TORTS and DAMAGES CASES 1ST SET

G.R. No. 122039 May 31, 2000

VICENTE CALALAS vs. COURT OF APPEALS
This is a petition for review on certiorari of the decision1 of the Court of
Appeals, dated March 31, 1991, reversing the contrary decision of the
Regional Trial Court, Branch 36, Dumaguete City, and awarding damages
instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action
for breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 o'clock in the morning of August 23, 1989, private respondent Eliza
Jujeurche G. Sunga, then a college freshman majoring in Physical Education
at the Siliman University, took a passenger jeepney owned and operated by
petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24
passengers, Sunga was given by the conductor an "extension seat," a
wooden stool at the back of the door at the rear end of the vehicle.
On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to
let a passenger off. As she was seated at the rear of the vehicle, Sunga gave
way to the outgoing passenger. Just as she was doing so, an Isuzu truck
driven by Iglecerio Verena and owned by Francisco Salva bumped the left
rear portion of the jeepney. As a result, Sunga was injured. She sustained a
fracture of the "distal third of the left tibia-fibula with severe necrosis of the
underlying skin." Closed reduction of the fracture, long leg circular casting,
and case wedging were done under sedation. Her confinement in the hospital
lasted from August 23 to September 7, 1989. Her attending physician, Dr.
Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a
cast for a period of three months and would have to ambulate in crutches
during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas,
alleging violation of the contract of carriage by the former in failing to
exercise the diligence required of him as a common carrier. Calalas, on the
other hand, filed a third-party complaint against Francisco Salva, the owner
of the Isuzu truck.
The lower court rendered judgment against Salva as third-party defendant
and absolved Calalas of liability, holding that it was the driver of the Isuzu
truck who was responsible for the accident. It took cognizance of another
case (Civil Case No. 3490), filed by Calalas against Salva and Verena, for
quasi-delict, in which Branch 37 of the same court held Salva and his driver
Verena jointly liable to Calalas for the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed
on the ground that Sunga's cause of action was based on a contract of
carriage, not quasi-delict, and that the common carrier failed to exercise the
diligence required under the Civil Code. The appellate court dismissed the
third-party complaint against Salva and adjudged Calalas liable for damages
to Sunga. The dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby
REVERSED and SET ASIDE, and another one is entered

ordering defendant-appellee Vicente Calalas to pay

plaintiff-appellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorney's fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490
that the negligence of Verena was the proximate cause of the accident
negates his liability and that to rule otherwise would be to make the common
carrier an insurer of the safety of its passengers. He contends that the
bumping of the jeepney by the truck owned by Salva was a caso fortuito.
Petitioner further assails the award of moral damages to Sunga on the
ground that it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No. 3490
finding the driver and the owner of the truck liable for quasi-delict ignores
the fact that she was never a party to that case and, therefore, the principle
of res judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the present case the same.
The issue in Civil Case No. 3490 was whether Salva and his driver Verena
were liable for quasi-delict for the damage caused to petitioner's jeepney. On
the other hand, the issue in this case is whether petitioner is liable on his
contract of carriage. The first, quasi-delict, also known as culpa aquiliana or
culpa extra contractual, has as its source the negligence of the tortfeasor.
Thesecond, breach of contract or culpa contractual, is premised upon the
negligence in the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly
established because it is the basis of the action, whereas in breach of
contract, the action can be prosecuted merely by proving the existence of
the contract and the fact that the obligor, in this case the common carrier,
failed to transport his passenger safely to his destination. 2 In case of death or
injuries to passengers, Art. 1756 of the Civil Code provides that common
carriers are presumed to have been at fault or to have acted negligently
unless they prove that they observed extraordinary diligence as defined in
Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the
common carrier the burden of proof.
There is, thus, no basis for the contention that the ruling in Civil Case No.
3490, finding Salva and his driver Verena liable for the damage to petitioner's
jeepney, should be binding on Sunga. It is immaterial that the proximate
cause of the collision between the jeepney and the truck was the negligence
of the truck driver. The doctrine of proximate cause is applicable only in
actions for quasi-delict, not in actions involving breach of contract. The
doctrine is a device for imputing liability to a person where there is no
relation between him and another party. In such a case, the obligation is
created by law itself. But, where there is a pre-existing contractual relation

between the parties, it is the parties themselves who create the obligation,
and the function of the law is merely to regulate the relation thus created.
Insofar as contracts of carriage are concerned, some aspects regulated by
the Civil Code are those respecting the diligence required of common carriers
with regard to the safety of passengers as well as the presumption of
negligence in cases of death or injury to passengers. It provides:
Art. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to
observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by
them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the
goods is further expressed in articles 1734, 1735, and
1746, Nos. 5, 6, and 7, while the extraordinary diligence for
the safety of the passengers is further set forth in articles
1755 and 1756.
Art. 1755. A common carrier is bound to carry the
passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious
persons, with due regard for all the circumstances.
Art. 1756. In case of death of or injuries to passengers,
common carriers are presumed to have been at fault or to
have acted negligently, unless they prove that they
observed extraordinary diligence as prescribed by articles
1733 and 1755.
In the case at bar, upon the happening of the accident, the presumption of
negligence at once arose, and it became the duty of petitioner to prove that
he had to observe extraordinary diligence in the care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human care and
foresight could provide, using the utmost diligence of very cautious persons,
with due regard for all the circumstances" as required by Art. 1755? We do
not think so. Several factors militate against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not properly parked,
its rear portion being exposed about two meters from the broad shoulders of
the highway, and facing the middle of the highway in a diagonal angle. This
is a violation of the R.A. No. 4136, as amended, or the Land Transportation
and Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. No person shall drive his
motor vehicle in such a manner as to obstruct or impede
the passage of any vehicle, nor, while discharging or taking
on passengers or loading or unloading freight, obstruct the
free passage of other vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more passengers than
the allowed seating capacity of the jeepney, a violation of 32(a) of the same
law. It provides:

Exceeding registered capacity. No person operating any

motor vehicle shall allow more passengers or more freight
or cargo in his vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed her in a peril
greater than that to which the other passengers were exposed. Therefore,
not only was petitioner unable to overcome the presumption of negligence
imposed on him for the injury sustained by Sunga, but also, the evidence
shows he was actually negligent in transporting passengers.
We find it hard to give serious thought to petitioner's contention that Sunga's
taking an "extension seat" amounted to an implied assumption of risk. It is
akin to arguing that the injuries to the many victims of the tragedies in our
seas should not be compensated merely because those passengers assumed
a greater risk of drowning by boarding an overloaded ferry. This is also true of
petitioner's contention that the jeepney being bumped while it was
improperly parked constitutes caso fortuito. A caso fortuito is an event which
could not be foreseen, or which, though foreseen, was inevitable. 3 This
requires that the following requirements be present: (a) the cause of the
breach is independent of the debtor's will; (b) the event is unforeseeable or
unavoidable; (c) the event is such as to render it impossible for the debtor to
fulfill his obligation in a normal manner, and (d) the debtor did not take part
in
causing
the
injury
to
the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney
with its body protruding two meters into the highway.
Finally, petitioner challenges the award of moral damages alleging that it is
excessive and without basis in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a firstyear college student in that school year 1989-1990 at the
Silliman University, majoring in Physical Education.
Because of the injury, she was not able to enroll in the
second semester of that school year. She testified that she
had no more intention of continuing with her schooling,
because she could not walk and decided not to pursue her
degree, major in Physical Education "because of my leg
which has a defect already."
Plaintiff-appellant likewise testified that even while she was
under confinement, she cried in pain because of her injured
left foot. As a result of her injury, the Orthopedic Surgeon
also certified that she has "residual bowing of the fracture
side." She likewise decided not to further pursue Physical
Education as her major subject, because "my left leg . . .
has a defect already."
Those are her physical pains and moral sufferings, the
inevitable bedfellows of the injuries that she suffered.
Under Article 2219 of the Civil Code, she is entitled to
recover moral damages in the sum of P50,000.00, which is
fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for damages
predicated on a breach of contract for it is not one of the items enumerated
under Art. 2219 of the Civil Code. 5 As an exception, such damages are
recoverable: (1) in cases in which the mishap results in the death of a
passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil
Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith,
as provided in Art. 2220.6
In this case, there is no legal basis for awarding moral damages since there
was no factual finding by the appellate court that petitioner acted in bad faith
in the performance of the contract of carriage. Sunga's contention that
petitioner's admission in open court that the driver of the jeepney failed to
assist her in going to a nearby hospital cannot be construed as an admission
of bad faith. The fact that it was the driver of the Isuzu truck who took her to
the hospital does not imply that petitioner was utterly indifferent to the plight
of his injured passenger. If at all, it is merely implied recognition by Verena
that he was the one at fault for the accident.
WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995,
and its resolution, dated September 11, 1995, are AFFIRMED, with the
MODIFICATION that the award of moral damages is DELETED.

[G.R. No. 130003. October 20, 2004]

JONAS AONUEVO vs. HON. COURT OF APPEALS

The bicycle provides considerable speed and freedom of movement to

the rider. It derives a certain charm from being unencumbered by any
enclosure, affording the cyclist the perception of relative liberty. It also
carries some obvious risks on the part of the user and has become the
subject of regulation, if not by the government, then by parental proscription.
The present petition seeks to bar recovery by an injured cyclist of
damages from the driver of the car which had struck him. The argument is
hinged on the cyclists failure to install safety devices on his bicycle. However,
the lower courts agreed that the motorist himself caused the collision with
his own negligence. The facts are deceptively simple, but the resolution
entails thorough consideration of fundamental precepts on negligence.
The present petition raises little issue with the factual findings of the
Regional Trial Court (RTC), Branch 160, of Pasig City, as affirmed by the Court

of Appeals. Both courts adjudged petitioner, Jonas Aonuevo ( Aonuevo ),

liable for the damages for the injuries sustained by the cyclist, Jerome
Villagracia (Villagracia). Instead, the petition hinges on a sole legal question,
characterized as novel by the petitioner: whether Article 2185 of the New
Civil Code, which presumes the driver of a motor vehicle negligent if he was
violating a traffic regulation at the time of the mishap, should apply by
analogy to non-motorized vehicles.[1]
As found by the RTC, and affirmed by the Court of Appeals, the accident
in question occurred on 8 February 1989, at around nine in the evening, at
the intersection of Boni Avenue and Barangka Drive in Mandaluyong (now a
city). Villagracia was traveling along Boni Avenue on his bicycle, while
Aonuevo, traversing the opposite lane was driving his Lancer car with plate
number PJJ 359. The car was owned by Procter and Gamble Inc., the
employer of Aonuevos brother, Jonathan. Aonuevo was in the course of
making a left turn towards Libertad Street when the collision occurred.
Villagracia sustained serious injuries as a result, which necessitated his
hospitalization several times in 1989, and forced him to undergo four (4)
operations.
On 26 October 1989, Villagracia instituted an action for damages
against Procter and Gamble Phils., Inc. and Aonuevo before the RTC. [2] He had
also filed a criminal complaint against Aonuevo before the Metropolitan Trial
Court of Mandaluyong, but the latter was subsequently acquitted of the
criminal charge.[3] Trial on the civil action ensued, and in a Decision dated 9
March 1990, the RTC rendered judgment against Procter and Gamble and
Aonuevo, ordering them to pay Villagracia the amounts of One Hundred Fifty
Thousand Pesos (P150, 000.00). for actual damages, Ten Thousand Pesos
(P10,000.00) for moral damages, and Twenty Thousand Pesos (P20,000.00)
for attorneys fees, as well as legal costs.[4] Both defendants appealed to the
Court of Appeals.
In a Decision[5] dated 8 May 1997, the Court of Appeals Fourth Division
affirmed the RTC Decision in toto[6]. After the Court of Appeals denied
theMotion for Reconsideration in a Resolution[7] dated 22 July 1997, Procter
and Gamble and Aonuevo filed their respective petitions for review with this
Court. Procter and Gambles petition was denied by this Court in
a Resolution dated 24 November 1997. Aonuevos petition, [8] on the other
hand, was given due course,[9] and is the subject of this Decision.
In arriving at the assailed Decision, the Court of Appeals affirmed the
factual findings of the RTC. Among them: that it was Aonuevos vehicle which
had struck Villagracia;[10] that Aonuevos vehicle had actually hit Villagracias

left mid-thigh, thus causing a comminuted fracture; [11] that as testified by

eyewitness Alfredo Sorsano, witness for Villagracia, Aonuevo was
umaarangkada, or speeding as he made the left turn into Libertad; [12]that
considering Aonuevos claim that a passenger jeepney was obstructing his
path as he made the turn. Aonuevo had enough warning to control his speed;
[13]
and that Aonuevo failed to exercise the ordinary precaution, care and
diligence required of him in order that the accident could have been avoided.
[14]
Notably, Aonuevo, in his current petition, does not dispute the findings of
tortious conduct on his part made by the lower courts, hinging his appeal
instead on the alleged negligence of Villagracia. Aonuevo proffers no
exculpatory version of facts on his part, nor does he dispute the conclusions
made by the RTC and the Court of Appeals. Accordingly, the Court, which is
not a trier of facts, [15] is not compelled to review the factual findings of the
lower courts, which following jurisprudence have to be received with respect
and are in fact generally binding.[16]
Notwithstanding, the present petition presents interesting questions for
resolution. Aonuevos arguments are especially fixated on a particular
question of law: whether Article 2185 of the New Civil Code should apply by
analogy to non-motorized vehicles.[17] In the same vein, Aonuevo insists that
Villagracias own fault and negligence serves to absolve the former of any
liability for damages.
Its is easy to discern why Aonuevo chooses to employ this line of
argument. Aonuevo points out that Villagracias bicycle had no safety gadgets
such as a horn or bell, or headlights, as invoked by a 1948 municipal
ordinance.[18] Nor was it duly registered with the Office of the Municipal
Treasurer, as required by the same ordinance. Finally, as admitted by
Villagracia, his bicycle did not have foot brakes. [19] Before this Court,
Villagracia does not dispute these allegations, which he admitted during the
trial, but directs our attention instead to the findings of Aonuevos own
negligence.[20]Villagracia also contends that, assuming there was contributory
negligence on his part, such would not exonerate Aonuevo from payment of
damages. The Court of Appeals likewise acknowledged the lack of safety
gadgets on Villagracias bicycle, but characterized the contention as offtangent and insufficient to obviate the fact that it was Aonuevos own
negligence that caused the accident.[21]
Aonuevo claims that Villagracia violated traffic regulations when he
failed to register his bicycle or install safety gadgets thereon. He posits that
Article 2185 of the New Civil Code applies by analogy. The provision reads:

