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TORTS CASES

G.R. No. 156037

May 28, 2007

MERCURY DRUG CORPORATION, Petitioner,


vs.
SEBASTIAN M. BAKING, Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review on Certiorari1 assailing the Decision2 dated May
30, 2002 and Resolution dated November 5, 2002 of the Court of Appeals in CA-G.R. CV No. 57435,
entitled "Sebastian M. Baking, plaintiff-appellee, versus Mercury Drug Co. Inc., defendant-appellant."
The facts are:
On November 25, 1993, Sebastian M. Baking, respondent, went to the clinic of Dr. Cesar Sy for a
medical check-up. On the following day, after undergoing an ECG, blood, and hematology
examinations and urinalysis, Dr. Sy found that respondents blood sugar and triglyceride were above
normal levels. Dr. Sy then gave respondent two medical prescriptions Diamicron for his blood
sugar and Benalize tablets for his triglyceride.
Respondent then proceeded to petitioner Mercury Drug Corporation (Alabang Branch) to buy the
prescribed medicines. However, the saleslady misread the prescription for Diamicron as a
prescription for Dormicum. Thus, what was sold to respondent was Dormicum, a potent sleeping
tablet.
Unaware that what was given to him was the wrong medicine, respondent took one pill of Dormicum
on three consecutive days November 6, 1993 at 9:00 p.m., November 7 at 6:00 a.m., and
November 8 at 7:30 a.m.
On November 8 or on the third day he took the medicine, respondent figured in a vehicular accident.
The car he was driving collided with the car of one Josie Peralta. Respondent fell asleep while
driving. He could not remember anything about the collision nor felt its impact.
Suspecting that the tablet he took may have a bearing on his physical and mental state at the time of
the collision, respondent returned to Dr. Sys clinic. Upon being shown the medicine, Dr. Sy was
shocked to find that what was sold to respondent was Dormicum, instead of the prescribed
Diamicron.
Thus, on April 14, 1994, respondent filed with the Regional Trial Court (RTC), Branch 80 of Quezon
City a complaint for damages against petitioner, docketed as Civil Case No. Q-94-20193.
After hearing, the trial court rendered its Decision dated March 18, 1997 in favor of respondent, thus:
WHEREFORE, premises considered, by preponderance of evidence, the Court hereby renders
judgment in favor of the plaintiff and against the defendant ordering the latter to pay mitigated
damages as follows:

1. P250,000.00 as moral damages;


2. P20,000.00 as attorneys fees and litigation expenses;
3. plus % of the cost of the suit.
SO ORDERED.
On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC judgment. Petitioner filed a
motion for reconsideration but it was denied in a Resolution dated November 5, 2002.
Hence, this petition.
Petitioner contends that the Decision of the Court of Appeals is not in accord with law or prevailing
jurisprudence.
Respondent, on the other hand, maintains that the petition lacks merit and, therefore, should be
denied.
The issues for our resolution are:
1. Whether petitioner was negligent, and if so, whether such negligence was the proximate
cause of respondents accident; and
2. Whether the award of moral damages, attorneys fees, litigation expenses, and cost of the
suit is justified.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
To sustain a claim based on the above provision, the following requisites must concur: (a) damage
suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c) connection of cause and
effect between the fault or negligence of the defendant and the damage incurred by the plaintiff. 3
There is no dispute that respondent suffered damages.
It is generally recognized that the drugstore business is imbued with public interest. The health and
safety of the people will be put into jeopardy if drugstore employees will not exercise the highest
degree of care and diligence in selling medicines. Inasmuch as the matter of negligence is a
question of fact, we defer to the findings of the trial court affirmed by the Court of Appeals.
Obviously, petitioners employee was grossly negligent in selling to respondent Dormicum, instead of
the prescribed Diamicron. Considering that a fatal mistake could be a matter of life and death for a
buying patient, the said employee should have been very cautious in dispensing medicines. She
should have verified whether the medicine she gave respondent was indeed the one prescribed by
his physician. The care required must be commensurate with the danger involved, and the skill
employed must correspond with the superior knowledge of the business which the law demands. 4
1awphi1.nt

Petitioner contends that the proximate cause of the accident was respondents negligence in driving
his car.
We disagree.
Proximate cause is defined as any cause that produces injury in a natural and continuous sequence,
unbroken by any efficient intervening cause, such that the result would not have occurred otherwise.
Proximate cause is determined from the facts of each case, upon a combined consideration of logic,
common sense, policy, and precedent.5
Here, the vehicular accident could not have occurred had petitioners employee been careful in
reading Dr. Sys prescription. Without the potent effects of Dormicum, a sleeping tablet, it was
unlikely that respondent would fall asleep while driving his car, resulting in a collision.
Complementing Article 2176 is Article 2180 of the same Code which states:
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.
xxx
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.
xxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observed the diligence of a good father of a family to prevent damage.
It is thus clear that the employer of a negligent employee is liable for the damages caused by the
latter. When an injury is caused by the negligence of an employee, there instantly arises a
presumption of the law that there has been negligence on the part of the employer, either in the
selection of his employee or in the supervision over him, after such selection. The presumption,
however, may be rebutted by a clear showing on the part of the employer that he has exercised the
care and diligence of a good father of a family in the selection and supervision of his
employee.6 Here, petitioner's failure to prove that it exercised the due diligence of a good father of a
family in the selection and supervision of its employee will make it solidarily liable for damages
caused by the latter.
As regards the award of moral damages, we hold the same to be in order. Moral damages may be
awarded whenever the defendants wrongful act or omission is the proximate cause of the plaintiffs
physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury in the cases specified or analogous to those
provided in Article 2219 of the Civil Code.7

Respondent has adequately established the factual basis for the award of moral damages when he
testified that he suffered mental anguish and anxiety as a result of the accident caused by the
negligence of petitioners employee.
There is no hard-and-fast rule in determining what would be a fair and reasonable amount of moral
damages, since each case must be governed by its own peculiar facts. However, it must be
commensurate to the loss or injury suffered.8 Taking into consideration the attending circumstances
here, we are convinced that the amount awarded by the trial court is exorbitant. Thus, we reduce the
amount of moral damages from P250,000.00 toP50,000.00 only.
In addition, we also deem it necessary to award exemplary damages. Article 2229 allows the grant of
exemplary damages by way of example or correction for the public good. As mentioned earlier, the
drugstore business is affected with public interest. Petitioner should have exerted utmost diligence in
the selection and supervision of its employees. On the part of the employee concerned, she should
have been extremely cautious in dispensing pharmaceutical products. Due to the sensitive nature of
its business, petitioner must at all times maintain a high level of meticulousness. Therefore, an
award of exemplary damages in the amount of P25,000.00 is in order.
1awphi1.nt

On the matter of attorneys fees and expenses of litigation, it is settled that the reasons or grounds
for the award thereof must be set forth in the decision of the court.9 Since the trial courts decision did
not give the basis of the award, the same must be deleted. In Vibram Manufacturing Corporation v.
Manila Electric Company,10 we held:
Likewise, the award for attorneys fees and litigation expenses should be deleted. Well-enshrined is
that "an award for attorneys fees must be stated in the text of the courts decision and not in the
dispositive portion only"(Consolidated Bank and Trust Corporation (Solidbank) v. Court of Appeals,
246 SCRA 193 [1995] and Keng Hua Paper Products, Inc. v. Court of Appeals, 286 SCRA 257
[1998]). This is also true with the litigation expenses where the body of the decision discussed
nothing for its basis.
WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of
Appeals in CA-G.R. CV No. 57435 are AFFIRMED with modification in the sense that (a) the award
of moral damages to respondent is reduced from P250,000.00 to P50,000.00; (b) petitioner is
likewise ordered to pay said respondent exemplary damages in the amount of P25,000.00; and (c)
the award of attorneys fees and litigation expenses is deleted.
Costs against petitioner.
SO ORDERED.

Mercury Drug v. Baking


MERCURY DRUG CORPORATION v. SEBASTIAN BAKING
2007 / Sandoval-Gutierrez / Petition for review on certiorari of CA decision and resolution
The cause > Different categories > Proximate
Sebastian Baking went to Dr. Cesar Sys clinic for a medical check-up. The next day, after undergoing
several tests, Dr. Sy found that Bakings blood sugar and triglyceride levels were above normal, so he
gave him 2 medical prescriptionsDiamicron (blood sugar) and Benalize (triglyceride). Baking went to
Mercury Drug Alabang branch to buy the medicines. However, the saleslady misread the prescription
as Dormicum, a potent sleeping tablet, so that was what was sold to Baking. Unaware that he was
given the wrong medicine, Baking took one Dormicum pill a day for 3 days.

On the 3rdday of taking the medicine, Baking figured in a vehicular accident, as his car collided
with Josie Peraltas car. Baking fell asleep while driving, and he could not remember anything about the
collision nor felt its impact. Suspecting that the tablet he took may have a bearing on his state at the
time of the collision, he returned to Dr. Sy, who was shocked to find that what was sold to Baking was
Dormicum.
Baking filed a complaint for damages against Mercury Drug. RTC rendered its decision in favor
of Baking. CA affirmed RTC.
MERCURY DRUG EMPLOYEE GROSSLY NEGLIGENT IN SELLING DORMICUM
To sustain a claim based on NCC 2176, the following requisites must concur:

Damage suffered by plaintiff

Fault or negligence of defendant

Connection of cause and effect between A & B


The drugstore business is imbued with public interest. The health and safety of the people will be put
into jeopardy if drugstore employees will not exercise the highest degree of care and diligence in
selling medicines. The care required must be commensurate with the danger involved, and the skill
employed must correspond with the superior knowledge of the business which the law demands.
Considering that a fatal mistake could be a matter of life and death for a buying patient, the
employee should have been very cautious in dispensing medicines. She should have verified WON the
medicine she gave was what was prescribed by Dr. Sy.
MERCURY DRUG ALSO LIABLE UNDER NCC 2180
It failed to prove that it exercised the due diligence of a good father of a family in the selection and
supervision of the employee
PROXIMATE CAUSE OF THE ACCIDENT NEGLIGENCE OF DRUGSTORE EMPLOYEE

Proximate cause any cause that produces injury in a natural and continuous sequence,
unbroken by any efficient intervening cause, such that the result would not have occurred
otherwise; determined from the facts of each case, upon a combined consideration of logic,
common sense, policy and precedent

Vehicular accident could not have occurred had the drugstore employee been careful in
reading the prescription; without the potent effects of Dormicum, a sleeping tablet, it was unlikely
that Baking would fall asleep while driving his car, resulting in a collision
AWARD 50k moral damages, 25k exemplary damages

G.R. No. 161946

November 14, 2008

MEDARDO AG. CADIENTE, petitioner,


vs.
BITHUEL MACAS, respondent.
DECISION
QUISUMBING, Acting C.J.:
For review on certiorari are the Decision1 dated September 16, 2002 and the
Resolution2 dated December 18, 2003 of the Court of Appeals in CA-G.R. CV
No. 64103, which affirmed the Decision3 of the Regional Trial Court (RTC) of
Davao City, Branch 10, in Civil Case No. 23,723-95.
The facts are undisputed.
Eyewitness Rosalinda Palero testified that on July 19, 1994, at about 4:00
p.m., at the intersection of Buhangin and San Vicente Streets in Davao City,

15-year old high school student Bithuel Macas, herein respondent, was
standing on the shoulder of the road. She was about two and a half meters
away from the respondent when he was bumped and run over by a Ford
Fiera, driven by Chona C. Cimafranca. Rosalinda and another unidentified
person immediately came to the respondent's rescue and told Cimafranca to
take the victim to the hospital. Cimafranca rushed the respondent to the
Davao Medical Center.
Dr. Hilario Diaz, the orthopedic surgeon who attended to the respondent,
testified that the respondent suffered severe muscular and major vessel
injuries, as well as open bone fractures in both thighs and other parts of his
legs. In order to save his life, the surgeon had to amputate both legs up to the
groins.4
Cimafranca had since absconded and disappeared. Records showed that the
Ford Fiera was registered in the name of herein petitioner, Atty. Medardo Ag.
Cadiente. However, Cadiente claimed that when the accident happened, he
was no longer the owner of the Ford Fiera. He alleged that he sold the vehicle
to Engr. Rogelio Jalipa on March 28, 1994,5 and turned over the Certificate of
Registration and Official Receipt to Jalipa, with the understanding that the
latter would be the one to cause the transfer of the registration.
The victim's father, Samuel Macas, filed a complaint6 for torts and damages
against Cimafranca and Cadiente before the RTC of Davao City, Branch 10.
Cadiente later filed a third-party complaint7 against Jalipa.
In answer, Jalipa claimed that he was no longer the owner of the Ford Fiera at
the time of the accident. He alleged that he sold the vehicle to Abraham
Abubakar on June 20, 1994.8 He thus filed a fourth-party complaint9 against
Abubakar.
After trial, the court ruled:
WHEREFORE, judgment is rendered in favor of the plaintiff declaring
Atty. Medardo Ag. Cadiente and Engr. Rogelio Jalipa jointly and
severally liable for damages to the plaintiff for their own negligence as

stated above, and ordering them to indemnify the plaintiff jointly and
severally as follows:
(a) P300,000.00 as compensatory damages for the permanent
and almost total disability being suffered by him;
(b) P150,000.00 for moral damages;
(c) P18,982.85 as reimbursement of medical expenses;
(d) P30,000.00 for attorney's fees; and
(e) costs of suit.
SO ORDERED.10
On appeal, the Court of Appeals held that the findings of the trial court were in
accordance with the established facts and was supported by the evidence on
record. Thus, it decreed as follows:
WHEREFORE, premises considered, the instant appeal is DENIED and
the decision of the Regional Trial Court of Davao City in Civil Case No.
23723-95 is hereby AFFIRMED.
SO ORDERED.11
From the aforequoted decision of the Court of Appeals and the subsequent
denial of the motion for reconsideration, only Cadiente appealed to this Court.
The instant petition alleges that the Court of Appeals committed serious errors
of law in affirming the decision of the trial court. Petitioner Cadiente raises the
following as issues:
I.
WAS THERE CONTRIBUTORY NEGLIGENCE ON THE PART OF
THE INJURED PARTY?
II.

ARE BOTH DEFENDANT CADIENTE AND THIRD-PARTY


DEFENDANT JOINTLY AND SEVERALLY LIABLE TO THE INJURED
PARTY?
III.
THE HONORABLE COURT OF APPEAL[S] COMMIT[T]ED GRAVE
LEGAL ERROR IN ORDERING DEFENDANT CADIENTE AND THIRDPARTY DEFENDANT JALIPA JOINTLY AND SEVERALLY LIABLE.12
Essentially, the issues to be resolved are: (1) Whether there was contributory
negligence on the part of the victim; and (2) whether the petitioner and thirdparty defendant Jalipa are jointly and severally liable to the victim.
The petitioner contends that the victim's negligence contributed to his own
mishap. The petitioner theorizes that if witness Rosalinda Palero, who was
only two and a half meters away from the victim, was not hit by the Ford Fiera,
then the victim must have been so negligent as to be bumped and run over by
the said vehicle.13
The petitioner further argues that having filed a third-party complaint against
Jalipa, to whom he had sold the Ford Fiera, the Court of Appeals should have
ordered the latter to reimburse him for any amount he would be made to pay
the victim, instead of ordering him solidarily liable for damages.14
The respondent, for his part, counters that the immediate and proximate
cause of the injuries he suffered was the recklessly driven Ford Fiera, which
was registered in the petitioner's name. He insists that when he was hit by the
vehicle, he was standing on the uncemented portion of the highway, which
was exactly where pedestrians were supposed to be.15
The respondent stresses that as the registered owner of the Ford Fiera which
figured in the accident, the petitioner is primarily liable for the injury caused by
the said vehicle. He maintains that the alleged sale of the vehicle to Jalipa
was tainted with irregularity, which indicated collusion between the petitioner
and Jalipa.16

After a careful consideration of the parties' submissions, we find the petition


without merit.
Article 2179 of the Civil Code provides:
When the plaintiff's own negligence was the immediate and proximate
cause of his injury, he cannot recover damages. But if his negligence
was only contributory, the immediate and proximate cause of the injury
being the defendant's lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded.
The underlying precept on contributory negligence is that a plaintiff who is
partly responsible for his own injury should not be entitled to recover damages
in full, but must proportionately bear the consequences of his own negligence.
The defendant is thus held liable only for the damages actually caused by his
negligence.17
In this case, records show that when the accident happened, the victim was
standing on the shoulder, which was the uncemented portion of the highway.
As noted by the trial court, the shoulder was intended for pedestrian use
alone. Only stationary vehicles, such as those loading or unloading
passengers may use the shoulder. Running vehicles are not supposed to pass
through the said uncemented portion of the highway. However, the Ford Fiera
in this case, without so much as slowing down, took off from the cemented
part of the highway, inexplicably swerved to the shoulder, and recklessly
bumped and ran over an innocent victim. The victim was just where he should
be when the unfortunate event transpired.
Cimafranca, on the other hand, had no rightful business driving as recklessly
as she did. The respondent cannot be expected to have foreseen that the
Ford Fiera, erstwhile speeding along the cemented part of the highway would
suddenly swerve to the shoulder, then bump and run him over. Thus, we are
unable to accept the petitioner's contention that the respondent was negligent.
Coming now to the second and third issues, this Court has recently reiterated
in PCI Leasing and Finance, Inc. v. UCPB General Insurance Co., Inc.,18 that
the registered owner of any vehicle, even if he had already sold it to someone

else, is primarily responsible to the public for whatever damage or injury the
vehicle may cause. We explained,
Were a registered owner allowed to evade responsibility by proving
who the supposed transferee or owner is, it would be easy for him, by
collusion with others or otherwise, to escape said responsibility and
transfer the same to an indefinite person, or to one who possesses no
property with which to respond financially for the damage or injury done.
A victim of recklessness on the public highways is usually without
means to discover or identify the person actually causing the injury or
damage. He has no means other than by a recourse to the registration
in the Motor Vehicles Office to determine who is the owner. The
protection that the law aims to extend to him would become illusory
were the registered owner given the opportunity to escape liability by
disproving his ownership.19
In the case of Villanueva v. Domingo,20 we said that the policy behind vehicle
registration is the easy identification of the owner who can be held responsible
in case of accident, damage or injury caused by the vehicle. This is so as not
to inconvenience or prejudice a third party injured by one whose identity
cannot be secured.21
Therefore, since the Ford Fiera was still registered in the petitioner's name at
the time when the misfortune took place, the petitioner cannot escape liability
for the permanent injury it caused the respondent, who had since stopped
schooling and is now forced to face life with nary but two remaining limbs.
WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision
dated September 16, 2002 and Resolution dated December 18, 2003 of the
Court of Appeals in CA-G.R. CV No. 64103 are hereby AFFIRMED. Costs
against the petitioner.
SO ORDERED.

