from further searching missing sponges or foreign
objects left in the body. But this does not leave him free from any obligation. Even if it
has been shown that a surgeon was required by the urgent necessities of the case to
leave a sponge in his patient’s abdomen, because of the dangers attendant upon
delay, still, it is his legal duty to so inform his patient within a reasonable time
thereafter by advising her of what he had been compelled to do. This is in order that
she might seek relief from the effects of the foreign object left in her body as her
10
condition might permit. The ruling in Smith v. Zeagler is explicit, thus:
The removal of all sponges used is part of a surgical operation, and when a physician
or surgeon fails to remove a sponge he has placed in his patient’s body that should
be removed as part of the operation, he thereby leaves his operation uncompleted
and creates a new condition which imposes upon him the legal duty of calling the new
condition to his patient’s attention, and endeavoring with the means he has at hand to
minimize and avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze.
Worse, he even misled her that the pain she was experiencing was the ordinary
consequence of her operation. Had he been more candid, Natividad could have taken
the immediate and appropriate medical remedy to remove the gauzes from her body.
To our mind, what was initially an act of negligence by Dr. Ampil has ripened into a
deliberate wrongful act of deceiving his patient.
This is a clear case of medical malpractice or more appropriately, medical negligence.
To successfully pursue this kind of case, a patient must only prove that a health care
provider either failed to do something which a reasonably prudent health care
provider would have done, or that he did something that a reasonably prudent
provider would not have done; and that failure or action caused injury to the
11
patient. Simply put, the elements are duty, breach, injury and proximate causation.
Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as
gauzes, from Natividad’s body before closure of the incision. When he failed to do so,
it was his duty to inform Natividad about it. Dr. Ampil breached both duties. Such
breach caused injury to Natividad, necessitating her further examination by American
12
doctors and another surgery. That Dr. Ampil’s negligence is the proximate cause of
Natividad’s injury could be traced from his act of closing the incision despite the
information given by the attending nurses that two pieces of gauze were still missing.
That they were later on extracted from Natividad’s vagina established the causal link
between Dr. Ampil’s negligence and the injury. And what further aggravated such
injury was his deliberate concealment of the missing gauzes from the knowledge of
Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes
on the ground that it is contrary to the doctrine of res ipsa loquitur. According to them,
the fact that the two pieces of gauze were left inside Natividad’s body is a prima facie
evidence of Dr. Fuentes’ negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact
of the occurrence of an injury, taken with the surrounding circumstances, may permit
an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie
case, and present a question of fact for defendant to meet with an
13
explanation. Stated differently, where the thing which caused the injury, without the
fault of the injured, is under the exclusive control of the defendant and the injury is
such that it should not have occurred if he, having such control used proper care, it
affords reasonable evidence, in the absence of explanation that the injury arose from
the defendant’s want of care, and the burden of proof is shifted to him to establish that
14
he has observed due care and diligence.
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
15
"control and management of the thing which caused the injury."
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
16
is to obey his orders. As stated before, Dr. Ampil was the lead surgeon. In other
words, he was the "Captain of the Ship." That he discharged such role is evident from
his following conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2)
examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’
permission to leave; and (4) ordering the closure of the incision. To our mind, it was
this act of ordering the closure of the incision notwithstanding that two pieces of
gauze remained unaccounted for, that caused injury to Natividad’s body. Clearly, the
control and management of the thing which caused the injury was in the hands of Dr.
Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not
per se create or constitute an independent or separate ground of liability, being a
17
mere evidentiary rule. 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
18
patient’s ability to pay. Those who could afford medical treatment were usually
19
treated at home by their doctors. 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
20
estoppel.
In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of
the Civil Code, which reads:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is
no pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
A derivative of this provision is Article 2180, the rule governing vicarious liability under
the doctrine of respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s
own acts or omissions, but also for those of persons for whom one is responsible.
x x x x x x
The owners and managers of an establishment or enterprise are likewise responsible
for damages caused by their employees in the service of the branches in which the
latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks even though the former are not
engaged in any business or industry.
x x x x x x hospitals and their attending and visiting physicians. This Court held:
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
21
the treatment or operation of patients."
The foregoing view is grounded on the traditional notion that the professional status
and the very nature of the physician’s calling preclude him from being classed as an
22
agent or employee of a hospital, whenever he acts in a professional capacity. It has
been said that medical practice strictly involves highly developed and specialized
23
knowledge, such that physicians are generally free to exercise their own skill and
24
judgment in rendering medical services sans interference. 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
25
responsibility.