Article 2185. Unless there is proof to the contrary, it is presumed that a

person driving a motor vehicle has been negligent if at the time of the
mishap he was violating any traffic regulation.
The provision was introduced for the first time in this jurisdiction with
the adoption in 1950 of the New Civil Code. [22] Its applicability is expressly
qualified to motor vehicles only, and there is no ground to presume that the
law intended a broader coverage.
Still, Aonuevo hypothesizes that Article 2185 should apply by analogy to
all types of vehicles[23]. He points out that modern-day travel is more complex
now than when the Code was enacted, the number and types of vehicles now
in use far more numerous than as of then. He even suggests that at the time
of the enactment of the Code, the legislators must have seen that only motor
vehicles were of such public concern that they had to be specifically
mentioned, yet today, the interaction of vehicles of all types and nature has
inescapably become matter of public concern so as to expand the application
of the law to be more responsive to the times.[24]
What Aonuevo seeks is for the Court to amend the explicit command of
the legislature, as embodied in Article 2185, a task beyond the pale of
judicial power. The Court interprets, and not creates, the law. However, since
the Court is being asked to consider the matter, it might as well examine
whether Article 2185 could be interpreted to include non-motorized vehicles.
At the time Article 2185 was formulated, there existed a whole array of
non-motorized vehicles ranging from human-powered contraptions on wheels
such
as
bicycles,
scooters,
and
animal-drawn
carts
such
as calesas and carromata. These modes of transport were even more
prevalent on the roads of the 1940s and 1950s than they are today, yet the
framers of the New Civil Code chose then to exclude these alternative modes
from the scope of Article 2185 with the use of the term motorized vehicles. If
Aonuevo seriously contends that the application of Article 2185 be expanded
due to the greater interaction today of all types of vehicles, such argument
contradicts historical experience. The ratio of motorized vehicles as to nonmotorized vehicles, as it stood in 1950, was significantly lower than as it
stands today. This will be certainly affirmed by statistical data, assuming such
has been compiled, much less confirmed by persons over sixty. Aonuevos
characterization of a vibrant intra-road dynamic between motorized and nonmotorized vehicles is more apropos to the past than to the present.
There is a fundamental flaw in Aonuevos analysis of Art. 2185, as
applicable today. He premises that the need for the distinction between

motorized and non-motorized vehicles arises from the relative mass of

number of these vehicles. The more pertinent basis for the segregate
classification is the difference in type of these vehicles. A motorized vehicle
operates by reason of a motor engine unlike a non-motorized vehicle, which
runs as a result of a direct exertion by man or beast of burden of direct
physical force. A motorized vehicle, unimpeded by the limitations in physical
exertion. is capable of greater speeds and acceleration than non-motorized
vehicles. At the same time, motorized vehicles are more capable in inflicting
greater injury or damage in the event of an accident or collision. This is due
to a combination of factors peculiar to the motor vehicle, such as the greater
speed, its relative greater bulk of mass, and greater combustability due to
the fuels that they use.
There long has been judicial recognition of the peculiar dangers posed
by the motor vehicle. As far back as 1912, in the U.S. v. Juanillo[25], the Court
has recognized that an automobile is capable of great speed, greater than
that of ordinary vehicles hauled by animals, and beyond doubt it is highly
dangerous when used on country roads, putting to great hazard the safety
and lives of the mass of the people who travel on such roads. [26] In the same
case, the Court emphasized:
A driver of an automobile, under such circumstances, is required to use a
greater degree of care than drivers of animals, for the reason that the
machine is capable of greater destruction, and furthermore, it is absolutely
under the power and control of the driver; whereas, a horse or other animal
can and does to some extent aid in averting an accident. It is not pleasant to
be obliged to slow down automobiles to accommodate persons riding,
driving, or walking. It is probably more agreeable to send the machine along
and let the horse or person get out of the way in the best manner possible;
but it is well to understand, if this course is adopted and an accident occurs,
that the automobile driver will be called upon to account for his acts. An
automobile driver must at all times use all the care and caution which a
careful and prudent driver would have exercised under the circumstances. [27]
American jurisprudence has had occasion to explicitly rule on the
relationship between the motorist and the cyclist. Motorists are required to
exercise ordinary or reasonable care to avoid collision with bicyclists. [28] While
the duty of using ordinary care falls alike on the motorist and the rider or
driver of a bicycle, it is obvious, for reasons growing out of the inherent
differences in the two vehicles, that more is required from the former to fully
discharge the duty than from the latter.[29]

The Code Commission was cognizant of the difference in the natures

and attached responsibilities of motorized and non-motorized vehicles. Art.
2185 was not formulated to compel or ensure obeisance by all to traffic rules
and regulations. If such were indeed the evil sought to be remedied or
guarded against, then the framers of the Code would have expanded the
provision to include non-motorized vehicles or for that matter, pedestrians.
Yet, that was not the case; thus the need arises to ascertain the peculiarities
attaching to a motorized vehicle within the dynamics of road travel. The fact
that there has long existed a higher degree of diligence and care imposed on
motorized vehicles, arising from the special nature of motor vehicle, leads to
the inescapable conclusion that the qualification under Article 2185 exists
precisely to recognize such higher standard. Simply put, the standards
applicable to motor vehicle are not on equal footing with other types of
vehicles.
Thus, we cannot sustain the contention that Art. 2185 should apply to
non-motorized vehicles, even if by analogy. There is factual and legal basis
that necessitates the distinction under Art. 2185, and to adopt Aonuevos
thesis would unwisely obviate this distinction.
Even if the legal presumption under Article 2185 should not apply to
Villagracia, this should not preclude any possible finding of negligence on his
part. While the legal argument as formulated by Aonuevo is erroneous, his
core contention that Villagracia was negligent for failure to comply with
traffic regulations warrants serious consideration, especially since the
imputed negligent acts were admitted by Villagracia himself.
The Civil Code characterizes negligence as the omission of that
diligence which is required by the nature of the obligation and corresponds
with the circumstances of the persons, of the time and of the place.
[30]
However, the existence of negligence in a given case is not determined by
the personal judgment of the actor in a given situation, but rather, it is the
law which determines what would be reckless or negligent. [31]
Aonuevo, asserts that Villagracia was negligent as the latter had
transgressed a municipal ordinance requiring the registration of bicycles and
the installation of safety devices thereon. This view finds some support if
anchored on the long standing principle of negligence per se.
The generally accepted view is that the violation of a statutory duty
constitutes negligence, negligence as a matter of law, or negligence per se.
[32]
In Teague vs. Fernandez,[33] the Court cited with approval American
authorities elucidating on the rule:

The mere fact of violation of a statute is not sufficient basis for an inference
that such violation was the proximate cause of the injury complained.
However, if the very injury has happened which was intended to be
prevented by the statute, it has been held that violation of the statute will be
deemed to be the proximate cause of the injury. (65 C.J.S. 1156)
The generally accepted view is that violation of a statutory duty constitutes
negligence, negligence as a matter of law, or, according to the decisions on
the question, negligence per se, for the reason that non-observance of what
the legislature has prescribed as a suitable precaution is failure to observe
that care which an ordinarily prudent man would observe, and, when the
state regards certain acts as so liable to injure others as to justify their
absolute prohibition, doing the forbidden act is a breach of duty with respect
to those who may be injured thereby; or, as it has been otherwise expressed,
when the standard of care is fixed by law, failure to conform to such standard
is negligence, negligence per se or negligence in and of itself, in the absence
of a legal excuse. According to this view it is immaterial, where a statute has
been violated, whether the act or omission constituting such violation would
have been regarded as negligence in the absence of any statute on the
subject or whether there was, as a matter of fact, any reason to anticipate
that injury would result from such violation. x x x. (65 C.J.S. pp.623-628)
But the existence of an ordinance changes the situation. If a driver causes an
accident by exceeding the speed limit, for example, we do not inquire
whether his prohibited conduct was unreasonably dangerous. It is enough
that it was prohibited. Violation of an ordinance intended to promote safety is
negligence. If by creating the hazard which the ordinance was intended to
avoid it brings about the harm which the ordinance was intended to prevent,
it is a legal cause of the harm. This comes only to saying that in such
circumstances the law has no reason to ignore the causal relation which
obviously exists in fact. The law has excellent reason to recognize it, since it
is the very relation which the makers of the ordinance anticipated. This court
has applied these principles to speed limits and other regulations of the
manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).
x x x However, the fact that other happenings causing or contributing toward
an injury intervened between the violation of a statute or ordinance and the
injury does not necessarily make the result so remote that no action can be
maintained. The test is to be found not in the number of intervening events
or agents, but in their character and in the natural and probable connection
between the wrong done and the injurious consequence. The general
principle is that the violation of a statute or ordinance is not rendered remote
as the cause of an injury by the intervention of another agency if the

occurrence of the accident, in the manner in which it happened, was the very
thing which the statute or ordinance was intended to prevent. (38 Am Jur
841)[34]
In Teague, the owner of a vocational school stricken by a fire resulting in
fatalities was found negligent, base on her failure to provide adequate fire
exits in contravention of a Manila city ordinance. [35] In F.F. Cruz and Co., Inc. v.
Court of Appeals[36], the failure of the petitioner to construct a firewall in
accordance with city ordinances sufficed to support a finding of negligence.
[37]
In Cipriano v. Court of Appeals, [38]the Court found that the failure of the
petitioner to register and insure his auto rustproofing shop in accordance
with the statute constituted negligence per se, thus holding him liable for the
damages for the destruction by fire of a customers vehicle garaged therein.
Should the doctrine of negligence per se apply to Villagracia, resulting
from his violation of an ordinance? It cannot be denied that the statutory
purpose for requiring bicycles to be equipped with headlights or horns is to
promote road safety and to minimize the occurrence of road accidents
involving bicycles. At face value, Villagracias mishap was precisely the
danger sought to be guarded against by the ordinance he violated. Aonuevo
argues that Villagracias violation should bar the latters recovery of damages,
and a simplistic interpretation of negligence per se might vindicate such an
argument.
But this is by no means a simple case. There is the fact which we
consider as proven, that Aonuevo was speeding as he made the left turn, and
such negligent act was the proximate cause of the accident. This reckless
behavior would have imperiled anyone unlucky enough within the path of
Aonuevos car as it turned into the intersection, whether they are fellow
motorists, pedestrians, or cyclists. We are hard put to conclude that
Villagracia would have avoided injury had his bicycle been up to par with
safety regulations, especially considering that Aonuevo was already speeding
as he made the turn, or before he had seen Villagracia. Even assuming that
Aonuevo had failed to see Villagracia because the bicycle was not equipped
with headlights, such lapse on the cyclists part would not have acquitted the
driver of his duty to slow down as he proceeded to make the left turn.
This court has appreciated that negligence per se, arising from the
mere violation of a traffic statute, need not be sufficient in itself in
establishing liability for damages. In Sanitary Steam Laundry, Inc. v. Court of
Appeals,[39] a collision between a truck and a privately-owned Cimarron van
caused the death of three of the vans passengers. The petitioner therein, the
owner of the truck, argued that the driver of the Cimarron was committing

multiple violations of the Land Transportation and Traffic Code [40] at the time
of the accident. Among these violations: the Cimarron was overloaded at the
time of the accident; the front seat of the van was occupied by four adults,
including the driver; and the van had only one functioning headlight. Similar
as in this case, petitioner therein invoked Article 2185 and argued that the
driver of the Cimarron should be presumed negligent. The Court, speaking
through Justice Mendoza, dismissed these arguments:

failure of the actor to perform up to a standard established by a legal fiat. But

the doctrine should not be rendered inflexible so as to deny relief when in
fact there is no causal relation between the statutory violation and the injury
sustained. Presumptions in law, while convenient, are not intractable so as to
forbid rebuttal rooted in fact. After all, tort law is remunerative in spirit,
aiming to provide compensation for the harm suffered by those whose
interests have been invaded owing to the conduct of others.[44]

[It] has not been shown how the alleged negligence of the Cimarron driver
contributed to the collision between the vehicles. Indeed, petitioner has the
burden of showing a causal connection between the injury received and the
violation of the Land Transportation and Traffic Code. He must show that the
violation of the statute was the proximate or legal cause of the injury or that
it substantially contributed thereto. Negligence consisting in whole or in part,
of violation of law, like any other negligence, is without legal consequence
unless it is a contributing cause of the injury. Petitioner says that driving an
overloaded vehicle with only one functioning headlight during nighttime
certainly increases the risk of accident, that because the Cimarron had only
one headlight, there was decreased visibility, and that the fact that the
vehicle was overloaded and its front seat overcrowded decreased its
maneuverability. However, mere allegations such as these are not sufficient
to discharge its burden of proving clearly that such alleged negligence was
the contributing cause of the injury.[41]

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. [45] In most cases, the
absence of proper lights on a bicycle does not constitute negligence as a
matter of law[46] but is a question for the jury whether the absence of proper
lights played a causal part in producing a collision with a motorist. [47] 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; [48] however, the absence of such lights will
not preclude or diminish recovery if the scene of the accident was well
illuminated by street lights,[49] if substitute lights were present which clearly
rendered the bicyclist visible,[50] if the motorist saw the bicycle in spite of the
absence of lights thereon,[51] or if the motorist would have been unable to see
the bicycle even if it had been equipped with lights.[52] 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.[53]

Sanitary Steam[42] is controlling in this case. 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. [43] 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.

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 between such 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.
[54]
Aonuevo had the burden of clearly proving that the alleged negligence of
Villagracia was the proximate or contributory cause of the latters injury.
On this point, the findings of the Court of Appeals are well-worth citing:

The rule on negligence per se must admit qualifications that may arise
from the logical consequences of the facts leading to the mishap. The
doctrine (and Article 2185, for that matter) is undeniably useful as a judicial
guide in adjudging liability, for it seeks to impute culpability arising from the

[As] admitted by appellant Aonuevo, he first saw appellee Villagracia at a

distance of about ten (10) meters before the accident. Corrolarily, therefore,
he could have avoided the accident had he [stopped] alongside with an

earlier (sic) jeep which was already at a full stop giving way to appellee. But
according to [eyewitness] Sorsano, he saw appellant Aonuevo umaarangkada
and hit the leg of Villagracia (TSN March 14, 1990 p. 30). This earlier (sic)
jeep at a full stop gave way to Villagracia to proceed but Aonuevo at an
unexpected motion (umarangkada) came out hitting Villagracia (TSN March
9, 1990 p. 49). Appellant Aonuevo admitted that he did not blow his horn
when he crossed Boni Avenue (TSN March 21, 1990 p. 47). [55]
By Aonuevos own admission, he had seen Villagracia at a good distance
of ten (10) meters. Had he been decelerating, as he should, as he made the
turn, Aonuevo would have had ample opportunity to avoid hitting Villagracia.
Moreover, the fact that Aonuevo had sighted Villagracia before the accident
would negate any possibility that the absence of lights on the bike
contributed to the cause of the accident. [56] A motorist has been held liable
for injury to or death of a bicyclist where the motorist turned suddenly into
the bicyclist so as to cause a collision.[57]
Neither does Aonuevo attempt before this Court to establish a causal
connection between the safety violations imputed to Villagracia and the
accident itself. Instead, he relied on a putative presumption that these
violations in themselves sufficiently established negligence appreciable
against Villagracia. Since the onus on Aonuevo is to conclusively prove the
link between the violations and the accident, we can deem him as having
failed to discharge his necessary burden of proving Villagracias own liability.
Neither can we can adjudge Villagracia with contributory negligence.
The leading case in contributory negligence, Rakes v. Atlantic Gulf[58]clarifies
that damages may be mitigated if the claimant in conjunction with the
occurrence, [contributes] only to his injury. [59] 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 of an impending
danger to health and body.[60] To prove contributory negligence, it is still
necessary to establish a causal link, although not proximate, between the
negligence of the party and the succeeding injury. In a legal sense,
negligence is contributory only when it contributes proximately to the injury,
and not simply a condition for its occurrence.[61]
As between Aonuevo and Villagracia, the lower courts adjudged
Aonuevo as solely responsible for the accident. The petition does not
demonstrate why this finding should be reversed. It is hard to imagine that
the same result would not have occurred even if Villagracias bicycle had
been equipped with safety equipment. Aonuevo himself admitted having
seen Villagracia from ten (10) meters away, thus he could no longer claim not

having been sufficiently warned either by headlights or safety horns. The fact
that Aonuevo was recklessly speeding as he made the turn likewise leads us
to believe that even if Villagracias bicycle had been equipped with the proper
brakes, the cyclist would not have had opportunity to brake in time to avoid
the speeding car. Moreover, it was incumbent on Aonuevo to have
established that Villagracias failure to have installed the proper brakes
contributed to his own injury. The fact that Aonuevo failed to adduce proof to
that effect leads us to consider such causal connection as not proven.
All told, there is no reason to disturb the assailed judgment.
WHEREFORE, the Petition is DENIED. The Decision of the Court of
Appeals is AFFIRMED. Costs against petitioner.
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. vs.THE INTERMEDIATE APPELLATE
COURT