NATIONAL POWER G.R. No. 165969


CORPORATION,
Petitioner, Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
- versus - CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
Promulgated:
HEIRS OF NOBLE CASIONAN,
Respondents. November 27, 2008
x--------------------------------------------------x
DECISION
REYES, R.T., J.:
PETITIONING power company pleads for mitigation of awarded damages on
ground of contributory negligence. But is the victim in this case partly to blame for
his electrocution and eventual demise?
This is a review on certiorari of the Decision[1] of the Court of Appeals (CA) which
found the National Power Corporation (NPC) liable for damages for the death of
Noble Casionan due to electrocution from the companys high tension transmission
lines.

The Facts
The facts, as found by the trial court are as follows:
Respondents are the parents of Noble Casionan, 19 years old at the time of
the incident that claimed his life on June 27, 1995. He would have turned 20 years
of age on November 9 of that year. Noble was originally from Cervantes,
Ilocos Sur. He worked as a pocket miner in Dalicno, Ampucao, Itogon, Benguet.

A trail leading to Sangilo, Itogon, existed in Dalicno and this trail was
regularly used by members of the community.Sometime in the 1970s, petitioner
NPC installed high-tension electrical transmission lines of 69 kilovolts (KV)
traversing
the
trail.Eventually, some
of
the
transmission
lines
sagged and dangled reducing their distance from the ground to only about eight to
ten feet. This posed a great threat to passersby who were exposed to the danger of
electrocution especially during the wet season.
As early as 1991, the leaders of Ampucao, Itogon made verbal and written
requests for NPC to institute safety measures to protect users of the trail from their
high tension wires. On June 18, 1991 and February 11, 1993, Pablo and Pedro
Ngaosie, elders of the community, wrote Engr. Paterno Banayot, Area Manager of
NPC, to make immediate and appropriate repairs of the high tension wires. They
reiterated the danger it posed to small-scale miners especially during the wet
season. They related an incident where one boy was nearly electrocuted.
In a letter dated March 1, 1995, Engr. Banayot informed Itogon Mayor
Cresencio Pacalso that NPC had installed nineadditional poles on their BeckelPhilex 60 KV line. They likewise identified a possible rerouting scheme with an
estimated total cost of 1.7 million pesos to improve the distance from its
deteriorating lines to the ground.
On June 27, 1995, Noble and his co-pocket miner, Melchor Jimenez, were at
Dalicno. They cut two bamboo poles for their pocket mining. One was 18 to 19
feet long and the other was 14 feet long. Each man carried one pole horizontally on
his shoulder: Noble carried the shorter pole while Melchor carried the longer
pole. Noble walked ahead as both passed through the trail underneath the NPC
high tension transmission lines on their way to their work place.
As Noble was going uphill and turning left on a curve, the tip of the bamboo
pole he was carrying touched one of the dangling high tension wires. Melchor, who
was walking behind him, narrated that he heard a buzzing sound when the tip of
Nobles pole touched the wire for only about one or two seconds. Thereafter, he
saw Noble fall to the ground. Melchor rushed to Noble and shook him but the latter
was already dead. Their co-workers heard Melchors shout for help and together
they brought the body of Noble to their camp.

A post-mortem examination by Dra. Ignacia Reyes Ciriaco, Municipal


Health Officer of Itogon, Benguet, determined the cause of death to be cardiac
arrest, secondary to ventricular fibulation, secondary to electrocution.[2] She also
observed a small burned area in the middle right finger of the victim.
Police investigators who visited the site of the incident confirmed that
portions of the high tension wires above the trail hung very low, just about
eight to ten feet above the ground. They noted that the residents, school children,
and pocket miners usually used the trail and had to pass directly underneath the
wires. The trail was the only viable way since the other side was a precipice.In
addition, they did not see any danger warning signs installed in the trail.
The elders and leaders of the community, through Mayor Cresencio Pacalso,
informed the General Manager of NPC in Itogon of the incident. After learning of
the electrocution, NPC repaired the dangling and sagging transmission lines and
put up warning signs around the area.
Consequently, the heirs of the deceased Noble filed a claim for damages
against the NPC before the Regional Trial Court (RTC) in Benguet. In its answer,
NPC denied being negligent in maintaining the safety of the high tension
transmission lines. It averred that there were danger and warning signs installed but
these were stolen by children. Excavations were also made to increase the
necessary clearance from the ground to about 17 to 18 feet but some towers or
poles sank due to pocket mining in the area.
At the trial, NPC witnesses testified that the cause of death could not have
been electrocution because the victim did notsuffer extensive burns despite the
strong 69 KV carried by the transmission lines. NPC argued that if Noble did die
by electrocution, it was due to his own negligence. The company counter-claimed
for attorneys fees and cost of litigation.
RTC Disposition
On February 17, 1998, the RTC decided in favor of respondents. The fallo of
its decision reads:

WHEREFORE, judgment is hereby rendered in favor of the


plaintiffs and against the defendant NPC as follows:
1. Declaring defendant NPC guilty of Negligence (Quasi-Delict)
in connection with the death of Noble Casionan;
2. Ordering NPC as a consequence of its negligence, to pay the
plaintiffs Jose and Linda Casionan, as heirs of the deceased, Noble
Casionan, the following Damages:
a. P50,000.00 as indemnity for the death of their son Noble
Casionan;
b. P100,000.00 as moral damages;
c. P50,000.00 as exemplary damages;
d. P52,277.50 as actual damages incurred for the expenses
of burial and wake in connection with the death of
Noble Casionan;
e. P720,000.00 as the loss of unearned income; and
f. P20,000.00 as attorneys fees and the cost of suit; and
3. Dismissing the counter claim of the NPC for lack of merit. [3]

The RTC gave more credence to the testimony of witnesses for respondents
than those of NPC who were not actually present at the time of the incident. The
trial court observed that witnesses for NPC were biased witnesses because they
were all employed by the company, except for the witness from the Department of
Environment and Natural Resources (DENR). TheRTC found:
Melchor Jimenez was very vivid in his account. He declared that
he and Noble Casionan cut two bamboo poles, one 14 feet and the other
about 18 feet. The shorter bamboo pole was carried by Noble Casionan
and the longer bamboo pole was carried by him. And they walked along
the trail underneath the transmission lines. He was following Noble
Casionan. And when they were going uphill in the trail and Noble

Casionan was to turn left in a curve, the bamboo pole of Casionan swung
around and its tip at the back touched for one or two seconds or for a
split moment the transmission line that was dangling and a buzzing
sound was heard. And Casionan immediately fell dead and simply
stopped breathing. What better account would there be than
this? Melchor Jimenez was an eye witness as to how it all happened.
[4]
(Emphasis added)

The RTC ruled that the negligence of NPC in maintaining the high-tension
wires was established by preponderance of evidence. On this score,
the RTC opined:

2. On the matter of whether plaintiffs have a cause of action


against defendant NPC, obviously, they would have. x x x This
negligence of the NPC was well established and cannot be denied
because previous to this incident, the attention of NPC has already been
called by several requests and demands in 1991, 1993 and 1995 by
elders and leaders of the community in the area to the fact that their
transmission lines were dangling and sagging and the clearance thereof
from the line to the ground was only 8 to 10 feet and not within the
standard clearance of 18 to 20 feet but no safety measures were taken.
They did not even put danger and warning signs so as to warn persons
passing underneath.[5] (Emphasis added)

Disagreeing with the ruling of the trial court, NPC elevated the case to the CA. In
its appeal, it argued that the RTC erred in ruling that NPC was liable for Nobles
death. Further, even assuming that Noble died of electrocution, the RTC erred in
not finding that he was guilty of contributory negligence and in awarding excessive
damages.
CA Disposition
On June 30, 2004, the CA promulgated its decision, disposing as follows:
WHEREFORE, the appealed Decision is hereby AFFIRMED,
with the MODIFICATION that the amount of moral damages is
REDUCED to Fifty Thousand Pesos (P50,000.00); and the award of

attorneys fees in the sum of Twenty Thousand Pesos (P20,000.00) is


DELETED.[6]

The CA sustained the findings of fact of the trial court but reduced the award of
moral damages from P100,000.00 to P50,000.00.The CA further disallowed the
award of attorneys fees because the reason for the award was not expressly stated
in the body of the decision.
Issues
The following issues are presented for Our consideration: (i) Whether the award
for damages should be deleted in view of the contributory negligence of the victim;
and (ii) Whether the award for unearned income, exemplary, and moral damages
should be deleted for lack of factual and legal bases.[7]
Our Ruling
I
That the victim Noble died from being electrocuted by the high-tension
transmission wires of petitioner is not contested by petitioner. We are, however,
asked to delete or mitigate the damages awarded by the trial and appellate courts in
view of what petitioner alleges to be contributory negligence on the part of the
victim.
As a rule, only questions of law may be entertained on appeal by certiorari under
Rule 45. The finding of negligence on the part of petitioner by the trial court and
affirmed by the CA is a question of fact which We cannot pass upon since it would
entail going into factual matters on which the finding of negligence was based.
[8]
Corollary to this, the finding by both courts of the lack of contributory
negligence on the part of the victim is a factual issue which is deemed conclusive
upon this Court absent any compelling reason for Us to rule otherwise.
But even if We walk the extra mile, the finding of liability on the part of
petitioner must stay.

Petitioner contends that the mere presence of the high tension wires above
the trail did not cause the victims death. Instead, it was Nobles negligent carrying
of the bamboo pole that caused his death. It insists that Noble was negligent when
he allowed the bamboo pole he was carrying to touch the high tension
wires. This is especially true because other people traversing the trail have not
been similarly electrocuted.
Petitioners contentions are absurd.
The sagging high tension wires were an accident waiting to happen. As
established during trial, the lines were sagging around8 to 10 feet in violation of
the required distance of 18 to 20 feet. If the transmission lines were properly
maintained by petitioner, the bamboo pole carried by Noble would not have
touched the wires. He would not have been electrocuted.
Petitioner cannot excuse itself from its failure to properly maintain the wires
by attributing negligence to the victim. In Ma-ao Sugar Central Co., Inc. v. Court
of Appeals,[9] this Court held that the responsibility of maintaining the rails for the
purpose of preventing derailment accidents belonged to the company. The
company should not have been negligent in ascertaining that the rails were fully
connected than to wait until a life was lost due to an accident. Said the Court:
In this petition, the respondent court is faulted for finding the
petitioner guilty of negligence notwithstanding its defense of due
diligence under Article 2176 of the Civil Code and for disallowing the
deductions made by the trial court.
Investigation of the accident revealed that the derailment of the
locomotive was caused by protruding rails which had come loose
because they were not connected and fixed in place by fish plates. Fish
plates are described as strips of iron 8" to 12" long and 3 " thick which
are attached to the rails by 4 bolts, two on each side, to keep the rails
aligned. Although they could be removed only with special equipment,
the fish plates that should have kept the rails aligned could not be found
at the scene of the accident.
There is no question that the maintenance of the rails, for the
purpose, inter alia, of preventing derailments, was the responsibility of

the petitioner, and that this responsibility was not discharged. According
to Jose Reyes, its own witness, who was in charge of the control and
supervision of its train operations, cases of derailment in the milling
district were frequent and there were even times when such derailments
were reported every hour. The petitioner should therefore have taken
more prudent steps to prevent such accidents instead of waiting until a
life was finally lost because of its negligence. [10]

Moreover, We find no contributory negligence on Nobles part.


Negligence is the failure to observe, for the protection of the interest of
another person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.[11] On the
other hand, contributory negligence is conduct on the part of the injured party,
contributing as a legal cause to the harm he has suffered, which falls below the
standard which he is required to conform for his own protection.[12] There is
contributory negligence when the partys act showed lack of ordinary care and
foresight that such act could cause him harm or put his life in danger.[13] It is an act
or omission amounting to want of ordinary care on the part of the person injured
which, concurring with the defendants negligence, is the proximate cause of the
injury.[14]
The underlying precept on contributory negligence is that a plaintiff who is
partly responsible for his own injury should not be entitled to recover damages in
full but must bear the consequences of his own negligence. [15] If indeed there was
contributory negligence on the part of the victim, then it is proper to reduce the
award for damages. This is in consonance with the Civil Code provision that
liability will be mitigated in consideration of the contributory negligence of the
injured party. Article 2179 of the Civil Code is explicit on this score:
When the plaintiffs own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if his
negligence was only contributory, the immediate and proximate cause of
the injury being the defendants lack of due care, the plaintiff may
recover damages, but the courts shall mitigate the damages to be
awarded.

In Ma-ao Sugar Central, it was held that to hold a person as having


contributed to his injuries, it must be shown that he performed an act that brought
about his injuries in disregard of warnings or signs on an impending danger to
health and body. ThisCourt held then that the victim was not guilty of contributory
negligence as there was no showing that the caboose where he was riding was a
dangerous place and that he recklessly dared to stay there despite warnings or signs
of impending danger.[16]
In this case, the trail where Noble was electrocuted was regularly used by members
of the community. There were no warning signs to inform passersby of the
impending danger to their lives should they accidentally touch the high tension
wires. Also, the trail was the only viable way from Dalicon to Itogon. Hence,
Noble should not be faulted for simply doing what was ordinary routine to other
workers in the area.
Petitioner further faults the victim in engaging in pocket mining, which is
prohibited by the DENR in the area.
In Aonuevo v. Court of Appeals,[17] this Court ruled that the violation of a
statute is not sufficient to hold that the violation was the proximate cause of the
injury, unless the very injury that happened was precisely what was intended to be
prevented by the statute. In said case, the allegation of contributory negligence on
the part of the injured party who violated traffic regulations whenhe failed to
register his bicycle or install safety gadgets thereon was struck down. We quote:
x x x The bare fact that Villagracia was violating a municipal
ordinance at the time of the accident may have sufficiently established
some degree of negligence on his part, but such negligence is without
legal consequence unless it is shown that it was a contributing cause of
the injury. If anything at all, it is but indicative of Villagracias failure in
fulfilling his obligation to the municipal government, which would then
be the proper party to initiate corrective action as a result. But such
failure alone is not determinative of Villagracias negligence in relation to
the accident. Negligence is relative or comparative, dependent upon the
situation of the parties and the degree of care and vigilance which the
particular circumstances reasonably require. To determine if Villagracia
was negligent, it is not sufficient to rely solely on the violations of the

municipal ordinance, but imperative to examine Villagracias behavior in


relation to the contemporaneous circumstances of the accident.
xxxx
Under American case law, the failures imputed on Villagracia are
not grievous enough so as to negate monetary relief. In the absence of
statutory requirement, one is not negligent as a matter of law for failing
to equip a horn, bell, or other warning devise onto a bicycle. In most
cases, the absence of proper lights on a bicycle does not constitute
negligence as a matter of law but is a question for the jury whether the
absence of proper lights played a causal part in producing a collision
with a motorist. The absence of proper lights on a bicycle at night, as
required by statute or ordinance, may constitute negligence barring or
diminishing recovery if the bicyclist is struck by a motorist as long as the
absence of such lights was a proximate cause of the collision; however,
the absence of such lights will not preclude or diminish recovery if the
scene of the accident was well illuminated by street lights, if substitute
lights were present which clearly rendered the bicyclist visible, if the
motorist saw the bicycle in spite of the absence of lights thereon, or if
the motorist would have been unable to see the bicycle even if it had
been equipped with lights. A bicycle equipped with defective or
ineffective brakes may support a finding of negligence barring or
diminishing recovery by an injured bicyclist where such condition was a
contributing cause of the accident.
The above doctrines reveal a common thread. The failure of the
bicycle owner to comply with accepted safety practices, whether or not
imposed by ordinance or statute, is not sufficient to negate or mitigate
recovery unless a causal connection is established betweensuch failure
and the injury sustained. The principle likewise finds affirmation
in Sanitary Steam, wherein we declared that the violation of a traffic
statute must be shown as the proximate cause of the injury, or that it
substantially contributed thereto. Aonuevo had the burden of clearly
proving that the alleged negligence of Villagracia was the proximate or
contributory cause of the latters injury.[18] (Emphasis added)

That the pocket miners were unlicensed was not a justification for petitioner
to leave their transmission lines dangling. We quote with approval the observation
of the RTC on this matter:

The claim of NPC that the pocket miners have no right to operate
within the area of Dalicno, Itogon, Benguet as there was no permit
issued by DENR is beside the point. The fact is that there were not only
pocket miners but also there were many residents in the area of Dalicno,
Ampucao, Itogon, Benguet using the trail. These residents were using
this trail underneath the transmission lines x x x. They were using this
trail even before the transmission lines were installed in the 1970s by
NPC. The pocket miners, although they have no permit to do pocket
mining in the area, are also human beings who have to eke out a living
in the only way they know how. The fact that they were not issued a
permit by the DENR to do pocket mining is no justification for NPC to
simply leave their transmission lines dangling or hanging 8 to 10 feet
above the ground posing danger to the life and limb of everyone in said
community. x x x[19] (Emphasis added)

In sum, the victim was not guilty of contributory negligence. Hence,


petitioner is not entitled to a mitigation of its liability.
II
We now determine the propriety of the awards for loss of unearned
income, moral, and exemplary damages.
From the testimony of the victims mother, it was duly established during
trial that he was earning P3,000.00 a month. To determine the compensable amount
of lost earnings, We consider (1) the number of years for which the victim would
otherwise have lived (life expectancy); and (2) the rate of loss sustained by the
heirs of the deceased. Life expectancy is computed by applying the formula (2/3 x
[80 - age at death]) adopted in the American Expectancy Table of Mortality or the
Actuarial CombinedExperience Table of Mortality. The second factor is computed
by multiplying the life expectancy by the net earnings of the deceased, i.e., the
total earnings less expenses necessary in the creation of such earnings or
income and less living and other incidental expenses. The net earning is ordinarily
computed at fifty percent (50%) of the gross earnings. Thus, the
formula used bythis Court in computing loss of earning capacity is: Net Earning
Capacity = [2/3 x (80 age at time of death) x (gross annual income reasonable and
necessary living expenses)].[20]