26
The case of Schloendorff v. Society of New York Hospital was then considered an
authority for this view. The "Schloendorff doctrine" regards a physician, even if
employed by a hospital, as an independent contractor because of the skill he
exercises and the lack of control exerted over his work. Under this doctrine, hospitals
are exempt from the application of the respondeat superior principle for fault or
negligence committed by physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with the significant
developments in medical care. Courts came to realize that modern hospitals are
increasingly taking active role in supplying and regulating medical care to patients. No
longer were a hospital’s functions limited to furnishing room, food, facilities for
27
treatment and operation, and attendants for its patients. Thus, in Bing v. Thunig, the
New York Court of Appeals deviated from the Schloendorff doctrine, noting that
modern hospitals actually do far more than provide facilities for treatment. Rather,
they regularly employ, on a salaried basis, a large staff of physicians, interns, nurses,
administrative and manual workers. They charge patients for medical care and
treatment, even collecting for such services through legal action, if necessary. The
court then concluded that there is no reason to exempt hospitals from the universal
rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the physicians
is rendered inconsequential in view of our categorical pronouncement in Ramos v.
28
Court of Appeals that for purposes of apportioning responsibility in medical
negligence cases, an employer-employee relationship in effect exists between
"We now discuss the responsibility of the hospital in this particular incident. The
unique practice (among private hospitals) of filling up specialist staff with attending
and visiting "consultants," who are allegedly not hospital employees, presents
problems in apportioning responsibility for negligence in medical malpractice cases.
However, the difficulty is more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of
consultants and in the conduct of their work within the hospital premises. Doctors who
apply for ‘consultant’ slots, visiting or attending, are required to submit proof of
completion of residency, their educational qualifications, generally, evidence of
accreditation by the appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully scrutinized by members of
the hospital administration or by a review committee set up by the hospital who either
accept or reject the application. x x x.
After a physician is accepted, either as a visiting or attending consultant, he is
normally required to attend clinico-pathological conferences, conduct bedside rounds
for clerks, interns and residents, moderate grand rounds and patient audits and
perform other tasks and responsibilities, for the privilege of being able to maintain a
clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In
addition to these, the physician’s performance as a specialist is generally evaluated
by a peer review committee on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A consultant remiss in his
duties, or a consultant who regularly falls short of the minimum standards acceptable
to the hospital or its peer review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their
attending and visiting ‘consultant’ staff. While ‘consultants’ are not, technically
employees, x x x, the control exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an employer-employee relationship,
with the exception of the payment of wages. In assessing whether such a relationship
in fact exists, the control test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians. "
But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its
liability is also anchored upon the agency principle of apparent authority or agency by
estoppel and the doctrine of corporate negligence which have gained acceptance in
the determination of a hospital’s liability for negligent acts of health professionals. The
present case serves as a perfect platform to test the applicability of these doctrines,
thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as the "holding
29
out" theory, or doctrine of ostensible agency or agency by estoppel, has its origin
from the law of agency. It imposes liability, not as the result of the reality of a
contractual relationship, but rather because of the actions of a principal or an
employer in somehow misleading the public into believing that the relationship or the
30
authority exists. The concept is essentially one of estoppel and has been explained
in this manner:
"The principal is bound by the acts of his agent with the apparent authority which he
knowingly permits the agent to assume, or which he holds the agent out to the public
as possessing. The question in every case is whether the principal has by his
voluntary act placed the agent in such a situation that a person of ordinary prudence,
conversant with business usages and the nature of the particular business, is justified
31
in presuming that such agent has authority to perform the particular act in question.
The applicability of apparent authority in the field of hospital liability was upheld long
32
time ago in Irving v. Doctor Hospital of Lake Worth, Inc. There, it was explicitly
stated that "there does not appear to be any rational basis for excluding the concept
of apparent authority from the field of hospital liability." Thus, in cases where it can be
shown that a hospital, by its actions, has held out a particular physician as its agent
and/or employee and that a patient has accepted treatment from that physician in the
reasonable belief that it is being rendered in behalf of the hospital, then the hospital
will be liable for the physician’s negligence.
Our jurisdiction recognizes the concept of an agency by implication or estoppel.
Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of the principal, from his
silence or lack of action, or his failure to repudiate the agency, knowing that another
person is acting on his behalf without authority.
In this case, PSI publicly displays in the lobby of the Medical City Hospital the names
and specializations of the physicians associated or accredited by it, including those of
Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals’ conclusion that it "is
now estopped from passing all the blame to the physicians whose names it proudly
paraded in the public directory leading the public to believe that it vouched for their
skill and competence." Indeed, PSI’s act is tantamount to holding out to the public that
Medical City Hospital, through its accredited physicians, offers quality health care
services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their
qualifications, the hospital created the impression that they were its agents,
authorized to perform medical or surgical services for its patients. As expected, these
patients, Natividad being one of them, accepted the services on the reasonable belief
that such were being rendered by the hospital or its employees, agents, or servants.
The trial court correctly pointed out:
x x x regardless of the education and status in life of the patient, he ought not be
burdened with the defense of absence of employer-employee relationship between
the hospital and the independent physician whose name and competence are
certainly certified to the general public by the hospital’s act of listing him and his
specialty in its lobby directory, as in the case herein. The high costs of today’s
medical and health care should at least exact on the hospital greater, if not broader,
legal responsibility for the conduct of treatment and surgery within its facility by its
accredited physician or surgeon, regardless of whether he is independent or
33
employed."
The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like
PSI, are capable of acting only through other individuals, such as physicians. If these
accredited physicians do their job well, the hospital succeeds in its mission of offering
quality medical services and thus profits financially. Logically, where negligence mars
the quality of its services, the hospital should not be allowed to escape liability for the
acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence and
malpractice is that PSI as owner, operator and manager of Medical City Hospital, "did
not perform the necessary supervision nor exercise diligent efforts in the supervision
of Drs. Ampil and Fuentes and its nursing staff, resident doctors, and medical interns
who assisted Drs. Ampil and Fuentes in the performance of their duties as
34
surgeons." Premised on the doctrine of corporate negligence, the trial court held
that PSI is directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the judicial answer to
the problem of allocating hospital’s liability for the negligent acts of health
practitioners, absent facts to support the application of respondeat superior or
apparent authority. Its formulation proceeds from the judiciary’s acknowledgment that
in these modern times, the duty of providing quality medical service is no longer the
sole prerogative and responsibility of the physician. The modern hospitals have
changed structure. Hospitals now tend to organize a highly professional medical staff
whose competence and performance need to be monitored by the hospitals
commensurate with their inherent responsibility to provide quality medical care.
35
36
The doctrine has its genesis in Darling v. Charleston Community Hospital. There,
the Supreme Court of Illinois held that "the jury could have found a hospital negligent,
inter alia, in failing to have a sufficient number of trained nurses attending the patient;
failing to require a consultation with or examination by members of the hospital staff;
and failing to review the treatment rendered to the patient." On the basis of Darling,
other jurisdictions held that a hospital’s corporate negligence extends to permitting a
37
physician known to be incompetent to practice at the hospital. With the passage of
time, more duties were expected from hospitals, among them: (1) the use of
reasonable care in the maintenance of safe and adequate facilities and equipment;
(2) the selection and retention of competent physicians; (3) the overseeing or
supervision of all persons who practice medicine within its walls; and (4) the
formulation, adoption and enforcement of adequate rules and policies that ensure
38 39
quality care for its patients. Thus, in Tucson Medical Center, Inc. v. Misevich, it
was held that a hospital, following the doctrine of corporate responsibility, has the
duty to see that it meets the standards of responsibilities for the care of patients. Such
duty includes the proper supervision of the members of its medical staff. And in Bost
40
v. Riley, the court concluded that a patient who enters a hospital does so with the
reasonable expectation that it will attempt to cure him. The hospital accordingly has
the duty to make a reasonable effort to monitor and oversee the treatment prescribed
and administered by the physicians practicing in its premises.
In the present case, it was duly established that PSI operates the Medical City
Hospital for the purpose and under the concept of providing comprehensive medical
services to the public. Accordingly, it has the duty to exercise reasonable care to
protect from harm all patients admitted into its facility for medical treatment.
