Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12219            March 15, 1918

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 which caused temporary unconsciousness and required medical
attention for several 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.

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

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the
court of a justice of the peace. In this connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace
charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a 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.

Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur. 

Johnson, J., reserves his vote.
Separate Opinions

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I do so
because of my understanding of the "last clear chance" rule of the law of negligence as particularly
applied to automobile accidents. This rule cannot be invoked where the negligence of the plaintiff is
concurrent with that of the defendant. Again, if a traveler when he reaches the point of collision is in
a situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery.
But Justice Street finds as a fact that the negligent act of the interval of time, and that at the moment
the plaintiff had no opportunity to avoid the accident. Consequently, the "last clear chance" rule is
applicable. In other words, when a traveler has reached a point where he cannot extricate himself
and vigilance on his part will not avert the injury, his negligence in reaching that position becomes
the condition and not the proximate cause of the injury and will not preclude a recovery. (Note
especially Aiken vs. Metcalf [1917], 102 Atl., 330.)

THIRD DIVISION

[G.R. No. 143008. June 10, 2002]

SMITH BELL DODWELL SHIPPING AGENCY

CORPORATION, petitioner, vs. CATALINO BORJA and
INTERNATIONAL TO WAGE AND TRANSPORT
CORPORATION, respondents.

DECISION
PANGANIBAN, J.:

The owner or the person in possession and control of a vessel is liable for all
natural and proximate damages caused to persons and property by reason of
negligence in its management or navigation. The liability for the loss of the earning
capacity of the deceased is fixed by taking into account the net income of the victim at
the time of death -- of the incident in this case -- and that persons probable life
expectancy.

The Case
 Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, challenging the March 6, 2000 Decision [1] and the April 25, 2000
Resolution[2] of the Court of Appeals[3] (CA) in CA-GR CV No. 57470. The assailed
Decision disposed as follows:

WHEREFORE, premises considered, the instant appeal is hereby DENIED. The

questioned decision of the lower court is hereby AFFIRMED in toto. No
pronouncement as to costs.[4]

Reconsideration was denied in the assailed Resolution.

The Facts

The facts of the case are set forth by the CA as follows:

It appears that on September 23, 1987, Smith Bell [herein petitioner] filed a written
request with the Bureau of Customs for the attendance of the latters inspection team
on vessel M/T King Family which was due to arrive at the port of Manila on
September 24, 1987.

Said vessel contained 750 metric tons of alkyl benzene and methyl methacrylate
monomer.

On the same day, Supervising Customs Inspector Manuel Ma. D. Nalgan instructed
[Respondent Catalino Borja] to board said vessel and perform his duties as inspector
upon the vessels arrival until its departure. At that time, [Borja] was a customs
inspector of the Bureau of Customs receiving a salary of P31,188.25 per annum.

"At about 11 oclock in the morning on September 24, 1987, while M/T King Family
was unloading chemicals unto two (2) barges [--] ITTC 101 and CLC-1002 [--] owned
by [Respondent] ITTC, a sudden explosion occurred setting the vessels afire. Upon
hearing the explosion, [Borja], who was at that time inside the cabin preparing reports,
ran outside to check what happened. Again, another explosion was heard.

Seeing the fire and fearing for his life, [Borja] hurriedly jumped over board to save
himself. However, the [water] [was] likewise on fire due mainly to the spilled
chemicals. Despite the tremendous heat, [Borja] swam his way for one (1) hour until
he was rescued by the people living in the squatters area and sent to San Juan De Dios
Hospital.
After weeks of intensive care at the hospital, his attending physician diagnosed
[Borja] to be permanently disabled due to the incident. [Borja] made demands against
Smith Bell and ITTC for the damages caused by the explosion. However, both denied
liabilities and attributed to each other negligence. [5]

The trial court[6] (RTC) ruled in favor of Respondent Borja and held petitioner
liable for damages and loss of income. The RTC disposed as follows:

WHEREFORE, premises considered, judgment is hereby rendered ordering

[Petitioner] Smith Bell Dodwell [S]hipping Agency Corporation to pay [Borja]:

1. The amount of P495,360.00 as actual damages for loss of earning capacity:

2. The amount of P100,000.00 for moral damages; and

3. The amount of P50,000.00 for and as reasonable attorneys fees.

The cross-claim of [Petitioner] Smith Bell Dodwell Shipping Agency Corporation

against co-defendant International Towage and Transport Corporation and the latters
counterclaim against [Borja] and cross-claim with compulsory counterclaim against
Smith Bell are hereby ordered dismissed.[7]

Ruling of the Court of Appeals

Affirming the trial court, the CA rejected the plea of petitioner that it be
exonerated from liability for Respondent Borjas injuries. Contrary to the claim of
petitioner that no physical evidence was shown to prove that the explosion had
originated from its vessel, the CA held that the fire had originated from M/T King
Family. This conclusion was amply supported by the testimonies of Borja and
Eulogio Laurente (the eyewitness of International Towage and Transport Corporation
or ITTC) as well as by the investigation conducted by the Special Board of Marine
Inquiry and affirmed by the secretary of the Department of National Defense. On the
other hand, the RTC, which the CA sustained, had not given probative value to the
evidence of petitioner, whose sole eyewitness had not shown up for cross-
examination.
Hence, this Petition.[8]

The Issues
 In its Memorandum,[9] petitioner raises the following issues:

1. Whether petitioner should be held liable for the injuries of Respondent Catalino
Borja.

2. Whether Respondent ITTC should be held liable for the injuries of Respondent
Catalino Borja.

3. Assuming without admitting that Respondent Catalino Borja is entitled to damages,

whether Respondent Borja is entitled to the amount of damages awarded to him by the
trial court.[10]

Simply put, these issues can be summed up in these two questions: (1) Who, if
any, is liable for Borjas injuries? (2) What is the proper amount of liability?

This Courts Ruling

The Petition is partly meritorious.

First Issue:
Responsibility for Injuries

Petitioner avers that both lower courts labored under a misapprehension of the
facts. It claims that the documents adduced in the RTC conclusively revealed that the
explosion that caused the fire on M/T King Family had originated from the
barge ITTC-101, a conclusion based on three grounds. First, the Survey Report (Exh.
10) dated October 21, 1987 submitted by the Admiral Surveyors and Adjusters, Inc.,
showed that no part of M/T King Family sustained any sharp or violent damage that
would otherwise be observed if indeed an explosion had occurred on it. On the other
hand, the fact that the vessel sustained cracks on its shell plating was noted in two
Survey Reports from Greutzman Divers Underwater Specialist, dated October 6, 1987
(Exh. 11), and during the underwater inspection on the sunken barge ITTC-101.
Second, external fire damage on the hull of M/T King Family indicated that the
fire had started from outside the vessel and from ITTC-101. The port side of the
vessel to which the ITTC barge was tied was completely gutted by fire, while the
starboard side to which the barge CLC-1002 was tied sustained only slight fire
damage.
 Third, testimonial evidence proved that the explosion came from the barge of the
ITTC and not from its vessel. Security Guard Vivencio Estrella testified that he had
seen the sudden explosion of monomer on the barge with fire that went up to about 60
meters. Third Mate Choi Seong Hwan and Second Mate Nam Bang Choun of M/T
King Family narrated that while they were discharging the chemicals, they saw and
heard an explosion from the barge ITTC-101. Chief Security Guard Reynaldo Patron,
in turn, testified that he was 7 to 10 meters away from the barge when he heard the
explosion from the port side of M/T King Family and saw the barge already on fire.
We are not persuaded. Both the RTC and the CA ruled that the fire and the
explosion had originated from petitioners vessel. Said the trial court:

The attempts of [Petitioner] Smith Bell to shift the blame on x x x ITTC were all for
naught. First, the testimony of its alleged eyewitness was stricken off the record for
his failure to appear for cross-examination (p. 361, Record). Second, the documents
offered to prove that the fire originated from barge ITTC-101 were all denied
admission by the [c]ourt for being, in effect, hearsay (pp. 335 and 362). x x x Thus,
there is nothing in the record to support [petitioners] contention that the fire and
explosion originated from barge ITTC-101.[11]

We find no cogent reason to overturn these factual findings. Nothing is more

settled in jurisprudence than that this Court is bound by the factual findings of the
Court of Appeals when these are supported by substantial evidence and are not under
any of the exceptions in Fuentes v. Court of Appeals; [12] more so, when such findings
 

affirm those of the trial court.[13] Verily, this Court reviews only issues of law.
Negligence is conduct that creates undue risk of harm to another. It is the failure
to observe that degree of care, precaution and vigilance that the circumstances justly
demand, whereby that other person suffers injury. [14] Petitioners vessel was carrying
chemical cargo -- alkyl benzene and methyl methacrylate monomer. [15] While knowing
that their vessel was carrying dangerous inflammable chemicals, its officers and crew
failed to take all the necessary precautions to prevent an accident. Petitioner was,
therefore, negligent.
The three elements of quasi delict are: (a) damages suffered by the plaintiff, (b)
fault or negligence of the defendant, and (c) the connection of cause and effect
between the fault or negligence of the defendant and the damages inflicted on the
plaintiff.[16] All these elements were established in this case. Knowing fully well that it
was carrying dangerous chemicals, petitioner was negligent in not taking all the
necessary precautions in transporting the cargo.
As a result of the fire and the explosion during the unloading of the chemicals
from petitioners vessel, Respondent Borja suffered the following damage: and
injuries: (1) chemical burns of the face and arms; (2) inhalation of fumes from burning
chemicals; (3) exposure to the elements [while] floating in sea water for about three
(3) hours; (4) homonymous hemianopsia or blurring of the right eye [which was of]
possible toxic origin; and (5) [c]erebral infract with neo-vascularization, left occipital
region with right sided headache and the blurring of vision of right eye. [17]
Hence, the owner or the person in possession and control of a vessel and the
vessel are liable for all natural and proximate damage caused to persons and property
by reason of negligent management or navigation. [18]

Second Issue:
Amount of Liability

Petitioner insists that Borja is not entitled to the full amount of damages awarded
by the lower courts. It disputes the use of his gross earning as basis for the
computation of the award for loss of earning capacity. Both courts, in computing the
value of such loss, used the remaining years of the victim as a government employee
and the amount he had been receiving per annum at the time of the incident.
Counsel for Respondent Borja, on the other hand, claims that petitioner had no
cause to complain, because the miscomputation had ironically been in its favor. The
multiplier used in the computation was erroneously based on the remaining years in
government service, instead of the life expectancy, of the victim. Borjas counsel also
points out that the award was based on the formers meager salary in 1987, or about 23
years ago when the foreign exchange was still P14 to $1. Hence, the questioned award
is consistent with the primary purpose of giving what is just, moral and legally due the
victim as the aggrieved party.
Both parties have a point. In determining the reasonableness of the damages
awarded under Article 1764 in conjunction with Article 2206 of the Civil Code, the
factors to be considered are: (1) life expectancy (considering the health of the victim
and the mortality table which is deemed conclusive) and loss of earning capacity; (b)
pecuniary loss, loss of support and service; and (c) moral and mental sufferings. [19] The
loss of earning capacity is based mainly on the number of years remaining in the
persons expected life span. In turn, this number is the basis of the damages that shall
be computed and the rate at which the loss sustained by the heirs shall be fixed. [20]
The formula for the computation of loss of earning capacity is as follows: [21]

Net earning capacity = Life expectancy x [Gross Annual Income - Living

Expenses (50% of gross annual income)], where life expectancy = 2/3 (80
- the age of the deceased).[22]
 Petitioner is correct in arguing that it is net income (or gross income less living
expenses) which is to be used in the computation of the award for loss of
income. Villa Rey Transit v. Court of Appeals [23] explained that the amount recoverable
is not the loss of the entire earning, but rather the loss of that portion of the earnings
which the beneficiary would have received. Hence, in fixing the amount of the said
damages, the necessary expenses of the deceased should be deducted from his
earnings.
In other words, only net earnings, not gross earnings, are to be considered; that is,
the total of the earnings less expenses necessary in the creation of such earnings or
income, less living and other incidental expenses. When there is no showing that the
living expenses constituted a smaller percentage of the gross income, we fix the living
expenses at half of the gross income. To hold that one would have used only a small
part of the income, with the larger part going to the support of ones children, would be
conjectural and unreasonable.[24]
Counsel for Respondent Borja is also correct in saying that life expectancy should
not be based on the retirement age of government employees, which is pegged at 65.
In Negros Navigation Co, Inc. v. CA, [25] the Court resolved that in calculating the life
expectancy of an individual for the purpose of determining loss of earning capacity
under Article 2206(1) of the Civil Code, it is assumed that the deceased would have
earned income even after retirement from a particular job.
Respondent Borja should not be situated differently just because he was a
government employee. Private employees, given the retirement packages provided by
their companies, usually retire earlier than government employees; yet, the life
expectancy of the former is not pegged at 65 years.
Petitioner avers that Respondent Borja died nine years after the incident and,
hence, his life expectancy of 80 years should yield to the reality that he was only 59
when he actually died.
We disagree. The Court uses the American Experience/Expectancy Table of
Mortality or the Actuarial or Combined Experience Table of Mortality, which
consistently pegs the life span of the average Filipino at 80 years, from which it
extrapolates the estimated income to be earned by the deceased had he or she not been
killed.[26]
Respondent Borjas demise earlier than the estimated life span is of no moment.
For purposes of determining loss of earning capacity, life expectancy remains at 80.
Otherwise, the computation of loss of earning capacity will never become final, being
always subject to the eventuality of the victims death. The computation should not
change even if Borja lived beyond 80 years. Fair is fair.
 Based on the foregoing discussion, the award for loss of earning capacity should
be computed as follows:

Loss of earning = [2 (80-50)] x [(P2,752x12)-16,512]

capacity 3

= P330,240

Having been duly proven, the moral damages and attorneys fees awarded are
justified under the Civil Codes Article 2219, paragraph 2; and Article 2208, paragraph
11, respectively.
WHEREFORE, the Petition is PARTLY GRANTED. The assailed Decision
is AFFIRMED with the following MODIFICATIONS: petitioner is ordered to pay the
heirs of the victim damages in the amount of P320,240 as loss of earning capacity,
moral damages in the amount of P100,000, plus another P50,000 as attorneys fees.
Costs against petitioner.
SO ORDERED.

G.R. No. 156034             October 1, 2003

DELSAN TRANSPORT LINES, INC., petitioner, 

vs.
C & A construction, inc., respondent.

DECISION

YNARES-SANTIAGO, J.:

Assailed in this petition for review under Rule 45 of the Revised Rules of Court are the June 14,
2002 decision of the Court of Appeals in CA-G.R. CV No. 59034, which reversed the decision of the
1  2 

Regional Trial Court of Manila, Branch 46, in Civil Case No. 95-75565, and its November 7, 2002
resolution denying petitioner’s motion for reconsideration.
3 

The undisputed facts reveal that respondent C & A Construction, Inc. was engaged by the National
Housing Authority (NHA) to construct a deflector wall at the Vitas Reclamation Area in Vitas, Tondo,
Manila. The project was completed in 1994 but it was not formally turned over to NHA.
4 

On October 9, 1994, M/V Delsan Express, a ship owned and operated by petitioner Delsan
Transport Lines, Inc., anchored at the Navotas Fish Port for the purpose of installing a cargo pump
and clearing the cargo oil tank. At around 12:00 midnight of October 20, 1994, Captain Demetrio T.
Jusep of M/V Delsan Express received a report from his radio head operator in Japan that a typhoon
5 

was going to hit Manila in about eight (8) hours. At approximately 8:35 in the morning of October 21,
6  7 

1994, Capt. Jusep tried to seek shelter at the North Harbor but could not enter the area because it
was already congested. At 10:00 a.m., Capt. Jusep decided to drop anchor at the vicinity of Vitas
8 

mouth, 4 miles away from a Napocor power barge. At that time, the waves were already reaching 8
to 10 feet high. Capt. Jusep ordered his crew to go full ahead to counter the wind which was
dragging the ship towards the Napocor power barge. To avoid collision, Capt. Jusep ordered a full
stop of the vessel. He succeeded in avoiding the power barge, but when the engine was re-started
9 

and the ship was maneuvered full astern, it hit the deflector wall constructed by respondent. The 10 

damage caused by the incident amounted to P456,198.24. 11

Respondent demanded payment of the damage from petitioner but the latter refused to pay.
Consequently, respondent filed a complaint for damages with the Regional Trial Court of Manila,
Branch 46, which was docketed as Civil Case No. 95-75565. In its answer, petitioner claimed that
the damage was caused by a fortuitous event. 12

On February 13, 1998, the complaint filed by respondent was dismissed. The trial court ruled that
petitioner was not guilty of negligence because it had taken all the necessary precautions to avoid
the accident. Applying the "emergency rule", it absolved petitioner of liability because the latter had
no opportunity to adequately weigh the best solution to a threatening situation. It further held that
even if the maneuver chosen by petitioner was a wrong move, it cannot be held liable as the cause
of the damage sustained by respondent was typhoon "Katring", which is an act of God. 13

On appeal to the Court of Appeals, the decision of the trial court was reversed and set aside. It 14 

found Capt. Jusep guilty of negligence in deciding to transfer the vessel to the North Harbor only at
8:35 a.m. of October 21, 1994 and thus held petitioner liable for damages.

Hence, petitioner filed the instant petition contending that Capt. Jusep was not negligent in waiting
until 8:35 in the morning of October 21, 1994 before transferring the vessel to the North Harbor
inasmuch as it was not shown that had the transfer been made earlier, the vessel could have sought
shelter. It further claimed that it cannot be held vicariously liable under Article 2180 of the Civil Code
15 

because respondent failed to allege in the complaint that petitioner was negligent in the selection
and supervision of its employees. Granting that Capt. Jusep was indeed guilty of negligence,
16 

petitioner is not liable because it exercised due diligence in the selection of Capt. Jusep who is a
duly licensed and competent Master Mariner. 17

The issues to be resolved in this petition are as follows – (1) Whether or not Capt. Jusep was
negligent; (2) If yes, whether or not petitioner is solidarily liable under Article 2180 of the Civil Code
for the quasi-delict committed by Capt. Jusep?