We sustain the trial court computation of unearned income of the victim:


x x x the loss of his unearned income can be computed as follows:
two-thirds of 80 years, minus 20 years, times P36,000.00 per year,
equals P1,440,000.00. This is because Noble Casionan, at the time of his
death, was 20 years old and was healthy and strong. And, therefore, his
life expectancy would normally reach up to 80 years old in accordance
with the above formula illustrated in the aforesaid cases. Thus, Noble
Casionan had 60 more years life expectancy since he was 20 years old at
the time of his death on June 27, 1995. Two-thirds of 60 years
timesP36,000.00 since he was earning about P3,000.00 a month
of P36,000.00 a year would be P1,440,000.00.
However, in determining the unearned income, the basic concern is to
determine the damages sustained by the heirs or dependents of the
deceased Casionan. And here, the damages consist not of the full amount
of his earnings but the support they would have received from the
deceased had he not died as a consequence of the unlawful act of the
NPC. x x x The amount recoverable is not the loss of the entire earnings
but the loss of that portion of the earnings which the heirs would have
received as support. Hence, from the amount of P1,440,000.00, a
reasonable amount for the necessary expenses of Noble Casionan had he
lived would be deducted. Following the ruling in People v. Quilaton, 205
SCRA 279, the Court deems that 50 percent of the gross earnings of the
deceased of P1,440,000.00 should be deducted for his necessary
expenses had he lived, thus leaving the other half of about P720,000.00
as the net earnings that would have gone for the support of his
heirs. This is the unearned income of which the heirs were deprived of. [21]

In quasi delicts, exemplary damages are awarded where the offender was
guilty of gross negligence.[22] Gross negligence has been defined to be the want or
absence of even slight care or diligence as to amount to a reckless disregard of the
safety of person or property. It evinces a thoughtless disregard of consequences
without exerting any effort to avoid them.[23]
Petitioner demonstrated its disregard for the safety of the members of the
community of Dalicno who used the trail regularly when it failed to address the
sagging high tension wires despite numerous previous requests and warnings. It

only exerted efforts to rectify the danger it posed after a death from electrocution
already occurred. Gross negligence was thus apparent, warranting the award of
exemplary damages.
As to the award of moral damages, We sustain the CA reduction of the
award. Moral damages are designed to compensate the claimant for actual injury
suffered and not to impose a penalty on the wrongdoer. It is not meant to enrich the
complainant but to enable the injured party to obtain means to obviate the moral
suffering experience. Trial courts should guard against the award of exorbitant
damages lest they be accused of prejudice or corruption in their decision making.
[24]
We find that the CA correctly reduced the award from P100,000.00
to P50,000.00.
As for the award for attorneys fees, well-settled is the rule that the reason for
the award must be discussed in the text of the courts decision and not only in the
dispositive portion.[25] Except for the fallo, a discussion on the reason for the award
for attorneys fees was not included by the RTC in its decision. The CA thus
correctly disallowed it on appeal.
WHREFORE, the petition is DENIED and the appealed decision of the Court of
Appeals AFFIRMED.
SO ORDERED.
[G.R. No. 70890. September 18, 1992.]
CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON. INTERMEDIATE APPELLATE
COURT, FELIPE GOTIONG and SHIRLEY GOTIONG, Respondents.
Alex Y. Tan, for Petitioners.
Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.

SYLLABUS

1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING FROM CRIMINAL
OFFENSES COMMITTED BY THEIR MINOR CHILDREN; RULE. The parents are and should be held primarily
liable for the civil liability arising from criminal offenses committed by their minor children under their legal
authority or control, or who live in their company, unless it is proven that the former acted with the diligence
of a good father of a family to prevent such damages. That primary liability is premised on the provisions of
Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their children 9 years of
age or under, or over 9 but under 15 years of age who acted without discernment; and, with regard to their
children over 9 but under 15 years of age who acted with discernment, or 15 years or over but under 21
years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code. Under said

Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or
incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides that the
same shall devolve upon the father and, in case of his death or incapacity, upon the mother or, in case of her
death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a relative or
family friend of the youthful offender. However, under the Family Code, this civil liability is now, without such
alternative qualification, the responsibility of the parents and those who exercise parental authority over the
minor offender. For civil liability arising from quasi-delicts committed by minors, the same rules shall apply
in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

DECISION

REGALADO, J.:

One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A tragic
illustration is provided by the instant case, wherein two lovers died while still in the prime of their years, a
bitter episode for those whose lives they have touched. While we cannot expect to award complete
assuagement to their families through seemingly prosaic legal verbiage, this disposition should at least
terminate the acrimony and rancor of an extended judicial contest resulting from the unfortunate
occurrence.
In this final denouement of the judicial recourse the stages whereof were alternately initiated by the parties,
petitioners are now before us seeking the reversal of the judgment of respondent court promulgated on
January 2, 1985 in AC-G.R. CV No. 69060 with the following decretal portion:
jgc:chanroble s.com.ph

"WHEREFORE, the decision of the lower court dismissing plaintiffs complaint is hereby reversed; and
instead, judgment is hereby rendered sentencing defendants, jointly and solidarily, to pay to plaintiffs the
following amounts:
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1. Moral damages, P30,000.000;


2. Exemplary damages, P10,000.00;
3. Attorneys fees, P20,000.00, and costs.
However, denial of defendants-appellees counterclaims is affirmed." 1
Synthesized from the findings of the lower courts, it appears that respondent spouses are the legitimate
parents of Julie Ann Gotiong who, at the time of the deplorable incident which took place and from which
she died on January 14, 1979, was an 18-year old first year commerce student of the University of San
Carlos, Cebu City; while petitioners are the parents of Wendell Libi, then a minor between 18 and 19 years
of age living with his aforesaid parents, and who also died in the same event on the same date.
For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi were sweethearts until
December, 1978 when Julie Ann broke up her relationship with Wendell after she supposedly found him to be
sadistic and irresponsible. During the first and second weeks of January, 1979, Wendell kept pestering Julie
Ann with demands for reconciliation but the latter persisted in her refusal, prompting the former to resort to
threats against her. In order to avoid him, Julie Ann stayed in the house of her best friend, Malou Alfonso, at
the corner of Maria Cristina and Juana Osmea Streets, Cebu City, from January 7 to 13, 1978.
On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted with the same
firearm, a Smith and Wesson revolver licensed in the name of petitioner Cresencio Libi, which was recovered
from the scene of the crime inside the residence of private respondents at the corner of General Maxilom
and D. Jakosalem streets of the same city.
Due to the absence of an eyewitness account of the circumstances surrounding the death of both minors,
their parents, who are the contending parties herein, posited their respective theories drawn from their
interpretation of circumstantial evidence, available reports, documents and evidence of physical facts.

Private respondents, bereaved over the death of their daughter, submitted that Wendell caused her death by
shooting her with the aforesaid firearm and, thereafter, turning the gun on himself to commit suicide. On the
other hand, Petitioners, puzzled and likewise distressed over the death of their son, rejected the imputation
and contended that an unknown third party, whom Wendell may have displeased or antagonized by reason
of his work as a narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must have caused
Wendells death and then shot Julie Ann to eliminate any witness and thereby avoid identification.
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As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the then Court of First
Instance of Cebu against the parents of Wendell to recover damages arising from the latters vicarious
liability under Article 2180 of the Civil Code. After trial, the court below rendered judgment on October 20,
1980 as follows:
jgc:chanroble s.com.ph

"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing plaintiffs complaint for
insufficiency of the evidence. Defendants counterclaim is likewise denied for lack of sufficient merit." 2
On appeal to respondent court, said judgment of the lower court dismissing the complaint of therein
plaintiffs-appellants was set aside and another judgment was rendered against defendants-appellees who, as
petitioners in the present appeal by certiorari, now submit for resolution the following issues in this case:
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1. Whether or not respondent court correctly reversed the trial court in accordance with established
decisional laws; and
2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent court to make
petitioners liable for vicarious liability. 3
In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of Cebu, submitted
his findings and opinions on some postulates for determining whether or not the gunshot wound was
inflicted on Wendell Libi by his own suicidal act. However, undue emphasis was placed by the lower court on
the absence of gunpowder or tattooing around the wound at the point of entry of the bullet. It should be
emphasized, however, that this is not the only circumstance to be taken into account in the determination of
whether it was suicide or not.
It is true that said witness declared that he found no evidence of contact or close-contact of an explosive
discharge in the entrance wound. However, as pointed out by private respondents, the body of deceased
Wendell Libi must have been washed at the funeral parlor, considering the hasty interment thereof a little
after eight (8) hours from the occurrence wherein he died. Dr. Cerna himself could not categorically state
that the body of Wendell Libi was left untouched at the funeral parlor before he was able to conduct his
autopsy. It will also be noted that Dr. Cerna was negligent in not conducting a paraffin test on Wendell Libi,
hence possible evidence of gunpowder residue on Wendells hands was forever lost when Wendell was hastily
buried.
cralawnad

More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell Libi about eight
(8) hours after the incident or, to be exact, eight (8) hours and twenty (20) minutes based on the record of
death; that when he arrived at the Cosmopolitan Funeral Homes, the body of the deceased was already on
the autopsy table and in the stage of rigor mortis; and that said body was not washed, but it was dried. 4
However, on redirect examination, he admitted that during the 8-hour interval, he never saw the body nor
did he see whether said body was wiped or washed in the area of the wound on the head which he examined
because the deceased was inside the morgue. 5 In fact, on cross-examination, he had earlier admitted that
as far as the entrance of the wound, the trajectory of the bullet and the exit of the wound are concerned, it
is possible that Wendell Libi shot himself. 6
He further testified that the muzzle of the gun was not pressed on the head of the victim and that he found
no burning or singeing of the hair or extensive laceration on the gunshot wound of entrance which are
general characteristics of contact or near-contact fire. On direct examination, Dr. Cerna nonetheless made
these clarification:
jgc:chanrobles.com .ph

"Q Is it not a fact that there are certain guns which are so made that there would be no black residue or
tattooing that could result from these guns because they are what we call clean?
A Yes, sir. I know that there are what we call smokeless powder.
ATTY. ORTIZ:

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Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those indications that you said may
not rule out the possibility that the gun was closer than 24 inches, is that correct?
A If the . . . assuming that the gun used was .. the bullet used was a smokeless powder.
Q At any rate, doctor, from . . . disregarding those other matters that you have noticed, the singeing, etc.,
from the trajectory, based on the trajectory of the bullet as shown in your own sketch, is it not a fact that
the gun could have been fired by the person himself, the victim himself, Wendell Libi, because it shows a
point of entry a little above the right ear and point of exit a little above that, to be very fair and on your
oath?
A As far as the point of entrance is concerned and as far as the trajectory of the bullet is concerned and as
far as the angle or the manner of fire is concerned, it could have been fired by the victim." 7
As shown by the evidence, there were only two used bullets 8 found at the scene of the crime, each of which
were the bullets that hit Julie Ann Gotiong and Wendell Libi, respectively. Also, the sketch prepared by the
Medico-Legal Division of the National Bureau of Investigation, 9 shows that there is only one gunshot wound
of entrance located at the right temple of Wendell Libi. The necropsy report prepared by Dr. Cerna states:
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library

"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest inferiorly by 0.2 cm., edges
inverted, oriented upward, located at the head, temporal region, right, 2.8 cms. behind and 5.5 cms. above
right external auditory meatus, directed slightly forward, upward and to the left, involving skin and soft
tissues, making a punch-in fracture on the temporal bone, right, penetrating cranial cavity, lacerating
extensively along its course the brain tissues, fracturing parietal bone, left, and finally making an EXIT
wound, irregular, 2.0 x 1.8 cms., edges (e)verted, parietal region, left, 2.0 cms. behind and 12.9 cms. above
left external auditory meatus.
chanrobles virtualawlibrary chanroble s.com :chanrobles.com .ph

"Evidence of contact or close-contact fire, such as burning around the gunshot wound of entrance,
gunpowder tatooing (sic), smudging, singeing of hair, extensive laceration or bursting of the gunshot wound
of entrance, or separation of the skin from the underlying tissue, are absent." 10
On cross-examination, Dr. Cerna demonstrated his theory which was made of record, thus:

jgc:chanroble s.com.ph

"Q Now, will you please use yourself as Wendell Libi, and following the entrance of the wound, the trajectory
of the bullet and the exit of the wound, and measuring yourself 24 inches, will you please indicate to the
Honorable Court how would it have been possible for Wendell Libi to kill himself? Will you please indicate the
24 inches?
WITNESS:

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A Actually, sir, the 24 inches is approximately one arms length.


ATTY. SENINING:

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I would like to make of record that the witness has demonstrated by extending his right arm almost straight
towards his head." 11
Private respondents assail the fact that the trial court gave credence to the testimonies of defendants
witnesses Lydia Ang and James Enrique Tan, the first being a resident of an apartment across the street
from the Gotiongs and the second, a resident of the house adjacent to the Gotiong residence, who declared
having seen a "shadow" of a person at the gate of the Gotiong house after hearing shots therefrom.
On cross-examination, Lydia Ang testified that the apartment where she was staying faces the gas station;
that it is the second apartment; that from her window she can see directly the gate of the Gotiongs and,
that there is a firewall between her apartment and the gas station. 12 After seeing a man jump from the

gate of the Gotiongs to the rooftop of the Tans, she called the police station but the telephone lines were
busy. Later on, she talked with James Enrique Tan and told him that she saw a man leap from the gate
towards his rooftop. 13
However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the Gotiongs, but denied
having talked with anyone regarding what he saw. He explained that he lives in a duplex house with a
garden in front of it; that his house is next to Felipe Gotiongs house; and he further gave the following
answers to these questions:
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"ATTY. ORTIZ: (TO WITNESS).


Q What is the height of the wall of the Gotiongs in relation to your house?
WITNESS:

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A It is about 8 feet.
ATTY. ORTIZ: (TO WITNESS)
Q And where were you looking from?
WITNESS:

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A From upstairs in my living room.


ATTY. ORTIZ (TO WITNESS)
Q From Your living room window, is that correct?
WITNESS:

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A Yes, but not very clear because the wall is high." 14


Analyzing the foregoing testimonies, we agree with respondent court that the same do not inspire credence
as to the reliability and accuracy of the witnesses observations, since the visual perceptions of both were
obstructed by high walls in their respective houses in relation to the house of herein private respondents. On
the other hand, witness Manolo Alfonso, testifying on rebuttal, attested without contradiction that he and his
sister, Malou Alfonso, were waiting for Julie Ann Gotiong when they heard her scream; that when Manolo
climbed the fence to see what was going on inside the Gotiong house, he heard the first shot; and, not more
than five (5) seconds later, he heard another shot. Consequently, he went down from the fence and drove to
the police station to report the incident. 15 Manolos direct and candid testimony establishes and explains
the fact that it was he whom Lydia Ang and James Enrique Tan saw as the "shadow" of a man at the gate of
the Gotiong house.
We have perforce to reject petitioners effete and unsubstantiated pretension that it was another man who
shot Wendell and Julie Ann. It is significant that the Libi family did not even point to or present any suspect
in the crime nor did they file any case against any alleged "John Doe." Nor can we sustain the trial courts
dubious theory that Wendell Libi did not die by his own hand because of the overwhelming evidence
testimonial, documentary and pictorial the confluence of which point to Wendell as the assailant of Julie
Ann, his motive being revenge for her rejection of his persistent pleas for a reconciliation.
chanrobles.com :cralaw:re d

Petitioners defense that they had exercised the due diligence of a good father of a family, hence they should
not be civilly liable for the crime committed by their minor son, is not borne out by the evidence on record
either.
Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi, owns a gun which
he kept in a safety deposit box inside a drawer in their bedroom. Each of these petitioners holds a key to the
safety deposit box and Amelitas key is always in her bag, all of which facts were known to Wendell. They
have never seen their son Wendell taking or using the gun. She admitted, however, that on that fateful night
the gun was no longer in the safety deposit box. 16 We, accordingly, cannot but entertain serious doubts
that petitioner spouses had really been exercising the diligence of a good father of a family by safely locking
the fatal gun away. Wendell could not have gotten hold thereof unless one of the keys to the safety deposit

box was negligently left lying around or he had free access to the bag of his mother where the other key
was.
The diligence of a good father of a family required by law in a parent and child relationship consists, to a
large extent, of the instruction and supervision of the child. Petitioners were gravely remiss in their duties as
parents in not diligently supervising the activities of their son, despite his minority and immaturity, so much
so that it was only at the time of Wendells death that they allegedly discovered that he was a CANU agent
and that Cresencios gun was missing from the safety deposit box. Both parents were sadly wanting in their
duty and responsibility in monitoring and knowing the activities of their children who, for all they know, may
be engaged in dangerous work such as being drug informers, 17 or even drug users. Neither was a plausible
explanation given for the photograph of Wendell, with a handwritten dedication to Julie Ann at the back
thereof, 18 holding upright what clearly appears as a revolver and on how or why he was in possession of
that firearm.
In setting aside the judgment of the court a quo and holding petitioners civilly liable, as explained at the
start of this opinion, respondent court waved aside the protestations of diligence on the part of petitioners
and had this to say:
jgc:chanrobles.com .ph

". . . It is still the duty of parents to know the activity of their children who may be engaged in this
dangerous activity involving the menace of drugs. Had the defendants-appellees been diligent in supervising
the activities of their son, Wendell, and in keeping said gun from his reach, they could have prevented
Wendell from killing Julie Ann Gotiong. Therefore, appellants are liable under Article 2180 of the Civil Code
which provides:
chanrob1es virtual 1aw library

The father, and in case of his death or incapacity, the mother, are responsible for the damages caused by
their minor children who live in their company.
"Having been grossly negligent in preventing Wendell Libi from having access to said gun which was
allegedly kept in a safety deposit box, defendants-appellees are subsidiarily liable for the natural
consequence of the criminal act of said minor who was living in their company. This vicarious liability of
herein defendants-appellees has been reiterated by the Supreme Court in many cases, prominent of which is
the case of Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held that:
chanrob1es virtual 1aw library

The subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of
the New Civil Code covers obligations arising from both quasi-delicts and criminal offenses.
The subsidiary liability of parents arising from the criminal acts of their minor children who acted with
discernment is determined under the provisions of Article 2180, N.C.C. and under Article 101 of the Revised
Penal Code, because to hold that the former only covers obligations which arise from quasi-delicts and not
obligations which arise from criminal offenses, would result in the absurdity that while for an act where mere
negligence intervenes the father or mother may stand subsidiarily liable for the damages caused by his or
her son, no liability would attach if the damage is caused with criminal intent. (3 SCRA 361-362).
". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi somehow got hold of the
key to the drawer where said gun was kept under lock without defendant-spouses ever knowing that said
gun had been missing from that safety box since 1978 when Wendell Libi had) a picture taken wherein he
proudly displayed said gun and dedicated this picture to his sweetheart, Julie Ann Gotiong; also since then,
Wendell Libi was said to have kept said gun in his car, in keeping up with his supposed role of a CANU
agent . . ."
chanroble s lawlibrary : rednad