In the early morning of 15 November 1975 at about 1:30 a.m. private

respondent Leonardo Dionisio was on his way home he lived in 1214-B
Zamora Street, Bangkal, Makati from a cocktails-and-dinner meeting with
his boss, the general manager of a marketing corporation. During the
cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor.
Dionisio was driving his Volkswagen car and had just crossed the intersection
of General Lacuna and General Santos Streets at Bangkal, Makati, not far
from his home, and was proceeding down General Lacuna Street, when his
car headlights (in his allegation) suddenly failed. He switched his headlights
on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2
meters away from his car. The dump truck, owned by and registered in the
name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the
right hand side of General Lacuna Street (i.e., on the right hand side of a
person facing in the same direction toward which Dionisio's car was
proceeding), facing the oncoming traffic. The dump truck was parked askew
(not parallel to the street curb) in such a manner as to stick out onto the
street, partly blocking the way of oncoming traffic. There were no lights nor
any so-called "early warning" reflector devices set anywhere near the dump
truck, front or rear. The dump truck had earlier that evening been driven
home by petitioner Armando U. Carbonel, its regular driver, with the
permission of his employer Phoenix, in view of work scheduled to be carried

out early the following morning, Dionisio claimed that he tried to avoid a
collision by swerving his car to the left but it was too late and his car
smashed into the dump truck. As a result of the collision, Dionisio suffered
some physical injuries including some permanent facial scars, a "nervous
breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of
Pampanga basically claiming that the legal and proximate cause of his
injuries was the negligent manner in which Carbonel had parked the dump
truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on
the other hand, countered that the proximate cause of Dionisio's injuries was
his own recklessness in driving fast at the time of the accident, while under
the influence of liquor, without his headlights on and without a curfew pass.
Phoenix also sought to establish that it had exercised due rare in the
selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix
and Carbonel and ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P
15,000.00 for hospital bills and the replacement of the lost
dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P
1,50,000.-00 as loss of expected income for plaintiff
brought about the accident in controversy and which is the
result of the negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P
10,000. as moral damages for the unexpected and sudden
withdrawal of plaintiff from his lifetime career as a
marketing man; mental anguish, wounded feeling, serious
anxiety, social humiliation, besmirched reputation, feeling
of economic insecurity, and the untold sorrows and
frustration in life experienced by plaintiff and his family
since the accident in controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P
10,000.00 as damages for the wanton disregard of
defendants to settle amicably this case with the plaintiff
before the filing of this case in court for a smaller amount.

(5) To pay the plaintiff jointly and severally the sum of P

4,500.00 due as and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That
court in CA-G.R. No. 65476 affirmed the decision of the trial court but
modified the award of damages to the following extent:
1. The award of P15,000.00 as
compensatory damages was reduced
to P6,460.71, the latter being the only
amount that the appellate court found
the plaintiff to have proved as actually
sustained by him;
2. The award of P150,000.00 as loss of
expected
income
was
reduced
to P100,000.00,basically
because
Dionisio had voluntarily resigned his job
such that, in the opinion of the appellate
court, his loss of income "was not solely
attributable to the accident in question;"
and
3. The award of P100,000.00 as moral
damages was held by the appellate court
as excessive and unconscionable and
hence reduced to P50,000.00.
The award of P10,000.00 as exemplary
damages and P4,500.00 as attorney's
fees and costs remained untouched.
This decision of the Intermediate Appellate Court is now before us on a
petition for review.
Both the trial court and the appellate court had made fairly explicit findings
of fact relating to the manner in which the dump truck was parked along
General Lacuna Street on the basis of which both courts drew the inference
that there was negligence on the part of Carbonel, the dump truck driver,

and that this negligence was the proximate cause of the accident and
Dionisio's injuries. We note, however, that both courts failed to pass upon the
defense raised by Carbonel and Phoenix that the true legal and proximate
cause of the accident was not the way in which the dump truck had been
parked but rather the reckless way in which Dionisio had driven his car that
night when he smashed into the dump truck. The Intermediate Appellate
Court in its questioned decision casually conceded that Dionisio was "in some
way, negligent" but apparently failed to see the relevance of Dionisio's
negligence and made no further mention of it. We have examined the record
both before the trial court and the Intermediate Appellate Court and we find
that both parties had placed into the record sufficient evidence on the basis
of which the trial court and the appellate court could have and should have
made findings of fact relating to the alleged reckless manner in which
Dionisio drove his car that night. The petitioners Phoenix and Carbonel
contend that if there was negligence in the manner in which the dump truck
was parked, that negligence was merely a "passive and static condition" and
that private respondent Dionisio's recklessness constituted an intervening,
efficient cause determinative of the accident and the injuries he sustained.
The need to administer substantial justice as between the parties in this
case, without having to remand it back to the trial court after eleven years,
compels us to address directly the contention put forward by the petitioners
and to examine for ourselves the record pertaining to Dionisio's alleged
negligence which must bear upon the liability, or extent of liability, of
Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not
private respondent Dionisio had a curfew pass valid and effective for that
eventful night; (b) whether Dionisio was driving fast or speeding just before
the collision with the dump truck; (c) whether Dionisio had purposely turned
off his car's headlights before contact with the dump truck or whether those
headlights accidentally malfunctioned moments before the collision; and (d)
whether Dionisio was intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew pass
was found on the person of Dionisio immediately after the accident nor was
any found in his car. Phoenix's evidence here consisted of the testimony of
Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical
Center for emergency treatment immediately after the accident. At the
Makati Medical Center, a nurse took off Dionisio's clothes and examined them
along with the contents of pockets together with Patrolman Cuyno. 1
Private respondent Dionisio was not able to produce any curfew pass during
the trial. Instead, he offered the explanation that his family may have

misplaced his curfew pass. He also offered a certification (dated two years
after the accident) issued by one Major Benjamin N. Libarnes of the Zone
Integrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga,
which was said to have authority to issue curfew passes for Pampanga and
Metro Manila. This certification was to the effect that private respondent
Dionisio had a valid curfew pass. This certification did not, however, specify
any pass serial number or date or period of effectivity of the supposed curfew
pass. We find that private respondent Dionisio was unable to prove
possession of a valid curfew pass during the night of the accident and that
the preponderance of evidence shows that he did not have such a pass
during that night. The relevance of possession or non-possession of a curfew
pass that night lies in the light it tends to shed on the other related issues:
whether Dionisio was speeding home and whether he had indeed purposely
put out his headlights before the accident, in order to avoid detection and
possibly arrest by the police in the nearby police station for travelling after
the onset of curfew without a valid curfew pass.
On the second issue whether or not Dionisio was speeding home that night
both the trial court and the appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman
Cuyno who was at the scene of the accident almost immediately after it
occurred, the police station where he was based being barely 200 meters
away. Patrolman Cuyno testified that people who had gathered at the scene
of the accident told him that Dionisio's car was "moving fast" and did not
have its headlights on. 2 Dionisio, on the other hand, claimed that he was
travelling at a moderate speed at 30 kilometers per hour and had just
crossed the intersection of General Santos and General Lacuna Streets and
had started to accelerate when his headlights failed just before the collision
took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was
hearsay and did not fag within any of the recognized exceptions to the
hearsay rule since the facts he testified to were not acquired by him through
official information and had not been given by the informants pursuant to any
duty to do so. Private respondent's objection fails to take account of the fact
that the testimony of Patrolman Cuyno is admissible not under the official
records exception to the hearsay rule 4 but rather as part of the res
gestae. 5 Testimonial evidence under this exception to the hearsay rule
consists of excited utterances made on the occasion of an occurrence or
event sufficiently startling in nature so as to render inoperative the normal
reflective thought processes of the observer and hence made as a

spontaneous reaction to the occurrence or event, and not the result of

reflective thought. 6
We think that an automobile speeding down a street and suddenly smashing
into a stationary object in the dead of night is a sufficiently startling event as
to evoke spontaneous, rather than reflective, reactions from observers who
happened to be around at that time. The testimony of Patrolman Cuyno was
therefore admissible as part of the res gestae and should have been
considered by the trial court. Clearly, substantial weight should have been
ascribed to such testimony, even though it did not, as it could not, have
purported to describe quantitatively the precise velocity at winch Dionisio
was travelling just before impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his headlights,
or whether his headlights accidentally malfunctioned, just moments before
the accident. The Intermediate Appellate Court expressly found that the
headlights of Dionisio's car went off as he crossed the intersection but was
non-committal as to why they did so. It is the petitioners' contention that
Dionisio purposely shut off his headlights even before he reached the
intersection so as not to be detected by the police in the police precinct
which he (being a resident in the area) knew was not far away from the
intersection. We believe that the petitioners' theory is a more credible
explanation than that offered by private respondent Dionisio i.e., that he
had his headlights on but that, at the crucial moment, these had in some
mysterious if convenient way malfunctioned and gone off, although he
succeeded in switching his lights on again at "bright" split seconds before
contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the
time of the accident. The evidence here consisted of the testimony of
Patrolman Cuyno to the effect that private respondent Dionisio smelled of
liquor at the time he was taken from his smashed car and brought to the
Makati Medical Center in an unconscious condition. 7This testimony has to be
taken in conjunction with the admission of Dionisio that he had taken "a shot
or two" of liquor before dinner with his boss that night. We do not believe
that this evidence is sufficient to show that Dionisio was so heavily under the
influence of liquor as to constitute his driving a motor vehicle per se an act of
reckless imprudence. 8 There simply is not enough evidence to show how
much liquor he had in fact taken and the effects of that upon his physical
faculties or upon his judgment or mental alertness. We are also aware that
"one shot or two" of hard liquor may affect different people differently.

The conclusion we draw from the factual circumstances outlined above is

that private respondent Dionisio was negligent the night of the accident. He
was hurrying home that night and driving faster than he should have been.
Worse, he extinguished his headlights at or near the intersection of General
Lacuna and General Santos Streets and thus did not see the dump truck that
was parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate
Appellate Court that the legal and proximate cause of the accident and of
Dionisio's injuries was the wrongful or negligent manner in which the
dump truck was parked in other words, the negligence of petitioner Carbonel.
That there was a reasonable relationship between petitioner Carbonel's
negligence on the one hand and the accident and respondent's injuries on
the other hand, is quite clear. Put in a slightly different manner, the collision
of Dionisio's car with the dump truck was a natural and foreseeable
consequence of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was merely
a "passive and static condition" and that private respondent Dionisio's
negligence was an "efficient intervening cause and that consequently
Dionisio's negligence must be regarded as the legal and proximate cause of
the accident rather than the earlier negligence of Carbonel. We note that the
petitioners' arguments are drawn from a reading of some of the older cases
in various jurisdictions in the United States but we are unable to persuade
ourselves that these arguments have any validity for our jurisdiction. We
note, firstly, that even in the United States, the distinctions between "cause"
and "condition" which the 'petitioners would have us adopt have already
been "almost entirely discredited." Professors and Keeton make this quite
clear:
Cause and condition. Many courts have sought to
distinguish between the active "cause" of the harm and the
existing "conditions" upon which that cause operated. If the
defendant has created only a passive static condition which
made the damage possible, the defendant is said not to be
liable. But so far as the fact of causation is concerned, in
the sense of necessary antecedents which have played an
important part in producing the result it is quite impossible
to distinguish between active forces and passive situations,
particularly since, as is invariably the case, the latter are
the result of other active forces which have gone
before. The defendant who spills gasoline about the
premises creates a "condition," but the act may be culpable

because of the danger of fire. When a spark ignites the

gasoline, the condition has done quite as much to bring
about the fire as the spark; and since that is the very risk
which the defendant has created, the defendant will not
escape responsibility. Even the lapse of a considerable time
during which the "condition" remains static will not
necessarily affect liability; one who digs a trench in the
highway may still be liable to another who fans into it a
month afterward. "Cause" and "condition" still find
occasional mention in the decisions; but the distinction is
now almost entirely discredited. So far as it has any validity
at all, it must refer to the type of case where the forces set
in operation by the defendant have come to rest in a
position of apparent safety, and some new force
intervenes. But even in such cases, it is not the distinction
between "cause" and "condition" which is important but
the nature of the risk and the character of the intervening
cause. 9
We believe, secondly, that the truck driver's negligence far from being a
"passive and static condition" was rather an indispensable and efficient
cause. The collision between the dump truck and the private respondent's
car would in an probability not have occurred had the dump truck not been
parked askew without any warning lights or reflector devices. The improper
parking of the dump truck created an unreasonable risk of injury for anyone
driving down General Lacuna Street and for having so created this risk, the
truck driver must be held responsible. In our view, Dionisio's negligence,
although later in point of time than the truck driver's negligence and
therefore closer to the accident, was not an efficient intervening or
independent cause. What the Petitioners describe as an "intervening cause"
was no more than a foreseeable consequent manner which the truck driver
had parked the dump truck. In other words, the petitioner truck driver owed a
duty to private respondent Dionisio and others similarly situated not to
impose upon them the very risk the truck driver had created. Dionisio's
negligence was not of an independent and overpowering nature as to cut, as
it were, the chain of causation in fact between the improper parking of the
dump truck and the accident, nor to sever the juris vinculum of liability. It is
helpful to quote once more from Professor and Keeton:
Foreseeable Intervening Causes. If the intervening cause is
one which in ordinary human experience is reasonably to
be anticipated or one which the defendant has reason to
anticipate under the particular circumstances, the
defendant may be negligence among other reasons,

because of failure to guard against it; or the defendant

may be negligent only for that reason. Thus one who sets a
fire may be required to foresee that an ordinary, usual and
customary wind arising later wig spread it beyond the
defendant's own property, and therefore to take
precautions to prevent that event. The person who leaves
the combustible or explosive material exposed in a public
place may foresee the risk of fire from some independent
source. ... In all of these cases there is an intervening
cause combining with the defendant's conduct to produce
the result and in each case the defendant's negligence
consists in failure to protect the plaintiff against that very
risk.
Obviously the defendant cannot be relieved from liability
by the fact that the risk or a substantial and important part
of the risk, to which the defendant has subjected the
plaintiff has indeed come to pass. Foreseeable intervening
forces are within the scope original risk, and hence of the
defendant's negligence. The courts are quite generally
agreed that intervening causes which fall fairly in this
category will not supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to
anticipate the usual weather of the vicinity, including all
ordinary forces of nature such as usual wind or rain, or
snow or frost or fog or even lightning; that one who leaves
an obstruction on the road or a railroad track should
foresee that a vehicle or a train will run into it; ...
The risk created by the defendant may include the
intervention of the foreseeable negligence of others. ...
[The standard of reasonable conduct may require the
defendant to protect the plaintiff against 'that occasional
negligence which is one of the ordinary incidents of human
life, and therefore to be anticipated.' Thus, a defendant
who blocks the sidewalk and forces the plaintiff to walk in a
street where the plaintiff will be exposed to the risks of
heavy traffic becomes liable when the plaintiff is run down
by a car, even though the car is negligently driven; and
one who parks an automobile on the highway without lights
at night is not relieved of responsibility when another
negligently drives into it. ---10