Article 2176 of the Civil Code provides that whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the parties, is called a quasi-delict. The test for
determining the existence of negligence in a particular case may be stated as follows: Did the
defendant in doing the alleged negligent act use the reasonable care and caution which an ordinary
prudent person would have used in the same situation? If not, then he is guilty of negligence. 18

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 his radio head operator in Japan that a 19 

typhoon was going to hit Manila after 8 hours. This, notwithstanding, he did nothing, until 8:35 in the
20  21

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 hours thinking that the typhoon might change direction. He cannot claim
22 
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 because, according to him, it was not very
cloudy and there was no weather disturbance yet.
23  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 prudent person would have
observed in the same situation. Had he moved the vessel earlier, he could have had greater
25

chances of finding a space at the North Harbor considering that the Navotas Port where they docked
was very near North Harbor. Even if the latter was already congested, he would still have time to
26 

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 brought about by his own negligence. Clearly, the emergency rule is not
27 

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
1awphi1.nét

negligent act of his employee. Thus –

Art. 2180. The obligation imposed in Article 2176 is demandable not only for one’s 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 mentioned prove that
they observed all the diligence of a good father of a family to prevent damage.

Whenever an employee’s negligence causes damage or injury to another, there instantly arises a
presumption juris tantum that the employer failed to exercise diligentissimi patris families in the
selection (culpa in eligiendo) or 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
presenting convincing proof that he exercised the care and diligence of a good father of a family in
the selection and supervision of his employee.  28

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.

In Fabre, Jr. v. Court of Appeals, it was held that due diligence in supervision requires the
29 

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
30 

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 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
31 

state that petitioner was negligent in the supervision or selection of its employees, inasmuch as its
negligence is presumed by operation of law. Allegations of negligence against the employee and
that of an employer-employee relation in the complaint are enough to make out a case of quasi-
delict under Article 2180 of the Civil Code.32

Considering that petitioner did not assail the damages awarded by the trial court, we find no reason
to alter the same. The interest imposed should, however, be modified. In Eastern Shipping Lines,
Inc. v. Court of Appeals, it was held that the rate of interest on obligations not constituting a loan or
33 

forbearance of money is six percent (6%) per annum. If the purchase price can be established with
certainty at the time of the filing of the complaint, the six percent (6%) interest should be computed
from the date the complaint was filed until finality of the decision. After the judgment becomes final
and executory until the obligation is satisfied, the amount due shall earn interest at 12% per year, the
interim period being deemed equivalent to a forbearance of credit. 34

Accordingly, the amount of P456,198.27 due the respondent shall earn 6% interest per annum from
October 3, 1995 until the finality of this decision. If the adjudged principal and the interest (or any
part thereof) remain unpaid thereafter, the interest rate shall be twelve percent (12%) per annum
computed from the time the judgment becomes final and executory until it is fully satisfied.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED.  The June 14, 2002
1awphi1.nét

decision of the Court of Appeals in CA-G.R. CV No. 59034 ordering petitioner Delsan Transport
Lines, Inc., to pay respondent C & A Construction, Inc., damages in the amount of P456,198.27, plus
P30,000.00 as attorney’s fees, is AFFIRMED with the MODIFICATION that the award of
P456,198.27 shall earn interest at the rate of 6% per annum from October 3, 1995, until finality of
this decision, and 12% per annum thereafter on the principal and interest (or any part thereof) until
full payment.

SO ORDERED.

Vitug, and Carpio, JJ., concur.

Davide, Jr., C.J., (Chairman), no part; was former counsel of party.

Azcuna, J., on leave.

.R. No. L-7664             August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants, 

vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.

Tomas Tria Tirona for appellants.

Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.

BAUTISTA ANGELO, J.:

Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of
P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of
their son Dominador Ong in one of the swimming pools operated by defendant.

Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers
that his death was caused by his own negligence or by unavoidable accident. Defendant also avers
that it had exercised due diligence in the selection of, and supervision over, its employees and that it
had observed the diligence required by law under the circumstances.

After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint
without pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because
the amount involved exceeds the sum of P50,000.

Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman,
Quezon City, to which people are invited and for which a nominal fee of P0.50 for adults and P0.20
for children is charged. The main pool it between two small pools of oval shape known as the
"Wading pool" and the "Beginners Pool." There are diving boards in the big pools and the depths of
the water at different parts are indicated by appropriate marks on the wall. The care and supervision
of the pools and the users thereof is entrusted to a recreational section composed of Simeon
Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the life-saving
course given by the Philippine Red Cross at the YMCA in Manila. For the safety of its patrons,
defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a resuscitator.
There is also a sanitary inspector who is in charge of a clinic established for the benefit of the
patrons. Defendant has also on display in a conspicuous place certain rules and regulations
governing the use of the pools, one of which prohibits the swimming in the pool alone or without any
attendant. Although defendant does not maintain a full-time physician in the swimming pool
compound, it has however a nurse and a sanitary inspector ready to administer injections or operate
the oxygen resuscitator if the need should arise.

In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school
student and boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools.
This was not the first time that the three brothers had gone to said natatorium for they had already
been there four or five times before. They arrived at the natatorium at about 1:45 p.m. After paying
the requisite admission fee, they immediately went to one of the small pools where the water was
shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room in
an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to the
bigger pool leaving Dominador in the small pool and 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 reason 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.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Concepcion, Reyes, J. B. L., Endencia and
Felix, JJ.,concur.

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

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

Ross, Selph, Carrascoso and Janda for the respondents.

Bernabe Africa, etc. for the petitioners.

MAKALINTAL., J.:

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

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

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

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

1. Police Department report: —

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

2. The Fire Department report: —

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was
leased to the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934,
during the term of the lease, while gasoline was being transferred from the tank wagon, also
operated by the Shell Petroleum Corporation, to the underground tank of the station, a fire
started with resulting damages to the building owned by Jones. Alleging that the damages to
his building amounted to $516.95, Jones sued the Shell Petroleum Corporation for the
recovery of that amount. The judge of the district court, after hearing the testimony,
concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for
$427.82. The Court of Appeals for the First Circuit reversed this judgment, on the ground the
testimony failed to show with reasonable certainty any negligence on the part of the Shell
Petroleum Corporation or any of its agents or employees. Plaintiff applied to this Court for a
Writ of Review which was granted, and the case is now before us for decision. 1äwphï1.ñët

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

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

Other than an expert to assess the damages caused plaintiff's building by the fire, no
witnesses were placed on the stand by the defendant.
 Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it
established by the record that the filling station and the tank truck were under the control of
the defendant and operated by its agents or employees. We further find from the
uncontradicted testimony of plaintiff's witnesses that fire started in the underground tank
attached to the filling station while it was being filled from the tank truck and while both the
tank and the truck were in charge of and being operated by the agents or employees of the
defendant, extended to the hose and tank truck, and was communicated from the burning
hose, tank truck, and escaping gasoline to the building owned by the plaintiff.

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

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

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

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

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

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

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

until

gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this
constitute a secondary hazard to its operation which in turn endangers the entire
neighborhood to conflagration.
 Furthermore, aside from precautions already taken by its operator the concrete walls south
and west adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid
the flames from leaping over it in case of fire.

Records show that there have been two cases of fire which caused not only material
damages but desperation and also panic in the neighborhood.

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

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

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

There is an admission on the part of Boquiren in his amended answer to the second amended
complaint that "the fire was caused through the acts of a stranger who, without authority, or
permission of answering defendant, passed through the gasoline station and negligently threw a
lighted match in the premises." No evidence on this point was adduced, but assuming the allegation
to be true — certainly any unfavorable inference from the admission may be taken against Boquiren
— it does not extenuate his negligence. A decision of the Supreme Court of Texas, upon facts
analogous to those of the present case, states the rule which we find acceptable here. "It is the rule
that those who distribute a dangerous article or agent, owe a degree of protection to the public
proportionate to and commensurate with a danger involved ... we think it is the generally accepted
rule as applied to torts that 'if the effects of the actor's negligent conduct actively and continuously
operate to bring about harm to another, the fact that the active and substantially simultaneous
operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor
in bringing about the harm, does not protect the actor from liability.' (Restatement of the Law of
Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention of an unforeseen and unexpected
cause, is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence
directly and proximately cooperates with the independent cause in the resulting injury." (MacAfee, et
al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants. This
issue depends on whether Boquiren was an independent contractor, as held by the Court of
Appeals, or an agent of Caltex. This question, in the light of the facts not controverted, is one of law
and hence may be passed upon by this Court. These facts are: (1) Boquiren made an admission that
he was an agent of Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the
equipment therein; (3) Caltex exercised control over Boquiren in the management of the state; (4)
the delivery truck used in delivering gasoline to the station had the name of CALTEX painted on it;
and (5) the license to store gasoline at the station was in the name of Caltex, which paid the license
fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).

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

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

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

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

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

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

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

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

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

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P.,
Zaldivar and Sanchez, JJ., concur.
Dizon, J., took no part.

Footnotes
 1
Thus, for instance, the record of a justice of the peace of marriage certificates transmitted to
him by the corresponding priest is admissible. The justice of the peace has no personal
knowledge of the marriage, but it was reported to him by a priest whose duty it was, under
the law, to make the report for record purposes. Similarly, the tax records of a provincial
assessor are admissible even if the assessments were made by subordinates. So also are
entries of marriages made by a municipal treasurer in his official record, because he
acquires knowledge thereof by virtue of a statutory duty on the part of those authorized to
solemnize marriages to send a copy of each marriage contract solemnized by them to the
local civil registrar. (See Moran, Comments on the Rules of Court, Vol. 3 [1957] pp. 389-
395.)

G.R. No. 152040             March 31, 2006

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

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

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review on Certiorari of the Decision 1 of the Court of Appeals (CA)
in CA-G.R. CR No. 16739 affirming the Joint Decision of the Regional Trial Court (RTC) in Criminal
Case No. Q-93-42629 and Civil Case No. Q-93-16051, where Freddie Suelto was convicted of
reckless imprudence resulting in damages to property.

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

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

(1) The front exterior and the right side concrete columns of the covered terrace were
vertically displaced from its original position causing exposure of the vertical reinforcement.

(2) The beams supporting the roof and parapet walls are found with cracks on top of the
displaced columns.

(3) The 6″ CHB walls at [the] right side of the covered terrace were found with cracks caused
by this accident.

(4) The front iron grills and concrete balusters were found totally damaged and the later [sic]
beyond repair.4
He recommended that since the structural members made of concrete had been displaced, the
terrace would have to be demolished "to keep its monolithicness, and to insure the safety and
stability of the building."5

Photographs6 of the damaged terrace were taken. Valdellon commissioned Engr. Jesus R. Regal, Jr.
to estimate the cost of repairs, inclusive of labor and painting, and the latter pegged the cost
at P171,088.46.7

In a letter dated October 19, 1992 addressed to the bus company and Suelto, Valdellon demanded
payment of P148,440.00, within 10 days from receipt thereof, to cover the cost of the damage to the
terrace.8 The bus company and Suelto offered a P30,000.00 settlement which Valdellon refused. 9

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

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

CONTRARY TO LAW.10

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

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

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

a) the total sum of P171,088.46 constituting the expenses for the repair of the damaged
apartment of plaintiff, with interests to be charged thereon at the legal rate from the date of
the formal demand until the whole obligation is fully paid;

b) the sum of not less than P20,000.00 each as compensatory and exemplary damages;

c) the sum of P20,000.00 as attorney’s fees and the sum of P1,000.00 for each appearance
of plaintiff’s counsel; and costs of suit;

PLAINTIFF further prays for such other reliefs as may be just and equitable in the premises. 11

A joint trial of the two cases was ordered by the trial court. 12
The trial court conducted an ocular inspection of the damaged terrace, where defendants offered to
have it repaired and restored to its original state. Valdellon, however, disagreed because she wanted
the building demolished to give way for the construction of a new one. 13

During the trial, Valdellon testified on the damage caused to the terrace of her apartment, and, in
support thereof, adduced in evidence a receipt for P35,000.00, dated October 20, 1993, issued by
the BB Construction and Steel Fabricator for "carpentry, masonry, welding job and electrical
[work]."14

Pontiveros of the Office of the City Engineer testified that there was a need to change the column of
the terrace, but that the building should also be demolished because "if concrete is destroyed, [one]
cannot have it restored to its original position."15

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

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

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

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

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

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

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

damaged apartment;

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

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

d. the costs of suit.

SO ORDERED.20
MALTC and Suelto, now appellants, appealed the decision to the CA, alleging that the prosecution
failed to prove Suelto’s guilt beyond reasonable doubt. They averred that the prosecution merely
relied on Valdellon, who testified only on the damage caused to the terrace of her apartment which
appellants also alleged was excessive. Appellant Suelto further alleged that he should be acquitted
in the criminal case for the prosecution’s failure to prove his guilt beyond reasonable doubt. He
maintained that, in an emergency case, he was not, in law, negligent. Even if the appellate court
affirmed his conviction, the penalty of imprisonment imposed on him by the trial court is contrary to
law.

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

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

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

SO ORDERED.21

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

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

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

On the second issue, petitioners insist that private respondent was able to prove only the amount
of P35,000.00 by way of actual damages; hence, the award of P100,000.00 is barren of factual
basis.

On the third issue, petitioner Suelto posits that the straight penalty of imprisonment recommended
by the trial court, and affirmed by the CA, is contrary to Article 365 of the Revised Penal Code.
The petition is partially granted.

On the first issue, we find and so resolve that respondent People of the Philippines was able to
prove beyond reasonable doubt that petitioner Suelto swerved the bus to the right with recklessness,
thereby causing damage to the terrace of private respondent’s apartment. Although she did not
testify to seeing the incident as it happened, petitioner Suelto himself admitted this in his answer to
the complaint in Civil Case No. Q-93-16051, and when he testified in the trial court.

Suelto narrated that he suddenly swerved the bus to the right of the road causing it to hit the column
of the terrace of private respondent. Petitioners were burdened to prove that the damage to the
terrace of private respondent was not the fault of petitioner Suelto.

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

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

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

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

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

Section 35 of the law provides, thus:

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

In relation thereto, Article 2185 of the New Civil Code provides that "unless there is proof to the
contrary, it is presumed that a person driving a motor vehicle has been negligent, if at the time of
mishap, he was violating any traffic regulation." By his own admission, petitioner Suelto violated the
Land Transportation and Traffic Code when he suddenly swerved the bus to the right, thereby
causing damage to the property of private respondent.

However, the trial court correctly rejected petitioner Suelto’s defense, in light of his contradictory
testimony vis-à-vis his Counter-Affidavit submitted during the preliminary investigation:

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

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

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

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

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

On the second issue, we agree with the contention of petitioners that respondents failed to prove
that the damages to the terrace caused by the incident amounted to P100,000.00. The only
evidence adduced by respondents to prove actual damages claimed by private respondent were the
summary computation of damage made by Engr. Jesus R. Regal, Jr. amounting to P171,088.46 and
the receipt issued by the BB Construction and Steel Fabricator to private respondent for P35,000.00
representing cost for carpentry works, masonry, welding, and electrical works. Respondents failed to
present Regal to testify on his estimation. In its five-page decision, the trial court
awarded P150,000.00 as actual damages to private respondent but failed to state the factual basis
for such award. Indeed, the trial court merely declared in the decretal portion of its decision that the
"sum of P150,000.00 as reasonable compensation sustained by plaintiff for her damaged
apartment." The appellate court, for its part, failed to explain how it arrived at the amount
of P100,000.00 in its three-page decision. Thus, the appellate court merely declared:
With respect to the civil liability of the appellants, they contend that there was no urgent necessity to
completely demolish the apartment in question considering the nature of the damages sustained as
a result of the accident. Consequently, appellants continue, the award of P150,000.00 as
compensation sustained by the plaintiff-appellee for her damaged apartment is an unconscionable
amount.

The damaged portions of the apartment in question are not disputed.

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

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

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

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

As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is
required to prove the actual amount of loss with reasonable degree of certainty premised upon
competent proof and on the best evidence available. The burden of proof is on the party who would
be defeated if no evidence would be presented on either side. He must establish his case by a
preponderance of evidence which means that the evidence, as a whole, adduced by one side is
superior to that of the other. In other words, damages cannot be presumed and courts, in making an
award, must point out specific facts that could afford a basis for measuring whatever compensatory
or actual damages are borne.28

The Court further declared that "where goods are destroyed by the wrongful act of defendant, the
plaintiff is entitled to their value at the time of the destruction, that is, normally, the sum of money
which he would have to pay in the market for identical or essentially similar goods, plus in a proper
case, damages for the loss of the use during the period before replacement. 29

While claimants’ bare testimonial assertions in support of their claims for damages should not be
discarded altogether, however, the same should be admitted with extreme caution. Their testimonies
should be viewed in light of claimants’ self-interest, hence, should not be taken as gospel truth. Such
assertion should be buttressed by independent evidence. In the language of the Court:

For this reason, Del Rosario’s claim that private respondent incurred losses in the total amount
of P6,438,048.00 should be admitted with extreme caution considering that, because it was a bare
assertion, it should be supported by independent evidence. Moreover, because he was the owner of
private respondent corporation whatever testimony he would give with regard to the value of the lost
vessel, its equipment and cargoes should be viewed in the light of his self-interest therein. We agree
with the Court of Appeals that his testimony as to the equipment installed and the cargoes loaded on
the vessel should be given credence considering his familiarity thereto. However, we do not
subscribe to the conclusion that his valuation of such equipment, cargo, and the vessel itself should
be accepted as gospel truth. We must, therefore, examine the documentary evidence presented to
support Del Rosario’s claim as regards the amount of losses.30

An estimate of the damage cost will not suffice:

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

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

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

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

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

When the execution of the act covered by this article shall have only resulted in damage to the
property of another, the offender shall be punished by a fine ranging from an amount equal to the
value of said damages to three times such value, but which shall in no case be less than 25 pesos.
A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by
simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have
constituted a light felony.