"Based on the foregoing discussions of the assigned errors, this Court holds that the lower court was not
correct in dismissing herein plaintiffs-appellants complaint because as preponderantly shown by evidence,
defendants-appellees utterly failed to exercise all the diligence of a good father of the family in preventing
their minor son from committing this crime by means of the gun of defendants-appellees which was freely
accessible to Wendell Libi for they have not regularly checked whether said gun was still under lock, but
learned that it was missing from the safety deposit box only after the crime had been committed."
(Emphases ours.) 19
We agree with the conclusion of respondent court that petitioners should be held liable for the civil liability

based on what appears from all indications was a crime committed by their minor son. We take this
opportunity, however, to digress and discuss its ratiocination therefor on jurisprudential dicta which we feel
require clarification.
In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites Fuellas v.
Cadano, Et. Al. 20 which supposedly holds that" (t)he subsidiary liability of parents for damages caused by
their minor children imposed by Article 2180 of the New Civil Code covers obligations arising from both
quasi-delicts and criminal offenses," followed by an extended quotation ostensibly from the same case
explaining why under Article 2180 of the Civil Code and Article 101 of the Revised Penal Code parents should
assume subsidiary liability for damages caused by their minor children. The quoted passages are set out two
paragraphs back, with pertinent underscoring for purposes of the discussion hereunder.
chanroble s law library

Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the categorization of
their liability as being subsidiary, and not primary, in nature requires a hard second look considering
previous decisions of this court on the matter which warrant comparative analyses. Our concern stems from
our readings that if the liability of the parents for crimes or quasi-delicts of their minor children is subsidiary,
then the parents can neither invoke nor be absolved of civil liability on the defense that they acted with the
diligence of a good father of a family to prevent damages. On the other hand, if such liability imputed to the
parents is considered direct and primary, that diligence would constitute a valid and substantial defense.
We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in
Article 2180 of the Civil Code, is primary and not subsidiary. In fact, if we apply Article 2194 of said code
which provides for solidary liability of joint tortfeasors, the persons responsible for the act or omission, in
this case the minor and the father and, in case of his death of incapacity, the mother, are solidarily liable.
Accordingly, such parental liability is primary and not subsidiary, hence the last paragraph of Article 2180
provides that" (t)he 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 damages."
cralaw virtua1aw library

We are also persuaded that the liability of the parents for felonies committed by their minor children is
likewise primary, not subsidiary. Article 101 of the Revised Penal Code provides:
jgc:chanroble s.com.ph

"ARTICLE 101. Rules regarding civil liability in certain cases.


x

First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts committed by . . . a person
under nine years of age, or by one over nine but under fifteen years of age, who has acted without
discernment, shall devolve upon those having such person under their legal authority or control, unless it
appears that there was no fault or negligence on their part." (Emphasis supplied.) 21
Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision the civil liability
of the parents for crimes committed by their minor children is likewise direct and primary, and also subject
to the defense of lack of fault or negligence on their part, that is, the exercise of the diligence of a good
father of a family.
That in both quasi-delicts and crimes the parents primarily respond for such damages is buttressed by the
corresponding provisions in both codes that the minor transgressor shall be answerable or shall respond with
his own property only in the absence or in case of insolvency of the former. Thus, for civil liability ex quasi
delicto of minors, Article 2182 of the Civil Code states that" (i)f the minor causing damage has no parents or
guardian, the minor . . . shall be answerable with his own property in an action against him where a
guardian ad litem shall be appointed." For civil liability ex delicto of minors, an equivalent provision is found
in the third paragraph of Article 101 of the Revised Penal Code, to wit:
jgc:chanroble s.com.ph

"Should there be no person having such . . . minor under his authority, legal guardianship or control, or if
such person be insolvent, said . . . minor shall respond with (his) own property, excepting property exempt
from execution, in accordance with civil law."
cralaw virtua1aw library

The civil liability of parents for felonies committed by their minor children contemplated in the aforesaid rule
in Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code has, aside from the
aforecited case of Fuellas, been the subject of a number of cases adjudicated by this Court, viz.: Exconde v.
Capuno, Et Al., 22 Araneta v. Arreglado, 23 Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v. Bangkili, Et Al.,

25 and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the aforesaid cases were basically on the issue of the
civil liability of parents for crimes committed by their minor children over 9 but under 15 years of age, who
acted with discernment, and also of minors 15 years of aye or over, since these situations are not covered
by Article 101, Revised Penal Code. In both instances, this Court held that the issue of parental civil liability
should be resolved in accordance with the provisions of Article 2180 of the Civil Code for the reasons well
expressed in Salen and adopted in the cases hereinbefore enumerated that to hold that the civil liability
under Article 2180 would apply only to quasi-delicts and not to criminal offenses would result in the
absurdity that in an act involving mere negligence the parents would be liable but not where the damage is
caused with criminal intent. In said cases, however, there are unfortunate variances resulting in a
regrettable inconsistency in the Courts determination of whether the liability of the parents, in cases
involving either crimes or quasi-delicts of their minor children, is primary or subsidiary.
In Exconde, where the 15-year old minor was convicted of double homicide through reckless imprudence, in
a separate civil action arising from the crime the minor and his father were held jointly and severally liable
for failure of the latter to prove the diligence of a good father of a family. The same liability in solidum and,
therefore, primary liability was imposed in a separate civil action in Araneta on the parents and their 14-year
old son who was found guilty of frustrated homicide, but on the authority of Article 2194 of the Civil Code
providing for solidary responsibility of two or more persons who are liable for a quasi-delict.
However, in Salen, the father was declared subsidiarily liable for damages arising from the conviction of his
son, who was over 15 but less than 18 years of age, by applying Article 2180 but, this time, disregarding
Article 2194 of the Civil Code. In the present case, as already explained, the petitioners herein were also
held liable but supposedly in line with Fuellas which purportedly declared the parents subsidiarily liable for
the civil liability for serious physical injuries committed by their 13-year old son. On the other hand, in
Paleyan, the mother and her 19-year old son were adjudged solidarily liable for damages arising from his
conviction for homicide by the application of Article 2180 of the Civil Code since this is likewise not covered
by Article 101 of the Revised Penal Code. Finally, in Elcano, although the son was acquitted in a homicide
charge due to "lack of intent, coupled with mistake," it was ruled that while under Article 2180 of the Civil
Code there should be solidary liability for damages, since the son, "although married, was living with his
father and getting subsistence from him at the time of the occurrence," but "is now of age, as a matter of
equity" the father was only held subsidiarily liable.
It bears stressing, however, that the Revised Penal Code provides for subsidiary liability only for persons
causing damages under the compulsion of irresistible force or under the impulse of an uncontrollable fear;
27 innkeepers, tavernkeepers and proprietors of establishments; 28 employers, teachers, persons and
corporations engaged in industry; 29 and principals, accomplices and accessories for the unpaid civil liability
of their co-accused in the other classes. 30
Also, coming back to respondent courts reliance on Fuellas in its decision in the present case, it is not
exactly accurate to say that Fuellas provided for subsidiary liability of the parents therein. A careful scrutiny
shows that what respondent court quoted verbatim in its decision now on appeal in the present case, and
which it attributed to Fuellas, was the syllabus on the law report of said case which spoke of "subsidiary"
liability. However, such categorization does not specifically appear in the text of the decision in Fuellas. In
fact, after reviewing therein the cases of Exconde, Araneta and Salen and the discussions in said cases of
Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code, this Court concluded its
decision in this wise:
jgc:chanrobles.com .ph

"Moreover, the case at bar was decided by the Court of Appeals on the basis of evidence submitted therein
by both parties, independent of the criminal case. And responsibility for fault or negligence under Article
2176 upon which the present action was instituted, is entirely separate and distinct from the civil liability
arising from fault or negligence under the Penal Code (Art. 2177), and having in mind the reasons behind
the law as heretofore stated, any discussion as to the minors criminal responsibility is of no moment."
cralaw virtua1aw library

Under the foregoing considerations, therefore, we hereby rule that the parents are and should be held
primarily liable for the civil liability arising from criminal offenses committed by their minor children under
their legal authority or control, or who live in their company, unless it is proven that the former acted with
the diligence of a good father of a family to prevent such damages. That primary liability is premised on the
provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their
children 9 years of age or under, or over 9 but under 15 years of age who acted without discernment; and,
with regard to their children over 9 but under 15 years of age who acted with discernment, or 15 years or
over but under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil
Code. 31

Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of
his death or incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides
that the same shall devolve upon the father and, in case of his death or incapacity, upon the mother or, in
case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a
relative or family friend of the youthful offender. 32 However, under the Family Code, this civil liability is
now, without such alternative qualification, the responsibility of the parents and those who exercise parental
authority over the minor offender. 33 For civil liability arising from quasi-delicts committed by minors, the
same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.
In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a felony or a quasidelict committed by Wendell Libi, respondent court did not err in holding petitioners liable for damages
arising therefrom. Subject to the preceding modifications of the premises relied upon by it therefor and on
the bases of the legal imperatives herein explained, we conjoin in its findings that said petitioners failed to
duly exercise the requisite diligentissimi patris familias to prevent such damages.
ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent Court of Appeals is
hereby AFFIRMED, with costs against petitioners.
SO ORDERED.

SPS. BUENAVENTURA JAYME G.R. No. 163609


AND ROSARIO JAYME,
Petitioners,
Present:
- versus - YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
RODRIGO APOSTOL, FIDEL CHICO-NAZARIO,
LOZANO, ERNESTO SIMBULAN, NACHURA, and
MAYOR FERNANDO Q. MIGUEL, REYES, JJ.
MUNICIPALITY OF KORONADAL
(NOW CITY OF KORONADAL),
PROVINCE OF SOUTH COTABATO,
represented by the MUNICIPAL
TREASURER and/or MUNICIPAL
MAYOR FERNANDO Q. MIGUEL,
and THE FIRST INTEGRATED Promulgated:
BONDING AND INSURANCE
COMPANY, INC. ,
Respondents. November 27, 2008
x--------------------------------------------------x
DECISION
REYES, R.T., J.:

MAY a municipal mayor be held solidarily liable for the negligent acts of the
driver assigned to him, which resulted in the death of a minor pedestrian?

Challenged in this petition for review on certiorari is the Decision[1] of the Court of
Appeals (CA) which reversed and set aside the decision of the Regional Trial Court
(RTC), Polomolok, Cotabato City, Branch 39, insofar as defendant Mayor
Fernando Q. Miguel is concerned. The CA absolved Mayor Miguel from any
liability since it was not he, but the Municipality of Koronadal, that was the
employer of the negligent driver.
The Facts
On February 5, 1989, Mayor Miguel of Koronadal, South Cotabato was on board
the Isuzu pick-up truck driven by Fidel Lozano, an employee of
the Municipality of Koronadal.[2] The pick-up truck was registered under the name
of Rodrigo Apostol, but it was then in the possession of Ernesto Simbulan.
[3]
Lozano borrowed the pick-up truck from Simbulan to bring Miguel
to BuayanAirport at General Santos City to catch his Manila flight.[4]
The pick-up truck accidentally hit Marvin C. Jayme, a minor, who was then
crossing the National Highway in Poblacion, Polomolok, South Cotabato.[5] The
intensity of the collision sent Marvin some fifty (50) meters away from the point of
impact, a clear indication that Lozano was driving at a very high speed at the time
of the accident.[6]
Marvin sustained severe head injuries with subdural hematoma and diffused
cerebral
contusion.[7] He
was
initially
treated
at
[8]
the Howard Hubbard Memorial Hospital. Due to the seriousness of his injuries,
he was airlifted to the Ricardo Limso MedicalCenter in Davao City for more
intensive treatment.[9] Despite medical attention, Marvin expired six (6) days after
the accident.[10]

Petitioners spouses Buenaventura and Rosario Jayme, the parents of Marvin,


filed a complaint for damages with the RTCagainst respondents.[11] In their
complaint, they prayed that all respondents be held solidarily liable for their
loss. They pointed out that that proximate cause of Marvins death was Lozanos
negligent and reckless operation of the vehicle. They prayed for actual, moral, and
exemplary damages, attorneys fees, and litigation expenses.
In their respective Answers, all respondents denied liability for Marvins
death. Apostol and Simbulan averred that Lozano took the pick-up truck without
their consent. Likewise, Miguel and Lozano pointed out that Marvins sudden sprint
across the highway made it impossible to avoid the accident. Yet, Miguel denied
being
on
board
the
vehicle
when
it
hit
Marvin. TheMunicipality of Koronadal adopted the answer of Lozano and
Miguel. As for First Integrated Bonding and Insurance Company, Inc., the vehicle
insurer, it insisted that its liability is contributory and is only conditioned on the
right of the insured. Since the insured did not file a claim within the prescribed
period, any cause of action against it had prescribed.
RTC Disposition
On January 25, 1999, the RTC rendered judgment in favor of spouses Jayme,
the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the defendant Municipality of


Koronadal cannot be held liable for the damages incurred by other
defendant (sic) being an agency of the State performing a (sic)
governmental functions. The same with defendant Hermogenes
Simbulan, not being the owner of the subject vehicle, he is absolved of
any liability. The complaint against defendant First Integrated Bonding
Insurance Company, Inc. is hereby ordered dismissed there being no
cause of action against said insurance company.
However, defendants Fidel Lozano, Rodrigo Apostol, and Mayor
Fernando Miguel of Koronadal, South Cotabato, are hereby ordered
jointly and severally to pay the plaintiff (sic) the following sums:
1.

One Hundred Seventy Three Thousand One Hundred


One and Forty Centavos (P173,101.40) Pesos as actual
damages with legal interest of 12% per annum
computed from February 11, 1989 until fully paid;
2. Fifty Thousand (P50,000.00) Pesos as moral damages;
3. Twenty Thousand (P20,000.00) Pesos as exemplary
damages;
4. Twenty Thousand (P20,000.00) Pesos as Attorneys fees;
5. Fifty Thousand (P50,000.00) Pesos for the death of
Marvin Jayme;
6. Three Thousand (P3,000.00) as litigation expenses; and
7. To pay the cost of this suit.
SO ORDERED.[12]

Dissatisfied with the RTC ruling, Mayor Miguel interposed an appeal to the CA.
CA Disposition
In his appeal, Mayor Miguel contended that the RTC erred in ruling that he
was Lozanos employer and, hence, solidarily liable for the latters negligent
act. Records showed that the Municipality of Koronadal was the drivers true and
lawful employer.Mayor Miguel also denied that he did not exercise due care and
diligence in the supervision of Lozano. The incident, although unfortunate, was
unexpected and cannot be attributed to him.

On October 22, 2003, the CA granted the appeal, disposing as follows:

WHEREFORE, the Decision appealed from is REVERSED and


SET ASIDE, insofar as defendant-appellant Mayor Fernando Q. Miguel
is concerned, and the complaint against him is DISMISSED.
IT IS SO ORDERED.[13]

The CA held that Mayor Miguel should not be held liable for damages for
the death of Marvin Jayme. Said the appellate court:
Moreover, plaintiffs-appellees admitted that Mayor Miguel was
not the employer of Lozano. Thus, paragraph 9 of the complaint alleged
that the Municipality of Koronadal was the employer of both Mayor
Miguel and Lozano. Not being the employer of Lozano, Mayor Miguel
could not thus be held liable for the damages caused by the
former. Mayor Miguel was a mere passenger in the Isuzu pick-up at
the time of the accident.[14] (Emphasis supplied)

The CA also reiterated the settled rule that it is the registered owner of a vehicle
who is jointly and severally liable with the driver for damages incurred by
passengers or third persons as a consequence of injuries or death sustained in the
operation of the vehicle.
Issues
The spouses Jayme have resorted to the present recourse and assign to the
CA the following errors:
I.
THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT MAYOR FERNANDO MIGUEL CANNOT BE
HELD LIABLE FOR THE DEATH OF MARVIN JAYME WHICH
CONCLUSION IS CONTRARY TO LAW AND THE SETTLED
PRONOUNCEMENTS OF THIS HONORABLE TRIBUNAL;

II.
THE FINDINGS OF FACTS OF THE HONORABLE COURT
OF APPEALS ARE CONTRARY TO THE FINDINGS OF THE TRIAL
COURT AND ARE CONTRADICTED BY THE EVIDENCE ON
RECORD; MOREOVER, THE CONCLUSIONS DRAWN BY THE
HONORABLE COURT OF APPEALS ARE ALL BASED ON
CONJECTURES AND SURMISES AND AGAINST
ACCEPTED
COURSE OF JUDICIAL PROCEEDINGS WHICH URGENTLY CALL
FOR AN EXERCISE OF THIS HONORABLE COURTS
SUPERVISION.[15]

Our Ruling
The doctrine of vicarious liability or imputed liability finds no application in
the present case.
Spouses Jayme contend, inter alia, that vicarious liability attaches to Mayor
Miguel. He was not a mere passenger, but instead one who had direct control and
supervision over Lozano during the time of the accident. According to petitioners,
the element of direct control is not negated by the fact that Lozanos employer was
the Municipality of Koronadal. Mayor Miguel, being Lozanos superior, still had
control over the manner the vehicle was operated.
Article 2180[16] of the Civil Code provides that a person is not only liable for
ones own quasi-delictual acts, but also for those persons for whom one is
responsible for. This liability is popularly known as vicarious or imputed
liability. To sustain claims against employers for the acts of their employees, the
following requisites must be established: (1) That the employee was chosen by the
employer personally or through another; (2) That the service to be rendered in
accordance with orders which the employer has the authority to give at all times;
and (3) That the illicit act of the employee was on the occasion or by reason of the
functions entrusted to him.[17]

Significantly, to make the employee liable under paragraphs 5 and 6 of


Article 2180, it must be established that the injurious or tortuous act was
committed at the time the employee was performing his functions.[18]
Furthermore, the employer-employee relationship cannot be assumed. It is
incumbent upon the plaintiff to prove the relationship by preponderant
evidence. In Belen v. Belen,[19] this Court ruled that it was enough for defendant to
deny an alleged employment relationship. The defendant is under no obligation to
prove the negative averment. This Court said:
It is an old and well-settled rule of the courts that the burden of
proving the action is upon the plaintiff, and that if he fails satisfactorily
to show the facts upon which he bases his claim, the defendant is under
no obligation to prove his exceptions. This rue is in harmony with the
provisions of Section 297 of the Code of Civil Procedure holding that
each party must prove his own affirmative allegations, etc. [20]

In resolving the present controversy, it is imperative to find out if Mayor


Miguel is, indeed, the employer of Lozano and therefore liable for the negligent
acts of the latter. To determine the existence of an employment relationship, We
rely on the four-fold test. This involves: (1) the employers power of selection; (2)
payment of wages or other remuneration; (3) the employers right to control the
method of doing the work; and (4) the employers right of suspension or dismissal.
[21]

Applying the foregoing test, the CA correctly held that it was


the Municipality of Koronadal which was the lawful employer of Lozano at the
time of the accident. It is uncontested that Lozano was employed as a driver by the
municipality. That he was subsequently assigned to Mayor Miguel during the time
of the accident is of no moment. This Court has, on several occasions, held that an
employer-employee relationship still exists even if the employee was loaned by the
employer to another person or entity because control over the employee subsists.
[22]
In the case under review, the Municipality of Koronadal remains to be Lozanos
employer notwithstanding Lozanos assignment to Mayor Miguel.