We hold that private respondent Dionisio's negligence was "only

contributory," that the "immediate and proximate cause" of the injury
remained the truck driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though such damages are subject
to mitigation by the courts (Article 2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last clear chance"
doctrine. The theory here of petitioners is that while the petitioner truck
driver was negligent, private respondent Dionisio had the "last clear chance"
of avoiding the accident and hence his injuries, and that Dionisio having
failed to take that "last clear chance" must bear his own injuries alone. The
last clear chance doctrine of the common law was imported into our
jurisdiction byPicart vs. Smith 11 but it is a matter for debate whether, or to
what extent, it has found its way into the Civil Code of the Philippines. The
historical function of that doctrine in the common law was to mitigate the
harshness of another common law doctrine or rule that of contributory
negligence. 12 The common law rule of contributory negligence prevented
any recovery at all by a plaintiff who was also negligent, even if the plaintiff's
negligence was relatively minor as compared with the wrongful act or
omission of the defendant. 13 The common law notion of last clear chance
permitted courts to grant recovery to a plaintiff who had also been negligent
provided that the defendant had the last clear chance to avoid the casualty
and failed to do so. 14 Accordingly, it is difficult to see what role, if any, the
common law last clear chance doctrine has to play in a jurisdiction where the
common law concept of contributory negligence as an absolute bar to
recovery by the plaintiff, has itself been rejected, as it has been in Article
2179 of the Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be
extracted from its common law matrix and utilized as a general rule in
negligence cases in a civil law jurisdiction like ours? We do not believe so.
Under Article 2179, the task of a court, in technical terms, is to determine
whose negligence the plaintiff's or the defendant's was the legal or
proximate cause of the injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners seem to imply by the use
of terms like "last" or "intervening" or "immediate." The relative location in
the continuum of time of the plaintiff's and the defendant's negligent acts or
omissions, is only one of the relevant factors that may be taken into account.
Of more fundamental importance are the nature of the negligent act or
omission of each party and the character and gravity of the risks created by
such act or omission for the rest of the community. The petitioners urge that
the truck driver (and therefore his employer) should be absolved from
responsibility for his own prior negligence because the unfortunate plaintiff
failed to act with that increased diligence which had become necessary to

avoid the peril precisely created by the truck driver's own wrongful act or
omission. To accept this proposition is to come too close to wiping out the
fundamental principle of law that a man must respond for the forseeable
consequences of his own negligent act or omission. Our law on quasi-delicts
seeks to reduce the risks and burdens of living in society and to allocate
them among the members of society. To accept the petitioners' pro-position
must tend to weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of negligence
on the part of his employer Phoenix 16in supervising its employees properly
and adequately. The respondent appellate court in effect found, correctly in
our opinion, that Phoenix was not able to overcome this presumption of
negligence. The circumstance that Phoenix had allowed its truck driver to
bring the dump truck to his home whenever there was work to be done early
the following morning, when coupled with the failure to show any effort on
the part of Phoenix to supervise the manner in which the dump truck is
parked when away from company premises, is an affirmative showing
of culpa in vigilando on the part of Phoenix.
Turning to the award of damages and taking into account the comparative
negligence of private respondent Dionisio on one hand and petitioners
Carbonel and Phoenix upon the other hand, 17 we believe that the demands
of substantial justice are satisfied by allocating most of the damages on a 2080 ratio. Thus, 20% of the damages awarded by the respondent appellate
court, except the award of P10,000.00 as exemplary damages and P4,500.00
as attorney's fees and costs, shall be borne by private respondent Dionisio;
only the balance of 80% needs to be paid by petitioners Carbonel and
Phoenix who shall be solidarity liable therefor to the former. The award of
exemplary damages and attorney's fees and costs shall be borne exclusively
by the petitioners. Phoenix is of course entitled to reimbursement from
Carbonel. 18 We see no sufficient reason for disturbing the reduced award of
damages made by the respondent appellate court.
WHEREFORE, the decision of the respondent appellate court is modified by
reducing the aggregate amount of compensatory damages, loss of expected
income and moral damages private respondent Dionisio is entitled to by 20%
of such amount. Costs against the petitioners.
SO ORDERED.
Yap (Chairman), Narvasa, Cruz, Gancayco and Sarmiento, JJ., concur.

Melencio-Herrera, J., is on leave.

Footnotes

G.R. No. 124354 December 29, 1999

RAMOS, etal vs. COURT OF APPEALS

The Hippocratic Oath mandates physicians to give primordial consideration to

the health and welfare of their patients. If a doctor fails to live up to this
precept, he is made accountable for his acts. A mistake, through gross
negligence or incompetence or plain human error, may spell the difference
between life and death. In this sense, the doctor plays God on his patient's
fate. 1
In the case at bar, the Court is called upon to rule whether a surgeon, an
anesthesiologist and a hospital should be made liable for the unfortunate
comatose condition of a patient scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated
29 May 1995, which overturned the decision 4 of the Regional Trial Court,
dated 30 January 1992, finding private respondents liable for damages
arising from negligence in the performance of their professional duties
towards petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced
hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17,
1985, a 47-year old (Exh. "A") robust woman (TSN, October
19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence
of a stone in her gall bladder (TSN, January 13, 1988, pp. 45), 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. 911). 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

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. 510), 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.

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.

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.

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

On the part of DLSMC (the hospital), this Court finds that it

is liable for the acts of negligence of the doctors in their
"practice of medicine" in the operating room. Moreover, the

hospital is liable for failing through its responsible officials,

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

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.

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
loquiturto the instant case. Thereafter, the first two assigned errors shall be
tackled in relation to the res ipsa loquiturdoctrine.
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 the res ipsa loquitur is
applicable, the court is permitted to find a physician negligent upon proper
proof of injury to the patient, without the aid of expert testimony, where the
court from its fund of common knowledge can determine the proper standard
of care. 30Where 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 loquiturwithout 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
ofres ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell,
Kansas Supreme Court in applying theres ipsa loquitur stated:

43

where the

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?

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.

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.

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.

xxx xxx xxx

Q: What happened to the patient?
ATTY. PAJARES:
Q: From whom did you hear those words
"lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.

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
immediately?

pull

away

the

tube

A: You do not pull the . . .

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

airway. 55 A thorough analysis of the patient's airway normally involves

investigating the following: cervical spine mobility, temporomandibular
mobility, prominent central incisors, diseased or artificial teeth, ability to
visualize uvula and the thyromental distance. 56 Thus, physical characteristics
of the patient's upper airway that could make tracheal intubation difficult
should be studied. 57 Where the need arises, as when initial assessment
indicates possible problems (such as the alleged short neck and protruding
teeth of Erlinda) a thorough examination of the patient's airway would go a
long way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda
for the first time on the day of the operation itself, on 17 June 1985. Before
this date, no prior consultations with, or pre-operative evaluation of Erlinda
was done by her. Until the day of the operation, respondent Dra. Gutierrez
was unaware of the physiological make-up and needs of Erlinda. She was
likewise not properly informed of the possible difficulties she would face
during the administration of anesthesia to Erlinda. Respondent Dra.
Gutierrez' act of seeing her patient for the first time only an hour before the
scheduled operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures cautioning
prudence and vigilance in dealing with human lives lie at the core of the
physician's centuries-old Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by
playing around with the trial court's ignorance of clinical procedure, hoping
that she could get away with it. Respondent Dra. Gutierrez tried to muddle
the difference between an elective surgery and an emergency surgery just so
her failure to perform the required pre-operative evaluation would escape
unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is
good medical practice to see the patient
a day before so you can introduce
yourself to establish good doctor-patient
relationship and gain the trust and
confidence of the patient?
DRA. GUTIERREZ:

A: As I said in my previous statement, it

depends on the operative procedure of
the anesthesiologist and in my case, with
elective cases and normal cardiopulmonary 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 preoperative 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 preoperative 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

experienced anesthesiologist, adequately alerted by a thorough preoperative 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.

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

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.

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.

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.

Having failed to do this, respondent hospital is consequently solidarily

responsible with its physicians for Erlinda's condition.

In other words, private hospitals, hire, fire and exercise real control over their
attending and visiting "consultant" staff. While "consultants" are not,
technically employees, a point which respondent hospital asserts in denying
all responsibility for the patient's condition, the control exercised, the hiring,
and the right to terminate consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the payment of
wages. In assessing whether such a relationship in fact exists, the control
test is determining. Accordingly, on the basis of the foregoing, we rule that
for the purpose of allocating responsibility in medical negligence cases, an
employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. This being the case, the question now
arises as to whether or not respondent hospital is solidarily liable with
respondent doctors for petitioner's condition. 76

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.

The basis for holding an employer solidarily responsible for the negligence of
its employee is found in Article 2180 of the Civil Code which considers a
person accountable not only for his own acts but also for those of others
based on the former's responsibility under a relationship of patria
potestas. 77 Such responsibility ceases when the persons or entity concerned
prove that they have observed the diligence of a good father of the family to
prevent damage. 78 In other words, while the burden of proving negligence
rests on the plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who should prove that
they observed the diligence of a good father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its
responsibility over respondent physicians, failed to adduce evidence showing
that it exercised the diligence of a good father of a family in the hiring and
supervision of the latter. It failed to adduce evidence with regard to the
degree of supervision which it exercised over its physicians. In neglecting to
offer such proof, or proof of a similar nature, respondent hospital thereby
failed to discharge its burden under the last paragraph of Article 2180.

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.

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 middleage, 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. 84 The 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.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.

The trial court and the Court of Appeals found that petitioners failed to prove
negligence and that respondents had exercised due care in the premises and
with respect to the supervision of their employees.
The first question before Us refers to the admissibility of certain reports on
the fire prepared by the Manila Police and Fire Departments and by a certain
Captain Tinio of the Armed Forces of the Philippines. Portions of the first two
reports are as follows:
1. Police Department report:

G.R. No. L-12986

March 31, 1966

THE SPOUSES BERNABE AFRICA vs. CALTEX (PHIL.), INC.

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

Investigation disclosed that at about 4:00 P.M. March 18,

1948, while Leandro Flores was transferring gasoline from a
tank truck, plate No. T-5292 into the underground tank of
the Caltex Gasoline Station located at the corner of Rizal
Avenue and Antipolo Street, this City, an unknown Filipino
lighted a cigarette and threw the burning match stick near
the main valve of the said underground tank. Due to the
gasoline fumes, fire suddenly blazed. Quick action of
Leandro Flores in pulling off the gasoline hose connecting
the truck with the underground tank prevented a terrific
explosion. However, the flames scattered due to the hose
from which the gasoline was spouting. It burned the truck
and the following accessorias and residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic)
subleased for the installation of a coca-cola and cigarette stand, the
complainants furnished this Office a copy of a photograph taken
during the fire and which is submitted herewith. it appears in this
picture that there are in the premises a coca-cola cooler and a rack
which according to information gathered in the neighborhood
contained cigarettes and matches, installed between the gasoline
pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito
Morales regarding the history of the gasoline station and what the chief of
the fire department had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of
Appeals and hence inadmissible. This ruling is now assigned as error. It is

contended: first, that said reports were admitted by the trial court without
objection on the part of respondents; secondly, that with respect to the police
report (Exhibit V-Africa) which appears signed by a Detective Zapanta
allegedly "for Salvador Capacillo," the latter was presented as witness but
respondents waived their right to cross-examine him although they had the
opportunity to do so; and thirdly, that in any event the said reports are
admissible as an exception to the hearsay rule under section 35 of Rule 123,
now Rule 130.
The first contention is not borne out by the record. The transcript of the
hearing of September 17, 1953 (pp. 167-170) shows that the reports in
question, when offered as evidence, were objected to by counsel for each of
respondents on the ground that they were hearsay and that they were
"irrelevant, immaterial and impertinent." Indeed, in the court's resolution
only Exhibits J, K, K-5 and X-6 were admitted without objection; the admission
of the others, including the disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand,
he was not examined and he did not testify as to the facts mentioned in his
alleged report (signed by Detective Zapanta). All he said was that he was one
of those who investigated "the location of the fire and, if possible, gather
witnesses as to the occurrence, and that he brought the report with him.
There was nothing, therefore, on which he need be cross-examined; and the
contents of the report, as to which he did not testify, did not thereby become
competent evidence. And even if he had testified, his testimony would still
have been objectionable as far as information gathered by him from third
persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without
further testimonial evidence on their contents, fall within the scope of section
35, Rule 123, which provides that "entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person
in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a)
that the entry was made by a public officer, or by another person specially
enjoined by law to do so; (b) that it was made by the public officer in the
performance of his duties, or by such other person in the performance of a
duty specially enjoined by law; and (c) that the public officer or other person
had sufficient knowledge of the facts by him stated, which must have been
acquired by him personally or through official information (Moran, Comments
on the Rules of Court, Vol. 3 [1957] p. 398).

Of the three requisites just stated, only the last need be considered here.
Obviously the material facts recited in the reports as to the cause and
circumstances of the fire were not within the personal knowledge of the
officers who conducted the investigation. Was knowledge of such facts,
however, acquired by them through official information? As to some facts the
sources thereof are not even identified. Others are attributed to Leopoldo
Medina, referred to as an employee at the gas station were the fire occurred;
to Leandro Flores, driver of the tank truck from which gasoline was being
transferred at the time to the underground tank of the station; and to
respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give
any reason as to the origin of the fire. To qualify their statements as "official
information" acquired by the officers who prepared the reports, the persons
who made the statements not only must have personal knowledge of the
facts stated but must have the duty to give such statements for record. 1
The reports in question do not constitute an exception to the hearsay rule;
the facts stated therein were not acquired by the reporting officers through
official information, not having been given by the informants pursuant to any
duty to do so.
The next question is whether or not, without proof as to the cause and origin
of the fire, the doctrine of res ipsa loquitur should apply so as to presume
negligence on the part of appellees. Both the trial court and the appellate
court refused to apply the doctrine in the instant case on the grounds that
"as to (its) applicability ... in the Philippines, there seems to he nothing
definite," and that while the rules do not prohibit its adoption in appropriate
cases, "in the case at bar, however, we find no practical use for such
doctrine." The question deserves more than such summary dismissal. The
doctrine has actually been applied in this jurisdiction, in the case of Espiritu
vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R, September
20, 1949), wherein the decision of the Court of Appeals was penned by Mr.
Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and
other companions were loading grass between the municipalities of
Bay and Calauan, in the province of Laguna, with clear weather and
without any wind blowing, an electric transmission wire, installed
and maintained by the defendant Philippine Power and Development
Co., Inc. alongside the road, suddenly parted, and one of the broken
ends hit the head of the plaintiff as he was about to board the truck.
As a result, plaintiff received the full shock of 4,400 volts carried by