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

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

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

No pronouncement as to costs.

SO ORDERED.

ROMEO J. CALLEJO, SR. 

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN 

THIRD DIVISION

[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.

DECISION
DAVIDE, JR., J.:
 In this petition for review under Rule 45 of the Rules of Court, petitioners seek
reversal of that portion of the 14 March 1995 decision  of respondent Court of Appeals
[1]

in CA-G.R. CV No. 36247  dismissing petitioners' complaint in Civil Case No. CEB-8095
[2]

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) and
rendered a decision  against petitioners. The dispositive portion of the decision reads
[3]

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.

SO ORDERED." [4]

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.

THE TRIAL COURT ERRED IN NOT FINDING A CASE FOR DAMAGES IN

FAVOR OF PLAINTIFFS (HEREIN PETITIONERS). [5]

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 control of the defendants-
appellants. The decision stated that plaintiffs-appellants failed to establish that the fire
was the result of defendants-appellees or their workers' negligence. [6]

Respondent Court of Appeals sustained petitioners only on the third assigned

error. Its discussion on the assigned errors was as follows:

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 full respect  is applied. Where the issue is on the credibility of witnesses,
[7]

generally the findings of a court a quo will not be disturbed on appeal. [8]

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 been acquired by him personally or through official information.  To [9]

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 penalty
on the right to litigate.  Neither may exemplary damages be awarded where there is
[11]

no evidence of the other party having acted in [a] wanton, fraudulent or reckless or
oppressive manner.  Since the award of exemplary damages is unwarranted, the
[12]

award of attorney's fees must necessarily be disallowed.  We find the award of
[13]

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 damages." [14]

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 DELETED and SET ASIDE. [15]

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 plaintiffs 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. Camalog, G.R. 77116, 31 January
1989).[17]
 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 needlessly
detailed observation (People v. Wong, 23 SCRA 146). [18]

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
[19]

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 stated. [20]

Petitioners assert that the Fire Investigation Report  by an official of the Cebu City Fire
[21]

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
[22]

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 must have the duty to give such statements for
record."[24]

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 offered in their
Offer of Exhibits  as:
[25]

(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 being hearsay and
incompetent evidence.  The trial court then denied their admission for being hearsay,
[26]

this fact admitted by witness himself, F/Maj. Eduardo Enriquez, as part of whose
testimony said exhibits were offered. [27]

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 existence
of such a fact. [28]

When Major Enriquez took the witness stand, testified for petitioners on his Report
and made himself available for cross-examination by the adverse party, the Report,
insofar as it proved that certain utterances were made (but not their truth), was
effectively removed from the ambit of the aforementioned Section 44 of Rule
130. Properly understood, this section does away with the testimony in open court of the
officer who made the official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record admissible in evidence
as prima facie evidence of the facts therein stated. The underlying reasons for this
exceptionary rule are necessity and trustworthiness, as explained in Antillon v.
Barcelon:[29]

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
intact."  (underscoring supplied)
[30]

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
[31]

of res ipsa loquitur in the law of negligence.  It may further be emphasized that this
[32]

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.[33]

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.
Costs against petitioners.
SO ORDERED.
Narvasa, C.J., (Chairman), Melo, and Panganiban, JJ., concur.
Francisco, J., on leave.

[1]
 Rollo, 23-28. Per Torres, Jr., J., with the concurrence of Ibay-Somera, and Vasquez, Jr., JJ.
[2]
 Entitled Dra. Abdulia Rodriguez, et al., Plaintiffs-appellants v. Harry John Viloria, et al., Defendants-
Appellees.
[3]
 Original Record (OR), Civil Case No. CEB-8095, 141-153. Per Judge Peary G. Alronar.
[4]
 Id., 23.
[5]
 OR, 25.
[6]
 Rollo, 24-25.
[7]
 Citing People v. Garcia, 209 SCRA 164.
[8]
 Citing People v. Andasa, 206 SCRA 636.
[9]
 Citing Moran, Comments on the rules of Court, Vol. 3, page 398.
[10]
 Citing Africa, et al. v. Caltex, 16 SCRA 448 [1966].
[11]
 Citing Albenson Enterprises Corp. v. Court of Appeals, 217 SCRA 16.
[12]
 Ibid.
[13]
 Ibid.
[14]
 Rollo, 26-28.
[15]
 Rollo, 28.
[16]
 OR, Civil Case No. CEB-8095, 152.
[17]
 Id., 151-152.
[18]
 Id., 151.
[19]
 People v. Conde, 322 Phil. 756, 766 [1996].
[20]
 This is a reproduction of Section 35, Rule 123 of the old Rules of Court.
[21]
 Exh. "A," with pages 2, 3, 4, and 5 thereof marked and offered as Exhibits "A-1", "A-2," "A-3," and "A-
4," respectively.
[22]
 16 SCRA 448, 452 [1966].
[23]
 Citing 3 MORAN, COMMENTS ON THE RULES OF COURT, 398 [1957].
[24]
 Africa, at 453.
[25]
 OR, 61.
[26]
 Id., 68.
[27]
 Id., 75.
[28]
 7 VICENTE J. FRANCISCO, THE REVISED RULES OF COURT IN THE PHILIPPINES, (EVIDENCE --
PART 1) 438 (1973 ed).
[29]
 37 Phil. 148, 151-152 [1917]. See also Francisco, op. cit., 545, and 5 Manuel v. Moran, Comments on
the Rules of Court 381 (1980 ed)..
[30]
 OR, 151.
[31]
 Id., 152.
[32]
 The trial court discussed the doctrine of res ipsa loquitor and its requisites as follows:
It is a rule of evidence whereby negligence of the alleged wrongdoing may be inferred from the mere fact
that the accident happened, provided that: (1) the occurrence is the kind of thing that does not
ordinarily happen without negligence; (2) the occurrence must have been caused by an agency or
instrumentality within the exclusive control of the defendant; (3) the occurrence was not due to
contribution or voluntary action by the plaintiff (Gifis Law Dictionary); it is used to state the fact
that the situation itself implies negligence or a duty to compensate whether negligence is in fact
proved or not (Radins Law Dictionary); it is [a] rebuttable presumption that defendant was
negligent, which arises upon proof that [the] instrumentality causing injury was in defendants
exclusive control, and that the accident was one which ordinarily does not happen in absence of
negligence (Blacks Law Dictionary). ... (OR, 150-151).
[33]
 See Batiquin v. Court of Appeals, 258 SCRA 334, 344-345 [1996] (citations omitted).

FIRST DIVISION

[G.R. No. 141910. August 6, 2002]

FGU INSURANCE CORPORATION, petitioner, vs. G.P. SARMIENTO

TRUCKING CORPORATION and LAMBERT M.
EROLES, respondents.

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.
The trial court, in its order of 30 April 1996,  granted the motion to dismiss,
[1]

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.

x x x x x x x x x

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]

The subsequent motion for reconsideration having been denied,  plaintiff interposed
[3]

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
GPS. The appellate court, in its decision of 10 June 1999,    discoursed, among other
[4]

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]

Petitioner's motion for reconsideration was likewise denied;  hence, the instant
[6]

petition,  raising the following issues:

[7]

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
their services to the public, whether to the public in general or to a limited clientele in
[8]

particular, but never on an exclusive basis.  The true test of a common carrier is the
[9]

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
[10]

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 relief.  The law,
[11]

recognizing the obligatory force of contracts,  will not permit a party to be set free from
[12]

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
[13]

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
[14]

makers or for society, unless they are made the basis for action.  The effect of every
[15]

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
[16]

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.
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 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
[17]

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 the part of the
defendant. [18]

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 care.  It is not a rule of substantive law
[19]

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
[20]

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
[21]

unexplained accident may be attributable to one of several causes, for some of which
the defendant could not be responsible. [22]

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
[23]

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 evidence.
 Thus, respondent corporation may no longer offer proof to establish that it has
[24]

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 hereby ordered to pay
FGU Insurance Corporation the value of the damaged and lost cargoes in the amount of
P204,450.00.No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan, Ynares-Santiago, and Austria-Martinez,
JJ., concur.
THIRD DIVISION
 
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
 
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 Resulting to (sic) Damage in (sic) Property[1] was filed
against petitioner Pascual. On the other hand, petitioner-
corporation was asked to pay the amount of P7,992,350, inclusive
of the value of the commercial building. At the prosecutors office,
petitioner Pascual moved for the withdrawal of the complaint, which
was granted.
 
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 plaintiffs.[2]

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, 1995 until fully paid.[3] (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 negligent based on the doctrine of res
ipsa loquitur.[4] 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 the upkeep of the car.
[5]
 Contrary to the claims of petitioner-corporation, the trial court
also found that it failed to employ the diligence of a good father of a
family, as required by law, in the selection and supervision of
Pascual.
With respect to the amount of damages, the trial court
awarded to respondents no more than their claim for actual
damages covering the cost of the 2-storey residential building and
the commercial building, including their personal properties. It
explained:
 
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 ordered paid to the plaintiffs. x x x.[6]
 
On appeal to the Court of Appeals, the appellate court again ruled
in favor of respondents but modified the amount of damages
awarded by the trial court. It held:
 
x x x the Decision of the Court a quo is AFFIRMED, with the
modification that the Appellants are hereby ordered to pay the
Appellees, jointly and severally, the total amount of P600,000.00
by way of nominal damages under Articles 2222 and 2223 of the
New Civil Code, with interest thereon, at the rate of 6% per
annum from the date of the Decision of this Court.[7]
 
 
 
The appellate court was in accord with the trial courts findings
that the doctrine of res ipsa loquitur was correctly applied in
determining the liability of Pascual and that petitioner-corporation,
as the employer, was vicariously liable to respondents. Nonetheless,
for respondents failure to substantiate their actual loss, the
appellate court granted nominal damages of P600,000 to them.
 
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
Plaintiffs-Appellees claim for actual damages.[8] (emphasis
supplied)
 
 
 
Via this petition, petitioners ascribe the following errors to the
appellate court:
 
(a)    THE COURT OF APPEALS ERRED IN APPLYING THE
DOCTRINE OF [RES IPSA LOQUITUR] IN THE PRESENT
CASE;
 
(b)    THE COURT OF APPEALS ERRED WHEN IT FOUND
PERLA NEGLIGENT IN THE SUPERVISION OF
PASCUAL, AND CONSEQUENTLY, VICARIOUSLY
LIABLE FOR THE FIRE BECAUSE PERLA FAILED TO
ADDUCE EVIDENCE OF SUPERVISION OF EMPLOYEES
CARE AND UPKEEP OF COMPANY VEHICLES
REQUIRED BY THE SUPREME COURT ON
TRANSPORTATION COMPANIES; AND
 
(c)    THE COURT OF APPEALS ERRED WHEN IT ORDERED
THE REMAND OF THE CASE TO RTC ISABELA FOR
RECEPTION OF ADDITIONAL EVIDENCE BY THE
SARANGAYA SPOUSES ON THEIR CLAIM FOR ACTUAL
DAMAGES.[9]
 
 
Res ipsa loquitur is a Latin phrase which literally means the
thing or the transaction speaks for itself. [10] It relates to the fact of
an injury that sets out an inference to the cause thereof or
establishes the plaintiffs prima facie case. [11] The doctrine rests on
inference and not on presumption. [12] The facts of the occurrence
warrant the supposition of negligence and they furnish
circumstantial evidence of negligence when direct evidence is
lacking.[13]
 
The doctrine is based on the theory that the defendant either
knows the cause of the accident or has the best opportunity of
ascertaining it and the plaintiff, having no knowledge thereof, is
compelled to allege negligence in general terms. [14] In such instance,
the plaintiff relies on proof of the happening of the accident alone to
establish negligence.[15]
 
The doctrine provides a means by which a plaintiff can pin
liability on a defendant who, if innocent, should be able to explain
the care he exercised to prevent the incident complained of. Thus, it
is the defendants responsibility to show that there was no
negligence on his part.[16]
 
To sustain the allegation of negligence based on the doctrine
of res ipsa loquitur, the following requisites must concur:
 
1)                             the accident is of a kind which does not ordinarily
occur unless someone is negligent;
 
2)                             the cause of the injury was under the exclusive
control of the person in charge and
 
3)                             the injury suffered must not have been due to any
voluntary action or contribution on the part of the person
injured.[17]
 
 
 Under the first requisite, the occurrence must be one that
does not ordinarily occur unless there is negligence. Ordinary refers
to the usual course of events. [18] Flames spewing out of a car engine,
when it is switched on, is obviously not a normal event. Neither
does an explosion usually occur when a car engine is revved.
Hence, in this case, without any direct evidence as to the cause of
the accident, the doctrine of res ipsa loquitur comes into play and,
from it, we draw the inference that based on the evidence at hand,
someone was in fact negligent and responsible for the accident.
 
The test to determine the existence of negligence in a
particular case may be stated as follows: did the defendant in
committing the alleged negligent act, use reasonable care and
caution which an ordinarily prudent person in the same situation
would have employed?[19] If not, then he is guilty of negligence.
Here, the fact that Pascual, as the caretaker of the car, failed
to submit any proof that he had it periodically checked (as its year-
model and condition required) revealed his negligence. A prudent
man should have known that a 14-year-old car, constantly used in
provincial trips, was definitely prone to damage and other defects.
For failing to prove care and diligence in the maintenance of the
vehicle, the necessary inference was that Pascual had been
negligent in the upkeep of the car.
 
Pascual attempted to exculpate himself from liability by
insisting that the incident was a caso fortuito.  We disagree.
 
 The exempting circumstance of caso fortuito may be availed
only when: (a) the cause of the unforeseen and unexpected
occurrence was independent of the human will; (b) it was
impossible to foresee the event which constituted the caso
fortuito  or, if it could be foreseen, it was impossible to avoid; (c) the
occurrence must be such as to render it impossible to perform an
obligation in a normal manner and (d) the person tasked to perform
the obligation must not have participated in any course of conduct
that aggravated the accident.[20]
 
In fine, human agency must be entirely excluded as the
proximate cause or contributory cause of the injury or loss. [21] In a
vehicular accident, for example, a mechanical defect will not release
the defendant from liability if it is shown that the accident could
have been prevented had he properly maintained and taken good
care of the vehicle.[22]
 
The circumstances on record do not support the defense of
Pascual. Clearly, there was no caso fortuito because of his want of
care and prudence in maintaining the car.
 
Under the second requisite, the instrumentality or agency
that triggered the occurrence must be one that falls under the
exclusive control of the person in charge thereof. In this case, the
car where the fire originated was under the control of Pascual.
Being its caretaker, he alone had the responsibility to maintain it
and ensure its proper functioning. No other person, not even the
respondents, was charged with that obligation except him.
 
Where the circumstances which caused the accident are
shown to have been under the management or control of a certain
person and, in the normal course of events, the incident would not
have happened had that person used proper care, the inference is
that it occurred because of lack of such care. [23] The burden of
evidence is thus shifted to defendant to establish that he observed
all that was necessary to prevent the accident from happening. In
this aspect, Pascual utterly failed.
 
Under the third requisite, there is nothing in the records to
show that respondents contributed to the incident. They had no
access to the car and had no responsibility regarding its
maintenance even if it was parked in a building they owned.
 
On the second assigned error, we find no reason to reverse the
decision of the Court of Appeals. The relationship between the two
petitioners was based on the principle of pater familias according to
which the employer becomes liable to the party aggrieved by its
employee if he fails to prove due diligence of a good father of a
family in the selection and supervision of his employees. [24] The
burden of proof that such diligence was observed devolves on the
employer who formulated the rules and procedures for the selection
and hiring of his employees.
 
 In the selection of prospective employees, employers are
required to examine them as to their qualifications, experience and
service records.[25] While the petitioner-corporation does not appear
to have erred in considering Pascual for his position, its lack of
supervision over him made it jointly and solidarily liable for the fire.
 
In the supervision of employees, the employer must formulate
standard operating procedures, monitor their implementation and
impose disciplinary measures for the breach thereof. [26] To fend off
vicarious liability, employers must submit concrete proof, including
documentary evidence, that they complied with everything that was
incumbent on them.[27] Here, petitioner-corporations evidence
hardly included any rule or regulation that Pascual should have
observed in performing his functions. It also did not have any
guidelines for the maintenance and upkeep of company property
like the vehicle that caught fire. Petitioner-corporation did not
require periodic reports on or inventories of its properties either.
Based on these circumstances, petitioner-corporation clearly did
not exert effort to be apprised of the condition of Pascuals car or its
serviceability.
 
Petitioner-corporations argument that the liability attached to
employers only applies in cases involving the supervision of
employees in the transportation business is incorrect. Article 2180
of the Civil Code states that employers shall be liable for the
damage caused by their employees. The liability is imposed on all
those who by their industry, profession or other enterprise have
other persons in their service or supervision. [28] Nowhere does it
state that the liability is limited to employers in the transportation
business.
 
 
 
 
WHEREFORE, the petition is hereby DENIED and the
decision[29] of the Court of Appeals affirmed in toto.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-22533             February 9, 1967

PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners, 

vs.
PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES BONIFACIO, respondents.

Placido B. Ramos and Renato L. Ramos for petitioners.

Trinidad & Borromeo for respondents.

BENGZON, J.P., J.:

On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola Bottling Co. of the P.I. 1 and Andres
Bonifacio in the Court of First Instance of Manila as a consequence of a collision, on May 10, 1958,
involving the car of Placido Ramos and a tractor-truck and trailer of PEPESI-COLA. Said car was at
the time of the collision driven by Augusto Ramos, son and co-plaintiff of Placido. PEPSI-COLA's
tractor-truck was then driven by its driver and co-defendant Andres Bonifacio.