Spouses Jayme argued that Mayor Miguel had at least supervision and
control over Lozano and how the latter operated or drove the Isuzu pick-up during
the time of the accident. They, however, failed to buttress this claim.
Even assuming arguendo that Mayor Miguel had authority to give
instructions or directions to Lozano, he still can not be held liable. In Benson v.
Sorrell,[23] the New England Supreme Court ruled that mere giving of directions to
the driver does not establish that the passenger has control over the
vehicle. Neither does it render one the employer of the driver. This Court,
inSoliman, Jr. v. Tuazon,[24] ruled in a similar vein, to wit:
x x x The fact that a client company may give instructions or directions
to the security guards assigned to it, does not, by itself, render the
client responsible as an employer of the security guards concerned and
liable for their wrongful acts and omissions. Those instructions or
directions are ordinarily no more than requests commonly envisaged in
the contract for services entered into with the security agency. x x
x[25] (Emphasis supplied)

Significantly, no negligence may be imputed against a fellow employee


although the person may have the right to control the manner of the vehicles
operation.[26] In the absence of an employer-employee relationship establishing
vicarious liability, the drivers negligence should not be attributed to a fellow
employee who only happens to be an occupant of the vehicle. [27] Whatever right of
control the occupant may have over the driver is not sufficient by itself to justify an
application of the doctrine of vicarious liability. Handley v. Lombardi[28] is
instructive on this exception to the rule on vicarious liability:
Plaintiff was not the master or principal of the driver of the truck,
but only an intermediate and superior employee or agent. This being so,
the doctrine of respondeat superior or qui facit per alium is not properly
applicable to him. His power to direct and control the driver was not as
master, but only by virtue of the fact that they were both employed by
Kruse, and the further fact that as Kruses agent he was delegated Kruses
authority over the driver. x x x
In the case of actionable negligence, the rule is well settled both in
this state and elsewhere that the negligence of a subordinate employee or

subagent is not to be imputed to a superior employee or agent, but only to


the master or principal. (Hilton v. Oliver, 204 Cal. 535 [61 A. L. R. 297,
269 Pac. 425]; Guild v. Brown, 115 Cal. App. 374 [1 Pac. (2d) 528]; Ellis
v. Southern Ry. Co., 72 S. C. 464 [2 L. R. A. (N. S.) 378, 52 S. E.
228]; Thurman v. Pittsburg & M. Copper Co., 41 Mont. 141 [108 Pac.
588]; 2 Cor. Jur., p. 829; and see the elaborate note in 61 A. L. R.
277, and particularly that part commencing at p. 290.) We can see no
logical reason for drawing any distinction in this regard between
actionable negligence and contributory negligence. x x x[29]

The rule was reiterated in Bryant v. Pacific Elec. Ry. Co.[30] and again
in Sichterman v. Hollingshead Co.[31]
In Swanson v. McQuown,[32] a case involving a military officer who
happened to be riding in a car driven by a subordinate later involved in an accident,
the Colorado Supreme Court adhered to the general rule that a public official is not
liable for the wrongful acts of his subordinates on a vicarious basis since the
relationship is not a true master-servant situation.[33] The court went on to rule that
the only exception is when they cooperate in the act complained of, or direct or
encourage it.[34]
In the case at bar, Mayor Miguel was neither Lozanos employer nor the
vehicles registered owner. There existed no causal relationship between him and
Lozano or the vehicle used that will make him accountable for Marvins
death. Mayor Miguel was a mere passenger at the time of the accident.
Parenthetically, it has been held that the failure of a passenger to assist the
driver, by providing him warnings or by serving as lookout does not make the
passenger liable for the latters negligent acts. [35] The drivers duty is not one that
may be delegated to others.[36]
As correctly held by the trial court, the true and lawful employer of Lozano is
the Municipality of Koronadal. Unfortunately for Spouses Jayme, the municipality
may not be sued because it is an agency of the State engaged in governmental
functions and, hence, immune from suit. This immunity is illustrated
in Municipality of San Fernando, La Union v. Firme,[37] where this Court held:

It has already been remarked that municipal corporations are suable


because their charters grant them the competence to sue and be
sued.Nevertheless, they are generally not liable for torts committed by
them in the discharge of governmental functions and can only be held
answerableonly if it can be shown that they were acting in proprietary
capacity. In permitting such entities to be sued, the State merely gives
the claimant the right to show that the defendant was not acting in
governmental capacity when the injury was committed or that the case
comes under the exceptions recognized by law. Failing this, the claimant
cannot recover.[38]

Verily, liability attaches to the registered owner, the negligent driver and his
direct employer. The CA observation along this line are worth restating:
Settled is the rule that the registered owner of a vehicle is jointly and
severally liable with the driver for damages incurred by passengers and
third persons as a consequence of injuries or death sustained in the
operation of said vehicles. Regardless of who the actual owner of the
vehicle is, the operator of record continues to be the operator of the
vehicle as regards the public and third persons, and as such is directly
and primarily responsible for the consequences incident (sic) to its
operation x x x.[39]

The accidental death of Marvin Jayme is a tragic loss for his


parents. However, justice demands that only those liable under our laws be held
accountable for Marvins demise. Justice can not sway in favor of petitioners
simply to assuage their pain and loss. The law on the matter is clear: only the
negligent driver, the drivers employer, and the registered owner of the vehicle are
liable for the death of a third person resulting from the negligent operation of the
vehicle.
WHEREFORE, the petition is DENIED and the appealed Decision AFFIRMED.
SO ORDERED.
G.R. No. 82465

February 25, 1991

ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES AND ROSARIO
LACANDULA, BENJAMIN ILUMIN, TIRSO DE CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND
PATRIA CADIZ, petitioners,

vs.
THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR. ROMULO CASTILLO
and LILIA CADIZ,respondents.
Jose C. Flores, Jr. for petitioners.
Jovito E. Talabong for private respondents.

PARAS, J.:
This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which
reads:
WHEREFORE, the decision under appeal is hereby affirmed, with the following
modifications: (1) Exemplary damages in the amount of P20,000.00 are hereby awarded to
plaintiffs, in addition to the actual damages of P30,000.00, moral damages of P20,000.00
and attorney's fees in the amount of P15,000.00 awarded to plaintiffs in the decision under
appeal; (2) St. Francis High School, represented by the Spouses Fernando Nantes and
Rosario Lacandula, and Benjamin Illumin, are hereby held jointly and severally liable with
defendants Connie Arquio, Tirso de Chaves, Luisito Vinas and Patria Cadis for the payment
to plaintiffs of the abovementioned actual damages, moral damages, exemplary damages
and attorney's fees, and for costs; and (3) Defendants Yoly Jaro and Nida Aragones are
hereby absolved from liability, and the case against them, together with their respective
counterclaims, is hereby ordered dismissed.
SO ORDERED. (p. 60, Rollo)
The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at the St.
Francis High School, wanted to join a school picnic undertaken by Class I-B and Class I-C at Talaan
Beach, Sariaya, Quezon. Ferdinand's parents, respondents spouses Dr. Romulo Castillo and Lilia
Cadiz Castillo, because of short notice, did not allow their son to join but merely allowed him to bring
food to the teachers for the picnic, with the directive that he should go back home after doing so.
However, because of persuasion of the teachers, Ferdinand went on with them to the beach.
During the picnic and while the students, including Ferdinand, were in the water, one of the female
teachers was apparently drowning. Some of the students, including Ferdinand, came to her rescue,
but in the process, it was Ferdinand himself who drowned. His body was recovered but efforts to
resuscitate him ashore failed. He was brought to a certain Dr. Luna in Sariaya, Quezon and later to
the Mt. Cannel General Hospital where he was pronounced dead on arrival.
Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in the Regional
Trial Court, Branch LVIII of Lucena City, against the St. Francis High School, represented by the
spouses Fernando Nantes and Rosario Lacandula, Benjamin Illumin (its principal), and the teachers:
Tirso de Chaves, Luisito Vinas, Connie Arquio, Nida Aragones, Yoly Jaro, and Patria Cadiz, for
Damages which respondents allegedly incurred from the death of their 13-year old son, Ferdinand
Castillo. Contending that the death of their son was due to the failure of the petitioners to exercise
the proper diligence of a good father of the family in preventing their son's drowning, respondents
prayed of actual, moral and exemplary damages, attorney's fees and expenses for litigation.

The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves,
Vinas, Aragones, Jaro and Cadiz, ordering all of them jointly and severally to pay respondents the
sum of P30,000.00 as actual damages, P20,000.00 as moral damages, P15,000.00 as attorney's
fees, and to pay the costs. The court a quo reasoned:
Taking into consideration the evidence presented, this Court believes that the defendant
teachers namely: Connie Arquio, Luisito Vinas, Tirso de Chaves, Yoly Jaro, Nida Aragones
and Patria Cadiz had failed to exercise the diligence required of them by law under the
circumstances to guard against the harm they had foreseen. (pp. 2930, Rollo)
xxx

xxx

xxx

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic
site, the drowning incident had already occurred, such fact does not and cannot excuse them
from their liability. In fact, it could be said that by coming late, they were remiss in their duty
to safeguard the students. (p. 30, Rollo)
The students, young as they were then (12 to 13 years old), were easily attracted to the sea
without aforethought of the dangers it offers. Yet, the precautions and reminders allegedly
performed by the defendants-teachers definitely fell short of the standard required by law
under the circumstances. While the defendants-teachers admitted that some parts of the sea
where the picnic was held are deep, the supposed lifeguards of the children did not even
actually go to the water to test the depth of the particular area where the children would
swim. And indeed the fears of the plaintiffs that the picnic area was dangerous was
confirmed by the fact that three persons during the picnic got drowned at the same time. Had
the defendant teachers made an actual and physical observation of the water before they
allowed the students to swim, they could have found out that the area where the children
were swimming was indeed dangerous. And not only that, the male teachers who according
to the female teachers were there to supervise the children to ensure their safety were not
even at the area where the children were swimming. They were somewhere and as testified
to by plaintiffs' witness they were having a drinking spree. (pp. 55-56, Rollo)
On the other hand, the trial court dismissed the case against the St. Francis High School, Benjamin
Illumin and Aurora Cadorna. Said the court a quo:
As shown and adverted to above, this Court cannot find sufficient evidence showing that the
picnic was a school sanctioned one. Similarly no evidence has been shown to hold
defendants Benjamin Illumin and Aurora Cadorna responsible for the death of Ferdinand
Castillo together with the other defendant teachers. It has been sufficiently shown that
Benjamin Illumin had himself not consented to the picnic and in fact he did not join it. On the
other hand, defendant Aurora Cadorna had then her own class to supervise and in fact she
was not amongst those allegedly invited by defendant Connie Arquio to supervise class I-C
to which Ferdinand Castillo belongs. (p. 30, Rollo)
Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned
the following errors committed by the trial court:
1. The lower court erred in not declaring the defendant St. Francis High School and its
administrator/principal Benjamin Illumin as equally liable not only for its approved cocurricular activities but also for those which they unreasonably failed to exercise control and
supervision like the holding of picnic in the dangerous water of Talaan Beach, Sariaya,
Quezon.

2. The lower court erred in not declaring the St. Francis High School and principal Benjamin
Illumin as jointly and solidarily liable with their co-defendants-teachers Rosario Lacandula, et
als., for the tragic death of Ferdinand Castillo in a picnic at Talaan Beach, Sariaya, Quezon,
last March 20, 1982.
3. The lower court erred in not declaring higher amount for actual and moral damages for the
untimely and tragic death of Ferdinand Castillo in favor of plaintiffs-appellants against all the
defendants. (pp. 56-57,Rollo)
The Court of Appeals ruled:
We find plaintiffs-appellants' submission well-taken.
Even were We to find that the picnic in question was not a school-sponsored activity,
nonetheless it cannot be gainsaid that the same was held under the supervision of the
teachers employed by the said school, particularly the teacher in charge of Class I-C to
whom the victim belonged, and those whom she invited to help her in supervising the class
during the picnic. Considering that the court a quo found negligence on the part of the six
defendants-teachers who, as such, were charged with the supervision of the children during
the picnic, the St. Francis High School and the school principal, Benjamin Illumin, are liable
under Article 2176 taken together with the 1st, 4th and 5th paragraphs of Article 2180 of the
Civil Code. They cannot escape liability on the mere excuse that the picnic was not an
"extra-curricular activity of the St. Francis High School." We find from the evidence that, as
claimed by plaintiffs-appellants, the school principal had knowledge of the picnic even from
its planning stage and had even been invited to attend the affair; and yet he did not express
any prohibition against undertaking the picnic, nor did he prescribe any precautionary
measures to be adopted during the picnic. At the least, We must find that the school and the
responsible school officials, particularly the principal, Benjamin Illumin, had acquiesced to
the holding of the picnic.
Under Article 2180, supra, the defendant school and defendant school principal must be
found jointly and severally liable with the defendants-teachers for the damages incurred by
the plaintiffs as a result of the death of their son. It is the rule that in cases where the abovecited provisions find application, the negligence of the employees in causing the injury or
damage gives rise to a presumption of negligence on the part of the owner and/or manager
of the establishment (in the present case, St. Francis High School and its principal); and
while this presumption is not conclusive, it may be overthrown only by clear and convincing
proof that the owner and/or manager exercised the care and diligence of a good father of a
family in the selection and/or supervision of the employee or employees causing the injury or
damage (in this case, the defendants-teachers). The record does not disclose such evidence
as would serve to overcome the aforesaid presumption and absolve the St. Francis High
School and its principal from liability under the above-cited provisions.
As to the third assigned error interposed by plaintiffs-appellants, while We cannot but
commiserate with the plaintiffs for the tragedy that befell them in the untimely death of their
son Ferdinand Castillo and understand their suffering as parents, especially the victim's
mother who, according to appellants, suffered a nervous breakdown as a result of the
tragedy, We find that the amounts fixed by the court a quo as actual damages and moral
damages (P30,000.00 and P20,000.00, respectively) are reasonable and are those which
are sustained by the evidence and the law.

However, We believe that exemplary or corrective damages in the amount of P20,000.00


may and should be, as it is hereby, imposed in the present case by way of example of
correction for the public good, pursuant to Article 2229 of the Civil Code. (pp. 57-59, Rollo)
On the other hand, petitioners-teachers assigned the following errors committed by the trial court:
1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida
Aragones, Yoly Jaro and Patria Cadiz guilty of negligence and jointly and severally liable for
damages such finding not being supported by facts and evidence.
2. ". . . in dismissing the counterclaim interposed by the defendants. (p. 59, Rollo)
On this score, respondent Court ruled:
The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim
Ferdinand Castillo, were not able to prove by their evidence that they did not give their son
consent to join the picnic in question. However, We agree with the trial court in its finding that
whether or not the victim's parents had given such permission to their son was immaterial to
the determination of the existence of liability on the part of the defendants for the damage
incurred by the plaintiffs-appellants as a result of the death of their son. What is material to
such a determination is whether or not there was negligence on the part of defendantsvis-avis the supervision of the victim's group during the picnic; and, as correctly found by the trial
court, an affirmative reply to this question has been satisfactorily established by the
evidence, as already pointed out.
However, We sustain defendants-appellants insofar as two of the defendants-teachers, Yoly
Jaro and Nida Aragones, are concerned. As to them, the trial court found:
While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the
picnic site, the drowning incident had already occurred, such fact does not and
cannot excuse them from their liability. In fact, it could be said that by coming late,
they were remiss in their duty to safeguard the students.
The evidence shows that these two defendants had satisfactorily explained why they were
late in going to the picnic site, namely, that they had to attend to the entrance examination
being conducted by the school which is part of their duty as teachers thereof. Since they
were not at the picnic site during the occurrence in question, it cannot be said that they had
any participation in the negligence attributable to the other defendants-teachers who failed to
exercise diligence in the supervision of the children during the picnic and which failure
resulted in the drowning of plaintiffs' son. Thus, We may not attribute any act or omission to
the two teachers, Yoly Jaro and Nida Aragones, as to make them liable for the injury caused
to the plaintiffs because of the death of their son resulting from his drowning at the picnic.
Accordingly, they must be absolved from any liability.
As to the second assigned error raised by defendants-appellants, We agree with the court a
quo that the counterclaim must be dismissed for lack of merit. (pp. 59-60, Rollo)
Hence, this petition.
The issues presented by petitioners are:

A) Whether or not there was negligence attributable to the defendants which will warrant the
award of damages to the plaintiffs;
B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the
case at bar;
C) Whether or not the award of exemplary and moral damages is proper under the
circumstances surrounding the case at bar. (pp. 81-82, Rollo)
In the resolution of January 16, 1989, We gave due course to the petition and required the parties to
submit their respective memoranda.
The petition is impressed with merit.
If at all petitioners are liable for negligence, this is because of their own negligence or the negligence
of people under them. In the instant case however, as will be shown hereunder, petitioners are
neither guilty of their own negligence or guilty of the negligence of those under them.
Hence, it cannot be said that they are guilty at all of any negligence. Consequently they cannot be
held liable for damages of any kind.
At the outset, it should be noted that respondent spouses, parents of the victim
Ferdinand, allowed their son to join the excursion.
Testimony of Dr. Castillo on cross exam. by Atty. Flores
Q Now, when your son asked you for money to buy food, did you not ask him where
he will bring this?
A I asked him where he was going, he answered, I am going to the picnic, and when
I asked him where, he did not answer, sir.
Q And after giving the money, you did not tell him anything more?
A No more, sir.
Q And after that you just learned that your son join the picnic?
A Yes, sir.
Q And you came to know of it after the news that your son was drowned in the picnic
came to you, is that correct?
A Yes, sir.
Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982, you
did not know that your son join the picnic?
A No, sir, I did not know.