the wire and was knocked unconscious to the ground. The electric
charge coursed through his body and caused extensive and serious
multiple burns from skull to legs, leaving the bone exposed in some
parts and causing intense pain and wounds that were not
completely healed when the case was tried on June 18, 1947, over
one year after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had
failed to show any specific act of negligence, but the appellate court
overruled the defense under the doctrine of res ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's
evidence to place appellant on its defense. While it is the rule, as
contended by the appellant, that in case of noncontractual
negligence, or culpa aquiliana, the burden of proof is on the plaintiff
to establish that the proximate cause of his injury was the
negligence of the defendant, it is also a recognized principal that
"where the thing which caused injury, without fault of the injured
person, is under the exclusive control of the defendant and the
injury is such as in the ordinary course of things does not occur if he
having such control use proper care, it affords reasonable evidence,
in the absence of the explanation, that the injury arose from
defendant's want of care."
And the burden of evidence is shifted to him to establish that he has
observed due care and diligence. (San Juan Light & Transit Co. v.
Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the
name of res ipsa loquitur (the transaction speaks for itself), and is
peculiarly applicable to the case at bar, where it is unquestioned
that the plaintiff had every right to be on the highway, and the
electric wire was under the sole control of defendant company. In
the ordinary course of events, electric wires do not part suddenly in
fair weather and injure people, unless they are subjected to unusual
strain and stress or there are defects in their installation,
maintenance and supervision; just as barrels do not ordinarily roll
out of the warehouse windows to injure passersby, unless some one
was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint
299, the leading case that established that rule). Consequently, in
the absence of contributory negligence (which is admittedly not
present), the fact that the wire snapped suffices to raise a
reasonable presumption of negligence in its installation, care and
maintenance. Thereafter, as observed by Chief Baron Pollock, "if

there are any facts inconsistent with negligence, it is for the

defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down
doctrines binding on the Supreme Court, but we do not consider this a reason
for not applying the particular doctrine of res ipsa loquitur in the case at bar.
Gasoline is a highly combustible material, in the storage and sale of which
extreme care must be taken. On the other hand, fire is not considered a
fortuitous event, as it arises almost invariably from some act of man. A case
strikingly similar to the one before Us is Jones vs. Shell Petroleum
Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon
which in the year 1934 was leased to the Shell Petroleum
Corporation for a gasoline filling station. On October 8, 1934, during
the term of the lease, while gasoline was being transferred from the
tank wagon, also operated by the Shell Petroleum Corporation, to
the underground tank of the station, a fire started with resulting
damages to the building owned by Jones. Alleging that the damages
to his building amounted to $516.95, Jones sued the Shell Petroleum
Corporation for the recovery of that amount. The judge of the
district court, after hearing the testimony, concluded that plaintiff
was entitled to a recovery and rendered judgment in his favor for
$427.82. The Court of Appeals for the First Circuit reversed this
judgment, on the ground the testimony failed to show with
reasonable certainty any negligence on the part of the Shell
Petroleum Corporation or any of its agents or employees. Plaintiff
applied to this Court for a Writ of Review which was granted, and the
case is now before us for decision.1wph1.t
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence one
relating to the cause of the fire and the other relating to the
spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's
building by the fire, no witnesses were placed on the stand by the
defendant.
Taking up plaintiff's charge of negligence relating to the cause of the
fire, we find it established by the record that the filling station and

the tank truck were under the control of the defendant and operated
by its agents or employees. We further find from the uncontradicted
testimony of plaintiff's witnesses that fire started in the underground
tank attached to the filling station while it was being filled from the
tank truck and while both the tank and the truck were in charge of
and being operated by the agents or employees of the defendant,
extended to the hose and tank truck, and was communicated from
the burning hose, tank truck, and escaping gasoline to the building
owned by the plaintiff.
Predicated on these circumstances and the further circumstance of
defendant's failure to explain the cause of the fire or to show its lack
of knowledge of the cause, plaintiff has evoked the doctrine of res
ipsa loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to
be under the management of defendant or his servants and the
accident is such as in the ordinary course of things does not happen
if those who have its management or control use proper care, it
affords reasonable evidence, in absence of explanation by
defendant, that the accident arose from want of care. (45 C.J. #768,
p. 1193).
This statement of the rule of res ipsa loquitur has been widely
approved and adopted by the courts of last resort. Some of the
cases in this jurisdiction in which the doctrine has been applied are
the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977;
Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64
L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115
La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force
here. The gasoline station, with all its appliances, equipment and employees,
was under the control of appellees. A fire occurred therein and spread to and
burned the neighboring houses. The persons who knew or could have known
how the fire started were appellees and their employees, but they gave no
explanation thereof whatsoever. It is a fair and reasonable inference that the
incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police
Department (Exh. X-1 Africa) the following appears:

Investigation of the basic complaint disclosed that the Caltex

Gasoline Station complained of occupies a lot approximately 10 m x
10 m at the southwest corner of Rizal Avenue and Antipolo. The
location is within a very busy business district near the Obrero
Market, a railroad crossing and very thickly populated neighborhood
where a great number of people mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot
be excluded and this constitute a secondary hazard to its operation
which in turn endangers the entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator
the concrete walls south and west adjoining the neighborhood are
only 2-1/2 meters high at most and cannot avoid the flames from
leaping over it in case of fire.
Records show that there have been two cases of fire which caused
not only material damages but desperation and also panic in the
neighborhood.
Although the soft drinks stand had been eliminated, this gasoline
service station is also used by its operator as a garage and repair
shop for his fleet of taxicabs numbering ten or more, adding another
risk to the possible outbreak of fire at this already small but crowded
gasoline station.
The foregoing report, having been submitted by a police officer in the
performance of his duties on the basis of his own personal observation of the
facts reported, may properly be considered as an exception to the hearsay
rule. These facts, descriptive of the location and objective circumstances
surrounding the operation of the gasoline station in question, strengthen the
presumption of negligence under the doctrine of res ipsa loquitur, since on
their face they called for more stringent measures of caution than those
which would satisfy the standard of due diligence under ordinary
circumstances. There is no more eloquent demonstration of this than the
statement of Leandro Flores before the police investigator. Flores was the
driver of the gasoline tank wagon who, alone and without assistance, was
transferring the contents thereof into the underground storage when the fire

broke out. He said: "Before loading the underground tank there were no
people, but while the loading was going on, there were people who went to
drink coca-cola (at the coca-cola stand) which is about a meter from the hole
leading to the underground tank." He added that when the tank was almost
filled he went to the tank truck to close the valve, and while he had his back
turned to the "manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses
were it not for another negligent omission on the part of defendants, namely,
their failure to provide a concrete wall high enough to prevent the flames
from leaping over it. As it was the concrete wall was only 2-1/2 meters high,
and beyond that height it consisted merely of galvanized iron sheets, which
would predictably crumple and melt when subjected to intense heat.
Defendants' negligence, therefore, was not only with respect to the cause of
the fire but also with respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the
second amended complaint that "the fire was caused through the acts of a
stranger who, without authority, or permission of answering defendant,
passed through the gasoline station and negligently threw a lighted match in
the premises." No evidence on this point was adduced, but assuming the
allegation to be true certainly any unfavorable inference from the
admission may be taken against Boquiren it does not extenuate his
negligence. A decision of the Supreme Court of Texas, upon facts analogous
to those of the present case, states the rule which we find acceptable here.
"It is the rule that those who distribute a dangerous article or agent, owe a
degree of protection to the public proportionate to and commensurate with a
danger involved ... we think it is the generally accepted rule as applied to
torts that 'if the effects of the actor's negligent conduct actively and
continuously operate to bring about harm to another, the fact that the active
and substantially simultaneous operation of the effects of a third person's
innocent, tortious or criminal act is also a substantial factor in bringing about
the harm, does not protect the actor from liability.' (Restatement of the Law
of Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention of an
unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer
from consequences of negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting injury." (MacAfee, et
al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.)
The next issue is whether
caused to appellants. This
independent contractor, as
Caltex. This question, in the

Caltex should be held liable for the damages

issue depends on whether Boquiren was an
held by the Court of Appeals, or an agent of
light of the facts not controverted, is one of law

and hence may be passed upon by this Court. These facts are: (1) Boquiren
made an admission that he was an agent of Caltex; (2) at the time of the fire
Caltex owned the gasoline station and all the equipment therein; (3) Caltex
exercised control over Boquiren in the management of the state; (4) the
delivery truck used in delivering gasoline to the station had the name of
CALTEX painted on it; and (5) the license to store gasoline at the station was
in the name of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit UAfrica; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied
that he directed one of his drivers to remove gasoline from the truck into the
tank and alleged that the "alleged driver, if one there was, was not in his
employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the
owners of the gasoline station." It is true that Boquiren later on amended his
answer, and that among the changes was one to the effect that he was not
acting as agent of Caltex. But then again, in his motion to dismiss appellants'
second amended complaint the ground alleged was that it stated no cause of
action since under the allegations thereof he was merely acting as agent of
Caltex, such that he could not have incurred personal liability. A motion to
dismiss on this ground is deemed to be an admission of the facts alleged in
the complaint.
Caltex admits that it owned the gasoline station as well as the equipment
therein, but claims that the business conducted at the service station in
question was owned and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the nature of their relationship
at the time of the fire. There must have been one in existence at that time.
Instead, what was presented was a license agreement manifestly tailored for
purposes of this case, since it was entered into shortly before the expiration
of the one-year period it was intended to operate. This so-called license
agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made
effective as of January 1, 1948 so as to cover the date of the fire, namely,
March 18, 1948. This retroactivity provision is quite significant, and gives rise
to the conclusion that it was designed precisely to free Caltex from any
responsibility with respect to the fire, as shown by the clause that Caltex
"shall not be liable for any injury to person or property while in the property
herein licensed, it being understood and agreed that LICENSEE (Boquiren) is
not an employee, representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be
considered an independent contractor. Under that agreement Boquiren would
pay Caltex the purely nominal sum of P1.00 for the use of the premises and
all the equipment therein. He could sell only Caltex Products. Maintenance of

the station and its equipment was subject to the approval, in other words
control, of Caltex. Boquiren could not assign or transfer his rights as licensee
without the consent of Caltex. The license agreement was supposed to be
from January 1, 1948 to December 31, 1948, and thereafter until terminated
by Caltex upon two days prior written notice. Caltex could at any time cancel
and terminate the agreement in case Boquiren ceased to sell Caltex
products, or did not conduct the business with due diligence, in the judgment
of Caltex. Termination of the contract was therefore a right granted only to
Caltex but not to Boquiren. These provisions of the contract show the extent
of the control of Caltex over Boquiren. The control was such that the latter
was virtually an employee of the former.
Taking into consideration the fact that the operator owed his
position to the company and the latter could remove him or
terminate his services at will; that the service station belonged to
the company and bore its tradename and the operator sold only the
products of the company; that the equipment used by the operator
belonged to the company and were just loaned to the operator and
the company took charge of their repair and maintenance; that an
employee of the company supervised the operator and conducted
periodic inspection of the company's gasoline and service station;
that the price of the products sold by the operator was fixed by the
company and not by the operator; and that the receipts signed by
the operator indicated that he was a mere agent, the finding of the
Court of Appeals that the operator was an agent of the company
and not an independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not
bound to rely upon the name or title given it by the contracting
parties, should thereby a controversy as to what they really had
intended to enter into, but the way the contracting parties do or
perform their respective obligations stipulated or agreed upon may
be shown and inquired into, and should such performance conflict
with the name or title given the contract by the parties, the former
must prevail over the latter. (Shell Company of the Philippines, Ltd.
vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil.
757).
The written contract was apparently drawn for the purpose of
creating the apparent relationship of employer and independent
contractor, and of avoiding liability for the negligence of the
employees about the station; but the company was not satisfied to
allow such relationship to exist. The evidence shows that it

immediately assumed control, and proceeded to direct the method

by which the work contracted for should be performed. By reserving
the right to terminate the contract at will, it retained the means of
compelling submission to its orders. Having elected to assume
control and to direct the means and methods by which the work has
to be performed, it must be held liable for the negligence of those
performing service under its direction. We think the evidence was
sufficient to sustain the verdict of the jury. (Gulf Refining Company v.
Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to
Boquiren. But no cash invoices were presented to show that Boquiren had
bought said gasoline from Caltex. Neither was there a sales contract to prove
the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after
deducting the amount of P2,000.00 collected by them on the insurance of the
house. The deduction is now challenged as erroneous on the ground that
Article 2207 of the New Civil Code, which provides for the subrogation of the
insurer to the rights of the insured, was not yet in effect when the loss took
place. However, regardless of the silence of the law on this point at that time,
the amount that should be recovered be measured by the damages actually
suffered, otherwise the principle prohibiting unjust enrichment would be
violated. With respect to the claim of the heirs of Ong P7,500.00 was
adjudged by the lower court on the basis of the assessed value of the
property destroyed, namely, P1,500.00, disregarding the testimony of one of
the Ong children that said property was worth P4,000.00. We agree that the
court erred, since it is of common knowledge that the assessment for
taxation purposes is not an accurate gauge of fair market value, and in this
case should not prevail over positive evidence of such value. The heirs of
Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondentsappellees are held liable solidarily to appellants, and ordered to pay them the
aforesaid sum of P9,005.80 and P10,000.00, respectively, with interest from
the filing of the complaint, and costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala,
Bengzon,
J.P.,
Zaldivar
and
Sanchez,
JJ.,
concur.
Dizon, J., took no part.

hospitalized at Dr. Paulino J. Garcia Research and Medical

Center and the Our Lady of Lourdes Hospital; that he spent
TEN THOUSAND PESOS (Pl0,000.00) and will incur more
expenses as he recuperates from said injuries; that
because of said injuries he would be deprived of a lifetime
income in the sum of SEVENTY THOUSAND PESOS
(P70,000.00); and that he agreed to pay his lawyer the sum
of TEN THOUSAND PESOS (Pl0,000.00).