After trial the Court of First Instance rendered judgment on April 15, 1961, finding Bonifacio negligent
and declaring that PEPSI-COLA had not sufficiently proved its having exercised the due diligence of
a good father of a family to prevent the damage. PEPSI-COLA and Bonifacio, solidarily, were
ordered to pay the plaintiffs P2,638.50 actual damages; P2,000.00 moral damages; P2,000.00 as
exemplary damages; and, P1,000.00 attorney's fees, with costs.

Not satisfied with this decision, the defendants appellee to the Court of Appeals.

Said Court, on January 15, 1964, affirmed the trial court's judgment insofar as it found defendant
Bonifacio negligent, but modified it by absolving defendant PEPSI-COLA from liability, finding that,
contrary to the plaintiffs' contention, PEPSI-COLA sufficiently proved due diligence in the selection of
its driver Bonifacio.

Plaintiffs thereupon appealed to Us through this petition for review of the Court of Appeals' decision.
And appellants would argue before this Court that defendant PEPSI-COLA's evidence failed to show
that it had exercised due diligence in the selection of its driver in question.

Said point, as stated, was resolved by the Court of Appeals in PEPSI-COLA's favor, thus:

The uncontradicted testimony of Juan T. Anasco, personnel manager of defendant company,

was to the effect that defendant driver was first hired as a member of the bottle crop in the
production department; that when he was hired as a driver, 'we had size [sic] him by looking
into his background, asking him to submit clearances, previous experience, physical
examination and later on, he was sent to the pool house to take the usual driver's
examination, consisting of: First, theoretical examination and second, the practical driving
examination, all of which he had undergone, and that the defendant company was a member
of the Safety Council. In view hereof, we are of the sense that defendant company had
exercised the diligence of a good father of a family in the choice or selection of defendant
driver'. In the case of Campo vs. Camarote No. L-9147 (1956), 53 O.G. 2794, cited in
appellee's brief, our Supreme Court had occasion to put it down as a rule that "In order that
the defendant may be considered as having exercised all the diligence of a good father of a
family, he should not have been satisfied with the mere possession of a professional driver's
license; he should have carefully examined the applicant for employment as to his
qualifications, his experiences and record of service." Defendant Company has taken all
these steps.2

Appellants herein seek to assail the foregoing portion of the decision under review by taking issue
with the testimony of Anasco upon which the findings of due diligence aforestated are rested. Thus,
it is now contended that 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 the Court of Appeals,
with some few exceptions, which do not obtain herein. 3

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 truth or the falsehood of alleged facts. 5

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.:

Petitioners seek a reconsideration1 of Our decision2 in the instant case affirming in toto the
challenged decision of the Court of Appeals absolving respondent PEPSI-COLA from liability. In Our
decision, We refrained from passing on the merits of the question whether PEPSI-COLA, in
operating the tractor-truck and trailer, violated the Rev. Motor Vehicle Law 3 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 mirror.4 This cannot prove lack of rear-vision mirror. And the cited
provision — subpar. 4(d) — is complied if either of the two alternatives, i.e., having a rear-vision
mirror or a helper, is present. Stated otherwise, said provision is violated only where there is a
positive finding that the tractor-truck did not have both rear-vision mirror and a helper for the driver.

Petitioners also charge PEPSI-COLA with having violated par. (b) of Sec. 8-A of the Rev. Motor
Vehicle Law, providing that:

No motor vehicle operating as a single unit shall exceed the following dimensions:

Overall width ................ 2.5 meters.

xxx     xxx     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 registered. 5 Compliance with law and regularity in the performance
of official duty — in this case, the issuance of proper registration papers — are
presumed6 and prevail over mere surmises. Having charged a violation of law, the onus of
substantiating the same fell upon petitioners-appellants. Hence, the conclusion that there
was a violation of the law lacks factual basis.
Petitioners would also have Us abandon the Bahia ruling.7 In its stead, We are urged to apply the
Anglo-American doctrine of respondent superior. We cannot however, abandon the Bahia ruling
without going against the explicit mandate of the law. A motor vehicle owner is not an absolute
insurer against all damages caused by its driver. Article 2180 of our Civil Code is very explicit that
the owner's responsibility shall cease once it proves that it has observed the diligence of a good
father of a family to prevent damage. The Bahia case merely clarified what that diligence consists of,
namely, diligence in the selection and supervision of the driver-employee.

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

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

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ.,
concur.

Footnotes

1
For brevity hereinafter called PEPSI-COLA.

2
Emphasis supplied.

3
Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be
reviewed on appeals by certiorari are:

1. When the conclusion is a finding grounded entirely on speculation, surmises or

conjectures: Joaquin vs. Navarro, 93 Phil. 257.

2. When the inference made is manifestly mistaken, absurd or impossible: Luna vs.
Linatok 74 Phil. 15.

3. Where there is a grave abuse of discretion: Buyco vs. People, 51 O.G. 2927.

4. When the judgment is based on a misapprehension of facts: Cruz vs. Sosing, L-

4875, November 27, 1953.

5. When the findings of fact are conflicting: Casica vs. Villaseca, L-9590, April 30,
1957.

6. When the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee:
Evangelista vs. Alto Surety & Insurance Co., L-11139, April 23, 1958.

4
Cf. II Moran, Comments on the Rules of Court, 1963 Ed., 412.

5
See II Martin, Rules of Court in the Philippines, 255; II Bouvier's Law Dictionary, 2784.
 6
Tan Si Kiok vs. Tiacho, 79 Phil. 696.

BENGZON, J.P., J.:

1
Typographical errors appearing in the printed motion for reconsideration have been
corrected upon petitioner's request granted by Us.

2
Promulgated Feb. 9, 1967.

3
Act No. 3992.

4
Session of Jan. 13, 1960, T.s.n., p. 68.

5
See Pars. 2 and 3 of Complaint, Rollo, p. 44.

6
Rule 131, Sec. 5(m) and (ff), Rev. Rules of Court.

7
Bahia vs. Litonjua, 30 Phil. 624, which held that once the employer satisfactorily shows that
in the section and supervision of the driver, he has exercised the care and diligence of a
good father of a family, he is relieved from liability.

8
Cangco vs. M.R.R., 38 Phil. 768; Cuison vs. Norton, 55 Phil. 18.

THIRD DIVISION

[G.R. No. 118231. July 5, 1996]

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

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

DECISION
DAVIDE, JR., J.:

Throughout history, patients have consigned their fates and lives to the
skill of their doctors. For a breach of this trust, men have been quick to
demand retribution. Some 4,000 years ago, the Code of Hammurabi [1] then
already provided: "If a physician make a deep incision upon a man with his
bronze lancet and cause the man's death, or operate on the eye socket of a
man with his bronze lancet and destroy the man's eyes, they shall cut off his
hand."[2] Subsequently, Hippocrates[3] wrote what was to become part of the
healer's oath: "I will follow that method of treatment which according to my
ability and judgment, I consider for the benefit of my patients, and abstain
from whatever is deleterious and mischievous . . . . While I continue to keep
this oath unviolated may it be granted me to enjoy life and practice the art,
respected by all men at all times but should I trespass and violate this oath,
may the reverse be my lot." At present, the primary objective of the medical
profession is the preservation of life and maintenance of the health of the
people.[4]
Needless to say then, when a physician strays from his sacred duty and
endangers instead the life of his patient, he must be made to answer
therefor. Although society today cannot and will not tolerate the punishment
meted out by the ancients, neither will it and this Court, as this case would
show, let the act go uncondemned.
The petitioners appeal from the decision[5] of the Court of Appeals of 11
May 1994 in CA-G.R. CV No. 30851, which reversed the decision [6] of 21
December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros
Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial
Hospital, Dumaguete City from January 9, 1978 to September 1989. Between
1987 and September, 1989 she was also the Actg. Head of the Department of
Obstetrics and Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for
prenatal care as the latter's private patient sometime before September 21,
1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of
Dr. Doris Teresita Sy who was also a Resident Physician at the same
Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses
performed a simple cesarean section on Mrs. Villegas at the Negros Oriental
Provincial Hospital and after 45 minutes Mrs. Villegas delivered her first child,
Rachel Acogido, at about 11:45 that morning. Thereafter, Plaintiff remained
confined at the Hospital until September 27, 1988 during which period of
confinement she was regularly visited by Dr. Batiquin. On September 28,
1988, Mrs. Villegas checked out of the Hospital . . . and on the same day she
paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as
"professional fee" . . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal
pains and complained of being feverish. She also gradually lost her appetite,
so she consulted Dr. Batiquin at the latter's polyclinic who prescribed for her
certain medicines . . . which she had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr.
Batiquin on October 31, 1988 . . . certifying to her physical fitness to return to
her work on November 7, 1988. So, on the second week of November, 1988
Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros
Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs.
Villegas no end and despite the medications administered by Dr.
Batiquin. When the pains become unbearable and she was rapidly losing
weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in
Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined
Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs.
Villegas to be feverish, pale and was breathing fast. Upon examination she
felt an abdominal mass one finger below the umbilicus which she suspected
to be either a tumor of the uterus or an ovarian cyst, either of which could be
cancerous. She had an x-ray taken of Mrs. Villegas' chest, abdomen and
kidney. She also took blood tests of Plaintiff. A blood count showed that Mrs.
Villegas had [an] infection inside her abdominal cavity. The result of all those
examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to another
surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-
yellow discharge inside, an ovarian cyst on each of the left and right ovaries
which gave out pus, dirt and pus behind the uterus, and a piece of rubber
materials on the right side of the uterus embedded on [sic] the ovarian cyst, 2
inches by 3/4 inch in size. This piece of rubber material which Dr. Kho
described as a "foreign body" looked like a piece of a "rubber glove" . . . and
which is [sic] also "rubber-drain like . . . . It could have been a torn section of a
surgeon's gloves or could have come from other sources. And this foreign
body was the cause of the infection of the ovaries and consequently of all the
discomfort suffered by Mrs. Villegas after her delivery on September 21, 1988.
[7]

The piece of rubber allegedly found near private respondent Flotilde

Villegas' uterus was not presented in court, and although Dr. Ma. Salud Kho
testified that she sent it to a pathologist in Cebu City for examination, [8] it was
not mentioned in the pathologist's Surgical Pathology Report.[9]
 Aside from Dr. Kho's testimony, the evidence which mentioned the piece
of rubber are a Medical Certificate,[10] a Progress Record,[11] an Anesthesia
Record,[12] a Nurse's Record,[13] and a Physician's Discharge Summary.[14] The
trial court, however, regarded these documentary evidence as mere hearsay,
"there being no showing that the person or persons who prepared them are
deceased or unable to testify on the facts therein stated . . . . Except for the
Medical Certificate (Exhibit "F"), all the above documents were allegedly
prepared by persons other than Dr. Kho, and she merely affixed her signature
on some of them to express her agreement thereto . . . ."[15] The trial court also
refused to give weight to Dr. Kho's testimony regarding the subject piece of
rubber as Dr. Kho "may not have had first-hand knowledge" thereof,[16] as
could be gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with
the tissues but unluckily I don't know where the rubber was.[17]

The trial court deemed vital Dr. Victoria Batiquin's testimony that when she
confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that
there was rubber indeed but that she threw it away."[18] This statement, the trial
court noted, was never denied nor disputed by Dr. Kho, leading it to conclude:

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

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

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

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

The appellate court then ruled:

Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of

P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with doctor's
fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that
saved her life.

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

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

WHEREFORE, the appealed judgment, dismissing the complaint for damages is

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

SO ORDERED.[21]

From the above judgment, the petitioners appealed to this Court claiming
that the appellate court; (1) committed grave abuse of discretion by resorting
to findings of fact not supported by the evidence on record, and (2) exceeded
its discretion, amounting to lack or excess of jurisdiction, when it gave
credence to testimonies punctured with contradictions and falsities.
The private respondents commented that the petition raised only
questions of fact, which were not proper for review by this Court.
 While the rule is that only questions of law may be raised in a petition for
review on certiorari, there are exceptions, among which are when the factual
findings of the trial court and the appellate court conflict, when the appealed
decision is clearly contradicted by the evidence on record, or when the
appellate court misapprehended the facts.[22]
After deciphering the cryptic petition, we find that the focal point of the
instant appeal is the appreciation of Dr. Kho's testimony. The petitioners
contend that the Court of Appeals misappreciated the following portion of Dr.
Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case this would turn out to
be a medico-legal case, I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't know where the rubber
was. It was not in the Lab, it was not in Cebu.[23] (Italics supplied)

The petitioners prefer the trial court's interpretation of the above

testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was based on
hearsay. The Court of Appeals, on the other hand, concluded that the
underscored phrase was taken out of context by the trial court. According to
the Court of Appeals, the trial court should have likewise considered the other
portions of Dr. Kho's testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen, there
was an ovarian cyst on the left and side and there was also an ovarian cyst on the right
which, on opening up or freeing it up from the uterus, turned out to be pus. Both
ovaries turned out . . . to have pus. And then, cleaning up the uterus, at the back of the
uterus it was very dirty, it was full of pus. And there was a [piece of] rubber, we found a
[piece of] rubber on the right side.[24]

We agree with the Court of Appeals. The phrase relied upon by the trial
court does not negate the fact that Dr. Kho saw a piece of rubber in private
respondent Villegas' abdomen, and that she sent it to a laboratory and then to
Cebu City for examination by a pathologist.[25] Not even the Pathologist's
Report, although devoid of any mention of a piece of rubber, could alter what
Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could
not be based on other than first hand knowledge for, as she asserted before
the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it.[26]
 The petitioners emphasize that the private respondents never reconciled
Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that when
Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that
there was a piece of rubber but that she threw it away. Although hearsay, Dr.
Batiquin's claim was not objected to, and hence, the same is admissible[27] but
it carries no probative value.[28] Nevertheless, assuming otherwise, Dr.
Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber
near private respondent Villegas' uterus. And even if we were to doubt Dr.
Kho as to what she did to the piece of rubber, i.e., whether she threw it away
or sent it to Cebu City, we are not justified in distrusting her as to her recovery
of a piece of rubber from private respondent Villegas' abdomen. On this score,
it is perfectly reasonable to believe the testimony of a witness with respect to
some facts and disbelieve his testimony with respect to other facts. And it has
been aptly said that even when a witness is found to have deliberately falsified
in some material particulars, it is not required that the whole of his
uncorroborated testimony be rejected, but such portions thereof deemed
worthy of belief may be credited.[29]
It is here worth nothing that the trial court paid heed to the following
portions of Dr. Batiquin's testimony: that no rubber drain was used in the
operation,[30] and that there was neither any tear on Dr. Batiquin's gloves after
the operation nor blood smears on her hands upon removing her gloves.
[31]
 Moreover, the trial court pointed out that the absence of a rubber drain was
corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on
private respondent Villegas.[32] But the trial court failed to recognize that the
assertions of Drs. Batiquin and Sy were denials or negative testimonies. Well-
settled is the rule that positive testimony is stronger than negative testimony.
[33]
 Of course, as the petitioners advocate, such positive testimony must come
from a credible source, which leads us to the second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr.
Kho's testimony, a reading of the said testimony reveals no such infirmity and
establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her
turn on the witness stand.Furthermore, no motive to state any untruth was
ever imputed against Dr. Kho, leaving her trustworthiness unimpaired.[34] The
trial court's following declaration shows that while it was critical of the lack of
care with which Dr. Kho handled the piece of rubber, it was not prepared to
doubt Dr. Kho's credibility, thus only supporting out appraisal of Dr. Kho's
trustworthiness:
This is not to say that she was less than honest when she testified about her
findings, but it can also be said that she did not take the most appropriate
precaution to preserve that "piece of rubber" as an eloquent evidence of what
she would reveal should there be a "legal problem" which she claim[s] to have
anticipated.[35]
Considering that we have assessed Dr. Kho to be a credible witness, her
positive testimony [that a piece of rubber was indeed found in private
respondent Villegas' abdomen] prevails over the negative testimony in favor of
the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had
occasion to delve into the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which
causes injury is shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen if those
who have the management use proper care, it affords reasonable evidence, in
the absence of an explanation by the defendant, that the accident arose from
want of care." Or as Black's Law Dictionary puts it:

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

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

DECISION
ROMERO, J.:

May this Court review the findings of the Office of the Ombudsman? The
general rule has been enunciated in Ocampo v. Ombudsman   which states:
[1]

In the exercise of its investigative power, this Court has consistently held that courts
will not interfere with the discretion of the fiscal or the Ombudsman to determine the
specificity and adequacy of the averments of the offense charged. He may dismiss the
complaint forthwith if he finds it to be insufficient in form and substance or if he
otherwise finds no ground to continue with the inquiry; or he may proceed with the
investigation of the complaint if, in his view, it is in due and proper form.