Q Did you not look for your son during that time?
A I am too busy with my profession, that is why I was not able, sir.
Q You did not ask your wife?
A I did not, sir.
Q And neither did your wife tell you that your son join the picnic?
A Later on after 12:00, sir.
Q And during that time you were too busy that you did not inquire whether your son
have joined that picnic?
A Yes, sir.
(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo)
The fact that he gave money to his son to buy food for the picnic even without knowing where it will
be held, is a sign of consent for his son to join the same. Furthermore.
Testimony of Dr. Lazaro on cross examination:
Q How did you conduct this mental and physical examination?
A I have interviewed several persons and the patient herself She even felt guilty
about the death of her son because she cooked adobo for him so he could join the
excursion where her son died of drowning.
Q Why were you able to say she was feeling guilty because she was the one who
personally cooked the adobo for her son?
A It was during the interview that I had gathered it from the patient herself. She was
very sorry had she not allowed her son to join the excursion her son would have not
drowned. I don't know if she actually permitted her son although she said she cooked
adobo so he could join. (Emphasis Supplied) (TSN, p. 19, hearing of April 30, 1984,
Dr. Lazaro witness).
Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in
rendering petitioner school liable for the death of respondent's son.
Article 2180, par. 4 states that:
The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
xxx

xxx

xxx

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.
Under this paragraph, it is clear that before an employer may be held liable for the negligence of his
employee, the act or omission which caused damage or prejudice must have occurred while an
employee was in the performance of his assigned tasks.
In the case at bar, the teachers/petitioners were not in the actual performance of their assigned
tasks. The incident happened not within the school premises, not on a school day and most
importantly while the teachers and students were holding a purely private affair, a picnic. It is clear
from the beginning that the incident happened while some members of the I-C class of St. Francis
High School were having a picnic at Talaan Beach. This picnic had no permit from the school head
or its principal, Benjamin Illumin because this picnic is not a school sanctioned activity neither is it
considered as an extra-curricular activity.
As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning
of the picnic by the students and their teachers does not in any way or in any manner show
acquiescence or consent to the holding of the same. The application therefore of Article 2180 has no
basis in law and neither is it supported by any jurisprudence. If we were to affirm the findings of
respondent Court on this score, employers wig forever be exposed to the risk and danger of being
hailed to Court to answer for the misdeeds or omissions of the employees even if such act or
omission he committed while they are not in the performance of their duties.
Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of
damages to the respondents-spouses.
Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand belonged, did her
best and exercised diligence of a good father of a family to prevent any untoward incident or
damages to all the students who joined the picnic.
In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors
and scout masters who have knowledge in First Aid application and swimming. Moreover, even
respondents' witness, Segundo Vinas, testified that "the defendants (petitioners herein) had life
savers especially brought by the defendants in case of emergency." (p. 85, Rollo) The records also
show that both petitioners Chavez and Vinas did all what is humanly possible to save the child.
Testimony of Luisito Vinas on cross examination,
Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim
also having applied first aid on him?
A Yes, sir.
Q And while you were applying the so called first aid, the children were covering you
up or were surrounding you?
A Yes, sir.
Q You were rattled at that time, is it not?

A No, sir.
Q You mean you were in calm and peaceful condition?
A Yes, sir.
Q Despite the fact that the boy was no longer responding to your application of first
aid?
A Yes, sir.
Q You have never been disturbed, "nababahala" in the process of your application of
the first aid on the body of Ferdinand Castillo?
A No, sir, because we were attending to the application of first aid that we were
doing, sir.
Q After you have applied back to back pressure and which you claimed the boy did
not respond, were you not disturb anyway?
A I was disturbed during that time, sir.
Q For how many minutes have you applied the back to back pressure?
A From 9 to 11 times, sir.
Q You mean 9 to 11 times of having applied the pressure of your body on the body of
Ferdinand Castillo?
A Yes, sir.
Q Will you please describe how you applied a single act of back to back pressure?
A This has been done by placing the boy lay first downwards, then the face was a
little bit facing right and doing it by massaging the back of the child, sir." (TSN, pp.
32-35, hearing of July 30, 1984)
Testimony of Tirso de Chavez on direct examination
ATTY. FLORES:
Q Who actually applied the first aid or artificial respiration to the child?
A Myself, sir.
Q How did you apply the first aid to the guy?
A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back to
back pressure and took notice of the condition of the child. We placed the feet in a
higher position, that of the head of the child, sir.

Q After you have placed the boy in that particular position, where the feet were on a
higher level than that of the head, what did you do next?
A The first thing that we did, particularly myself, was that after putting the child in that
position, I applied the back to back pressure and started to massage from the
waistline up, but I noticed that the boy was not responding, sir.
Q For how long did you apply this back to back pressure on the boy?
A About 10 seconds, sir.
Q What about Mr. Vinas?
A Almost the same a little longer, for 15 seconds, sir.
Q After you noticed that the boy was not responding, what did you do?
A When we noticed that the boy was not responding, we changed the position of the
boy by placing the child facing upwards laying on the sand then we applied the
mouth to mouth resuscitation, sir. (pp. 92-93, Rollo)
With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondentsspouses. The case at bar does not fall under any of the grounds to grant moral damages.
Art. 2217. Moral Damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral damages may be recovered if they are
the proximate result of the defendant's wrongful act or omission.
Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence,
hence, no moral damages can be assessed against them.
While it is true that respondents-spouses did give their consent to their son to join the picnic, this
does not mean that the petitioners were already relieved of their duty to observe the required
diligence of a good father of a family in ensuring the safety of the children. But in the case at bar,
petitioners were able to prove that they had exercised the required diligence. Hence, the claim for
moral or exemplary damages becomes baseless.
PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners
herein guilty of negligence and liable for the death of Ferdinand Castillo and awarding the
respondents damages, is hereby SET ASIDE insofar as the petitioners herein are concerned, but the
portion of the said decision dismissing their counterclaim, there being no merit, is hereby
AFFIRMED.
SO ORDERED.
Sarmiento and Regalado, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Separate Opinions
PADILLA, J., dissenting:
I regret that I can not concur with the majority. I believe that the reversal of respondent appellate
court's decision gives rise to a situation which was neither contemplated nor intended by the
applicable laws. I refer more particularly to the fact that the ponencia has left private respondentsspouses with no one to hold liable for the untimely demise of their son. On the other hand, they
have, to my mind, been wronged. and they should at least be recompensed for their sufferings. For
this and other reasons stated hereunder. I dissent.
The issues, as adopted by the ponencia from the record, are as follows:
A) Whether or not there was negligence attributable to the defendants which will warrant the
award of damages to the plaintiffs;
B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the
case at bar;
C) Whether or not the award of exemplary and moral damages is proper under the
circumstances surrounding the case at bar.
1

In my opinion, the record clearly shows negligence on the part of the petitioners-teachers, with the
exception of Aragones and Jaro. As to these two, respondent court absolved them from liability for
their having satisfactorily demonstrated lack of participation in the negligence of their colleagues. I
am in agreement with said conclusion. But I also agree with the respondent court in its finding that
Tirso de Chavez, Luisito Vias, Connie Arguio and Patria Cadiz failed to exercise DILIGENT
SUPERVISION over the children during the ill-fated excursion.
I may concede, albeit with reservation, that the afore-mentioned petitioners may not have been
negligent in finding ways and means to revive the young Castillo AFTER the drowning incident. Their
application of first-aid measures may have failed to revive him but the petitioners had fully exhausted
their efforts to save the deceased. This concession, however, is given with hesitation, for there is
indication in the record that petitioner petitioners may have tarried too long in securing immediate
medical attention for the deceased. I refer to the trial court's finding that "it still took the jeep which
brought Ferdinand Castillo to the poblacion six (6) minutes before it finally moved to await the other
teachers."
2

All this aside, I am really disturbed about, and would like to emphasize the demonstrated lack of
diligence on the part of the petitioners-teachers BEFORE the unfortunate incident took place.
Despite awareness that the waters in the area were deep, petitioners- teachers did not take concrete
steps to make sure their wards did not stray too far and too deeply. Even if they were not actually
informed of the possible dangers which the area posed, petitioners-teachers should have first "tested
the waters", so to speak, to ensure which parts thereof were safe for swimming purposes. However,
this was not the case for as testified to by petitioner de Chavez, "they admitted that they did not even
go to the water to check its depth although they were aware that some parts of it were deep."
3

At best, it appears that only oral safety instructions were imparted to the young excursionists.

But, what I find most disturbing is the fact that at the time the trouble arose, Vias and de Chavez,
the male teachers who were supposed to ensure the children's safety, being physical education
instructors, were nowhere within the immediate vicinity but were, in fact, as admitted by the latter, "at
his house getting some foods (sic) and thinks." The Court a quo even went as far as to say that "they
were somewhere and as testified to by plaintiffs' witness they were having a drinking spree!"
4

It thus appears that the petitioners-teachers failed to exercise the proper diligence or what I may
refer to as DILIGENCE BEFORE THE FACT. As earlier mentioned, the steps taken to revive the
deceased may be considered adequate, despite my reservations, but the over-all lack of diligence
on the part of petitioners-teachers suffices to put them within the standards set by this Court in
determining the existence of negligence. As held in Hedy Gan y Yu vs. Court of Appeals, et al., the
test in determining whether or not a person is negligent in doing an act whereby injury or damage
results to the person or property of another is this: Would a prudent man in the position of the person
to whom negligence is attributed foresee harm to the person injured as a reasonable consequence
of the course about to be pursued? If so, the law imposes the duty on the doer TO TAKE
PRECAUTION against its mischievous results and the failure to do so constitutes negligence.
5

The next issue to be addressed pertains to the liability of the petitioner St. Francis High School as
represented by petitioners-spouses Fernando Nantes and Rosario Lacandula. The majority would
like to emphasize the fact that the unfortunate incident having occurred during a purely private affair,
the teachers involved therein were not in the actual performance of their assigned tasks.
Consequently, any act or omission caused by them cannot bind their employer, petitioner St. Francis
High School.
I take exception to this proposition. Although the excursion may not have been attended by the
appropriate school authorities, the presence or stamp of authority of the school nevertheless
pervaded by reason of the participationnot of one but of several teachers, the petitioners. As found
by the court a quo, the excursion was an activity "organized by the teachers themselves, for the
students and to which the student, NATURALLY, acceded."
6

Moreover, the record indicates that petitioner Benjamin Illumin, school principal, knew of the
excursion and had, in fact, been invited to attend. As the majority see it, such knowledge does not in
any manner show acquiescence or consent to the holding of the excursion, a view which I do not
accept. It seems to me that having known of the forthcoming activity, petitioner Illumin, as school
principal, should have taken appropriate measures to ensure the safety of his students. Having
preferred to remain silent, and even indifferent, he now seeks excuse from such omission by
invoking his alleged lack of consent to the excursion. But it is precisely his silence and negligence in
performing his role as principal head of the school that must be construed as an implied consent to
such activity.
As administrative head (principal) of St. Francis High School, petitioner Illumin acted as the agent of
his principal (the school) or its representatives, the petitioners-spouses Nantes and Lacandula.
Consequently, and as found by the respondent court. Article 2176 in conjunction with Article 2180,
paragraphs (1) and (5) are applicable to the situation. In the application of these provisions, the
negligence of the employee in causing injury or damage gives rise to a presumption of negligence
on the part of the owner and/or manager of the establishment. While this presumption is not
conclusive, it may be overcome only by clear and convincing evidence that the owner and/or
manager exercised the care and diligence of a good father of a family in the selection and/or
supervision of the employees causing the injury or damage. I agree with the respondent court that
no proof was presented to absolve the owner and/or manager, herein petitioners-spouses Nantes
and Lacandula, and Illumin. Thus, as correctly held by the respondent court, they too must be
accountable for the death of Ferdinand Castillo.
1wphi1

The majority view appears to be apprehensive that employers will be continuously held accountable
for misdeeds of their employees committed even when the same are done not in the actual exercise
of their duties. I fail to appreciate such apprehensions, which need not arise on the part of
employers, so long as the latter have no knowledge of, or give consent to, such act or omission on
the part of their employee.
Educational institutions have responsibilities which cannot be equated with those of the ordinary
employer or business establishment. Such institutions, particularly the primary and secondary
schools, hold the tremendous responsibility of exercising supervision over young children. Too often,
such schools avoid liabilities, as in the instant cage, by invoking the absence of approval on their
part for activities that may be held outside school premises or held on a day not a school day. It is
about time that such schools realize that theirs is not a mere moneymaking entity or one
impersonally established for the sole task of teaching the rudimentary skills of "reading, writing and
'rithmetic." They must consider that their students are children of tender years who are in need of
adequate care, continuing attention and guidance.
Anent the issue of damages, from the foregoing discussion the award thereof is clearly proper. I only
wish to point out the basis for moral damages which is found in Article 2219 of the Civil Code, to wit:
Moral damages may be recovered in the following and analogous cases:
1. . . . .
2. Quasi-delicts causing physical injuries;
xxx

xxx

xxx

It should be noted that the term "physical injuries" must not be construed in its penal sense alone but
rather in its generic sense, in the spirit of this Court's rulings in Carandang vs. Santiago (51 O.G.
2878) and Madeja vs. Caro, et al., (G.R. No. 51183, 21 December 1983, 126 SCRA 293). Thus, the
death of private respondents' son as a result of petitioners' negligence gives rise to an action for
quasi-delict which, as provided, entitles the claimant to an award of moral damages.
In the light of the foregoing, I vote to AFFIRM the decision of the respondent court and thus hold the
petitioners jointly and severally liable for the death of Ferdinand Castillo.
Melencio-Herrera, J., concur.

G.R. No. L-55963 December 1, 1989


SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA, petitioners,
vs.
HONORABLE INOCENCIO D. MALIAMAN and NATIONAL IRRIGATION
ADMINISTRATION, respondents.
G.R. No. L-61045 December 1, 1989

NATIONAL IRRIGATION ADMINISTRATION, appellant,


vs.
SPOUSES JOSE FONTANILLA and VIRGINIA FONTANILLA, appellees.
Cecilio V. Suarez, Jr. for Spouses Fontanilla.
Felicisimo C. Villaflor for NIA.

PARAS, J.:
In G.R. No. L-55963, the petition for review on certiorari seeks the affirmance of the decision dated
March 20, 1980 of the then Court of First Instance of Nueva Ecija, Branch VIII, at San Jose City and
its modification with respect to the denial of petitioner's claim for moral and exemplary damages and
attorneys fees.
In G.R. No. 61045, respondent National Irrigation Administration seeks the reversal of the aforesaid
decision of the lower court. The original appeal of this case before the Court of Appeals was certified
to this Court and in the resolution of July 7, 1982, it was docketed with the aforecited number. And in
the resolution of April 3, this case was consolidated with G.R. No. 55963.
It appears that on August 21, 1976 at about 6:30 P.M., a pickup owned and operated by respondent
National Irrigation Administration, a government agency bearing Plate No. IN-651, then driven
officially by Hugo Garcia, an employee of said agency as its regular driver, bumped a bicycle ridden
by Francisco Fontanilla, son of herein petitioners, and Restituto Deligo, at Maasin, San Jose City
along the Maharlika Highway. As a result of the impact, Francisco Fontanilla and Restituto Deligo
were injured and brought to the San Jose City Emergency Hospital for treatment. Fontanilla was
later transferred to the Cabanatuan Provincial Hospital where he died.
Garcia was then a regular driver of respondent National Irrigation Administration who, at the time of
the accident, was a licensed professional driver and who qualified for employment as such regular
driver of respondent after having passed the written and oral examinations on traffic rules and
maintenance of vehicles given by National Irrigation Administration authorities.
The within petition is thus an off-shot of the action (Civil Case No. SJC-56) instituted by petitionersspouses on April 17, 1978 against respondent NIA before the then Court of First Instance of Nueva
Ecija, Branch VIII at San Jose City, for damages in connection with the death of their son resulting
from the aforestated accident.
After trial, the trial court rendered judgment on March 20, 1980 which directed respondent National
Irrigation Administration to pay damages (death benefits) and actual expenses to petitioners. The
dispositive portion of the decision reads thus:
. . . . . Judgment is here rendered ordering the defendant National Irrigation
Administration to pay to the heirs of the deceased P12,000.00 for the death of

Francisco Fontanilla; P3,389.00 which the parents of the deceased had spent for the
hospitalization and burial of the deceased Francisco Fontanilla; and to pay the costs.
(Brief for the petitioners spouses Fontanilla, p. 4; Rollo, p. 132)
Respondent National Irrigation Administration filed on April 21, 1980, its motion for reconsideration of
the aforesaid decision which respondent trial court denied in its Order of June 13, 1980. Respondent
National Irrigation Administration thus appealed said decision to the Court of Appeals (C.A.-G.R. No.
67237- R) where it filed its brief for appellant in support of its position.
Instead of filing the required brief in the aforecited Court of Appeals case, petitioners filed the instant
petition with this Court.
The sole issue for the resolution of the Court is: Whether or not the award of moral damages,
exemplary damages and attorney's fees is legally proper in a complaint for damages based on
quasi-delict which resulted in the death of the son of herein petitioners.
Petitioners allege:
1. The award of moral damages is specifically allowable. under paragraph 3 of Article
2206 of the New Civil Code which provides that the spouse, legitimate and
illegitimate descendants and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased. Should moral
damages be granted, the award should be made to each of petitionersspouses individually and in varying amounts depending upon proof of mental and
depth of intensity of the same, which should not be less than P50,000.00 for each of
them.
2. The decision of the trial court had made an impression that respondent National
Irrigation Administration acted with gross negligence because of the accident and the
subsequent failure of the National Irrigation Administration personnel including the
driver to stop in order to give assistance to the, victims. Thus, by reason of the gross
negligence of respondent, petitioners become entitled to exemplary damages under
Arts. 2231 and 2229 of the New Civil Code.
3. Petitioners are entitled to an award of attorney's fees, the amount of which (20%)
had been sufficiently established in the hearing of May 23, 1979.
4. This petition has been filed only for the purpose of reviewing the findings of the
lower court upon which the disallowance of moral damages, exemplary damages and
attorney's fees was based and not for the purpose of disturbing the other findings of
fact and conclusions of law.
The Solicitor General, taking up the cudgels for public respondent National Irrigation Administration,
contends thus:

1. The filing of the instant petition is rot proper in view of the appeal taken by
respondent National Irrigation Administration to the Court of Appeals against the
judgment sought to be reviewed. The focal issue raised in respondent's appeal to the
Court of Appeals involves the question as to whether or not the driver of the vehicle
that bumped the victims was negligent in his operation of said vehicle. It thus
becomes necessary that before petitioners' claim for moral and exemplary damages
could be resolved, there should first be a finding of negligence on the part of
respondent's employee-driver. In this regard, the Solicitor General alleges that the
trial court decision does not categorically contain such finding.
2. The filing of the "Appearance and Urgent Motion For Leave to File PlaintiffAppellee's Brief" dated December 28, 1981 by petitioners in the appeal (CA-G.R. No.
67237-R; and G. R. No.61045) of the respondent National Irrigation Administration
before the Court of Appeals, is an explicit admission of said petitioners that the
herein petition, is not proper. Inconsistent procedures are manifest because while
petitioners question the findings of fact in the Court of Appeals, they present only the
questions of law before this Court which posture confirms their admission of the
facts.
3. The fact that the parties failed to agree on whether or not negligence caused the
vehicular accident involves a question of fact which petitioners should have brought
to the Court of Appeals within the reglementary period. Hence, the decision of the
trial court has become final as to the petitioners and for this reason alone, the petition
should be dismissed.
4. Respondent Judge acted within his jurisdiction, sound discretion and in conformity
with the law.
5. Respondents do not assail petitioners' claim to moral and exemplary damages by
reason of the shock and subsequent illness they suffered because of the death of
their son. Respondent National Irrigation Administration, however, avers that it
cannot be held liable for the damages because it is an agency of the State
performing governmental functions and driver Hugo Garcia was a regular driver of
the vehicle, not a special agent who was performing a job or act foreign to his usual
duties. Hence, the liability for the tortious act should. not be borne by respondent
government agency but by driver Garcia who should answer for the consequences of
his act.
6. Even as the trial court touched on the failure or laxity of respondent National
Irrigation Administration in exercising due diligence in the selection and supervision
of its employee, the matter of due diligence is not an issue in this case since driver
Garcia was not its special agent but a regular driver of the vehicle.
The sole legal question on whether or not petitioners may be entitled to an award of moral and
exemplary damages and attorney's fees can very well be answered with the application of Arts. 2176
and 2180 of theNew Civil Code.