Unfortunately, PSI failed to perform such duty. The findings of the trial court are
convincing, thus:
x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter
reported in the nota bene of the count nurse. Such failure established PSI’s part in the
dark conspiracy of silence and concealment about the gauzes. Ethical considerations,
if not also legal, dictated the holding of an immediate inquiry into the events, if not for
the benefit of the patient to whom the duty is primarily owed, then in the interest of
arriving at the truth. The Court cannot accept that the medical and the healing
professions, through their members like defendant surgeons, and their institutions like
PSI’s hospital facility, can callously turn their backs on and disregard even a mere
probability of mistake or negligence by refusing or failing to investigate a report of
such seriousness as the one in Natividad’s case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the
assistance of the Medical City Hospital’s staff, composed of resident doctors, nurses,
and interns. As such, it is reasonable to conclude that PSI, as the operator of the
hospital, has actual or constructive knowledge of the procedures carried out,
particularly the report of the attending nurses that the two pieces of gauze were
41
missing. In Fridena v. Evans, it was held that a corporation is bound by the
knowledge acquired by or notice given to its agents or officers within the scope of
their authority and in reference to a matter to which their authority extends. This
means that the knowledge of any of the staff of Medical City Hospital constitutes
knowledge of PSI. Now, the failure of PSI, despite the attending nurses’ report, to
investigate and inform Natividad regarding the missing gauzes amounts to callous
negligence. Not only did PSI breach its duties to oversee or supervise all persons who
practice medicine within its walls, it also failed to take an active step in fixing the
negligence committed. This renders PSI, not only vicariously liable for the negligence
of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own
negligence under Article 2176. In Fridena, the Supreme Court of Arizona held:
x x x In recent years, however, the duty of care owed to the patient by the hospital
has expanded. The emerging trend is to hold the hospital responsible where the
hospital has failed to monitor and review medical services being provided within its
walls. See Kahn Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).
Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz.
App. 75,500 P. 2d 335 (1972). In Purcell, the hospital argued that it could not be held
liable for the malpractice of a medical practitioner because he was an independent
contractor within the hospital. The Court of Appeals pointed out that the hospital had
created a professional staff whose competence and performance was to be monitored
and reviewed by the governing body of the hospital, and the court held that a hospital
would be negligent where it had knowledge or reason to believe that a doctor using
the facilities was employing a method of treatment or care which fell below the
recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital
has certain inherent responsibilities regarding the quality of medical care furnished to
patients within its walls and it must meet the standards of responsibility
commensurate with this undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App.
165, 500 P. 2d 1153 (1972). This court has confirmed the rulings of the Court of
Appeals that a hospital has the duty of supervising the competence of the doctors on
its staff. x x x.
x x x x x x
In the amended complaint, the plaintiffs did plead that the operation was performed at
the hospital with its knowledge, aid, and assistance, and that the negligence of the
defendants was the proximate cause of the patient’s injuries. We find that such
general allegations of negligence, along with the evidence produced at the trial of this
case, are sufficient to support the hospital’s liability based on the theory of negligent
supervision."

Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for
damages, let it be emphasized that PSI, apart from a general denial of its
responsibility, failed to adduce evidence showing that it exercised the diligence of a
good father of a family in the accreditation and supervision of the latter. In neglecting
to offer such proof, PSI failed to discharge its burden under the last paragraph of
Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with Dr.
Ampil. Moreover, as we have discussed, PSI is also directly liable to the Aganas.

One final word. Once a physician undertakes the treatment and care of a patient, the
law imposes on him certain obligations. In order to escape liability, he must possess
that reasonable degree of learning, skill and experience required by his profession. At
the same time, he must apply reasonable care and diligence in the exercise of his skill
and the application of his knowledge, and exert his best judgment.

WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the
Court of Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.

Costs against petitioners PSI and Dr. Miguel Ampil.

SO ORDERED.
 [G.R. No. 139008. March 13, 2002]
ROBERT DEL MAR, petitioner, vs. COURT OF APPEALS and NORMA
EBERSOLE DEL MAR, respondents.
Appeals; Pleadings and Practice; Appeal Briefs; The Court of Appeals may
dismiss an appeal for, inter alia, failure of appellant to serve and file the required
number of copies of his brief or memorandum with the time provided by the
Rules.—Petitioner argues that, the CA gravely abused its discretion in dismissing
his appeal for his mere failure to file his Brief within the reglementary period. We
disagree. Rule 50, Section 1(e) of the Revised Rules of Court, expressly authorizes
the CA to dismiss an appeal for, inter alia,“failure of appellant to serve and file
the required number of copies of his brief or memorandum within the time
provided by these Rules.”