G.R. No. 73998 November 14, 1988

PEDRO T. LAYUGAN vs. INTERMEDIATE APPELLATE COURT

Assailed in this petition for review on certiorari are 1) the decision 1 of the
then Intermediate Appellate Court 2 in AC-G.R. CV No. 01055, entitled "Pedro
T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro, Defendant-Appellant
and Third-Party Plaintiff-Appellee, versus Travellers Multi-Indemnity
Corporation, Third Party Defendant- Appellant, "which reversed and set aside
the decision 3 of the Regional Trial Court, Third Judicial Region, Branch XXVI,
Cabanatuan City, and also dismissed the complaint, third party complaint,
and the counter claims of the parties and 2) the resolution 4 denying the
plaintiff-appellee's (herein petitioner) motion for reconsideration, for lack of
merit.
The findings of fact by the trial court which were adopted by the appellate
court are as follows: 5
xxx xxx xxx
Pedro T. Layugan filed an action for damages against
Godofredo Isidro, alleging that on May 15, 1979 while at
Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a
companion were repairing the tire of their cargo truck with
Plate No. SU-730 which was parked along the right side of
the National Highway; that defendant's truck bearing Plate
No. PW-583, driven recklessly by Daniel Serrano bumped
the plaintiff, that as a result, plaintiff was injured and

As prayed for by the plaintiffs counsel, the Court declared

the defendant in default on October 12, 1979, and
plaintiff's evidence was received ex-parte on January 11,
1978 and February 19, 1980. The decision on behalf of the
plaintiff was set aside to give a chance to the defendant to
file his answer and later on, a third-party complaint.
Defendant admitted his ownership of the vehicle involved
in the accident driven by Daniel Serrano. Defendant
countered that the plaintiff was merely a bystander, not a
truck helper being a brother-in-law law of the driver of said
truck; that the truck allegedly being repaired was parked,
occupying almost half of the right lane towards Solano,
Nueva Vizcaya, right after the curve; that the proximate
cause of the incident was the failure of the driver of the
parked truck in installing the early warning device, hence
the driver of the parked car should be liable for damages
sustained by the truck of the herein defendant in the
amount of more than P20,000.00; that plaintiff being a
mere bystander and hitchhiker must suffer all the damages
he incurred. By way of counterclaim defendant alleged that
due to plaintiffs baseless complaint he was constrained to
engage the services of counsel for P5,000.00 and P200.00
per court appearance; that he suffered sleepless nights,
humiliation, wounded feelings which may be estimated at
P30.000.00.
On May 29, 1981, a third-party complaint was filed by the
defendant against his insurer, the Travellers Multi
Indemnity Corporation; that the third-party plaintiff, without
admitting his liability to the plaintiff, claimed that the thirdparty defendant is liable to the former for contribution,
indemnity and subrogation by virtue of their contract under
Insurance Policy No. 11723 which covers the insurer's

liability for damages arising from death, bodily injuries and

damage to property.
Third-party defendant answered that, even assuming that
the subject matter of the complaint is covered by a valid
and existing insurance policy, its liability shall in no case
exceed the limit defined under the terms and conditions
stated therein; that the complaint is premature as no claim
has been submitted to the third party defendant as
prescribed under the Insurance Code; that the accident in
question was approximately caused by the carelessness
and gross negligence of the plaintiff-, that by reason of the
third-party
complaint,
third-party
defendant
was
constrained to engage the services of counsel for a fee of
P3,000.00.
Pedro Layugan declared that he is a married man with one
(1) child. He was employed as security guard in
Mandaluyong, Metro Manila, with a salary of SIX HUNDRED
PESOS (600.00) a month. When he is off-duty, he worked as
a truck helper and while working as such, he sustained
injuries as a result of the bumping of the cargo truck they
were repairing at Baretbet, Bagabag, Nueva Vizcaya by the
driver of the defendant. He used to earn TWO HUNDRED
PESOS (P200.00) to THREE HUNDRED PESOS (P300.00)
monthly, at the rate of ONE HUNDRED PESOS (Pl00.00) per
trip. Due to said injuries, his left leg was amputated so he
had to use crutches to walk. Prior to the incident, he
supported his family sufficiently, but after getting injured,
his family is now being supported by his parents and
brother.
GODOFREDO
ISIDRO,
defendant/third-party
plaintiff,
testified that his truck involved in this vehicular accident is
insured with the Travellers Multi Indemnity Corporation
covering own damage and third-party liability, under
vehicle policy No. 11723 (Exh. "1") dated May 30, 1978;
that after he filed the insurance claim the insurance
company paid him the sum of P18,000.00 for the damages
sustained by this truck but not the third party liability.
DANIEL SERRANO, defendant driver, declared that he gave
a statement before the municipal police of Bagabag, Nueva

Vizcaya on May 16, 1979; that he knew the responsibilities

of a driver; that before leaving, he checked the truck. The
truck owner used to instruct him to be careful in driving. He
bumped the truck being repaired by Pedro Layugan,
plaintiff, while the same was at a stop position. From the
evidence presented, it has been established clearly that
the injuries sustained by the plaintiff was caused by
defendant's driver, Daniel Serrano. The police report
confirmed the allegation of the plaintiff and admitted by
Daniel Serrano on cross-examination. The collision
dislodged the jack from the parked truck and pinned the
plaintiff to the ground. As a result thereof, plaintiff
sustained injuries on his left forearm and left foot. The left
leg of the plaintiff from below the knee was later on
amputated (Exh. "C") when gangrene had set in, thereby
rendering him incapacitated for work depriving him of his
income. (pp. 118 to 120, Record on Appeal.)
xxx xxx xxx
Upon such findings, amply supported by the evidence on record, the trial
court rendered its decision, the dispositive part of which reads as follows: 6
WHEREFORE, premises considered, the defendant is hereby
ordered:
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00)
PESOS actual and compensatory damages;
b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages;
and
d) To pay the costs of this suit. On the third-party
complaint, the third-party defendant is ordered to
indemnify the defendant/third party plaintiff-.
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for
actual and compensatory damages; and

b) The costs of this suit.

The Intermediate Appellate Court as earlier stated reversed the decision of
the trial court and dismissed the complaint, the third-party complaint, and
the counter- claims of both appellants. 7
Hence, this petition.
The petitioner alleges the following errors.

1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE

APPELLATE COURT ACTED CORRECTLY IN REVERSING AND
SETTING ASIDE AND DISMISSING THE PLAINTIFFAPPELLEE'S COMPLAINT.
2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED
CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA
LOQUITUR" WITH PROPER JURIS- PRUDENTIAL (sic) BASIS.
The crux of the controversy lies in the correctness or error of the decision of
the respondent court finding the petitioner negligent under the doctrine
of Res ipsa loquitur (The thing speaks for itself).<re||an1w> Corollary
thereto, is the question as to who is negligent, if the doctrine is inapplicable.
The respondent corporation stresses that the issues raised in the petition
being factual, the same is not reviewable by this Court in a petition for review
by certiorari. 9
Indeed, it is an elementary rule in the review of decisions of the Court of
Appeals that its findings of fact are entitled to great respect and will not
ordinarily be disturbed by this Court. 10 For if we have to review every
question of fact elevated to us, we would hardly have any more time left for
the weightier issues compelling and deserving our preferential
attention. 11 Be that as it may, this rule is not inflexible. Surely there are
established exceptions 12 when the Court should review and rectify the
findings of fact of the lower court, such as:
1) when the conclusion is a finding grounded entirely on speculation,
surmise, or conjecture; 2) the inference made is manifestly mistaken; 3)
there is grave abuse of discretion; 4) the judgment is based on
misapprehension of facts; 5) the Court of Appeals went beyond the issues of

the case if the findings are contrary to the admission of both the appellant
and the appellee; 6) the findings of the Court of Appeals are contrary to
those of the trial court; 7) the said findings of fact are conclusions without
citation of specific evidence on which they are based; 8) the facts set forth in
the petition as well as in the petitioner's main and reply briefs are not
disputed by the respondents; and 9) when the findings of fact of the Court of
Appeals are premised on the absence of evidence and are contradicted on
record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a
deviation from the general rule.
From its finding that the parked truck was loaded with ten (10) big round
logs 13 the Court of Appeals inferred that because of its weight the truck
could not have been driven to the shoulder of the road and concluded that
the same was parked on a portion of the road 14 at the time of the accident.
Consequently, the respondent court inferred that the mishap was due to the
negligence of the driver of the parked truck. 15 The inference or conclusion is
manifestly erroneous. In a large measure, it is grounded on speculation,
surmise, or conjecture. How the respondent court could have reversed the
finding of the trial court that a warning device was installed 16 escapes us
because it is evident from the record that really such a device, in the form of
a lighted kerosene lamp, was installed by the driver of the parked truck three
to four meters from the rear of his parked truck. 17 We see this negative
finding of the respondent appellate court as a misreading of the facts and the
evidence on record and directly contravening the positive finding of the trial
court that an early warning device was in proper place when the accident
happened and that the driver of the private respondent was the one
negligent. On the other hand, the respondent court, in refusing to give its
"imprimatur to the trial court's finding and conclusion that Daniel Serrano
(private respondent Isidro's driver) was negligent in driving the truck that
bumped the parked truck", did not cite specific evidence to support its
conclusion. In cavalier fashion, it simply and nebulously adverted to
unspecified "scanty evidence on record." 18
On the technical aspect of the case, the respondent corporation would want
us to dismiss this petition on the ground that it was filed out of time. It must
be noted that there was a motion for extension, 19 albeit filed erroneously
with the respondent court, dated March 19, 1986, requesting for 30 days
from March 20, 1986, to file the necessary petition or pleading before the
Supreme Court". Also, on April 1, 1986, an appearance of a new lawyer for
the petitioner before the Supreme Court" with motion 20 was filed, again
erroneously, with the Court of Appeals, requesting for 20 days extension "to

file the Petition for Review on Certiorari." Likewise a similar motion 21 was
filed with this Court also on April 1, 1986. On the other hand, the instant
petition for review was filed on April 17, 1986 22 but it was only after three
months, on August 1, 1986, in its comment 23 that the respondent
corporation raised the issue of tardiness. The respondent corporation should
not have waited in ambush before the comment was required and before due
course was given. In any event, to exact its "a pound of flesh", so to speak, at
this very late stage, would cause a grave miscarriage of justice.
Parenthetically, it must be noted that private respondent Isidro did not raise
this issue of late filing.
We now come to the merits of this petition.
The question before us is who was negligent? Negligence is the omission to
do something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do 24 or as Judge
Cooley defines it, "(T)he failure to observe for the protection of the interests
of another person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury. 25
In Picart vs. Smith,
rule, we held:

26

decided more than seventy years ago but still a sound

petitioner, for, as previously claimed, his (Isidro's) Isuzu truck had a right to
be on the road, while the immobile cargo truck had no business, so to speak,
to be there. Likewise, Isidro proffers that the petitioner must show to the
satisfaction of a reasonable mind that the driver and he (petitioner) himself,
provided an early warning device, like that required by law, or, by some other
adequate means that would properly forewarn vehicles of the impending
danger that the parked vehicle posed considering the time, place, and other
peculiar circumstances of the occasion. Absent such proof of care, as in the
case at bar, Isidro concludes, would, under the doctrine of Res ipsa loquitur,
evoke the presumption of negligence on the part of the driver of the parked
cargo truck as well as his helper, the petitioner herein, who was fixing the flat
tire of the said truck. 27
Respondent Isidro's contention is untenable.
The evidence on record discloses that three or four meters from the rear of
the parked truck, a lighted kerosene lamp was placed. 28 Moreover, there is
the admission of respondent Isidro's driver, Daniel Serrano, to Wit: 29
Question No. 8 (by Patrolman Josefino Velasco)Will you
narrate to me in brief how the accident happens (sic) if you
can still remember?
Answer: (by Daniel Serrano)

The test by which to determine the existence of negligence in a particular

case may be stated as follows: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard supposed to
be supplied by the imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the situation before him.
The Law considers what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines liability by that.
Respondent Isidro posits that any immobile object along the highway, like a
parked truck, poses serious danger to a moving vehicle which has the right to
be on the highway. He argues that since the parked cargo truck in this case
was a threat to life and limb and property, it was incumbent upon the driver
as well as the petitioner, who claims to be a helper of the truck driver, to
exercise extreme care so that the motorist negotiating the road would be
properly forewarned of the peril of a parked vehicle. Isidro submits that the
burden of proving that care and diligence were observed is shifted to the

That on or about 10:40 p.m., 15 May

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

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

and other peculiar circumstances of the

occasion. Absent such proof of care, as in
the case at bar, will evoke the
presumption of negligence under the
doctrine of res ipsa loquitur, on the part
of the driver of the parked cargo truck as
well as plaintiff who was fixing the flat
tire of said truck. (pp. 14-17, Appellant's
Brief). (Emphasis supplied).

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

At this juncture, it may be enlightening and helpful in the proper resolution of

the issue of negligence to examine the doctrine of Res ipsa loquitur.

The respondent court ruled:

32

xxx xxx xxx

In addition to this, we agree with the following arguments
of appellant Godofredo Isidro which would show that the
accident was caused due to the negligence of the driver of
the cargo truck:
xxx xxx xxx
... In the case at bar the burden of
proving that care and diligence was (sic)
observed is shifted evidently to the
plaintiff, for, as adverted to, the motorists
have the right to be on the road, while
the immobile truck has no business, so to
speak, to be there. It is thus for the
plaintiff to show to the satisfaction of a
reasonable mind that the driver and he
himself did employ early warning device
such as that required by law or by some
other adequate means or device that
would properly forewarn vehicles of the
impending danger that the parked
vehicle posed considering the time, place

This doctrine is stated thus: "Where the thing which causes injury is shown to
be under the management of the defendant, and the accident is such as in
the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence
of an explanation by the defendant, that the accident arose from want of
care. 33 Or as Black's Law Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for itself Rebuttable
presumption or inference that defendant was negligent,
which arises upon proof that instrumentality causing injury
was in defendant's exclusive control, and that the accident
was one which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is rule of evidence whereby
negligence of alleged wrongdoer may be inferred from
mere fact that accident happened provided character of
accident and circumstances attending it lead reasonably to
belief that in absence of negligence it would not have
occurred and that thing which caused injury is shown to
have been under management and control of alleged
wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App., 484
S.W. 2d 133, 155. Under doctrine of "res ipsa loquitur" the
happening of an injury permits an inference of negligence
where plaintiff produces substantial evidence that injury
was caused by an agency or instrumentality under
exclusive control and management of defendant, and that
the occurrence was such that in the ordinary course of
things would not happen if reasonable care had been used.

In this jurisdiction we have applied this doctrine in quite a number of cases,

notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest is in the case
of F.F. Cruz and Co., Inc. vs. CA. 36
The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of
negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of
negligence. 37 The doctrine is not a rule of substantive law 38 but merely a
mode of proof or a mere procedural convenience. 39 The rule, when
applicable to the facts and circumstances of a particular case, is not intended
to and does not dispense with the requirement of proof of culpable
negligence on the part of the party charged. 40 It merely determines and
regulates what shall be prima facie evidence thereof and facilitates the
burden of plaintiff of proving a breach of the duty of due care. 41 The doctrine
can be invoked when and only when, under the circumstances involved,
direct evidence is absent and not readily available. 42 Hence, it has generally
been held that the presumption of inference arising from the doctrine cannot
be availed of, or is overcome, where plaintiff has knowledge and testifies or
presents evidence as to the specific act of negligence which is the cause of
the injury complained of or where there is direct evidence as to the precise
cause of the accident and all the facts and circumstances attendant on the
occurrence clearly appear. 43 Finally, once the actual cause of injury is
established beyond controversy, whether by the plaintiff or by the defendant,
no presumptions will be involved and the doctrine becomes inapplicable
when the circumstances have been so completely eludicated that no
inference of defendant's liability can reasonably be made, whatever the
source of the evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in relation to Art. 2180,
paragraph 5, of the Civil Code. In the latter, when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of
law that there was negligence on the part of the master or employer either in
the selection of the servant or employee, or in supervision over him after
selection, or both. Such presumption is juris tantum and not juris et de
jure and consequently, may be rebutted. If follows necessarily that if the
employer shows to the satisfaction of the court that in the selection and in
the supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved from liability. 45 In
disclaiming liability for the incident, the private respondent stresses that the
negligence of his employee has already been adequately overcome by his
driver's statement that he knew his responsibilities as a driver and that the
truck owner used to instruct him to be careful in driving. 46

We do not agree with the private respondent in his submission. In the first
place, it is clear that the driver did not know his responsibilities because he
apparently did not check his vehicle before he took it on the road. If he did he
could have discovered earlier that the brake fluid pipe on the right was cut,
and could have repaired it and thus the accident could have been avoided.
Moveover, to our mind, the fact that the private respondent used to intruct
his driver to be careful in his driving, that the driver was licensed, and the
fact that he had no record of any accident, as found by the respondent court,
are not sufficient to destroy the finding of negligence of the Regional Trial
Court given the facts established at the trial 47 The private respondent or his
mechanic, who must be competent, should have conducted a thorough
inspection of his vehicle before allowing his driver to drive it. In the light of
the circumstances obtaining in the case, we hold that Isidro failed to prove
that the diligence of a good father of a family in the supervision of his
employees which would exculpate him from solidary liability with his driver to
the petitioner. But even if we concede that the diligence of a good father of a
family was observed by Isidro in the supervision of his driver, there is not an
iota of evidence on record of the observance by Isidro of the same quantum
of diligence in the supervision of his mechanic, if any, who would be directly
in charge in maintaining the road worthiness of his (Isidro's) truck. But that is
not all. There is paucity of proof that Isidro exercised the diligence of a good
father of a family in the selection of his driver, Daniel Serrano, as well as in
the selection of his mechanic, if any, in order to insure the safe operation of
his truck and thus prevent damage to others. Accordingly, the responsibility
of Isidro as employer treated in Article 2180, paragraph 5, of the Civil Code
has not ceased.
WHEREFORE, the petition is hereby GRANTED. The Decision of the
respondent court as well as its Resolution denying the petitioner's motion for
reconsideration are hereby SET ASIDE and the decision of the trial court,
dated January 20, 1983, is hereby REINSTATED in toto. With costs against the
private respondents.
SO ORDERED.
Melencio-Herrera, (Chairman), Paras and Padilla, JJ., concur.