Art. 2176 thus provides:


Whoever by act omission causes damage to another, there being fault or negligence,
is obliged to pay for damage done. Such fault or negligence, if there is no preexisting cotractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter
Paragraphs 5 and 6 of Art. 21 80 read as follows:
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even the though the former
are not engaged in any business or industry.
The State is responsible in like manner when it acts through a special agent.; but not
when the damage has been caused by the official to whom the task done properly
pertains, in which case what is provided in Art. 2176 shall be applicable.
The liability of the State has two aspects. namely:
1. Its public or governmental aspects where it is liable for the tortious acts of special
agents only.
2. Its private or business aspects (as when it engages in private enterprises) where it
becomes liable as an ordinary employer. (p. 961, Civil Code of the Philippines;
Annotated, Paras; 1986 Ed. ).
In this jurisdiction, the State assumes a limited liability for the damage caused by the tortious acts or
conduct of its special agent.
Under the aforequoted paragrah 6 of Art. 2180, the State has voluntarily assumed liability for acts
done through special agents. The State's agent, if a public official, must not only be specially
commissioned to do a particular task but that such task must be foreign to said official's usual
governmental functions. If the State's agent is not a public official, and is commissioned to perform
non-governmental functions, then the State assumes the role of an ordinary employer and will be
held liable as such for its agent's tort. Where the government commissions a private individual for a
special governmental task, it is acting through a special agent within the meaning of the provision.
(Torts and Damages, Sangco, p. 347, 1984 Ed.)
Certain functions and activities, which can be performed only by the government, are more or less
generally agreed to be "governmental" in character, and so the State is immune from tort liability. On
the other hand, a service which might as well be provided by a private corporation, and particularly
when it collects revenues from it, the function is considered a "proprietary" one, as to which there
may be liability for the torts of agents within the scope of their employment.
The National Irrigation Administration is an agency of the government exercising proprietary
functions, by express provision of Rep. Act No. 3601. Section 1 of said Act provides:

Section 1. Name and domicile.-A body corporate is hereby created which shall be
known as the National Irrigation Administration, hereinafter called the NIA for short,
which shall be organized immediately after the approval of this Act. It shall have its
principal seat of business in the City of Manila and shall have representatives in all
provinces for the proper conduct of its business.
Section 2 of said law spells out some of the NIA's proprietary functions. ThusSec. 2. Powers and objectives.-The NIA shall have the following powers and
objectives:
(a) x x x x x x x x x x x x x x x x x x
(b) x x x x x x x x x x x x x x x x x x
(c) To collect from the users of each irrigation system constructed by it such fees as
may be necessary to finance the continuous operation of the system and reimburse
within a certain period not less than twenty-five years cost of construction thereof;
and
(d) To do all such other tthings and to transact all such business as are directly or
indirectly necessary, incidental or conducive to the attainment of the above
objectives.
Indubitably, the NIA is a government corporation with juridical personality and not a mere agency of
the government. Since it is a corporate body performing non-governmental functions, it now
becomes liable for the damage caused by the accident resulting from the tortious act of its driveremployee. In this particular case, the NIA assumes the responsibility of an ordinary employer and as
such, it becomes answerable for damages.
This assumption of liability, however, is predicated upon the existence of negligence on the part of
respondent NIA. The negligence referred to here is the negligence of supervision.
At this juncture, the matter of due diligence on the part of respondent NIA becomes a crucial issue in
determining its liability since it has been established that respondent is a government agency
performing proprietary functions and as such, it assumes the posture of an ordinary employer which,
under Par. 5 of Art. 2180, is responsible for the damages caused by its employees provided that it
has failed to observe or exercise due diligence in the selection and supervision of the driver.
It will be noted from the assailed decision of the trial court that "as a result of the impact, Francisco
Fontanilla wasthrown to a distance 50 meters away from the point of impact while Restituto Deligo
was thrown a little bit further away. The impact took place almost at the edge of the cemented
portion of the road." (Emphasis supplied,) [page 26, Rollo]
The lower court further declared that "a speeding vehicle coming in contact with a person causes
force and impact upon the vehicle that anyone in the vehicle cannot fail to notice. As a matter of fact,

the impact was so strong as shown by the fact that the vehicle suffered dents on the right side of the
radiator guard, the hood, the fender and a crack on the radiator as shown by the investigation
report (Exhibit "E"). (Emphasis supplied) [page 29, Rollo]
It should be emphasized that the accident happened along the Maharlika National Road within the
city limits of San Jose City, an urban area. Considering the fact that the victim was thrown 50 meters
away from the point of impact, there is a strong indication that driver Garcia was driving at a high
speed. This is confirmed by the fact that the pick-up suffered substantial and heavy damage as
above-described and the fact that the NIA group was then "in a hurry to reach the campsite as early
as possible", as shown by their not stopping to find out what they bumped as would have been their
normal and initial reaction.
Evidently, there was negligence in the supervision of the driver for the reason that they were
travelling at a high speed within the city limits and yet the supervisor of the group, Ely Salonga, failed
to caution and make the driver observe the proper and allowed speed limit within the city. Under the
situation, such negligence is further aggravated by their desire to reach their destination without
even checking whether or not the vehicle suffered damage from the object it bumped, thus showing
imprudence and reckelessness on the part of both the driver and the supervisor in the group.
Significantly, this Court has ruled that even if the employer can prove the diligence in the selection
and supervision (the latter aspect has not been established herein) of the employee, still if he ratifies
the wrongful acts, or take no step to avert further damage, the employer would still be liable. (Maxion
vs. Manila Railroad Co., 44 Phil. 597).
Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus Co. (L-26810, August 31, 1970, 34 SCRA
618), this Court held that a driver should be especially watchful in anticipation of others who may be
using the highway, and his failure to keep a proper look out for reasons and objects in the line to be
traversed constitutes negligence.
Considering the foregoing, respondent NIA is hereby directed to pay herein petitioners-spouses the
amounts of P12,000.00 for the death of Francisco Fontanilla; P3,389.00 for hospitalization and burial
expenses of the aforenamed deceased; P30,000.00 as moral damages; P8,000.00 as exemplary
damages and attorney's fees of 20% of the total award.
SO ORDERED.

SPOUSES FONTANILLA VS HON.


MALIAMAN, digested
Posted by Pius Morados on November 8, 2011

GR # 55963 and 61045, Feb. 27, 1991 (Constitutional Law Government Agency, Proprietary Functions)
FACTS: National Irrigation Administration (NIA), a government agency, was held liable for damages resulting to the
death of the son of herein petitioner spouses caused by the fault and/or negligence of the driver of the said agency.

NIA maintains that it is not liable for the act of its driver because the former does not perform primarily proprietorship
functions but governmental functions.
ISSUE: Whether or not NIA may be held liable for damages caused by its driver.
HELD: Yes. NIA is a government agency with a corporate personality separate and distinct from the government,
because its community services are only incidental functions to the principal aim which is irrigation of lands, thus,
making it an agency with proprietary functions governed by Corporation Law and is liable for actions of their
employees.

G.R. No. 124354 December 29, 1999


ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of
the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND
RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA.
PERFECTA GUTIERREZ, respondents.

KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare
of their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A
mistake, through gross negligence or incompetence or plain human error, may spell the difference
between life and death. In this sense, the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a
hospital should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which
overturned the decision4 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
anesthesiologist's fee and which was to be paid after the operation (TSN, October
19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN,
November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms
of the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October
19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared
for the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the
Dean of the College of Nursing at the Capitol Medical Center, was also there for
moral support. She reiterated her previous request for Herminda to be with her even
during the operation. After praying, she was given injections. Her hands were held by
Herminda as they went down from her room to the operating room (TSN, January 13,
1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p.
18). At the operating room, Herminda saw about two or three nurses and Dr. Perfecta
Gutierrez, the other defendant, who was to administer anesthesia. Although not a
member of the hospital staff, Herminda introduced herself as Dean of the College of
Nursing at the Capitol Medical Center who was to provide moral support to the
patient, to them. Herminda was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka
who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter
informed Herminda Cruz about the prospect of a delay in 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 patient's
husband, Rogelio, that the doctor was not yet around (id., p. 13). When she returned
to the operating room, the patient told her, "Mindy, inip na inip na ako, ikuha mo ako

ng ibang Doctor." So, she went out again and told Rogelio about what the patient
said (id., p. 15). Thereafter, she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the
arrival of the doctor" even as he did his best to find somebody who will allow him to
pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-20). He
also thought of the feeling of his wife, who was inside the operating room waiting for
the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked
that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21).
While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka
arrived as a nurse remarked, "Nandiyan na si Dr. Hosaka, dumating na raw." Upon
hearing those words, he went down to the lobby and waited for the operation to be
completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the
patient, heard somebody say that "Dr. Hosaka is already here." She then saw people
inside the operating room "moving, doing this and that, [and] preparing the patient for
the operation" (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda
Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She thereafter
heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan" (id., p. 17). Because of the remarks of Dra. Gutierrez, she
focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr.
Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to
call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at
the operating room, she saw this anesthesiologist trying to intubate the patient. The
patient's nailbed became bluish and the patient was placed in a trendelenburg
position a position where the head of the patient is placed in a position lower than
her feet which is an indication that there is a decrease of blood supply to the patient's
brain (Id., pp. 19-20). Immediately thereafter, she went out of the operating room,
and she told Rogelio E. Ramos "that something wrong was . . . happening" (Ibid.). Dr.
Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine
being rushed towards the door of the operating room. He also saw several doctors
rushing towards the operating room. When informed by Herminda Cruz that
something wrong was happening, he told her (Herminda) to be back with the patient
inside the operating room (TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The
latter informed the former that something went wrong during the intubation. Reacting
to what was told to him, Rogelio reminded the doctor that the condition of his wife

would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist
(TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what
happened to the patient. The doctors explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to
P93,542.25 which is the subject of a promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of
June 17, 1985, she has been in a comatose condition. She cannot do anything. She
cannot move any part of her body. She cannot see or hear. She is living on
mechanical means. She suffered brain damage as a result of the absence of oxygen
in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22). After being
discharged from the hospital, she has been staying in their residence, still needing
constant medical attention, with her husband Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was
also diagnosed to be suffering from "diffuse cerebral parenchymal damage" (Exh.
"G"; see also TSN, December 21, 1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of
Quezon City against herein private respondents alleging negligence in the management and care of
Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the
sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty management of her
airway by private respondents during the anesthesia phase. On the other hand, private respondents
primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the
cause of brain damage was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor
of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and
applying the aforecited provisions of law and jurisprudence to the case at bar, this
Court finds and so holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the performance of their
duty to plaintiff-patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to
the fact that the patient was inside the operating room for almost three (3) hours. For
after she committed a mistake in intubating [the] patient, the patient's nailbed
became bluish and the patient, thereafter, was placed in trendelenburg position,
because of the decrease of blood supply to the patient's brain. The evidence further
shows that the hapless patient suffered brain damage because of the absence of
oxygen in her (patient's) brain for approximately four to five minutes which, in turn,
caused the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as
part of his obligation to provide the patient a good anesthesiologist', and for arriving
for the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
negligence of the doctors in their "practice of medicine" in the operating room.
Moreover, the hospital is liable for failing through its responsible officials, to cancel
the scheduled operation after Dr. Hosaka inexcusably failed to arrive on 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 plaintiffpatient. 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 xxx 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. 9Meanwhile, 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 the 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 counsel on record. Petitioner, not being a lawyer and
unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the party's
lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel
on record is no notice at all. In the present case, since a copy of the decision of the appellate court
was not sent to the counsel on record of petitioner, there can be no sufficient notice to speak of.

Hence, the delay in the filing of the motion for reconsideration cannot be taken against petitioner.
Moreover, since the Court of Appeals already issued a second Resolution, dated 29 March 1996,
which superseded the earlier resolution issued on 25 July 1995, and denied the motion for
reconsideration of petitioner, we believed that the receipt of the former should be considered in
determining the timeliness of the filing of the present petition. Based on this, the petition before us
was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a
more logical presentation of the discussion we shall first consider the issue on the applicability of the
doctrine of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors shall be
tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for
itself." The phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of
negligence, or make out a plaintiff's prima faciecase, and present a question of fact for defendant to
meet with an explanation. 13 Where the thing which caused the injury complained of is shown to be under
the management of the defendant or his servants and the accident is such as in ordinary course of things
does not happen if those who have its management or control use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by
the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify an inference
of negligence on the part of the person who controls the instrumentality causing the injury in the
absence of some explanation by the defendant who is charged with negligence. 15 It is grounded in
the superior logic of ordinary human experience and on the basis of such experience or common
knowledge, negligence may be deduced from the mere occurrence of the accident itself. 16 Hence, res
ipsa loquitur is applied in conjunction with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such,
does not create or constitute an independent or separate ground of liability. 17 Instead, it is considered
as merely evidentiary or in the nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere
procedural of convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of
producing specific proof of negligence. 19 In other words, mere invocation and application of the doctrine
does not dispense with the requirement of proof of negligence. It is simply a step in the process of such
proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby
place on the defendant the burden of going forward with the proof. 20 Still, before resort to the doctrine
may be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the
absence of someone's negligence;
2. It is caused by an instrumentality within the exclusive control of the
defendant or defendants; and

3. The possibility of contributing conduct which would make the


plaintiff responsible is eliminated. 21
In the above requisites, the fundamental element is the "control of instrumentality" which caused the
damage. 22Such element of control must be shown to be within the dominion of the defendant. In order to
have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation
where it is applicable, and must establish that the essential elements of the doctrine were present in a
particular incident. 23
Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon the harm are themselves of such a character as to
justify an inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in
medical negligence cases presents a question of law since it is a judicial function to determine whether a
certain set of circumstances does, as a matter of law, permit a given inference. 26
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony
is dispensed with because the injury itself provides the proof of negligence. 27 The reason is that the
general rule on the necessity of expert testimony applies only to such matters clearly within the domain of
medical science, and not to matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions which are observable by any one may be given
by non-expert witnesses. 29 Hence, in cases where theres ipsa loquitur is applicable, the court is permitted
to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can determine the proper standard of care. 30 Where
common knowledge and experience teach that a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence may be drawn giving rise to an application of
the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only
what occurred but how and why it occurred.31 When the doctrine is appropriate, all that the patient must
do is prove a nexus between the particular act or omission complained of and the injury sustained while
under the custody and management of the defendant without need to produce expert medical testimony
to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a
foreign object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment, 33 removal of the wrong part of the body when
another part was intended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the
removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it
does not automatically apply to all cases of medical negligence as to mechanically shift the burden
of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is
not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending

upon the circumstances of each case. It is generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would ordinarily have followed if due care
had been
exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. 38 The physician or surgeon is not required at his peril to explain why
any particular diagnosis was not correct, or why any particular scientific treatment did not produce the
desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the
desired result of an operation or treatment was not accomplished. 40 The real question, therefore, is
whether or not in the process of the operation any extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the regular scope of customary professional activity in
such operations, which, if unexplained would themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. 41 If there was such extraneous interventions,
the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by
evidence of exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be
explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation
presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court
in applying theres ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered his
person over to the care, custody and control of his physician who had complete and
exclusive control over him, but the operation was never performed. At the time of
submission he was neurologically sound and physically fit in mind and body, but he
suffered irreparable damage and injury rendering him decerebrate and totally
incapacitated. The injury was one which does not ordinarily occur in the process of a
mastoid operation or in the absence of negligence in the administration of an
anesthetic, and in the use and employment of an endoctracheal tube. Ordinarily a
person being put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence. Upon these facts and
under these circumstances a layman would be able to say, as a matter of common
knowledge and observation, that the consequences of professional treatment were
not as such as would ordinarily have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he
was under the influence of anesthetics and unconscious, and the circumstances are
such that the true explanation of event is more accessible to the defendants than to
the plaintiff for they had the exclusive control of the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a
cause of action is stated under the doctrine of res ipsa loquitur. 44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present
case, Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her person over to the care, custody
and control of private respondents who exercised complete and exclusive control over her. At the
time of submission, Erlinda was neurologically sound and, except for a few minor discomforts, was
likewise physically fit in mind and body. However, during the administration of anesthesia and prior to
the performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without
undergoing surgery, she went out of the operating room already decerebrate and totally
incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which does not
normally occur in the process of a gall bladder operation. In fact, this kind of situation does not in the
absence of negligence of someone in the administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the proper procedure was followed. Furthermore,
the instruments used in the administration of anesthesia, including the endotracheal tube, were all
under the exclusive control of private respondents, who are the physicians-in-charge. Likewise,
petitioner Erlinda could not have been guilty of contributory negligence because she was under the
influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed
while the patient is unconscious and under the immediate and exclusive control of the physicians,
we hold that a practical administration of justice dictates the application of res ipsa loquitur. Upon
these facts and under these circumstances the Court would be able to say, as a matter of common
knowledge and observation, if negligence attended the management and care of the patient.
Moreover, the liability of the physicians and the hospital in this case is not predicated upon an
alleged failure to secure the desired results of an operation nor on an alleged lack of skill in the
diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda. Thus,
upon all these initial determination a case is made out for the application of the doctrine of res ipsa
loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that
the doctrine is applicable in any and all cases where injury occurs to a patient while under
anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and
scrutinized in order to be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of whether the Court of Appeals erred in finding
that private respondents were not negligent in the care of Erlinda during the anesthesia phase of the
operation and, if in the affirmative, whether the alleged negligence was the proximate cause of
Erlinda's comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred
in relying on the testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of
Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez,
the Court of Appeals rationalized that she was candid enough to admit that she experienced some
difficulty in the endotracheal intubation 45 of the patient and thus, cannot be said to be covering her
negligence with falsehood. The appellate court likewise opined that private respondents were able to

show that the brain damage sustained by Erlinda was not caused by the alleged faulty intubation but was
due to the allergic reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting
barbiturate, as testified on by their expert witness, Dr. Jamora. On the other hand, the appellate court
rejected the testimony of Dean Herminda Cruz offered in favor of petitioners that the cause of the brain
injury was traceable to the wrongful insertion of the tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict in favor of
respondents physicians and hospital and absolved them of any liability towards Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable
to disprove the presumption of negligence on their part in the care of Erlinda and their negligence
was the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is
based. As will be shown hereinafter, private respondents' own testimonies which are reflected in the
transcript of stenographic notes are replete of signposts indicative of their negligence in the care and
management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia
phase. As borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient.
This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of
Nursing and petitioner's sister-in-law, who was in the operating room right beside the patient when
the tragic event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the
patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I was beside the stretcher
holding the left hand of the patient and all of a sudden heard some
remarks coming from Dra. Perfecta Gutierrez herself. She was saying
"Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan.

xxx xxx xxx


ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang tiyan," what did you notice
on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left
hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of
Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating
room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the
patient's nailbed became bluish and I saw the patient was placed in
trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the patient was placed in that
trendelenburg position?