Same; Same; Certiorari; When Proper.—Certiorari as a special civil action
can be availed of when the following requisites concur: (a) a tribunal, board or
officer exercising judicial functions has acted without or in excess of jurisdiction
or with grave abuse of discretion amounting to lack or in excess of jurisdiction;
and (b) there is no appeal or plain, speedy and adequate remedy in the ordinary
course of law for annulling or modifying the proceeding.
Same; Same; Attorneys; It is well-settled that the negligence of counsel binds
the client, except when the negligence is so gross, palpable, reckless and
inexcusable that the client is deprived of the due process of law, and, when the
application of such due process results in the outright deprivation of one’s property
through a technicality.—Petitioner claims that Atty. Abuan’s failure to file the
required pleading constituted fraud against him, and that his absence from the
country while the appeal was pending constituted a mistake that was excusable.
We disagree. It is well-settled that the negligence of counsel binds the client.
Exceptions to this rule arise when (1) such negligence is so gross, palpable,
reckless and inexcusable that the client is deprived of the due process of law; and
(2) the application of such due process results in the outright deprivation of one’s
property through a technicality.
Same; Same; Same; Where the client consented to the shabby and negligent
treatment of his case by his counsel, he should not complain of the negligence or
“fraud” done to him by his lawyer.—The negligence of Atty. Abuan does not fall
under these exceptions. His negligence in this case was his inexcusable failure to
file the required appellant’s Brief, thus causing the dismissal of the appeal of
petitioner. But the latter was not without fault. He was aware of Atty. Abuan’s
failure to appear at the pretrial conference, a failure that had placed him in
default. Because petitioner was in default, private respondent’s evidence was
received ex parte by the RTC. No wonder, the trial court decided against him. Yet,
he retained Atty. Abuan’s services for the appeal. One is bound by the decisions of
one’s counsel regarding the conduct of the case, especially where the former does
not complain against the manner in which the latter handled the case. In effect,
petitioner consented to the shabby and negligent treatment of his case by his
counsel. Hence, he should not complain now of the negligence or “fraud” done to
him by his lawyer. A party’s counsel cannot be blamed for negligence, if the party
was likewise guilty of the same. Clients should suffer the consequences of the
negligence, mistake or lack of competence of the counsel whom they themselves
hired, and whom they had full authority to fire at any time and replace with
another.
Same; Same; Certiorari; Well-settled is the rule that certiorari is not a
substitute for a lost appeal.—Finally, after the CA denied his Motion for
Reconsideration, petitioner allowed the reglementary period for filing an appeal
to lapse, opting instead to file this Petition for Certiorari. Well-settled is the rule
that certiorari is not a substitute for a lost appeal. Even if for this reason alone,
the Petition should not be given due course.
DECISION
PANGANIBAN, J.:
The Court of Appeals cannot be faulted with reversible error, much less grave
abuse of discretion, for dismissing a petition because petitioners brief was not filed on
time. Indeed, in so doing, the appellate court is merely abiding by the Rules of Court.
The Case
Before us is a Petition for Certiorari and Mandamus under Rule 65 of the Rules
[1]
of Court, praying for the setting aside of the January 13, 1999 and the April 26,
[2]
1999 Resolutions of the Court of Appeals (CA) in CA-GR CV No. 58804. The first
Resolution is worded as follows:
Upon consideration of the motion to dismiss appeal filed by plaintiff-appellee and the
Judicial Records Divisions Report that no appellant[]s brief has been filed as of
December 9, 1998, the appeal is hereby ordered DISMISSED pursuant to Section 1
(e), Rule 50, 1997 Rules of Civil Procedure.
[3]
The second Resolution denied petitioners Motion for Reconsideration/Petition
[4]
for Relief & Motion to Admit Appellants Brief.
The Facts
In his Memorandum, Petitioner Robert del Mar alleges as follows:
1. The private respondent, Norma Ebersole Del Mar, and her sister, Florence
Ebersole Finch, inherited three (3) parcels of land covered by TCT Nos. T-58397, T-
58398 and T-58402, situated in Mabini, Santiago City, with a total area of 29,736
square meters, more or less. On December 6, 1974, Florence Ebersole Finch, a
resident of New York, USA, executed a general power of attorney naming and
constituting private respondent as her attorney-in-fact with regard to the subject
property.