Does the instant case warrant a departure from the foregoing general
rule? When a patient dies soon after surgery under circumstances which
indicate that the attending surgeon and anaesthesiologist may have been
guilty of negligence but upon their being charged, a series of nine prosecutors
toss the responsibility of conducting a preliminary investigation to each other
with contradictory recommendations, ping-pong style, perhaps the distraught
widow is not to be blamed if she finally decides to accuse the City Prosecutors
at the end of the line for partiality under the Anti-Graft and Corrupt Practices
Act. Nor may she be entirely faulted for finally filing a petition before this Court
against the Ombudsman for grave abuse of discretion in dismissing her
complaint against said City Prosecutors on the ground of lack of
evidence. Much as we sympathize with the bereaved widow, however, this
Court is of the opinion that the general rule still finds application in instant
case. In other words, the respondent Ombudsman did not commit grave
abuse of discretion in deciding against filing the necessary information against
public respondents of the Office of the City Prosecutor.
The following facts are borne out by the records.
 Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda,
underwent surgical operation at the UST hospital for the removal of a stone
blocking his ureter. He was attended by Dr. Domingo Antonio, Jr. who was the
surgeon, while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six
hours after the surgery, however, Florencio died of complications of unknown
cause, according to officials of the UST Hospital.
[2]

Not satisfied with the findings of the hospital, petitioner requested the
National Bureau of Investigation (NBI) to conduct an autopsy on her husbands
body. Consequently, the NBI ruled that Florencios death was due to lack of
care by the attending physician in administering anaesthesia. Pursuant to its
findings, the NBI recommended that Dr. Domingo Antonio and Dr. Erlinda
Balatbat-Reyes be charged for Homicide through Reckless Imprudence
before the Office of the City Prosecutor.
During the preliminary investigation, what transpired was a confounding
series of events which we shall try to disentangle. The case was initially
assigned to Prosecutor Antonio M. Israel, who had to inhibit himself because
he was related to the counsel of one of the doctors. As a result, the case was
re-raffled to Prosecutor Norberto G. Leono who was, however, disqualified on
motion of the petitioner since he disregarded prevailing laws and
jurisprudence regarding preliminary investigation. The case was then referred
to Prosecutor Ramon O. Carisma, who issued a resolution recommending that
only Dr. Reyes be held criminally liable and that the complaint against Dr.
Antonio be dismissed.
The case took another perplexing turn when Assistant City Prosecutor
Josefina Santos Sioson, in the interest of justice and peace of mind of the
parties, recommended that the case be re-raffled on the ground that
Prosecutor Carisma was partial to the petitioner.Thus, the case was
transferred to Prosecutor Leoncia R. Dimagiba, where a volte face occurred
again with the endorsement that the complaint against Dr. Reyes be
dismissed and instead, a corresponding information be filed against Dr.
Antonio. Petitioner filed a motion for reconsideration, questioning the findings
of Prosecutor Dimagiba.
Pending the resolution of petitioners motion for reconsideration regarding
Prosecutor Dimagibas resolution, the investigative pingpong continued when
the case was again assigned to another prosecutor, Eudoxia T. Gualberto,
who recommended that Dr. Reyes be included in the criminal information of
Homicide through Reckless Imprudence. While the recommendation of
Prosecutor Gualberto was pending, the case was transferred to Senior State
Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr. Reyes from
any wrongdoing, a resolution which was approved by both City Prosecutor
Porfirio G. Macaraeg and City Prosecutor Jesus F. Guerrero.
Aggrieved, petitioner filed graft charges specifically for violation of Section
3(e) of Republic Act No. 3019   against Prosecutors Guerrero, Macaraeg, and
[3]

Arizala for manifest partiality in favor of Dr. Reyes before the Office of the
Ombudsman. However, on July 11, 1994, the Ombudsman issued the
assailed resolution dismissing the complaint for lack of evidence.
In fine, petitioner assails the exercise of the discretionary power of the
Ombudsman to review the recommendations of the government prosecutors
and to approve and disapprove the same. Petitioner faults the Ombudsman
for, allegedly in grave abuse of discretion, refusing to find that there exists
probable cause to hold public respondent City Prosecutors liable for violation
of Section 3(e) of R.A. No. 3019.
Preliminarily, the powers and functions of the Ombudsman have generally
been categorized into the following: investigatory powers, prosecutory power,
public assistance function, authority to inquire and obtain information, and
function to adopt, institute and implement preventive measures.  [4]

As protector of the people, the Office of the Ombudsman has the power,
function and duty to act promptly on complaints filed in any form or manner
against public officials and to investigate any act or omission of any public
official when such act or omission appears to be illegal, unjust, improper or
inefficient. 
[5]

While the Ombudsman has the full discretion to determine whether or not
a criminal case should be filed, this Court is not precluded from reviewing the
Ombudsmans action when there is an abuse of discretion, in which case Rule
65 of the Rules of Court may exceptionally be invoked pursuant to Section I,
Article VIII of the 1987 Constitution. 
[6]

In 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. [7]

From a procedural standpoint, it is certainly odd why the successive

transfers from one prosecutor to another were not sufficiently explained in the
Resolution of the Ombudsman. Being the proper investigating authority with
respect to misfeasance, non-feasance and malfeasance of public officials, the
Ombudsman should have been more vigilant and assiduous in determining
the reasons behind the buckpassing to ensure that no irregularity took place.
 Whether such transfers were due to any outside pressure or ulterior
motive is a matter of evidence. One would have expected the Ombudsman,
however, to inquire into what could hardly qualify as standard operating
procedure, given the surrounding circumstances of the case.
While it is true that a preliminary investigation is essentially inquisitorial,
and is often the only means to discover who may be charged with a crime, its
function is merely to determine the existence of probable cause.   Probable
[8]

cause has been defined as the existence of such fact and circumstances as
would excite the belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecution, that the person charged was guilty of the crime
for which he was prosecuted. [9]

Probable cause is a reasonable ground of presumption that a matter is, or

may be, well founded, such a state of facts in the mind of the prosecutor as
would lead a person of ordinary caution and prudence to believe, or entertain
an honest or strong suspicion, that a thing is so. The term does not
mean actual and positive cause nor does it import absolute certainty. It is
merely based on opinion and reasonable belief. Thus, a finding of probable
cause does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for
the reception of evidence of the prosecution in support of the charge. [10]

In the instant case, no less than the NBI pronounced after conducting an
autopsy that there was indeed negligence on the part of the attending
physicians in administering the anaesthesia.   The fact of want of competence
[11]

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
caused injury to the patient.
[12]

Hence, there are four elements involved in medical negligence cases:

duty, breach, injury and proximate causation.
Evidently, when the victim employed the services of Dr. Antonio and Dr.
Reyes, a physician-patient relationship was created. In accepting the case,
Dr. Antonio and Dr. Reyes in effect represented that, having the needed
training and skill possessed by physicians and surgeons practicing in the
same field, they will employ such training, care and skill in the treatment of
their patients.  They have a duty to use at least the same level of care that
[13]

any other reasonably competent doctor would use to treat a condition under
the same circumstances. The breach of these professional duties of skill and
care, or their improper performance, by a physician surgeon whereby the
patient is injured in body or in health, constitutes actionable malpractice.
 Consequently, in the event that any injury results to the patient from want of
[14]

due care or skill during the operation, the surgeons may be held answerable
in damages for negligence. [15]

Moreover, in malpractice or negligence cases involving the administration

of anaesthesia, the necessity of expert testimony and the availability of the
charge of res ipsa loquitur to the plaintiff, have been applied in actions against
anaesthesiologists to hold the defendant liable for the death or injury of a
patient under excessive or improper anaesthesia.  Essentially, it requires two-
[16]

pronged evidence: evidence as to the recognized standards of the medical

community in the particular kind of case, and a showing that the physician in
question negligently departed from this standard in his treatment. [17]

Another element in medical negligence cases is causation which is divided

into two inquiries: whether the doctors actions in fact caused the harm to the
patient and whether these were the proximate cause of the patients injury.
 Indeed here, a causal connection is discernible from the occurrence of the
[18]

victims death after the negligent act of the anaesthesiologist in administering

the anesthesia, a fact which, if confirmed, should warrant the filing of the
appropriate criminal case. To be sure, the allegation of negligence is not
entirely baseless. Moreover, the NBI deduced that the attending surgeons did
not conduct the necessary interview of the patient prior to the operation. It
appears that the cause of the death of the victim could have been averted had
the proper drug been applied to cope with the symptoms of malignant
hyperthermia. Also, we cannot ignore the fact that an antidote was readily
available to counteract whatever deleterious effect the anaesthesia might
produce.   Why these precautionary measures were disregarded must be
[19]

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,   otherwise known as the 1993 Revised Rules on
[21]

Appeals From Resolutions In Preliminary Investigations/Reinvestigations, as

amended by Department Order No. 359, Section 1 of which provides:

Section 1. What May Be Appealed. - Only resolutions of the Chief State

Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice except
as otherwise provided in Section 4 hereof.

What action may the Secretary of Justice take on the appeal? Section 9 of

Order No. 223 states: The Secretary of Justice may reverse, affirm or modify
the appealed resolution. On the other hand, He may motu proprio or on
motion of the appellee, dismiss outright the appeal on specified grounds.  [22]
 In exercising his discretion under the circumstances, the Ombudsman
acted within his power and authority in dismissing the complaint against the
Prosecutors and this Court will not interfere with the same.
WHEREFORE, in view of the foregoing, the instant petition is
DISMISSED, without prejudice to the filing of an appeal by the petitioner with
the Secretary of Justice assailing the dismissal of her criminal complaint by
the respondent City Prosecutors. No costs.
SO ORDERED.
Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.
FIRST DIVISION

[G.R. No. 124354. December 29, 1999]

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

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

DECISION
KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health
and welfare of their patients. If a doctor fails to live up to this precept, he is made accountable
for his acts. A mistake, through gross negligence or incompetence or plain human error, may
spell the difference between life and death. In this sense, the doctor plays God on his patients
fate.[1]
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and
a hospital should be made liable for the unfortunate comatose condition of a patient scheduled
for cholecystectomy.[2]
Petitioners seek the reversal of the decision[3] of the Court of Appeals, dated 29 May 1995,
which overturned the decision[4]of the Regional Trial Court, dated 30 January 1992, finding
private respondents liable for damages arising from negligence in the performance of their
professional duties towards petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh.
A) robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to
Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company,
she has three children whose names are Rommel Ramos, Roy Roderick Ramos and
Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of a
stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests (Exhs. A and C) which indicated
she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p.
7), she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June
10, 1985. They agreed that their date at the operating table at the DLSMC (another
defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
should undergo a cholecystectomy operation after examining the documents (findings
from the Capitol Medical Center, FEU Hospital and DLSMC) presented to
him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the
anesthesiologists fee and which was to be paid after the operation (TSN, October 19,
1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9,
1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of
the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,
1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared
for the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the
Dean of the College of Nursing at the Capitol Medical Center, was also there for
moral support. She reiterated her previous request for Herminda to be with her even
during the operation. After praying, she was given injections. Her hands were held by
Herminda as they went down from her room to the operating room (TSN, January 13,
1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p.
18). At the operating room, Herminda saw about two or three nurses and Dr. Perfecta
Gutierrez, the other defendant, who was to administer anesthesia. Although not a
member of the hospital staff, Herminda introduced herself as Dean of the College of
Nursing at the Capitol Medical Center who was to provide moral support to the
patient, to them. Herminda was allowed to stay inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka
who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter
informed Herminda Cruz about the prospect of a delay in the arrival of Dr.
Hosaka. Herminda then went back to the patient who asked, Mindy, wala pa ba ang
Doctor? The former replied, Huwag kang mag-alaala, darating na iyon (ibid.).

Thereafter, Herminda went out of the operating room and informed the patients
husband, Rogelio, that the doctor was not yet around (id., p. 13). When she returned to
the operating room, the patient told her, Mindy, inip na inip na ako, ikuha mo ako ng
ibang Doctor. So, she went out again and told Rogelio about what the patient said (id.,
p. 15). Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was already dying [and] waiting for the
arrival of the doctor even as he did his best to find somebody who will allow him to
pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-20). He
also thought of the feeling of his wife, who was inside the operating room waiting for
the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked
that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p.
21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked, Nandiyan na si Dr. Hosaka, dumating na
raw. Upon hearing those words, he went down to the lobby and waited for the
operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the
patient, heard somebody say that Dr. Hosaka is already here. She then saw people
inside the operating room moving, doing this and that, [and] preparing the patient for
the operation (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos,
she then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr.
Gutierrez say, ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her
attention on what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration
of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka approached
her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room,
she saw this anesthesiologist trying to intubate the patient. The patients nailbed
became bluish and the patient was placed in a trendelenburg position - a position
where the head of the patient is placed in a position lower than her feet which is an
indication that there is a decrease of blood supply to the patients brain (Id., pp. 19-
20). Immediately thereafter, she went out of the operating room, and she told Rogelio
E. Ramos that something wrong was x x x happening (Ibid.). Dr. Calderon was then
able to intubate the patient (TSN, July 25, 1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine
being rushed towards the door of the operating room. He also saw several doctors
rushing towards the operating room. When informed by Herminda Cruz that
something wrong was happening, he told her (Herminda) to be back with the patient
inside the operating room (TSN, October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The
latter informed the former that something went wrong during the intubation. Reacting
to what was told to him, Rogelio reminded the doctor that the condition of his wife
would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist
(TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what
happened to the patient. The doctors explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting
to P93,542.25 which is the subject of a promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of
June 17, 1985, she has been in a comatose condition. She cannot do anything. She
cannot move any part of her body. She cannot see or hear. She is living on mechanical
means. She suffered brain damage as a result of the absence of oxygen in her brain for
four to five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged
from the hospital, she has been staying in their residence, still needing constant
medical attention, with her husband Rogelio incurring a monthly expense ranging
from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also
diagnosed to be suffering from diffuse cerebral parenchymal damage (Exh. G; see
also TSN, December 21, 1989, p. 6).[5]

Thus, on 8 January 1986, petitioners filed a civil case [6] for damages with the Regional Trial
Court of Quezon City against herein private respondents alleging negligence in the management
and care of Erlinda Ramos.
 During the trial, both parties presented evidence as to the possible cause of Erlindas
injury. Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to
prove that the damage sustained by Erlinda was due to lack of oxygen in her brain caused by the
faulty management of her airway by private respondents during the anesthesia phase. On the
other hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora,
a pulmonologist, to the effect that the cause of brain damage was Erlindas allergic reaction to the
anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment
in favor of petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and
applying the aforecited provisions of law and jurisprudence to the case at bar, this
Court finds and so holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the performance of their
duty to plaintiff-patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to
the fact that the patient was inside the operating room for almost three (3) hours. For
after she committed a mistake in intubating [the] patient, the patient's nailbed became
bluish and the patient, thereafter, was placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The evidence further shows that the
hapless patient suffered brain damage because of the absence of oxygen in her
(patient's) brain for approximately four to five minutes which, in turn, caused the
patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as part
of his obligation to provide the patient a `good anesthesiologist', and for arriving for
the scheduled operation almost three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
negligence of the doctors in their `practice of medicine' in the operating
room. Moreover, the hospital is liable for failing through its responsible officials, to
cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have
acted with due care and prudence in rendering medical services to plaintiff-
patient. For if the patient was properly intubated as claimed by them, the patient
would not have become comatose. And, the fact that another anesthesiologist was
called to try to intubate the patient after her (the patient's) nailbed turned bluish, belie
their claim. Furthermore, the defendants should have rescheduled the operation to a
later date. This, they should have done, if defendants acted with due care and
prudence as the patient's case was an elective, not an emergency case.

xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the

plaintiffs and against the defendants. Accordingly, the latter are ordered to pay, jointly
and severally, the former the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos
reckoned from November 15, 1985 or in the total sum of P632,000.00 as of April 15,
1992, subject to its being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further sum
of P200,000.00 by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED.[7]

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate

court rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The
decretal portion of the decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby

REVERSED, and the complaint below against the appellants is hereby ordered
DISMISSED. The counterclaim of appellant De Los Santos Medical Center is
GRANTED but only insofar as appellees are hereby ordered to pay the unpaid
hospital bills amounting to P93,542.25, plus legal interest for justice must be
tempered with mercy.

SO ORDERED.[8]

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio
Ramos who was mistakenly addressed as Atty. Rogelio Ramos. No copy of the decision,
however, was sent nor received by the Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay,
only on 20 June 1995, or four (4) days before the expiration of the reglementary period for filing
a motion for reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a
motion for extension of time to file a motion for reconsideration. The motion for reconsideration
was submitted on 4 July 1995. However, the appellate court denied the motion for extension of
time in its Resolution dated 25 July 1995.[9] Meanwhile petitioners engaged the services of
another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a
motion to admit the motion for reconsideration contending that the period to file the appropriate
pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of
the Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day
(15) period for filing a motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for
Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo, p.
12) was denied. It is, on the other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as June 9,
1995. Computation wise, the period to file a Motion for Reconsideration expired on
June 24. The Motion for Reconsideration, in turn, was received by the Court of
Appeals already on July 4, necessarily, the 15-day period already passed. For that
alone, the latter should be denied.

Even assuming admissibility of the Motion for Reconsideration, but after considering
the Comment/Opposition, the former, for lack of merit, is hereby DENIED.