G.R. No. L-12219

March 15, 1918
AMADO PICART vs. FRANK SMITH, JR
In this action the plaintiff, Amado Picart, seeks to recover of the defendant,
Frank Smith, jr., the sum of P31,000, as damages alleged to have been
caused by an automobile driven by the defendant. From a judgment of the
Court of First Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It
appears that upon the occasion in question the plaintiff was riding on his
pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of
about ten or twelve miles per hour. As the defendant neared the bridge he
saw a horseman on it and blew his horn to give warning of his approach. He
continued his course and after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on horseback before
him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the apparition or the
rapidity of the approach, he pulled the pony closely up against the railing on
the right side of the bridge instead of going to the left. He says that the
reason he did this was that he thought he did not have sufficient time to get
over to the other side. The bridge is shown to have a length of about 75
meters and a width of 4.80 meters. As the automobile approached, the
defendant guided it toward his left, that being the proper side of the road for
the machine. In so doing the defendant assumed that the horseman would
move to the other side. The pony had not as yet exhibited fright, and the
rider had made no sign for the automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to the right while yet
some distance away or slowing down, continued to approach directly toward
the horse without diminution of speed. When he had gotten quite near, there
being then no possibility of the horse getting across to the other side, the
defendant quickly turned his car sufficiently to the right to escape hitting the
horse alongside of the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it became
frightened and turned its body across the bridge with its head toward the
railing. In so doing, it as struck on the hock of the left hind leg by the flange
of the car and the limb was broken. The horse fell and its rider was thrown off
with some violence. From the evidence adduced in the case we believe that
when the accident occurred the free space where the pony stood between
the automobile and the railing of the bridge was probably less than one and
one half meters. As a result of its injuries the horse died. The plaintiff

received contusions which caused temporary unconsciousness and required

medical attention for several days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of negligence
such as gives rise to a civil obligation to repair the damage done; and we are
of the opinion that he is so liable. As the defendant started across the bridge,
he had the right to assume that the horse and the rider would pass over to
the proper side; but as he moved toward the center of the bridge it was
demonstrated to his eyes that this would not be done; and he must in a
moment have perceived that it was too late for the horse to cross with safety
in front of the moving vehicle. In the nature of things this change of situation
occurred while the automobile was yet some distance away; and from this
moment it was not longer within the power of the plaintiff to escape being
run down by going to a place of greater safety. The control of the situation
had then passed entirely to the defendant; and it was his duty either to bring
his car to an immediate stop or, seeing that there were no other persons on
the bridge, to take the other side and pass sufficiently far away from the
horse to avoid the danger of collision. Instead of doing this, the defendant
ran straight on until he was almost upon the horse. He was, we think,
deceived into doing this by the fact that the horse had not yet exhibited
fright. But in view of the known nature of horses, there was an appreciable
risk that, if the animal in question was unacquainted with automobiles, he
might get exited and jump under the conditions which here confronted him.
When the defendant exposed the horse and rider to this danger he was, in
our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged
negligent act use that person would have used in the same situation? If not,
then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence
and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a
given situation must of course be always determined in the light of human
experience and in view of the facts involved in the particular case. Abstract
speculations cannot here be of much value but this much can be profitably
said: Reasonable men govern their conduct by the circumstances which are
before them or known to them. They are not, and are not supposed to be,
omniscient of the future. Hence they can be expected to take care only when
there is something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of harm,
followed by ignoring of the suggestion born of this prevision, is always
necessary before negligence can be held to exist. Stated in these terms, the

proper criterion for determining the existence of negligence in a given case is

this: Conduct is said to be negligent when a prudent man in the position of
the tortfeasor would have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we
think that negligence is clearly established. A prudent man, placed in the
position of the defendant, would in our opinion, have recognized that the
course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence of
that course. Under these circumstances the law imposed on the defendant
the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he
was guilty of antecedent negligence in planting himself on the wrong side of
the road. But as we have already stated, the defendant was also negligent;
and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts
of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable
interval. Under these circumstances the law is that the person who has the
last fair chance to avoid the impending harm and fails to do so is chargeable
with the consequences, without reference to the prior negligence of the other
party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep.,
359) should perhaps be mentioned in this connection. This Court there held
that while contributory negligence on the part of the person injured did not
constitute a bar to recovery, it could be received in evidence to reduce the
damages which would otherwise have been assessed wholly against the
other party. The defendant company had there employed the plaintiff, as a
laborer, to assist in transporting iron rails from a barge in Manila harbor to
the company's yards located not far away. The rails were conveyed upon cars
which were hauled along a narrow track. At certain spot near the water's
edge the track gave way by reason of the combined effect of the weight of
the car and the insecurity of the road bed. The car was in consequence
upset; the rails slid off; and the plaintiff's leg was caught and broken. It
appeared in evidence that the accident was due to the effects of the typhoon
which had dislodged one of the supports of the track. The court found that
the defendant company was negligent in having failed to repair the bed of
the track and also that the plaintiff was, at the moment of the accident, guilty
of contributory negligence in walking at the side of the car instead of being in
front or behind. It was held that while the defendant was liable to the plaintiff
by reason of its negligence in having failed to keep the track in proper repair
nevertheless the amount of the damages should be reduced on account of
the contributory negligence in the plaintiff. As will be seen the defendant's
negligence in that case consisted in an omission only. The liability of the
company arose from its responsibility for the dangerous condition of its track.
In a case like the one now before us, where the defendant was actually
present and operating the automobile which caused the damage, we do not

feel constrained to attempt to weigh the negligence of the respective parties

in order to apportion the damage according to the degree of their relative
fault. It is enough to say that the negligence of the defendant was in this
case the immediate and determining cause of the accident and that the
antecedent negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense
pleaded in the defendant's answer, to the effect that the subject matter of
the action had been previously adjudicated in the court of a justice of the
peace. In this connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be instituted before a
justice of the peace charging the defendant with the infliction of serious
injuries (lesiones graves). At the preliminary investigation the defendant was
discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a
criminal prosecution for the offense mentioned would be res adjudicata upon
the question of his civil liability arising from negligence -- a point upon which
it is unnecessary to express an opinion -- the action of the justice of the
peace in dismissing the criminal proceeding upon the preliminary hearing can
have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must
be reversed, and judgment is her rendered that the plaintiff recover of the
defendant the sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to
articles of his apparel, and lawful interest on the whole to the date of this
recovery. The other damages claimed by the plaintiff are remote or otherwise
of such character as not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avancea, and Fisher, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to concur with the judgment
in this case. I do so because of my understanding of the "last clear chance"
rule of the law of negligence as particularly applied to automobile accidents.
This rule cannot be invoked where the negligence of the plaintiff is
concurrent with that of the defendant. Again, if a traveler when he reaches
the point of collision is in a situation to extricate himself and avoid injury, his
negligence at that point will prevent a recovery. But Justice Street finds as a
fact that the negligent act of the interval of time, and that at the moment the
plaintiff had no opportunity to avoid the accident. Consequently, the "last
clear chance" rule is applicable. In other words, when a traveler has reached
a point where he cannot extricate himself and vigilance on his part will not
avert the injury, his negligence in reaching that position becomes the
condition and not the proximate cause of the injury and will not preclude a
recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)

G.R. No. L-7664

August 29, 1958

MR. AND MRS. AMADOR C. ONG

DISTRICT,

vs. METROPOLITAN

WATER

Plaintiffs spouses seek to recover from defendant, a government-owned

corporation, the sum of P50,000 as damages, P5,000 as funeral expenses,
and P11,000 as attorneys' fees, for the death of their son Dominador Ong in
one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its
swimming pools but avers that his death was caused by his own negligence
or by unavoidable accident. Defendant also avers that it had exercised due
diligence in the selection of, and supervision over, its employees and that it
had observed the diligence required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and
dismissed the complaint without pronouncement as to costs. Plaintiffs took
the case on appeal directly to this Court because the amount involved
exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara
filters, Diliman, Quezon City, to which people are invited and for which a
nominal fee of P0.50 for adults and P0.20 for children is charged. The main
pool it between two small pools of oval shape known as the "Wading pool"
and the "Beginners Pool." There are diving boards in the big pools and the
depths of the water at different parts are indicated by appropriate marks on
the wall. The care and supervision of the pools and the users thereof is
entrusted to a recreational section composed of Simeon Chongco as chief,
Armando Rule, a male nurse, and six lifeguards who had taken the life-saving
course given by the Philippine Red Cross at the YMCA in Manila. For the
safety of its patrons, defendant has provided the pools with a ring buoy, toy
roof, towing line, saving kit and a resuscitator. There is also a sanitary
inspector who is in charge of a clinic established for the benefit of the
patrons. Defendant has also on display in a conspicuous place certain rules
and regulations governing the use of the pools, one of which prohibits the
swimming in the pool alone or without any attendant. Although defendant
does not maintain a full-time physician in the swimming pool compound, it
has however a nurse and a sanitary inspector ready to administer injections
or operate the oxygen resuscitator if the need should arise.

In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14year old high school student and boy scout, and his brothers Ruben and
Eusebio, went to defendant's swimming pools. This was not the first time that
the three brothers had gone to said natatorium for they had already been
there four or five times before. They arrived at the natatorium at about 1:45
p.m. After paying the requisite admission fee, they immediately went to one
of the small pools where the water was shallow. At about 4:35 p.m.,
Dominador Ong told his brothers that he was going to the locker room in an
adjoining building to drink a bottle of coke. Upon hearing this, Ruben and
Eusebio went to the bigger pool leaving Dominador in the small pool and so
they did not see the latter when he left the pool to get a bottle of coke. In
that afternoon, there were two lifeguards on duty in the pool compound,
namely, Manuel Abao and Mario Villanueva. The tour of duty of Abao was
from 8:00 to 12:00 in the morning and from 2:00 to 6:00 in the afternoon,
and of Villanueva from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m.
Between 4:00 to 5:00 that afternoon, there were about twenty bathers inside
the pool area and Manuel Abao was going around the pools to observe the
bathers in compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a
bather by the name of Andres Hagad, Jr., that somebody was swimming
under water for quite a long time. Another boy informed lifeguard Manuel
Abao of the same happening and Abao immediately jumped into the big
swimming pool and retrieved the apparently lifeless body of Dominador Ong
from the bottom. The body was placed at the edge of the pool and Abao
immediately applied manual artificial respiration. Soon after, male nurse
Armando Rule came to render assistance, followed by sanitary inspector
Iluminado Vicente who, after being called by phone from the clinic by one of
the security guards, boarded a jeep carrying with him the resuscitator and a
medicine kit, and upon arriving he injected the boy with camphorated oil.
After the injection, Vicente left on a jeep in order to fetch Dr. Ayuyao from the
University of the Philippines. Meanwhile, Abao continued the artificial
manual respiration, and when this failed to revive him, they applied the
resuscitator until the two oxygen tanks were exhausted. Not long thereafter,
Dr. Ayuyao arrived with another resuscitator, but the same became of no use
because he found the boy already dead. The doctor ordered that the body be
taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was investigated
by the Police Department of Quezon City and in the investigation boys Ruben
Ong and Andres Hagad, Jr. gave written statements. On the following day,
July 6, 1952, an autopsy was performed by Dr. Enrique V. de los Santos,
Chief, Medico Legal Division, National Bureau of Investigation, who found in
the body of the deceased the following: an abrasion on the right elbow lateral

aspect; contusion on the right forehead; hematoma on the scalp, frontal

region, right side; a congestion in the brain with petechial subcortical
hemorrhage, frontal lobe; cyanosis on the face and on the nails; the lung was
soggy with fine froth in the bronchioles; dark fluid blood in the heart;
congestion in the visceral organs, and brownish fluid in the stomach. The
death was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor Dominador Ong
can be attributed to the negligence of defendant and/or its employees so as
to entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of
the new Civil Code. The first article provides that "whoever by act or omission
causes damage to another, there being fault or negligence, is obliged to pay
for the damages done." Such fault or negligence is called quasi-delict. Under
the second article, this obligation is demandable not only for one's own acts
or omissions but also for those of persons for whom one is responsible. In
addition, we may quote the following authorities cited in the decision of the
trial court:
"The rule is well settled that the owners of resorts to which people
generally are expressly or by implication invited are legally bound to
exercise ordinary care and prudence in the management and
maintenance of such resorts, to the end of making them reasonably
safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac.
686).
"Although the proprietor of a natatorium is liable for injuries to a
patron, resulting from lack of ordinary care in providing for his
safety, without the fault of the patron, he is not, however, in any
sense deemed to be the insurer of the safety of patrons. And the
death of a patron within his premises does not cast upon him the
burden of excusing himself from any presumption of negligence"
(Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini
Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare,
supra, it was held that there could be no recovery for the death by
drowning of a fifteen-year boy in defendant's natatorium, where it
appeared merely that he was lastly seen alive in water at the
shallow end of the pool, and some ten or fifteen minutes later was
discovered unconscious, and perhaps lifeless, at the bottom of the
pool, all efforts to resuscitate him being without avail.

Since the present action is one for damages founded on culpable negligence,
the principle to be observed is that the person claiming damages has the
burden of proving that the damage is caused by the fault or negligence of the
person from whom the damage is claimed, or of one of his employees (Walter
A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The
question then that arises is: Have appellants established by sufficient
evidence the existence of fault or negligence on the part of appellee so as to
render it liable for damages for the death of Dominador Ong?
There is no question that appellants had striven to prove that appellee failed
to take the necessary precaution to protect the lives of its patrons by not
placing at the swimming pools efficient and competent employees who may
render help at a moment's notice, and they ascribed such negligence to
appellee because the lifeguard it had on the occasion minor Ong was
drowning was not available or was attending to something else with the
result that his help came late. Thus, appellants tried to prove through the
testimony of Andres Hagad, Jr. and Ruben Ong that when Eusebio Ong and
Hagad, Jr. detected that there was a drowning person in the bottom of the big
swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abao
did not immediately respond to the alarm and it was only upon the third call
that he threw away the magazine he was reading and allowed three or four
minutes to elapse before retrieving the body from the water. This negligence
of Abao, they contend, is attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by
lifeguard Abao, but is belied by the written statements given by them in the
investigation conducted by the Police Department of Quezon City
approximately three hours after the happening of the accident. Thus, these
two boys admitted in the investigation that they narrated in their statements
everything they knew of the accident, but, as found by the trial, nowhere in
said statements do they state that the lifeguard was chatting with the
security guard at the gate of the swimming pool or was reading a comic
magazine when the alarm was given for which reason he failed to
immediately respond to the alarm. On the contrary, what Ruben Ong
particularly emphasized therein was that after the lifeguard heard the shouts
for help, the latter immediately dived into the pool to retrieve the person
under water who turned out to be his brother. For this reason, the trial court
made this conclusion: "The testimony of Ruben Ong and Andres Hagad, Jr. as
to the alleged failure of the lifeguard Abao to immediately respond to their
call may therefore be disregardedbecause they are belied by their written
statements. (Emphasis supplied.)