2. On January 29, 1975, private respondent, acting for herself and as attorney-in-fact
of Florence Ebersole Finch, executed Deeds of Absolute Sale in favor of petitioner
covering the three aforementioned parcels of land. The private respondent is the
mother of herein petitioner.
3. On March 25, 1976, Florence Ebersole Finch executed a Deed of Confirmation in
New York, USA, confirming and ratifying all the acts and deeds executed by Norma
Ebersole del Mar, in conveying properties to Robert E. del Mar, as appearing in
Document Nos. 1780, Page 57, Book No. 14, Series of 1975; 1781, Page 58, Book
No. 14, Series of 1975; and 1782, Page 58, Book No. 14, Series of 1975, of the
Notarial Registry of Paulo Pascua, a notary public for and in the Province of Isabela,
Philippines. This document was authenticated by Wenceslao J.O. Quirolgico, Vice-
Consul of the Philippine Consulate Office in New York, USA.
4. After x x x said parcels of land were sub-divided into several lots, x x x petitioner
obtained the following Certificates of Title in his name: TCT Nos. T-32251, T-82257,
T-282260, and T-82263, all on April 18, 1975; T-116117 on January 11, 1979; T-
17549 on March 16, 1979; and T-13664 on October 15, 1981.
5. After the peaceful and continuous possession by petitioner of the subject properties
for more than twenty-two (22) years, a complaint for reconveyance was filed by x x x
private respondent against x x x petitioner on May 15, 1997, alleging, inter-alia, that x
x x petitioner obtained the aforementioned Certificates of Title through fraud and
deceit. Private respondent claimed that x x x said properties were left by her under
the administration of petitioner, who allegedly transferred the ownership of x x x said
realty in his name by causing the issuance of Certificates of Title in his name without
her knowledge and consent. However, records show that before she left for the
United States, private respondent executed the corresponding Deeds of Absolute
Sale in favor of petitioner. This case, entitled Norma Ebersole del Mar represented by
Gerald del Mar vs. Roberto del Mar and the Register of Deeds, Province of
Isabela was filed before the Regional Trial Court of Santiago City, Branch 35 and
docketed as Civil Case No. 2373.
6. In his Answer, x x x petitioner claimed that x x x private respondent and her co-
owner, Florence Ebersole Finch, sold x x x said properties to him before the former
left for the United States. Moreover, the properties were transferred for good,
sufficient and valuable consideration, hence the sale was lawful and valid.
7. During the pre-trial conference, neither x x x petitioner nor his counsel, Atty.
Federico Abuan, appeared, by reason of which the trial court issued an order
declaring petitioner as in default. The non-appearance was due to the failure of Atty.
Abuan, Jr. to inform petitioners attorney-in-fact, Angelita Austria, of the scheduled
hearing. Said petitioner filed a motion for reconsideration but the same was denied,
and x x x private respondent was allowed to adduce her evidence ex-parte. On the
same day that x x x said motion was denied, the trial court rendered its October 21,
1997 [D]ecision in favor of x x x private respondent and against x x x petitioner, the
dispositive portion of which reads:
WHEREFORE, judgment is rendered against [petitioner] and in favor of [private
respondent], as follows:
1. Ordering the Register of Deeds of Ilagan, Isabela to cancel Titles Nos. T-82257; T-
82261, T-82260, T-82263, T-82264, T-234664, T-116117 and T-822659;
2. Ordering Robert E. del Mar to reconvey the ownership of properties to [private
respondent] and in case of failure on the part of [petitioner], the Register of Deeds is
directed to execute the necessary deed of reconveyance in favor of [private
respondent];
3. Enjoining permanently [petitioner] or any person acting for and in [his] behalf from
committing or doing any act of disposition or alienation of the properties;
4. Ordering [petitioner] to pay the amount of FIVE HUNDRED THOUSAND
(P500,000.00) as moral damages to [private respondent];
5. Ordering [petitioner] to pay the amount of TWO HUNDRED FIFTY THOUSAND
PESOS ([P]250,000.00) as attorneys fees.
[5]
6. Cost of the suit.
On the other hand, private respondent counters with the following allegations in
her Memorandum:
The parcels of land covered by the land titles that are sought to be nullified x x x are
all owned by [private] respondent NORMA EBERSOLE DEL MAR by way of
inheritance from her lawful [ascendants]. The original titles were all issued in her
name and favor.