SO ORDERED.[10]

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next
day, or on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to
file the present petition for certiorari under Rule 45. The Court granted the motion for extension
of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15)
period counted from the receipt of the resolution of the Court of Appeals within which to submit
the petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well
within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF

RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT

CAUSE THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER
ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.[11]

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the
timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the
Court of Appeals. In their Comment,[12] private respondents contend that the petition should not
be given due course since the motion for reconsideration of the petitioners on the decision of the
Court of Appeals was validly dismissed by the appellate court for having been filed beyond the
reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the motion
for reconsideration is attributable to the fact that the decision of the Court of Appeals was not
sent to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the
decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9
June 1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the appellate court apparently mistook
him for the counsel on record. Thus, no copy of the decision of the appellate court was furnished
to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for
filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the
partys lawyer at his given address. With a few exceptions, notice to a litigant without notice to
his counsel on record is no notice at all. In the present case, since a copy of the decision of the
appellate court was not sent to the counsel on record of petitioner, there can be no sufficient
notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be
taken against petitioner. Moreover, since the Court of Appeals already issued a second
Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July
1995, and denied the motion for reconsideration of petitioner, we believe that the receipt of the
former should be considered in determining the timeliness of the filing of the present
petition. Based on this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the
case. For a more logical presentation of the discussion we shall first consider the issue on the
applicability of the doctrine of res ipsa loquitur  to the instant case. Thereafter, the first two
assigned errors shall be tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks
for itself. The phrase res ipsa loquitur is a maxim for the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may permit an inference or raise a presumption
of negligence, or make out a plaintiffs prima facie case, and present a question of fact for
defendant to meet with an explanation. [13] Where the thing which caused the injury complained of
is shown to be under the management of the defendant or his servants and the accident is such as
in ordinary course of things does not happen if those who have its management or control use
proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that
the accident arose from or was caused by the defendants want of care.[14]
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of
common knowledge and experience, the very nature of certain types of occurrences may justify
an inference of negligence on the part of the person who controls the instrumentality causing the
injury in the absence of some explanation by the defendant who is charged with negligence. [15] It
is grounded in the superior logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be deduced from the mere occurrence of the
accident itself.[16] Hence, res ipsa loquitur is  applied in conjunction with the doctrine of common
knowledge.
However, much has been said that res ipsa loquitur  is not a rule of substantive law and, as
such, does not create or constitute an independent or separate ground of liability. [17] Instead, it is
considered as merely evidentiary or in the nature of a procedural rule.[18] It is regarded as a mode
of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of negligence. [19] In other words, mere
invocation and application of the doctrine does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof, permitting the plaintiff to present
along with the proof of the accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof.[20] Still, before resort to the doctrine may
be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of someones
negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or defendants;
and
3. The possibility of contributing conduct which would make the plaintiff responsible is
eliminated.[21]
In the above requisites, the fundamental element is the control of the instrumentality which
caused the damage.[22] Such element of control must be shown to be within the dominion of the
defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or
damage, must show a situation where it is applicable, and must establish that the essential
elements of the doctrine were present in a particular incident.[23]
Medical malpractice[24]cases do not escape the application of this doctrine. Thus, res ipsa
loquitur has been applied when the circumstances attendant upon the harm are themselves of
such a character as to justify an inference of negligence as the cause of that harm. [25] The
application of res ipsa loquitur in medical negligence cases presents a question of law since it is
a judicial function to determine whether a certain set of circumstances does, as a matter of law,
permit a given inference.[26]
Although generally, expert medical testimony is relied upon in malpractice suits to prove
that a physician has done a negligent act or that he has deviated from the standard medical
procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert
medical testimony is dispensed with because the injury itself provides the proof of negligence.
[27]
 The reason is that the general rule on the necessity of expert testimony applies only to such
matters clearly within the domain of medical science, and not to matters that are within the
common knowledge of mankind which may be testified to by anyone familiar with the facts.
[28]
 Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to
whether a patient has been treated or operated upon with a reasonable degree of skill and
care. However, testimony as to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any one may be given by non-
expert witnesses.[29] Hence, in cases where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof of injury to the patient, without the aid
of expert testimony, where the court from its fund of common knowledge can determine the
proper standard of care.[30] Where common knowledge and experience teach that a resulting
injury would not have occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but how and why
it occurred.[31] When the doctrine is appropriate, all that the patient must do is prove a nexus
between the particular act or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other
way, under usual and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an operation, [32] injuries
sustained on a healthy part of the body which was not under, or in the area, of treatment,
[33]
 removal of the wrong part of the body when another part was intended, [34] knocking out a tooth
while a patients jaw was under anesthetic for the removal of his tonsils, [35] and loss of an eye
while the patient plaintiff was under the influence of anesthetic, during or following an operation
for appendicitis,[36] among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably
enlarged, it does not automatically apply to all cases of medical negligence as to mechanically
shift the burden of proof to the defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule
to be cautiously applied, depending upon the circumstances of each case. It is generally restricted
to situations in malpractice cases where a layman is able to say, as a matter of common
knowledge and observation, that the consequences of professional care were not as such as
would ordinarily have followed if due care had been exercised.[37] A distinction must be made
between the failure to secure results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed the usual procedure of those
skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur  can
have no application in a suit against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment.[38] The physician or surgeon is not required at his peril to
explain why any particular diagnosis was not correct, or why any particular scientific treatment
did not produce the desired result.[39] Thus, res ipsa loquitur is not available in a malpractice suit
if the only showing is that the desired result of an operation or treatment was not accomplished.
[40]
 The real question, therefore, is whether or not in the process of the operation any
extraordinary incident or unusual event outside of the routine performance occurred which is
beyond the regular scope of customary professional activity in such operations, which, if
unexplained would themselves reasonably speak to the average man as the negligent cause or
causes of the untoward consequence. [41] If there was such extraneous interventions, the doctrine
of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by
evidence of exculpation, if he could.[42]
 We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be
explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder
operation presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell,[43] where the Kansas
Supreme Court in applying the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his
person over to the care, custody and control of his physician who had complete and
exclusive control over him, but the operation was never performed. At the time of
submission he was neurologically sound and physically fit in mind and body, but he
suffered irreparable damage and injury rendering him decerebrate and totally
incapacitated. The injury was one which does not ordinarily occur in the process of a
mastoid operation or in the absence of negligence in the administration of an
anesthetic, and in the use and employment of an endoctracheal tube. Ordinarily a
person being put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence. Upon these facts and
under these circumstances a layman would be able to say, as a matter of common
knowledge and observation, that the consequences of professional treatment were not
as such as would ordinarily have followed if due care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because he
was under the influence of anesthetics and unconscious, and the circumstances are
such that the true explanation of event is more accessible to the defendants than to the
plaintiff for they had the exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a
cause of action is stated under the doctrine of res ipsa loquitur.[44]

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the
present case, Erlinda submitted herself for cholecystectomy and expected a routine general
surgery to be performed on her gall bladder. On that fateful day she delivered her person over to
the care, custody and control of private respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in mind and body. However, during the
administration of anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating
room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not happen in the absence of negligence of someone
in the administration of anesthesia and in the use of endotracheal tube. Normally, a person being
put under anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia if the proper procedure was followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the exclusive
control of private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda
could not have been guilty of contributory negligence because she was under the influence of
anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or
destroyed while the patient is unconscious and under the immediate and exclusive control of the
physicians, we hold that a practical administration of justice dictates the application of res ipsa
loquitur.Upon these facts and under these circumstances the Court would be able to say, as a
matter of common knowledge and observation, if negligence attended the management and care
of the patient. Moreover, the liability of the physicians and the hospital in this case is not
predicated upon an alleged failure to secure the desired results of an operation nor on an alleged
lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed
on Erlinda. Thus, upon all these initial determination a case is made out for the application of the
doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not
saying that the doctrine is applicable in any and all cases where injury occurs to a patient while
under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light
and scrutinized in order to be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of
negligence allowed therein, the Court now comes to the issue of whether the Court of Appeals
erred in finding that private respondents were not negligent in the care of Erlinda during the
anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was
the proximate cause of Erlindas comatose condition. Corollary thereto, we shall also determine if
the Court of Appeals erred in relying on the testimonies of the witnesses for the private
respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the
testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony
of Dra. Gutierrez, the Court of Appeals rationalized that she was candid enough to admit that she
experienced some difficulty in the endotracheal intubation [45]of the patient and thus, cannot be
said to be covering her negligence with falsehood. The appellate court likewise opined that
private respondents were able to show that the brain damage sustained by Erlinda was not caused
by the alleged faulty intubation but was due to the allergic reaction of the patient to the drug
Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert witness,
Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz
offered in favor of petitioners that the cause of the brain injury was traceable to the wrongful
insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the
process of intubation. In so holding, the appellate court returned a verdict in favor of respondents
physicians and hospital and absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents
were unable to disprove the presumption of negligence on their part in the care of Erlinda and
their negligence was the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific
evidence of the pathogenesis of the injury but also in providing the Court the legal nexus upon
which liability is based. As will be shown hereinafter, private respondents own testimonies
which are reflected in the transcript of stenographic notes are replete of signposts indicative of
their negligence in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the
anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed to properly intubate
the patient. This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical
Center School of Nursing and petitioner's sister-in-law, who was in the operating room right
beside the patient when the tragic event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the stretcher holding the left hand of the patient
and all of a sudden I heard some remarks coming from Dra. Perfecta Gutierrez herself.  She was
saying Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
xxx
ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
After hearing the phrase lumalaki ang tiyan, what did you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
 A: When Dr. Calderon try (sic) to intubate the patient, after a while the patients nailbed became bluish
and I saw the patient was placed in trendelenburg position.
xxx
Q: Do you know the reason why the patient was placed in that trendelenburg position?
A: As far as I know, when a patient is in that position, there is a decrease of blood supply to
the brain.[46]
xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by
declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation
is not taught as part of nursing procedures and techniques. Indeed, we take judicial
notice of the fact that nurses do not, and cannot, intubate. Even on the assumption that
she is fully capable of determining whether or not a patient is properly intubated,
witness Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN,
July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated
the patient or that she conducted any type of examination to check if the endotracheal
tube was in its proper place, and to determine the condition of the heart, lungs, and
other organs. Thus, witness Cruz's categorical statements that appellant Dra. Gutierrez
failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who
succeeded in doing so clearly suffer from lack of sufficient factual bases. [47]

In other words, what the Court of Appeals is trying to impress is that being a nurse, and
considered a layman in the process of intubation, witness Cruz is not competent to testify on
whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is
not an anesthesiologist, she can very well testify upon matters on which she is capable of
observing such as, the statements and acts of the physician and surgeon, external appearances,
and manifest conditions which are observable by any one. [48] This is precisely allowed under the
doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is the
accepted rule that expert testimony is not necessary for the proof of negligence in non-technical
matters or those of which an ordinary person may be expected to have knowledge, or where the
lack of skill or want of care is so obvious as to render expert testimony unnecessary. [49] We take
judicial notice of the fact that anesthesia procedures have become so common, that even an
ordinary person can tell if it was administered properly. As such, it would not be too difficult to
tell if the tube was properly inserted. This kind of observation, we believe, does not require a
medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long
experience and scholarship led to her appointment as Dean of the Capitol Medical Center School
of Nursing, was fully capable of determining whether or not the intubation was a success. She
had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and
clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of
Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of Nursing.
[50]
Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward
manner, with the kind of detail, clarity, consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was
able to demonstrate through her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who
admitted that she experienced difficulty in inserting the tube into Erlindas trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not
immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the ...
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said mahirap yata ito, what were you referring to?
A: Mahirap yata itong i-intubate, that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away. [51]
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was
positioned more anteriorly (slightly deviated from the normal anatomy of a person)[52] making it
harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it made
intubation even more difficult.
The argument does not convince us. If this was indeed observed, private respondents
adduced no evidence demonstrating that they proceeded to make a thorough assessment of
Erlindas airway, prior to the induction of anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the observation was made only as an
afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is
universally observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation
and preparation for anesthesia begins when the anesthesiologist reviews the patients medical
records and visits with the patient, traditionally, the day before elective surgery. [53] It includes
taking the patients medical history, review of current drug therapy, physical examination and
interpretation of laboratory data.[54] The physical examination performed by the anesthesiologist
is directed primarily toward the central nervous system, cardiovascular system, lungs and upper
airway.[55] A thorough analysis of the patient's airway normally involves investigating the
following: cervical spine mobility, temporomandibular mobility, prominent central incisors,
diseased or artificial teeth, ability to visualize uvula and the thyromental distance. [56] Thus,
physical characteristics of the patients upper airway that could make tracheal intubation difficult
should be studied.[57] Where the need arises, as when initial assessment indicates possible
problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough examination
of the patients airway would go a long way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time
on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with,
or pre-operative evaluation of Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She
was likewise not properly informed of the possible difficulties she would face during the
administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her patient for
the first time only an hour before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physicians centuries-old Hippocratic
Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around
with the trial court's ignorance of clinical procedure, hoping that she could get away with
it. Respondent Dra. Gutierrez tried to muddle the difference between an elective surgery and an
emergency surgery just so her failure to perform the required pre-operative evaluation would
escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the patient a day
before so you can introduce yourself to establish good doctor-patient relationship and
gain the trust and confidence of the patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative procedure of the

anesthesiologist and in my case, with elective cases and normal cardio-pulmonary
clearance like that, I usually don't do it except on emergency and on cases that have an
abnormalities (sic).[58]

However, the exact opposite is true. In an emergency procedure, there is hardly enough time
available for the fastidious demands of pre-operative procedure so that an anesthesiologist is able
to see the patient only a few minutes before surgery, if at all. Elective procedures, on the other
hand, are operative procedures that can wait for days, weeks or even months. Hence, in these
cases, the anesthesiologist possesses the luxury of time to make a proper assessment, including
the time to be at the patient's bedside to do a proper interview and clinical evaluation. There is
ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards
for purposes of informed consent. Usually, the pre-operative assessment is conducted at least one
day before the intended surgery, when the patient is relaxed and cooperative.
 Erlindas case was elective and this was known to respondent Dra. Gutierrez. Thus, she had
all the time to make a thorough evaluation of Erlindas case prior to the operation and prepare her
for anesthesia. However, she never saw the patient at the bedside. She herself admitted that she
had seen petitioner only in the operating room, and only on the actual date of
the cholecystectomy. She negligently failed to take advantage of this important opportunity. As
such, her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation
of the patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty
intubation is truly the proximate cause of Erlindas comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to
Erlindas coma was due to bronchospasm[59] mediated by her allergic response to the drug,
Thiopental Sodium, introduced into her system. Towards this end, they presented Dr. Jamora, a
Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty Board
of Internal Medicine, who advanced private respondents' theory that the oxygen deprivation
which led to anoxic encephalopathy,[60] was due to an unpredictable drug reaction to the short-
acting barbiturate. We find the theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology
simply because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not
have been capable of properly enlightening the court about anesthesia practice and procedure and
their complications. Dr. Jamora is likewise not an allergologist and could not therefore properly
advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamoras testimony as an expert
witness in the anesthetic practice of Pentothal administration is further supported by his own
admission that he formulated his opinions on the drug not from the practical experience gained
by a specialist or expert in the administration and use of Sodium Pentothal on patients, but only
from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a method
of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you have read from books
and not by your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
 Q: And because they have used it on you and on account of your own personal experience you feel
that you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims. [61]
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within
the fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting
anoxic encephalopathy belongs to the field of neurology. While admittedly, many
bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine,
Dr. Jamora's field, the anesthetic drug-induced, allergic mediated bronchospasm alleged in this
case is within the disciplines of anesthesiology, allergology and pharmacology. On the basis of
the foregoing transcript, in which the pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the appellate court erred in giving weight to
Dr. Jamoras testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence[62]regarding expert witnesses states:
Sec. 49. Opinion of expert witness. - The opinion of a witness on a matter
requiring special knowledge, skill, experience or training which he is shown to
possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the
subject matter about which he or she is to testify, either by the study of recognized authorities on
the subject or by practical experience. [63] Clearly, Dr. Jamora does not qualify as an expert
witness based on the above standard since he lacks the necessary knowledge, skill, and training
in the field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the
wrong field, private respondents intentionally avoided providing testimony by competent and
independent experts in the proper areas.
Moreover, private respondents theory, that Thiopental Sodium may have produced Erlinda's
coma by triggering an allergic mediated response, has no support in evidence. No evidence of
stridor, skin reactions, or wheezing - some of the more common accompanying signs of an
allergic reaction - appears on record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-
mediated bronchospasm happens only very rarely. If courts were to accept private respondents'
hypothesis without supporting medical proof, and against the weight of available evidence, then
every anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory
vigorously asserted by private respondents was a mere afterthought. Such an explanation was
advanced in order to absolve them of any and all responsibility for the patients condition.
In view of the evidence at hand, we are inclined to believe petitioners stand that it was the
faulty intubation which was the proximate cause of Erlindas comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces injury, and without which the result would
not have occurred.[64] An injury or damage is proximately caused by an act or a failure to act,
whenever it appears from the evidence in the case, that the act or omission played a substantial
part in bringing about or actually causing the injury or damage; and that the injury or damage
was either a direct result or a reasonably probable consequence of the act or omission. [65] It is the
dominant, moving or producing cause.
 Applying the above definition in relation to the evidence at hand, faulty intubation is
undeniably the proximate cause which triggered the chain of events leading to Erlindas brain
damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a
failure. This fact was likewise observed by witness Cruz when she heard respondent Dra.
Gutierrez remarked, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan. Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The
development of abdominal distention, together with respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the respiratory tree. In other words, instead of
the intended endotracheal intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates that air has entered the gastrointestinal
tract through the esophagus instead of the lungs through the trachea. Entry into the esophagus
would certainly cause some delay in oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention had been observed during the first
intubation suggests that the length of time utilized in inserting the endotracheal tube (up to the
time the tube was withdrawn for the second attempt) was fairly significant. Due to the delay in
the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. [66] As stated in the
testimony of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the
nailbeds of Erlinda were already blue.[67] However, private respondents contend that a second
intubation was executed on Erlinda and this one was successfully done. We do not think so. No
evidence exists on record, beyond private respondents' bare claims, which supports the
contention that the second intubation was successful. Assuming that the endotracheal tube finally
found its way into the proper orifice of the trachea, the same gave no guarantee of oxygen
delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed
immediately after the second intubation. Proceeding from this event (cyanosis), it could not be
claimed, as private respondents insist, that the second intubation was accomplished. Even
granting that the tube was successfully inserted during the second attempt, it was obviously too
late. As aptly explained by the trial court, Erlinda already suffered brain damage as a result of the
inadequate oxygenation of her brain for about four to five minutes.[68]
The above conclusion is not without basis. Scientific studies point out that intubation
problems are responsible for one-third (1/3) of deaths and serious injuries associated with
anesthesia.[69] Nevertheless, ninety-eight percent (98%) or the vast majority of difficult
intubations may be anticipated by performing a thorough evaluation of the patients airway prior
to the operation.[70] As stated beforehand, respondent Dra. Gutierrez failed to observe the proper
pre-operative protocol which could have prevented this unfortunate incident. Had appropriate
diligence and reasonable care been used in the pre-operative evaluation, respondent physician
could have been much more prepared to meet the contingency brought about by the perceived
anatomic variations in the patients neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together with a change in technique. [71] In
other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative
evaluation, would have had little difficulty going around the short neck and protruding teeth.
[72]
 Having failed to observe common medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez negligence resulted in cerebral anoxia and eventual coma
of Erlinda.
 We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the
surgical team. As the so-called captain of the ship,[73] it is the surgeons responsibility to see to it
that those under him perform their task in the proper manner. Respondent Dr. Hosakas
negligence can be found in his failure to exercise the proper authority (as the captain of the
operative team) in not determining if his anesthesiologist observed proper anesthesia
protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape us that
respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time
as Erlindas cholecystectomy, and was in fact over three hours late for the latters
operation. Because of this, he had little or no time to confer with his anesthesiologist regarding
the anesthesia delivery. This indicates that he was remiss in his professional duties towards his
patient. Thus, he shares equal responsibility for the events which resulted in Erlindas condition.
We now discuss the responsibility of the hospital in this particular incident. The unique
practice (among private hospitals) of filling up specialist staff with attending and visiting
consultants,[74] who are allegedly not hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. However, the difficulty is only more
apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants
and in the conduct of their work within the hospital premises. Doctors who apply for consultant
slots, visiting or attending, are required to submit proof of completion of residency, their
educational qualifications; generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or by a review committee set up
by the hospital who either accept or reject the application. [75] This is particularly true with
respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally
required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns
and residents, moderate grand rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to these, the 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.[76]
 The basis for holding an employer solidarily responsible for the negligence of its employee
is found in Article 2180 of the Civil Code which considers a person accountable not only for his
own acts but also for those of others based on the formers responsibility under a relationship
of patria potestas.[77] Such responsibility ceases when the persons or entity concerned prove that
they have observed the diligence of a good father of the family to prevent damage. [78] In other
words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown,
the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove
that they observed the diligence of a good father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over
respondent physicians, failed to adduce evidence showing that it exercised the diligence of a
good father of a family in the hiring and supervision of the latter. It failed to adduce evidence
with regard to the degree of supervision which it exercised over its physicians. In neglecting to
offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its
burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlindas condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on
the testimonies of the witnesses for the private respondents. Indeed, as shown by the above
discussions, private respondents were unable to rebut the presumption of negligence. Upon these
disquisitions we hold that private respondents are solidarily liable for damages under Article
2176[79] of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total
of P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff, subject
to its being updated covering the period from 15 November 1985 up to 15 April 1992, based on
monthly expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of its
decision would be grossly inadequate to cover the actual costs of home-based care for a
comatose individual. The calculated amount was not even arrived at by looking at the actual cost
of proper hospice care for the patient. What it reflected were the actual expenses incurred and
proved by the petitioners after they were forced to bring home the patient to avoid mounting
hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice
specializing in the care of the chronically ill for the purpose of providing a proper milieu
adequate to meet minimum standards of care. In the instant case for instance, Erlinda has to be
constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is
done by nasogastric tube. Food preparation should be normally made by a dietitian to provide her
with the correct daily caloric requirements and vitamin supplements. Furthermore, she has to be
seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary
therapist to prevent the accumulation of secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages recoverable in suits arising from
negligence should at least reflect the correct minimum cost of proper care, not the cost of the
care the family is usually compelled to undertake at home to avoid bankruptcy. However, the
provisions of the Civil Code on actual or compensatory damages present us with some
difficulties.
 Well-settled is the rule that actual damages which may be claimed by the plaintiff are those
suffered by him as he has duly proved. The Civil Code provides:

Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate

compensation only for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or compensatory damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation,
the injury suffered as a consequence of an act of negligence has been completed and that the cost
can be liquidated. However, these provisions neglect to take into account those situations, as in
this case, where the resulting injury might be continuing and possible future complications
directly arising from the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately
and correctly respond to the injury caused, should be one which compensates for pecuniary loss
incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to
be suffered but which could not, from the nature of the case, be made with certainty. [80] In other
words, temperate damages can and should be awarded on top of actual or compensatory damages
in instances where the injury is chronic and continuing. And because of the unique nature of such
cases, no incompatibility arises when both actual and temperate damages are provided for. The
reason is that these damages cover two distinct phases.
As it would not be equitable - and certainly not in the best interests of the administration of
justice - for the victim in such cases to constantly come before the courts and invoke their aid in
seeking adjustments to the compensatory damages previously awarded - temperate damages are
appropriate. The amount given as temperate damages, though to a certain extent speculative,
should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a
comatose patient who has remained in that condition for over a decade. Having premised our
award for compensatory damages on the amount provided by petitioners at the onset of litigation,
it would be now much more in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal care for their loved one in a
facility which generally specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without the aid of professionals, for anything
less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in
temperate damages would therefore be reasonable.[81]
In Valenzuela vs. Court of Appeals,[82] this Court was confronted with a situation where the
injury suffered by the plaintiff would have led to expenses which were difficult to estimate
because while they would have been a direct result of the injury (amputation), and were certain
to be incurred by the plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic
amputation of her left lower extremity at the distal left thigh just above the
knee. Because of this, Valenzuela will forever be deprived of the full
 ambulatory functions of her left extremity, even with the use of state of the art
prosthetic technology. Well beyond the period of hospitalization (which was
paid for by Li), she will be required to undergo adjustments in her prosthetic
devise due to the shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical
and occupational rehabilitation and therapy. During her lifetime, the prosthetic
devise will have to be replaced and readjusted to changes in the size of her
lower limb effected by the biological changes of middle-age, menopause and
aging. Assuming she reaches menopause, for example, the prosthetic will have
to be adjusted to respond to the changes in bone resulting from a precipitate
decrease in calcium levels observed in the bones of all post-menopausal
women. In other words, the damage done to her would not only be permanent
and lasting, it would also be permanently changing and adjusting to the
physiologic changes which her body would normally undergo through the
years. The replacements, changes, and adjustments will require corresponding
adjustive physical and occupational therapy. All of these adjustments, it has
been documented, are painful.
x x x.
A prosthetic devise, however technologically advanced, will only allow a
reasonable amount of functional restoration of the motor functions of the lower
limb. The sensory functions are forever lost. The resultant anxiety,
sleeplessness, psychological injury, mental and physical pain are inestimable. [83]
The injury suffered by Erlinda as a consequence of private respondents negligence is
certainly much more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in
a comatose state for over fourteen years now. The burden of care has so far been heroically
shouldered by her husband and children, who, in the intervening years have been deprived of the
love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would
be virtually impossible to quantify. Even the temperate damages herein awarded would be
inadequate if petitioners condition remains unchanged for the next ten years.
We recognized, in Valenzuela  that a discussion of the victims actual injury would not even
scratch the surface of the resulting moral damage because it would be highly speculative to
estimate the amount of emotional and moral pain, psychological damage and injury suffered by
the victim or those actually affected by the victims condition.[84] The husband and the children, all
petitioners in this case, will have to live with the day to day uncertainty of the patients illness,
knowing any hope of recovery is close to nil. They have fashioned their daily lives around the
nursing care of petitioner, altering their long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged with the moral responsibility of the care
of the victim. The familys moral injury and suffering in this case is clearly a real one. For the
foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby
awarded. Considering the length and nature of the instant suit we are of the opinion that
attorneys fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because
physicians are not insurers of life and, they rarely set out to intentionally cause injury or death to
their patients. However, intent is immaterial in negligence cases because where negligence exists
and is proven, the same automatically gives the injured a right to reparation for the damage
caused.
Established medical procedures and practices, though in constant flux are devised for the
purpose of preventing complications. A physicians experience with his patients would sometimes
tempt him to deviate from established community practices, and he may end a distinguished
career using unorthodox methods without incident. However, when failure to follow established
procedure results in the evil precisely sought to be averted by observance of the procedure and a
nexus is made between the deviation and the injury or damage, the physician would necessarily
be called to account for it. In the case at bar, the failure to observe pre-operative assessment
protocol which would have influenced the intubation in a salutary way was fatal to private
respondents case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby
modified so as to award in favor of petitioners, and solidarily against private respondents the
following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos
expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and attorneys fees; and, 5) the
costs of the suit.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo and Ynares-Santiago, JJ., concur.
THIRD DIVISION
 
 
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
 
 
DECISION
 
CARPIO, J.:
 
 
The Case
 
 
This petition for review [1] assails the 6 February 1998 Decision[2] and 21
March 2000 Resolution[3] of the Court of Appeals in CA-G.R. CV No.
45641. The Court of Appeals affirmed in toto the 22 November
1993 Decision[4] of the Regional Trial Court of Manila, Branch 33, finding
Dr. Oscar Estrada solely liable for damages for the death of his patient,
Corazon Nogales, while absolving the remaining respondents of any
liability. The Court of Appeals denied petitioners motion for reconsideration.
 
 
The Facts
 
Pregnant with her fourth child, Corazon Nogales (Corazon), who was then
37 years old, was under the exclusive prenatal care of Dr. Oscar Estrada
(Dr. Estrada) beginning on her fourth month of pregnancy or as early as
December 1975. While Corazon was on her last trimester of pregnancy, Dr.
Estrada noted an increase in her blood pressure and development of leg
edema[5] indicating preeclampsia,[6] which is a dangerous complication of
pregnancy.[7]
 
Around midnight of 25 May 1976, Corazon started to experience mild labor
pains prompting Corazon and Rogelio Nogales (Spouses Nogales) to see
Dr. Estrada at his home. After examining Corazon, Dr. Estrada advised her
immediate admission to the Capitol Medical Center (CMC).
 
On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the
staff nurse noted the written admission request [8] of Dr. Estrada. Upon
Corazons admission at the CMC, Rogelio Nogales (Rogelio) executed and
signed the Consent on Admission and Agreement [9] and Admission
Agreement.[10] Corazon was then brought to the labor room of the CMC.
 
Dr. Rosa Uy (Dr. Uy), who was then a resident physician of CMC,
conducted an internal examination of Corazon. Dr. Uy then called up Dr.
Estrada to notify him of her findings.
 
Based on the Doctors Order Sheet, [11] around 3:00 a.m., Dr. Estrada
ordered for 10 mg. of valium to be administered immediately by
intramuscular injection. Dr. Estrada later ordered the start of intravenous
administration of syntocinon admixed with dextrose, 5%, in lactated
Ringers solution, at the rate of eight to ten micro-drops per minute.
 
According to the Nurses Observation Notes, [12] Dr. Joel Enriquez (Dr.
Enriquez), an anesthesiologist at CMC, was notified at 4:15 a.m. of
Corazons admission. Subsequently, when asked if he needed the services
of an 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 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.
 
At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium
sulfate. However, Dr. Ely Villaflor (Dr. Villaflor), who was assisting Dr.
Estrada, administered only 2.5 grams of magnesium sulfate.
 
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to
extract Corazons baby. In the process, a 1.0 x 2.5 cm. piece of cervical
tissue was allegedly torn. The baby came out in an apnic, cyanotic, weak
and injured condition.Consequently, the baby had to be intubated and
resuscitated by Dr. Enriquez and Dr. Payumo.
 
At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which
rapidly became profuse. Corazons blood pressure dropped from 130/80 to
60/40 within five minutes. There was continuous profuse vaginal
bleeding. The assisting nurse administered hemacel through a gauge 19
needle as a side drip to the ongoing intravenous injection of dextrose.
 
At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with
bottled blood. It took approximately 30 minutes for the CMC laboratory,
headed by Dr. Perpetua Lacson (Dr. Lacson), to comply with Dr. Estradas
order and deliver the blood.
 
At 8:00 a.m., Dr. Noe Espinola (Dr. Espinola), head of the Obstetrics-
Gynecology Department of the CMC, was apprised of Corazons condition
by telephone. Upon being informed that Corazon was bleeding profusely,
Dr. Espinola ordered immediate hysterectomy. Rogelio was made to sign a
Consent to Operation.[13]
 
Due to the inclement weather then, Dr. Espinola, who was fetched from his
residence by an ambulance, arrived at the CMC about an hour later or
at 9:00 a.m. He examined the patient and ordered some resuscitative
measures to be administered. Despite Dr. Espinolas efforts, Corazon died
at 9:15 a.m. The cause of death was hemorrhage, post partum. [14]
 
On 14 May 1980, petitioners filed a complaint for damages [15] with the
Regional Trial Court[16] 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 court declared Dr. Estrada, Dr. Enriquez, and Nurse Dumlao in
default.[17] CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their
respective answers denying and opposing the allegations in the
complaint. Subsequently, trial ensued.
 
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.
 
SO ORDERED.[18]
 
 

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
court.[19] Petitioners filed a motion for reconsideration which the Court of
Appeals denied in its Resolution of 21 March 2000.[20]
Hence, this petition.
 
Meanwhile, petitioners filed a Manifestation dated 12 April 2002[21] stating
that respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao
need no longer be notified of the petition because they are absolutely not
involved in the issue raised before the [Court], regarding the liability of
[CMC].[22] Petitioners stressed that the subject matter of this petition is the
liability of CMC for the negligence of Dr. Estrada. [23]
 
The Court issued a Resolution dated 9 September 2002[24] 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.
 
Petitioners filed a motion for reconsideration [25] of the Courts 9 September
2002 Resolution claiming that Dr. Enriquez, Dr. Villaflor and Nurse Dumlao
were notified of the petition at their counsels last known
addresses. Petitioners reiterated their imputation of negligence on these
respondents. The Court denied petitioners Motion for Reconsideration in
its 18 February 2004 Resolution.[26]
 
 
The Court of Appeals Ruling
 
In its Decision of 6 February 1998, the Court of Appeals upheld the trial
courts ruling. The Court of Appeals rejected petitioners view that the
doctrine in Darling v. Charleston Community Memorial Hospital [27] applies to
this case. According to the Court of Appeals, the present case differs from
the Darling case since Dr. Estrada is an independent contractor-physician
whereas the Darling case involved a physician and a nurse who were
employees of the hospital.
 
Citing other American cases, the Court of Appeals further held that the
mere fact that a hospital permitted a physician to practice medicine and use
its facilities is not sufficient to render the hospital liable for the physicians
negligence.[28] A hospital is not responsible for the negligence of a physician
who is an independent contractor.[29]
 
The Court of Appeals found the cases of Davidson v.
[30] [31]
Conole  and Campbell v. 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 acts or omissions, are
imputable to the surgeon.[32] While the assisting physicians and nurses may
be employed by the hospital, or engaged by the patient, they normally
become the temporary servants or agents of the surgeon in charge while
the operation is in progress, and liability may be imposed upon the surgeon
for their negligent acts under the doctrine of respondeat superior.[33]
 
The Court of Appeals concluded that since Rogelio engaged Dr.
Estrada as the attending physician of his wife, any liability for malpractice
must be Dr. 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 negligence under the doctrine of respondeat superior.[34]
 
In the present case, petitioners maintain that CMC, in allowing Dr. Estrada
to practice and admit patients at CMC, should be liable for Dr. Estradas
malpractice. Rogelio claims that he knew Dr. Estrada as an accredited
physician of CMC, though he discovered later that Dr. Estrada was not a
salaried employee of the CMC. [35] Rogelio further claims that he was
dealing with CMC, whose primary concern was the treatment and
management of his wifes condition. Dr. Estrada just happened to be the
specific person he talked to representing CMC. [36] Moreover, the fact that
CMC made Rogelio sign a Consent on Admission and Admission
Agreement[37] and a Consent to Operation printed on the letterhead of CMC
indicates that CMC considered Dr. Estrada as a member of its medical
staff.
 
On the other hand, CMC disclaims liability by asserting that Dr. Estrada
was a mere visiting physician and that it admitted Corazon because
her physical condition then was classified an emergency obstetrics case.[38]
 
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 negligence in Ramos v. Court of Appeals,[39] 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 relationship of patria potestas. x x
x[40] (Emphasis supplied)
 
While the Court in Ramos did not expound on the control test, such test
essentially determines whether an employment relationship exists between
a physician and a hospital based on the exercise of control over the
physician as to details. Specifically, the employer (or the hospital) must
have the right to control both the means and the details of the process by
which the employee (or the physician) is to accomplish his task. [41]
 
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 permitted
to falsify it.[49]
 
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 its agent, 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 circumstances.[58] When a person needing urgent medical attention
rushes to a hospital, he cannot bargain on equal footing with the hospital on
the terms of admission and operation. Such a person is literally at the
mercy of the hospital. There can be no clearer example of a contract of
adhesion than one arising from such a dire situation. Thus, the release
forms of CMC cannot relieve CMC from liability for the negligent medical
treatment of Corazon.

 
On the Liability of the Other Respondents
 
Despite this Courts pronouncement in its 9 September 2002 [59] 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 bleeding and to suggest the correct remedy to Dr. Estrada.
[60]
 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 level. [61] At that moment, Dr. Estrada
instructed Dr. Villaflor to reduce the dosage of magnesium sulfate from 10
to 2.5 grams. Since petitioners did not dispute Dr. 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 of Corazon. [62] However, that routine internal
examination did not ipso facto make Dr. Uy liable for the errors committed
by Dr. Estrada. Further, petitioners imputation of negligence rests on their
baseless assumption that Dr. Uy was present at the delivery room. Nothing
shows that Dr. Uy participated in delivering 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. Villaflor, and Nurse Dumlao about their errors. [63] Petitioners
insist that Dr. Enriquez should have taken, or at least suggested, corrective
measures to rectify such errors.
 
The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field
of expertise is definitely not obstetrics and gynecology. As such, Dr.
Enriquez was not expected to correct Dr. 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 Corazon needed.[64] Petitioners claim that Dr. Lacson was remiss in
her duty of supervising the blood bank staff.
 