A: As far as I know, when a patient is in that position, there is a


decrease of blood supply to the brain. 46
xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation
is not taught as part of nursing procedures and techniques. Indeed, we take judicial
notice of the fact that nurses do not, and cannot, intubate. Even on the assumption
that she is fully capable of determining whether or not a patient is properly intubated,
witness Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN,
July 25, 1991, p. 13). More importantly, there is no evidence that she ever
auscultated the patient or that she conducted any type of examination to check if the
endotracheal tube was in its proper place, and to determine the condition of the
heart, lungs, and other organs. Thus, witness Cruz's categorical statements that
appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was
Dra. Calderon who succeeded in doing so clearly suffer from lack of sufficient factual
bases. 47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a
layman in the process of intubation, witness Cruz is not competent to testify on whether or not the
intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such
as, the statements and acts of the physician and surgeon, external appearances, and manifest
conditions which are observable by any one. 48 This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert
testimony is not necessary for the proof of negligence in non-technical matters or those of which an
ordinary person may be expected to have knowledge, or where the lack of skill or want of care is so
obvious as to render expert testimony unnecessary. 49 We take judicial notice of the fact that anesthesia
procedures have become so common, that even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience
and scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing,
was fully capable of determining whether or not the intubation was a success. She had extensive
clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a
teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and
then Dean of the Capitol Medical Center School of Nursing. 50Reviewing witness Cruz' statements, we
find that the same were delivered in a straightforward manner, with the kind of detail, clarity, consistency
and spontaneity which would have been difficult to fabricate. With her clinical background as a nurse, the
Court is satisfied that she was able to demonstrate through her testimony what truly transpired on that
fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that
she experienced difficulty in inserting the tube into Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your
first attempt (sic), you did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito," what were you referring to?
A: "Mahirap yata itong i-intubate," that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was positioned
more anteriorly (slightly deviated from the normal anatomy of a person) 52 making it harder to locate
and, since Erlinda is obese and has a short neck and protruding teeth, it made intubation even more
difficult.
The argument does not convince us. If this was indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to make a thorough assessment of Erlinda's airway,
prior to the induction of anesthesia, even if this would mean postponing the procedure. From their
testimonies, it appears that the observation was made only as an afterthought, as a means of
defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is universally
observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation
for anesthesia begins when the anesthesiologist reviews the patient's medical records and visits with
the patient, traditionally, the day before elective surgery. 53 It includes taking the patient's medical
history, review of current drug therapy, physical examination and interpretation of laboratory data. 54 The
physical examination performed by the anesthesiologist is directed primarily toward the central nervous

system, cardiovascular system, lungs and upper airway. 55 A thorough analysis of the patient's airway
normally involves investigating the following: cervical spine mobility, temporomandibular mobility,
prominent central incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental
distance. 56 Thus, physical characteristics of the patient's upper airway that could make tracheal intubation
difficult should be studied. 57 Where the need arises, as when initial assessment indicates possible
problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough examination of the
patient's airway would go a long way towards decreasing patient morbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the
day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or preoperative evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra.
Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not
properly informed of the possible difficulties she would face during the administration of anesthesia
to Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for the first time only an hour before
the scheduled operative procedure was, therefore, an act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at
the core of the physician's centuries-old Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the
trial court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra.
Gutierrez tried to muddle the difference between an elective surgery and an emergency surgery just
so her failure to perform the required pre-operative evaluation would escape unnoticed. In her
testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see
the patient a day before so you can introduce yourself to establish
good doctor-patient relationship and gain the trust and confidence of
the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative
procedure of the anesthesiologist and in my case, with elective cases
and normal cardio-pulmonary clearance like that, I usually don't do it
except on emergency and on cases that have an abnormalities
(sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time
available for the fastidious demands of pre-operative procedure so that an anesthesiologist is able to
see the patient only a few minutes before surgery, if at all. Elective procedures, on the other hand,
are operative procedures that can wait for days, weeks or even months. Hence, in these cases, the
anesthesiologist possesses the luxury of time to be at the patient's beside to do a proper interview
and clinical evaluation. There is ample time to explain the method of anesthesia, the drugs to be
used, and their possible hazards for purposes of informed consent. Usually, the pre-operative

assessment is conducted at least one day before the intended surgery, when the patient is relaxed
and cooperative.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the
time to make a thorough evaluation of Erlinda's case prior to the operation and prepare her for
anesthesia. However, she never saw the patient at the bedside. She herself admitted that she had
seen petitioner only in the operating room, and only on the actual date of the cholecystectomy. She
negligently failed to take advantage of this important opportunity. As such, her attempt to exculpate
herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is
truly the proximate cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's
coma was due to bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium,
introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who
advanced private respondents' theory that the oxygen deprivation which led to anoxic
encephalopathy, 60 was due to an unpredictable drug reaction to the short-acting barbiturate. We find the
theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply
because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been
capable of properly enlightening the court about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and could not therefore properly advance
expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist and, as such,
could not have been capable, as an expert would, of explaining to the court the pharmacologic and
toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is further supported by his own admission that he
formulated his opinions on the drug not from the practical experience gained by a specialist or expert
in the administration and use of Sodium Pentothal on patients, but only from reading certain
references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any
occasion to use pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to
intubate our patient.

Q: But not in particular when you practice pulmonology?


A: No.
Q: In other words, your knowledge about pentothal is based only on
what you have read from books and not by your own personal
application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my
appendectomy.
Q: And because they have used it on you and on account of your own
personal experience you feel that you can testify on pentothal here
with medical authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields
of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic
encephalopathy belongs to the field of neurology. While admittedly, many bronchospastic-mediated
pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamora's field, the
anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and pharmacology. On the basis of the foregoing transcript,
in which the pulmonologist himself admitted that he could not testify about the drug with medical
authority, it is clear that the appellate court erred in giving weight to Dr. Jamora's testimony as an
expert in the administration of Thiopental Sodium.
The provision in the rules of evidence 62 regarding expert witnesses states:
Sec. 49. Opinion of expert witness. The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may
be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject
matter about which he or she is to testify, either by the study of recognized authorities on the subject
or by practical experience.63 Clearly, Dr. Jamora does not qualify as an expert witness based on the
above standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology.
Oddly, apart from submitting testimony from a specialist in the wrong field, private respondents'
intentionally avoided providing testimony by competent and independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma
by triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin

reactions, or wheezing some of the more common accompanying signs of an allergic reaction
appears on record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis
without supporting medical proof, and against the weight of available evidence, then every
anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously
asserted by private respondents was a mere afterthought. Such an explanation was advanced in
order to advanced in order to absolve them of any and all responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty
intubation which was the proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces injury, and without which the result would not have
occurred. 64 An injury or damage is proximately caused by an act or a failure to act, whenever it appears
from the evidence in the case, that the act or omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury or damage was either a direct result or a
reasonably probable consequence of the act or omission. 65 It is the dominant, moving or producing
cause.
Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the
proximate cause which triggered the chain of events leading to Erlinda's brain damage and,
ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a failure.
This fact was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez
remarked, "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan."
Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The development of
abdominal distention, together with respiratory embarrassment indicates that the endotracheal tube
entered the esophagus instead of the respiratory tree. In other words, instead of the intended
endotracheal intubation what actually took place was an esophageal intubation. During intubation,
such distention indicates that air has entered the gastrointestinal tract through the esophagus
instead of the lungs through the trachea. Entry into the esophagus would certainly cause some delay
in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. That
abdominal distention had been observed during the first intubation suggests that the length of time
utilized in inserting the endotracheal tube (up to the time the tube was withdrawn for the second
attempt) was fairly significant. Due to the delay in the delivery of oxygen in her lungs Erlinda showed
signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent only
after he noticed that the nailbeds of Erlinda were already blue. 67 However, private respondents contend
that a second intubation was executed on Erlinda and this one was successfully done. We do not think
so. No evidence exists on record, beyond private respondents' bare claims, which supports the contention
that the second intubation was successful. Assuming that the endotracheal tube finally found its way into
the proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a
successful intubation. In fact, cyanosis was again observed immediately after the second intubation.
Proceeding from this event (cyanosis), it could not be claimed, as private respondents insist, that the
second intubation was accomplished. Even granting that the tube was successfully inserted during the

second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda already suffered
brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes. 68

The above conclusion is not without basis. Scientific studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious injuries associated with
anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations may be
anticipated by performing a thorough evaluation of the patient's airway prior to the operation. 70 As stated
beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative protocol which could
have prevented this unfortunate incident. Had appropriate diligence and reasonable care been used in the
pre-operative evaluation, respondent physician could have been much more prepared to meet the
contingency brought about by the perceived anatomic variations in the patient's neck and oral area,
defects which would have been easily overcome by a prior knowledge of those variations together with a
change in technique. 71 In other words, an experienced anesthesiologist, adequately alerted by a thorough
pre-operative evaluation, would have had little difficulty going around the short neck and protruding
teeth. 72 Having failed to observe common medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and eventual coma of
Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical
team. As the so-called "captain of the ship," 73 it is the surgeon's responsibility to see to it that those
under him perform their task in the proper manner. Respondent Dr. Hosaka's negligence can be found in
his failure to exercise the proper authority (as the "captain" of the operative team) in not determining if his
anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it
does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital
at the same time as Erlinda's cholecystectomy, and was in fact over three hours late for the latter's
operation. Because of this, he had little or no time to confer with his anesthesiologist regarding the
anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient. Thus,
he shares equal responsibility for the events which resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting "consultants," 74 who
are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in
medical malpractice cases. However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the
conduct of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting
or attending, are required to submit proof of completion of residency, their educational qualifications;
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are carefully scrutinized by members of the
hospital administration or by a review committee set up by the hospital who either accept or reject
the application. 75 This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to
attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients

into the hospital. In addition to these, the physician's performance as a specialist is generally
evaluated by a peer review committee on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer
review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
"consultant" staff. While "consultants" are not, technically employees, a point which respondent
hospital asserts in denying all responsibility for the patient's condition, the control exercised, the
hiring, and the right to terminate consultants all fulfill the important hallmarks of an employeremployee 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 employeremployee relationship in effect exists between hospitals and their attending and visiting physicians.
This being the case, the question now arises as to whether or not respondent hospital is solidarily
liable with respondent doctors for petitioner's condition. 76
The basis for holding an employer solidarily responsible for the negligence of its employee is found
in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but
also for those of others based on the former's responsibility under a relationship of patria
potestas. 77 Such responsibility ceases when the persons or entity concerned prove that they have
observed the diligence of a good father of the family to prevent damage. 78In other words, while the
burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of
a good father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over
respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good
father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to
the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or
proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last
paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily
responsible with its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above
discussions, private respondents were unable to rebut the presumption of negligence. Upon these
disquisitions we hold that private respondents are solidarily liable for damages under Article
2176 79 of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total of
P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its
being updated" covering the period from 15 November 1985 up to 15 April 1992, based on monthly
expenses for the care of the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision
would be grossly inadequate to cover the actual costs of home-based care for a comatose individual.
The calculated amount was not even arrived at by looking at the actual cost of proper hospice care
for the patient. What it reflected were the actual expenses incurred and proved by the petitioners
after they were forced to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice
specializing in the care of the chronically ill for the purpose of providing a proper milieu adequate to
meet minimum standards of care. In the instant case for instance, Erlinda has to be constantly
turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by
nasogastric tube. Food preparation should be normally made by a dietitian to provide her with the
correct daily caloric requirements and vitamin supplements. Furthermore, she has to be seen on a
regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist to
prevent the accumulation of secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages recoverable in suits arising from
negligence should at least reflect the correct minimum cost of proper care, not the cost of the care
the family is usually compelled to undertake at home to avoid bankruptcy. However, the provisions of
the Civil Code on actual or compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered
by him as he has duly proved. The Civil Code provides:
Art. 2199. Except as provided by law or by stipulation, one is entitled to an
adequate compensation only for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation, the
injury suffered as a consequence of an act of negligence has been completed and that the cost can
be liquidated. However, these provisions neglect to take into account those situations, as in this
case, where the resulting injury might be continuing and possible future complications directly arising
from the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and
correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred
and proved, up to the time of trial; and one which would meet pecuniary loss certain to be suffered
but which could not, from the nature of the case, be made with certainty. 80 In other words, temperate
damages can and should be awarded on top of actual or compensatory damages in instances where the
injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises
when both actual and temperate damages are provided for. The reason is that these damages cover two
distinct phases.
As it would not be equitable and certainly not in the best interests of the administration of justice
for the victim in such cases to constantly come before the courts and invoke their aid in seeking
adjustments to the compensatory damages previously awarded temperate damages are

appropriate. The amount given as temperate damages, though to a certain extent speculative,
should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a comatose
patient who has remained in that condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at the onset of litigation, it would be
now much more in step with the interests of justice if the value awarded for temperate damages
would allow petitioners to provide optimal care for their loved one in a facility which generally
specializes in such care. They should not be compelled by dire circumstances to provide
substandard care at home without the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would
therefore be reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury
suffered by the plaintiff would have led to expenses which were difficult to estimate because while they
would have been a direct result of the injury (amputation), and were certain to be incurred by the plaintiff,
they were likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic
amputation of her left lower extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be deprived of the full ambulatory functions
of her left extremity, even with the use of state of the art prosthetic technology. Well
beyond the period of hospitalization (which was paid for by Li), she will be required to
undergo adjustments in her prosthetic devise due to the shrinkage of the stump from
the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During the lifetime, the prosthetic devise will
have to be replaced and readjusted to changes in the size of her lower limb effected
by the biological changes of middle-age, menopause and aging. Assuming she
reaches menopause, for example, the prosthetic will have to be adjusted to respond
to the changes in bone resulting from a precipitate decrease in calcium levels
observed in the bones of all post-menopausal women. In other words, the damage
done to her would not only be permanent and lasting, it would also be permanently
changing and adjusting to the physiologic changes which her body would normally
undergo through the years. The replacements, changes, and adjustments will require
corresponding adjustive physical and occupational therapy. All of these adjustments,
it has been documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically advanced, will only allow a reasonable
amount of functional restoration of the motor functions of the lower limb. The sensory

functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable.83
The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly
much more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a
comatose state for over fourteen years now. The burden of care has so far been heroically
shouldered by her husband and children, who, in the intervening years have been deprived of the
love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be
virtually impossible to quantify. Even the temperate damages herein awarded would be inadequate if
petitioner's condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch
the surface of the resulting moral damage because it would be highly speculative to estimate the
amount of emotional and moral pain, psychological damage and injury suffered by the victim or
those actually affected by the victim's condition. 84The husband and the children, all petitioners in this
case, will have to live with the day to day uncertainty of the patient's illness, knowing any hope of
recovery is close to nil. They have fashioned their daily lives around the nursing care of petitioner, altering
their long term goals to take into account their life with a comatose patient. They, not the respondents, are
charged with the moral responsibility of the care of the victim. The family's moral injury and suffering in
this case is clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages
would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued
at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because physicians are
not insurers of life and, they rarely set out to intentionally cause injury or death to their patients.
However, intent is immaterial in negligence cases because where negligence exists and is proven,
the same automatically gives the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised for the purpose of
preventing complications. A physician's experience with his patients would sometimes tempt him to
deviate from established community practices, and he may end a distinguished career using
unorthodox methods without incident. However, when failure to follow established procedure results
in the evil precisely sought to be averted by observance of the procedure and a nexus is made
between the deviation and the injury or damage, the physician would necessarily be called to
account for it. In the case at bar, the failure to observe pre-operative assessment protocol which
would have influenced the intubation in a salutary way was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified
so as to award in favor of petitioners, and solidarily against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a

monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4)
P100,000.00 each as exemplary damages and attorney's fees; and, 5) the costs of the suit.
SO ORDERED.

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