In the early 1970s [private] respondent x x x together with her two children, GERALD
and FLORENCE went to the United States with the intent of obtaining domicile
there[i]n and leaving behind the other son x x x petitioner x x x, and entrusting [to] his
[administration] x x x their properties.
In 1974, [private respondent] came back to the Philippines and stayed up until 1978
and thereafter went back to the US. During her stay, the properties were intact.
Sometime in 1996, [private respondent] discovered that the properties were already in
the name of [petitioner]. [Private respondent] protested because she never had done
any act of transfer of the properties in favor of [petitioner], because her intent was to
have these properties to be eventually x x x divided into THREE (3) equal parts for
her THREE (3) children x x x. The transfer was [without] the knowledge of [private
respondent]. It was fraudulent and unlawful x x x.
Private respondent also claims that petitioner had been duly served summons,
but neither he nor his counsel appeared for pretrial. Hence, petitioner was declared in
default. While he did receive the Order of Default, he never bothered to have it lifted.
So, trial proceeded and evidence ex parte for private respondent was received by the
[6]
trial court.
Petitioner filed a Notice of Appeal. On January 7, 1998, Noel T. Tomas, legal
researcher and officer in charge of the Regional Trial Court (RTC) of Santiago City
(Branch 35), forwarded to the CA the records of Civil Case No. 35-
 [7]
2373. Buenaventura B. Miguel, chief of the Judicial Records Division of the
[8]
appellate court, thereafter wrote a letter dated August 13, 1998, addressed to Atty.
Federico Abuan Jr., counsel for petitioner, stating the following:
Pursuant to the resolution en banc of the Supreme Court, dated February 23, 1984,
you are hereby required to file with this court SEVEN (7) printed copies of the brief, or
SEVEN (7) eleven inches in leng[th] by eight and a half inches in width - commonly
known letter size[,] written double space, copies of said brief together with the proof of
service of TWO (2) printed typewritten or mimeographed copies hereof upon the
appellee. The decision of Trial Court shall be appended to the brief.
[9]
On December 8, 1998, Atty. Amado C. Vallejo Jr., counsel for private
[10]
respondent, moved to dismiss the appeal on the ground that petitioner had failed to
file the required brief within the reglementary period.
Ruling of the Court of Appeals
As already stated, the CA granted the Motion to Dismiss via the first assailed
Resolution.
As regards petitioners Motion for Reconsideration/Petition for Relief & Motion to
Admit Appellants Brief, the appellate courts denial is justified by the following reasons:
Clearly, the subject motion/petition can not be in the nature of a Petition for Relief for
Denial of Appeal under Rule 38 of the Rules of Court. Section 2 of Rule 38 provides
that -
When a judgment or final order is rendered by any court in a case, and a party
thereto, by fraud, accident, or excusable negligence, has been prevented from taking
an appeal, he may file a petition in such court and in the same case praying that the
appeal be given due course.
In the present case, the appellant was not prevented from taking an appeal as in fact,
notice of appeal was timely filed by the appellant on 11 November 1997 from the
challenged decision. The instant motion/petition, though denominated as such will be
properly treated simply as a motion for reconsideration [of] the order of dismissal.
From the allegations in the subject motion for reconsideration, this Court finds no
cogent reason to disturb the dismissal of the appellant. The appellants brief became
due [i]n October 1998. The movant claims ignorance of the fact that counsel failed to
file the appellants brief. There being no showing that counsels failure to file
the appellants brief was due to gross negligence, the rule that negligence of counsel
is binding upon the client must be applied. Besides, it appears from the records that
herein appellant, as party-defendant in the proceedings below, was declared
in defaultfor his and counsels non-appearance during the pre-trial conference. Having
lost the opportunity to present evidence in view of the default order, the appellant,
through his attorney-in-fact, should have shown more vigor in protecting his statutory
right of appeal. He should have jealously guarded this opportunity, knowing that this
could well be his last chance to protect his rights. The interest of justice so
conveniently invoked by the appellant now will be better served if this dispute will be
put to an end for failure of the appellant to observe the degree of vigilance needed to
[11]
protect his remedies in law.
[12]
Hence, this Petition.