As found by the trial court, there was no unreasonable delay in the delivery
of blood from the time of the request until the transfusion to Corazon. Dr.
Lacson competently explained the procedure before blood could be given
to the patient.[65] Taking into account the bleeding time, clotting time and
cross-matching, Dr. Lacson stated that it would take approximately 45-60
minutes before blood could be ready for transfusion. [66] Further, no evidence
exists that Dr. Lacson neglected her duties as head of the blood bank.
 
e) Dr. Noe Espinola
 
Petitioners argue that Dr. Espinola should not have ordered immediate
hysterectomy without determining the underlying cause of 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
 
In Moore v. Guthrie Hospital Inc.,[67] the US Court of Appeals, Fourth Circuit,
held that to recover, a patient complaining of injuries allegedly resulting
when the nurse negligently injected medicine to him intravenously instead
of intramuscularly had to show that (1) an intravenous injection constituted
a lack of reasonable and ordinary care; (2) the nurse injected medicine
intravenously; and (3) such injection was the proximate cause of his injury.
 
In the present case, there is no evidence of Nurse 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 the damages may, in a proper case, be adjudicated in the discretion
of the court.[68]
 
WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds
respondent Capitol Medical Center vicariously liable for the negligence of
Dr. Oscar Estrada. The amounts of P105,000 as actual damages
and P700,000 as moral damages should each earn legal interest at the rate
of six percent (6%) per annum computed from the date of the judgment of
the trial court. The Court affirms the rest of the Decision dated 6 February
1998 and Resolution dated 21 March 2000 of the Court of Appeals in CA-
G.R. CV No. 45641.
 
SO ORDERED.
 
 
 
ANTONIO T. CARPIO

Associate Justice

 
 
WE CONCUR:
 
 
LEONARDO A. QUISUMBING
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 126297             January 31, 2007

PROFESSIONAL SERVICES, INC., Petitioner, 

vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.

x-----------------------x

G.R. No. 126467            January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR.,
EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE
AGANA, Petitioners, 
vs.
JUAN FUENTES, Respondent.

x- - - - - - - - - - - - - - - - - - - -- - - - x

G.R. No. 127590            January 31, 2007

MIGUEL AMPIL, Petitioner, 
vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Hospitals, having undertaken one of mankind’s most important and delicate endeavors, must
assume the grave responsibility of pursuing it with appropriate care. The care and service dispensed
through this high trust, however technical, complex and esoteric its character may be, must meet
standards of responsibility commensurate with the undertaking to preserve and protect the health,
and indeed, the very lives of those placed in the hospital’s keeping. 1

Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals’
Decision2 dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming
with modification the Decision3dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96,
Quezon City in Civil Case No. Q-43322 and nullifying its Order dated September 21, 1993.

The facts, as culled from the records, are:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City
Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of
medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering
from "cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff 4 of the Medical City Hospital, performed
an anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had
spread on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained
the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R.
No. 126467, to perform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation
and closed the incision.

However, the operation appeared to be flawed. In the corresponding Record of Operation dated April
11, 1984, the attending nurses entered these remarks:

"sponge count lacking 2

"announced to surgeon searched (sic) done but to no avail continue for closure."

On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including
the doctors’ fees, amounted to P60,000.00.

After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted
both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of
the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous
nodes which were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further
treatment. After four months of consultations and laboratory examinations, Natividad was told she
was free of cancer. Hence, she was advised to return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed
about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze
measuring 1.5 inches in width. He then assured her that the pains would soon vanish.

Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek
treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected
the presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in
width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive
organs which forced stool to excrete through the vagina. Another surgical operation was needed to
remedy the damage. Thus, in October 1984, Natividad underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a
complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City
Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged that the
latter are liable for negligence for leaving two pieces of gauze inside Natividad’s body and
malpractice for concealing their acts of negligence.

Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an
administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes,
docketed as Administrative Case No. 1690. The PRC Board of Medicine heard the case only with
respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in the
United States.

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

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

WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants
PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the
plaintiffs, jointly and severally, except in respect of the award for exemplary damages and the
interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:

1. As actual damages, the following amounts:

a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of

P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States
of America;

b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;

c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic

Hospital, medical fees, and cost of the saline solution;

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

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

4. As attorney’s fees, the sum of P250,000.00;

5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the
complaint until full payment; and

6. Costs of suit.

SO ORDERED.

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed
as CA-G.R. CV No. 42062.

Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its
Decision, which was granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon
certain properties of Dr. Ampil and sold them for P451,275.00 and delivered the amount to the
Aganas.

Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr.
Fuentes to indefinitely suspend any further execution of the RTC Decision. However, not long
thereafter, the Aganas again filed a motion for an alias writ of execution against the properties of PSI
and Dr. Fuentes. On September 21, 1993, the RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari
and prohibition, with prayer for preliminary injunction, docketed as CA-G.R. SP No. 32198. During its
pendency, the Court of Appeals issued a Resolution5 dated October 29, 1993 granting Dr. Fuentes’
prayer for injunctive relief.

On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.

Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision 6 in
Administrative Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the
prosecution failed to show that Dr. Fuentes was the one who left the two pieces of gauze inside
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 Resolution 7 dated December
19, 1996.

Hence, the instant consolidated petitions.

In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is
estopped from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr.
Ampil; and (3) it is not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is
not its employee, but a mere consultant or independent contractor. As such, he alone should answer
for his negligence.

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

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

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

I - G.R. No. 127590

Whether the Court of Appeals Erred in Holding Dr. Ampil

Liable for Negligence and Malpractice.

Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes of
Natividad’s detriment. He argues that the Court should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in Natividad’s body after performing hysterectomy;
second, the attending nurses erred in counting the gauzes; and third, the American doctors were the
ones who placed the gauzes in Natividad’s body.

Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he did not
present any evidence to prove that the American doctors were the ones who put or left the gauzes in
Natividad’s body. Neither did he submit evidence to rebut the correctness of the record of operation,
particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful
that Dr. Ampil examined his (Dr. Fuentes’) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as specified by the Court of
Appeals, directly point to Dr. Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of
the patient during the surgical operation.

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

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

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

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

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

Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even
misled her that the pain she was experiencing was the ordinary consequence of her operation. Had
he been more candid, Natividad could have taken the immediate and appropriate medical remedy to
remove the gauzes from her body. To our mind, what was initially an act of negligence by Dr. Ampil
has ripened into a deliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To

successfully pursue this kind of case, a patient must only prove that a health care provider either
failed to do something which a reasonably prudent health care provider would have done, or that he
did something that a reasonably prudent provider would not have done; and that failure or action
caused injury to the patient. 11 Simply put, the elements are duty, breach, injury and proximate
causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as
gauzes, from Natividad’s body before closure of the incision. When he failed to do so, it was his duty
to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to Natividad,
necessitating her further examination by American doctors and another surgery. That Dr. Ampil’s
negligence is the proximate cause12 of Natividad’s injury could be traced from his act of closing the
incision despite the information given by the attending nurses that two pieces of gauze were still
missing. That they were later on extracted from Natividad’s vagina established the causal link
between Dr. Ampil’s negligence and the injury. And what further aggravated such injury was his
deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.

II - G.R. No. 126467

Whether the Court of Appeals Erred in Absolving

Dr. Fuentes of any Liability

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground
that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces
of gauze were left inside Natividad’s body is a prima facie evidence of Dr. Fuentes’ negligence.

We are not convinced.

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

From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res
ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the
control and management of the defendant; (3) the occurrence was such that in the ordinary course
of things, would not have happened if those who had control or management used proper care; and
(4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental
is the "control and management of the thing which caused the injury." 15

We find the element of "control and management of the thing which caused the injury" to be wanting.
Hence, the doctrine of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He
requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found
that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the
surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding
everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed
operating on Natividad. He was about to finish the procedure when the attending nurses informed
him that two pieces of gauze were missing. A "diligent search" was conducted, but the misplaced
gauzes were not found. Dr. Ampil then directed that the incision be closed. During this entire period,
Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.

Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the
surgery room and all personnel connected with the operation. Their duty is to obey his orders. 16 As
stated before, Dr. Ampil was the lead surgeon. In other words, he was the "Captain of the Ship."
That he discharged such role is evident from his following conduct: (1) calling Dr. Fuentes to perform
a hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr.
Fuentes’ permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act
of ordering the closure of the incision notwithstanding that two pieces of gauze remained
unaccounted for, that caused injury to Natividad’s body. Clearly, the control and management of the
thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or
constitute an independent or separate ground of liability, being a mere evidentiary rule. 17 In other
words, mere invocation and application of the doctrine does not dispense with the requirement of
proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not
by Dr. Fuentes.

III - G.R. No. 126297

Whether PSI Is Liable for the Negligence of Dr. Ampil

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

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

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

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

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

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or
omissions, but also for those of persons for whom one is responsible.

x x x x x x

The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks even though the former are not engaged in any business or
industry.

x x x x x x

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

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

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

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

The case of Schloendorff v. Society of New York Hospital 26 was then considered an authority for this
view. The "Schloendorff doctrine" regards a physician, even if employed by a hospital, as an
independent contractor because of the skill he exercises and the lack of control exerted over his
work. Under this doctrine, hospitals are exempt from the application of the respondeat superior
principle for fault or negligence committed by physicians in the discharge of their profession.

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

In our shores, the nature of the relationship between the hospital and the physicians is rendered
inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals 28 that for
purposes of apportioning responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting physicians. This Court
held:

"We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting "consultants," who
are allegedly not hospital employees, presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the
conduct of their work within the hospital premises. Doctors who apply for ‘consultant’ slots, visiting or
attending, are required to submit proof of completion of residency, their educational qualifications,
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are carefully scrutinized by members of the
hospital administration or by a review committee set up by the hospital who either accept or reject
the application. x x x.

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

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

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
‘consultant’ staff. While ‘consultants’ are not, technically employees, x x x, the control exercised, the
hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-
employee relationship, with the exception of the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their attending and visiting physicians. "

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

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

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

"The principal is bound by the acts of his agent with the apparent authority which he knowingly
permits the agent to assume, or which he holds the agent out to the public as possessing. The
question in every case is whether the principal has by his voluntary act placed the agent in such a
situation that a person of ordinary prudence, conversant with business usages and the nature of the
particular business, is justified in presuming that such agent has authority to perform the particular
act in question.31

The applicability of apparent authority in the field of hospital liability was upheld long time ago in
Irving v. Doctor Hospital of Lake Worth, Inc.32 There, it was explicitly stated that "there does not
appear to be any rational basis for excluding the concept of apparent authority from the field of
hospital liability." Thus, in cases where it can be shown that a hospital, by its actions, has held out a
particular physician as its agent and/or employee and that a patient has accepted treatment from
that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the
hospital will be liable for the physician’s negligence.

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

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

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

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

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

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

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

We agree with the trial court.

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

The doctrine has its genesis in Darling v. Charleston Community Hospital. 36 There, the Supreme
Court of Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a
sufficient number of trained nurses attending the patient; failing to require a consultation with or
examination by members of the hospital staff; and failing to review the treatment rendered to the
patient." On the basis of Darling, other jurisdictions held that a hospital’s corporate negligence
extends to permitting a physician known to be incompetent to practice at the hospital. 37 With the
passage of time, more duties were expected from hospitals, among them: (1) the use of reasonable
care in the maintenance of safe and adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or supervision of all persons who practice
medicine within its walls; and (4) the formulation, adoption and enforcement of adequate rules and
policies that ensure quality care for its patients. 38 Thus, in Tucson Medical Center, Inc. v.
Misevich,39 it was held that a hospital, following the doctrine of corporate responsibility, has the duty
to see that it meets the standards of responsibilities for the care of patients. Such duty includes the
proper supervision of the members of its medical staff. And in Bost v. Riley, 40 the court concluded
that a patient who enters a hospital does so with the reasonable expectation that it will attempt to
cure him. The hospital accordingly has the duty to make a reasonable effort to monitor and oversee
the treatment prescribed and administered by the physicians practicing in its premises.

In the present case, it was duly established that PSI operates the Medical City Hospital for the
purpose and under the concept of providing comprehensive medical services to the public.
Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted
into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of
the trial court are convincing, thus:

x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the
nota bene of the count nurse. Such failure established PSI’s part in the dark conspiracy of silence
and concealment about the gauzes. Ethical considerations, if not also legal, dictated the holding of
an immediate inquiry into the events, if not for the benefit of the patient to whom the duty is primarily
owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and the
healing professions, through their members like defendant surgeons, and their institutions like PSI’s
hospital facility, can callously turn their backs on and disregard even a mere probability of mistake or
negligence by refusing or failing to investigate a report of such seriousness as the one in Natividad’s
case.

It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the
Medical City Hospital’s staff, composed of resident doctors, nurses, and interns. As such, it is
reasonable to conclude that PSI, as the operator of the hospital, has actual or constructive
knowledge of the procedures carried out, particularly the report of the attending nurses that the two
pieces of gauze were missing. In Fridena v. Evans,41 it was held that a corporation is bound by the
knowledge acquired by or notice given to its agents or officers within the scope of their authority and
in reference to a matter to which their authority extends. This means that the knowledge of any of
the staff of Medical City Hospital constitutes knowledge of PSI. Now, the failure of PSI, despite the
attending nurses’ report, to investigate and inform Natividad regarding the missing gauzes amounts
to callous negligence. Not only did PSI breach its duties to oversee or supervise all persons who
practice medicine within its walls, it also failed to take an active step in fixing the negligence
committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article
2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. In Fridena,
the Supreme Court of Arizona held:
x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded.
The emerging trend is to hold the hospital responsible where the hospital has failed to monitor and
review medical services being provided within its walls. See Kahn Hospital Malpractice Prevention,
27 De Paul . Rev. 23 (1977).

Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P.
2d 335 (1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a
medical practitioner because he was an independent contractor within the hospital. The Court of
Appeals pointed out that the hospital had created a professional staff whose competence and
performance was to be monitored and reviewed by the governing body of the hospital, and the court
held that a hospital would be negligent where it had knowledge or reason to believe that a doctor
using the facilities was employing a method of treatment or care which fell below the recognized
standard of care.

Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain
inherent responsibilities regarding the quality of medical care furnished to patients within its walls
and it must meet the standards of responsibility commensurate with this undertaking. Beeck v.
Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the
rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the
doctors on its staff. x x x.

x x x x x x

In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital
with its knowledge, aid, and assistance, and that the negligence of the defendants was the
proximate cause of the patient’s injuries. We find that such general allegations of negligence, along
with the evidence produced at the trial of this case, are sufficient to support the hospital’s liability
based on the theory of negligent supervision."

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

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

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

Costs against petitioners PSI and Dr. Miguel Ampil.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

RENATO C. CORONA ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

(No Part)
CANCIO C. GARCIA
Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of th

HIRD DIVISION

[G.R. No. 139008. March 13, 2002]

ROBERT DEL MAR, petitioner, vs. COURT OF APPEALS and NORMA

EBERSOLE DEL MAR, respondents.

DECISION
PANGANIBAN, J.:

The Court of Appeals cannot be faulted with reversible error, much less grave
abuse of discretion, for dismissing a petition because petitioners brief was not filed on
time. Indeed, in so doing, the appellate court is merely abiding by the Rules of Court.

The Case

Before us is a Petition for Certiorari and Mandamus under Rule 65 of the Rules

of Court, praying for the setting aside of the January 13, 1999 [1] and the April 26,
1999[2] Resolutions of the Court of Appeals (CA) in CA-GR CV No. 58804. The first
Resolution is worded as follows:
Upon consideration of the motion to dismiss appeal filed by plaintiff-appellee and the
Judicial Records Divisions Report that no appellant[]s brief has been filed as of
December 9, 1998, the appeal is hereby ordered DISMISSED pursuant to Section 1
(e), Rule 50, 1997 Rules of Civil Procedure. [3]

The second Resolution denied petitioners Motion for Reconsideration/Petition for

Relief & Motion to Admit Appellants Brief. [4]

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.

6. Cost of the suit.[5]

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
trial court.[6]
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. 35-2373.
[7]
 Buenaventura B. Miguel, chief of the Judicial Records Division of the appellate
court, thereafter wrote a letter[8] 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 respondent,
moved to dismiss[10] 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 default for 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
protect his remedies in law.[11]

Hence, this Petition.[12]

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 remedy
in the ordinary course of law for annulling or modifying the proceeding. [14]
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 client.
[15]
 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
through a technicality.[16]
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 the
case.[17]
In effect, petitioner consented to the shabby and negligent treatment of his case by
his counsel. Hence, he should not complain now of the negligence or fraud done to
him by his lawyer. A partys counsel cannot be blamed for negligence, if the party was
likewise guilty of the same.[18]Clients should suffer the consequences of the
negligence, mistake or lack of competence of the counsel whom they themselves
hired, and whom they had full authority to fire at any time and replace with another. [19]
Petitioner cannot be said to have been denied due process, because he was
afforded the opportunity to be heard. In fact, he filed an Answer to private
respondents Complaint. That he did not present evidence in his favor was the effect of
his being in default and his continued failure to move that such status be lifted. His
claim that he was abroad is unavailing.
We cannot attribute grave abuse of discretion to the Court of Appeals which
merely followed Rule 50 in dismissing the appeal.

Second Issue:
Petitioners Defenses
 Petitioner avers that he has in his favor the following valid and meritorious
defenses: (1) valid purchase of the disputed lots, (2) acquisitive prescription, and (3)
prescription and laches barring private respondents action. He proposes to prove these
arguments with the following documents: (1) an alleged Deed of Sale dated January
29, 1975 purportedly signed by private respondent on her own behalf and as the agent
of her sister Florence; (2) a Confirmation of Sale allegedly signed by Florence; and
(3) an alleged Certificate of Authentication of the confirmation issued by a Philippine
vice consul in New York, USA.
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
appeal.[20] Even if for this reason alone, the Petition should not be given due course.
WHEREFORE, the Petition is DISMISSED. Costs against petitioner.
SO ORDERED.
Melo, (Chairman), Vitug, Sandoval-Gutierrez, and Carpio, JJ., concur.