The Issues
Petitioner, in his Memorandum,
[13]
raises the following issues:
Who between the petitioner and the private respondent has a better right to the
properties in question.
Whether or not the Respondent Court of Appeals committed grave abuse of
di[s]cretion in ruling in favor of private respondent.
For reasons that will be evident later on, the issues will be tackled in reverse
order.
The Courts Ruling
The Petition has no merit.
First Issue:
Effect of Failure to File a Brief
Petitioner argues that the CA gravely abused its discretion in dismissing his
appeal for his mere failure to file his Brief within the reglementary period.
We disagree. Rule 50, Section 1(e) of the Revised Rules of Court, expressly
authorizes the CA to dismiss an appeal for, inter alia, failure of appellant to serve and
file the required number of copies of his brief or memorandum within the time
provided by these Rules.
Certiorari as a special civil action can be availed of when the following requisites
concur: (a) a tribunal, board or officer exercising judicial functions has acted without
or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in
excess of jurisdiction; and (b) there is no appeal or plain, speedy and adequate
[14]
remedy in the ordinary course of law for annulling or modifying the proceeding.
Petitioner claims that Atty. Abuans failure to file the required pleading
constituted fraud against him, and that his absence from the country while the appeal
was pending constituted a mistake that was excusable.
We disagree. It is well-settled that the negligence of counsel binds the
[15]
client. Exceptions to this rule arise when (1) such negligence is so gross, palpable,
reckless and inexcusable that the client is deprived of the due process of law; and (2)
the application of such due process results in the outright deprivation of ones property
[16]
through a technicality.
The negligence of Atty. Abuan does not fall under these exceptions. His
negligence in this case was his inexcusable failure to file the required appellants Brief,
thus causing the dismissal of the appeal of petitioner. But the latter was not without
fault. He was aware of Atty. Abuans failure to appear at the pretrial conference, a
failure that had placed him in default. Because petitioner was in default, private
respondents evidence was received ex parte by the RTC. No wonder, the trial court
decided against him. Yet, he retained Atty. Abuans services for the appeal. One is
bound by the decisions of ones counsel regarding the conduct of the case, especially
where the former does not complain against the manner in which the latter handled
[17]
the case.
In effect, petitioner consented to the shabby and negligent treatment of his case
by his counsel. Hence, he should not complain now of the negligence or fraud done to
him by his lawyer. A partys counsel cannot be blamed for negligence, if the party was
[18]
likewise guilty of the same. Clients should suffer the consequences of the
negligence, mistake or lack of competence of the counsel whom they themselves
[19]
hired, and whom they had full authority to fire at any time and replace with another.
Petitioner cannot be said to have been denied due process, because he was
afforded the opportunity to be heard. In fact, he filed an Answer to private
respondents Complaint. That he did not present evidence in his favor was the effect
of his being in default and his continued failure to move that such status be lifted. His
claim that he was abroad is unavailing.
We cannot attribute grave abuse of discretion to the Court of Appeals which
merely followed Rule 50 in dismissing the appeal.
Second Issue:
Petitioners Defenses
Petitioner avers that he has in his favor the following valid and meritorious
defenses: (1) valid purchase of the disputed lots, (2) acquisitive prescription, and (3)
prescription and laches barring private respondents action. He proposes to prove
these arguments with the following documents: (1) an alleged Deed of Sale dated
January 29, 1975 purportedly signed by private respondent on her own behalf and as
the agent of her sister Florence; (2) a Confirmation of Sale allegedly signed by
Florence; and (3) an alleged Certificate of Authentication of the confirmation issued by
a Philippine vice consul in New York, USA.
Assuming arguendo that this Petition is granted and the CA is required to pass
upon the RTCs judgment, how can the CA give any probative value to the above
documents, when they were not presented before the trial court? Be it remembered
that petitioner had been declared in default, and that he did not even ask for the lifting
of the Default Order. Hence, the grant of the Petition will be not only legally unsound,
but also practically useless. It will just clog the CAs docket.
Finally, after the CA denied his Motion for Reconsideration, petitioner allowed
the reglementary period for filing an appeal to lapse, opting instead to file this Petition
for Certiorari. Well-settled is the rule that certiorari is not a substitute for a lost
[20]
appeal. Even if for this reason alone, the Petition should not be given due course.
WHEREFORE, the Petition is DISMISSED. Costs against petitioner.
SO ORDERED.