On the other hand, there is sufficient evidence to show that appellee has
taken all necessary precautions to avoid danger to the lives of its patrons or
prevent accident which may cause their death. Thus, it has been shown that
the swimming pools of appellee are provided with a ring buoy, toy roof,
towing line, oxygen resuscitator and a first aid medicine kit. The bottom of
the pools is painted with black colors so as to insure clear visibility. There is
on display in a conspicuous place within the area certain rules and
regulations governing the use of the pools. Appellee employs six lifeguards
who are all trained as they had taken a course for that purpose and were
issued certificates of proficiency. These lifeguards work on schedule prepared
by their chief and arranged in such a way as to have two guards at a time on
duty to look after the safety of the bathers. There is a male nurse and a
sanitary inspector with a clinic provided with oxygen resuscitator. And there
are security guards who are available always in case of emergency.
The record also shows that when the body of minor Ong was retrieved from
the bottom of the pool, the employees of appellee did everything possible to
bring him back to life. Thus, after he was placed at the edge of the pool,
lifeguard Abao immediately gave him manual artificial respiration. Soon
thereafter, nurse Armando Rule arrived, followed by sanitary inspector
Iluminado Vicente who brought with him an oxygen resuscitator. When they
found that the pulse of the boy was abnormal, the inspector immediately
injected him with camphorated oil. When the manual artificial respiration
proved ineffective they applied the oxygen resuscitator until its contents
were exhausted. And while all these efforts were being made, they sent for
Dr. Ayuyao from the University of the Philippines who however came late
because upon examining the body he found him to be already dead. All of
the foregoing shows that appellee has done what is humanly possible under
the circumstances to restore life to minor Ong and for that reason it is unfair
to hold it liable for his death.
Sensing that their former theory as regards the liability of appellee may not
be of much help, appellants now switch to the theory that even if it be
assumed that the deceased is partly to be blamed for the unfortunate
incident, still appellee may be held liable under the doctrine of "last clear
chance" for the reason that, having the last opportunity to save the victim, it
failed to do so.
We do not see how this doctrine may apply considering that the record does
not show how minor Ong came into the big swimming pool. The only thing
the record discloses is that minor Ong informed his elder brothers that he
was going to the locker room to drink a bottle of coke but that from that time
on nobody knew what happened to him until his lifeless body was retrieved.

The doctrine of last clear chance simply means that the negligence of a
claimant does not preclude a recovery for the negligence of defendant where
it appears that the latter, by exercising reasonable care and prudence, might
have avoided injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a person who has the last
clear chance or opportunity of avoiding an accident, notwithstanding the
negligent acts of his opponent or the negligence of a third person which is
imputed to his opponent, is considered in law solely responsible for the
consequences of the accident." (38 Am. Jur. pp. 900-902)
It goes without saying that the plaintiff himself was not free from
fault, for he was guilty of antecedent negligence in planting himself
in the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always
is to discover which agent is immediately and directly responsible. It
will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded
the negligence of the plaintiff by an appreciable interval. Under
these circumstances, the law is that a person who has the last clear
chance to avoid the impending harm and fails to do so is chargeable
with the consequences,
without reference to the prior negligence of the other party. (Picart
vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big swimming pool and it
being apparent that he went there without any companion in violation of one
of the regulations of appellee as regards the use of the pools, and it
appearing that lifeguard Aba__o responded to the call for help as soon as his
attention was called to it and immediately after retrieving the body all efforts
at the disposal of appellee had been put into play in order to bring him back
to life, it is clear that there is no room for the application of the doctrine now
invoked by appellants to impute liability to appellee..
The last clear chance doctrine can never apply where the party
charged is required to act instantaneously, and if the injury cannot
be avoided by the application of all means at hand after the peril is
or should have been discovered; at least in cases in which any
previous negligence of the party charged cannot be said to have
contributed to the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo.
233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)

Before closing, we wish to quote the following observation of the trial court,
which we find supported by the evidence: "There is (also) a strong suggestion
coming from the expert evidence presented by both parties that Dominador
Ong might have dived where the water was only 5.5 feet deep, and in so
doing he might have hit or bumped his forehead against the bottom of the
pool, as a consequence of which he was stunned, and which to his drowning.
As a boy scout he must have received instructions in swimming. He knew, or
have known that it was dangerous for him to dive in that part of the pool."
Wherefore, the decision appealed from being in accordance with law and the
evidence, we hereby affirm the same, without pronouncement as to costs.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Concepcion, Reyes, J.
B. L., Endencia and Felix, JJ.,concur.

3RD SET

G.R. No. L-24803 May 26, 1977

PEDRO ELCANO vs. REGINALD HILL, minor, and MARVIN HILL, as
father and Natural Guardian
Appeal from the order of the Court of First Instance of Quezon City dated
January 29, 1965 in Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald
Hill et al. dismissing, upon motion to dismiss of defendants, the complaint of
plaintiffs for recovery of damages from defendant Reginald Hill, a minor,
married at the time of the occurrence, and his father, the defendant Marvin
Hill, with whom he was living and getting subsistence, for the killing by
Reginald of the son of the plaintiffs, named Agapito Elcano, of which, when
criminally prosecuted, the said accused was acquitted on the ground that his
act was not criminal, because of "lack of intent to kill, coupled with mistake."
Actually, the motion to dismiss based on the following grounds:
1. The present action is not only against but a violation of section 1, Rule
107, which is now Rule III, of the Revised Rules of Court;
2. The action is barred by a prior judgment which is now final and or in resadjudicata;
3. The complaint had no cause of action against defendant Marvin Hill,
because he was relieved as guardian of the other defendant through
emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.])
was first denied by the trial court. It was only upon motion for
reconsideration of the defendants of such denial, reiterating the above
grounds that the following order was issued:
Considering the motion for reconsideration filed by the defendants on
January 14, 1965 and after thoroughly examining the arguments therein
contained, the Court finds the same to be meritorious and well-founded.
WHEREFORE, the Order of this Court on December 8, 1964 is hereby
reconsidered by ordering the dismissal of the above entitled case.
SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on
Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are
presenting for Our resolution the following assignment of errors:
THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE
CLAIM OF DEFENDANTS THAT I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF
SECTION 1, RULE 107, NOW RULE 111, OF THE REVISED RULES OF COURT,
AND THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RESADJUDICTA;
III

THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL

CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and
IV
THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT
MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER
DEFENDANT THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-appellants,
defendant- appellee Reginald Hill was prosecuted criminally in Criminal Case
No. 5102 of the Court of First Instance of Quezon City. After due trial, he was
acquitted on the ground that his act was not criminal because of "lack of
intent to kill, coupled with mistake." Parenthetically, none of the parties has
favored Us with a copy of the decision of acquittal, presumably because
appellants do not dispute that such indeed was the basis stated in the court's
decision. And so, when appellants filed their complaint against appellees
Reginald and his father, Atty. Marvin Hill, on account of the death of their son,
the appellees filed the motion to dismiss above-referred to.
As We view the foregoing background of this case, the two decisive issues
presented for Our resolution are:
1. Is the present civil action for damages barred by the acquittal of Reginald
in the criminal case wherein the action for civil liability, was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied
against Atty. Hill, notwithstanding the undisputed fact that at the time of the
occurrence complained of. Reginald, though a minor, living with and getting
subsistenee from his father, was already legally married?
The first issue presents no more problem than the need for a reiteration and
further clarification of the dual character, criminal and civil, of fault or
negligence as a source of obligation which was firmly established in this
jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court
postulated, on the basis of a scholarly dissertation by Justice Bocobo on the
nature of culpa aquiliana in
relation
to culpa criminal or delito and
mereculpa or fault, with pertinent citation of decisions of the Supreme Court
of Spain, the works of recognized civilians, and earlier jurisprudence of our
own, that the same given act can result in civil liability not only under the
Penal Code but also under the Civil Code. Thus, the opinion holds:
The, above case is pertinent because it shows that the same act machinist.
come under both the Penal Code and the Civil Code. In that case, the action
of the agent killeth unjustified and fraudulent and therefore could have been
the subject of a criminal action. And yet, it was held to be also a proper
subject of a civil action under article 1902 of the Civil Code. It is also to be
noted that it was the employer and not the employee who was being sued.
(pp. 615-616, 73 Phil.). 1
It will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the death of
the child was punishable by the Penal Code. Here is therefore a clear instance

of the same act of negligence being a proper subject matter either of a

criminal action with its consequent civil liability arising from a crime or of an
entirely separate and independent civil action for fault or negligence under
article 1902 of the Civil Code. Thus, in this jurisdiction, the separate
individuality of a cuasi-delito or culpa aquiliana, under the Civil Code has
been fully and clearly recognized, even with regard to a negligent act for
which the wrongdoer could have been prosecuted and convicted in a criminal
case and for which, after such a conviction, he could have been sued for this
civil liability arising from his crime. (p. 617, 73 Phil.) 2
It is most significant that in the case just cited, this Court specifically applied
article 1902 of the Civil Code. It is thus that although J. V. House could have
been criminally prosecuted for reckless or simple negligence and not only
punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for
fault or negligence under article 1902 of the Civil Code. (p. 618, 73 Phil.) 3
The legal provisions, authors, and cases already invoked should ordinarily be
sufficient to dispose of this case. But inasmuch as we are announcing
doctrines that have been little understood, in the past, it might not he
inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in articles 365 punishes not only reckless but
also simple negligence. If we were to hold that articles 1902 to 1910 of the
Civil Code refer only to fault or negligence not punished by law, accordingly
to the literal import of article 1093 of the Civil Code, the legal institution
of culpa aquiliana would have very little scope and application in actual life.
Death or injury to persons and damage to property- through any degree of
negligence - even the slightest - would have to be Idemnified only through
the principle of civil liability arising from a crime. In such a state of affairs,
what sphere would remain for cuasi-delito or culpa aquiliana? We are loath to
impute to the lawmaker any intention to bring about a situation so absurd
and anomalous. Nor are we, in the interpretation of the laws, disposed to
uphold the letter that killeth rather than the spirit that giveth life. We will not
use the literal meaning of the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown development as culpa
aquiliana or cuasi-delito, which is conserved and made enduring in articles
1902 to 1910 of the Spanish Civil Code.
Secondary, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of evidence
is sufficient to make the defendant pay in damages. There are numerous
cases of criminal negligence which can not be shown beyond reasonable
doubt, but can be proved by a preponderance of evidence. In such cases, the
defendant can and should be made responsible in a civil action under articles
1902 to 1910 of the Civil Code. Otherwise. there would be many instances of
unvindicated civil wrongs. "Ubi jus Idemnified remedium." (p. 620,73 Phil.)

Fourthly, because of the broad sweep of the provisions of both the Penal
Code and the Civil Code on this subject, which has given rise to the
overlapping or concurrence of spheres already discussed, and for lack of
understanding of the character and efficacy of the action for culpa aquiliana,
there has grown up a common practice to seek damages only by virtue of the
civil responsibility arising from a crime, forgetting that there is another
remedy, which is by invoking articles 1902-1910 of the Civil Code. Although
this habitual method is allowed by, our laws, it has nevertheless rendered
practically useless and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the present case, we
are asked to help perpetuate this usual course. But we believe it is high time
we pointed out to the harms done by such practice and to restore the
principle of responsibility for fault or negligence under articles 1902 et seq. of
the Civil Code to its full rigor. It is high time we caused the stream of quasidelict or culpa aquiliana to flow on its own natural channel, so that its waters
may no longer be diverted into that of a crime under the Penal Code. This
will, it is believed, make for the better safeguarding or private rights because
it realtor, an ancient and additional remedy, and for the further reason that
an independent civil action, not depending on the issues, limitations and
results of a criminal prosecution, and entirely directed by the party wronged
or his counsel, is more likely to secure adequate and efficacious redress. (p.
621, 73 Phil.)
Contrary to an immediate impression one might get upon a reading of the
foregoing excerpts from the opinion in Garcia that the concurrence of the
Penal Code and the Civil Code therein referred to contemplate only acts of
negligence and not intentional voluntary acts - deeper reflection would reveal
that the thrust of the pronouncements therein is not so limited, but that in
fact it actually extends to fault or culpa. This can be seen in the reference
made therein to the Sentence of the Supreme Court of Spain of February 14,
1919, supra, which involved a case of fraud or estafa, not a negligent act.
Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of
Garcia, provided textually that obligations "which are derived from acts or
omissions in which fault or negligence, not punishable by law, intervene shall
be the subject of Chapter II, Title XV of this book (which refers to quasidelicts.)" And it is precisely the underline qualification, "not punishable by
law", that Justice Bocobo emphasized could lead to an ultimo construction or
interpretation of the letter of the law that "killeth, rather than the spirit that
giveth lift- hence, the ruling that "(W)e will not use the literal meaning of the
law to smother and render almost lifeless a principle of such ancient origin
and such full-grown development as culpa aquiliana orquasi-delito, which is
conserved and made enduring in articles 1902 to 1910 of the Spanish Civil
Code." And so, because Justice Bacobo was Chairman of the Code
Commission that drafted the original text of the new Civil Code, it is to be
noted that the said Code, which was enacted after the Garcia doctrine, no

longer uses the term, 11 not punishable by law," thereby making it clear that
the concept of culpa aquiliana includes acts which are criminal in character
or in violation of the penal law, whether voluntary or matter. Thus, the
corresponding provisions to said Article 1093 in the new code, which is Article
1162, simply says, "Obligations derived fromquasi-delicto shall be governed
by the provisions of Chapter 2, Title XVII of this Book, (on quasi-delicts) and
by special laws." More precisely, a new provision, Article 2177 of the new
code provides:
ART. 2177. Responsibility for fault or negligence under the preceding article is
entirely separate and distinct from the civil liability arising from negligence
under the Penal Code. But the plaintiff cannot recover damages twice for the
same act or omission of the defendant.
According to the Code Commission: "The foregoing provision (Article 2177)
through at first sight startling, is not so novel or extraordinary when we
consider the exact nature of criminal and civil negligence. The former is a
violation of the criminal law, while the latter is a "culpa aquiliana" or quasidelict, of ancient origin, having always had its own foundation and
individuality, separate from criminal negligence. Such distinction between
criminal negligence and "culpa extracontractual" or "cuasi-delito" has been
sustained by decision of the Supreme Court of Spain and maintained as clear,
sound and perfectly tenable by Maura, an outstanding Spanish jurist.
Therefore, under the proposed Article 2177, acquittal from an accusation of
criminal negligence, whether on reasonable doubt or not, shall not be a bar
to a subsequent civil action, not for civil liability arising from criminal
negligence, but for damages due to a quasi-delict or 'culpa aquiliana'. But
said article forestalls a double recovery.", (Report of the Code) Commission,
p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of
negligence, the same argument of Justice Bacobo about construction that
upholds "the spirit that giveth lift- rather than that which is literal that killeth
the intent of the lawmaker should be observed in applying the same. And
considering that the preliminary chapter on human relations of the new Civil
Code definitely establishes the separability and independence of liability in a
civil action for acts criminal in character (under Articles 29 to 32) from the
civil responsibility arising from crime fixed by Article 100 of the Revised Penal
Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule
111, contemplate also the same separability, it is "more congruent with the
spirit of law, equity and justice, and more in harmony with modern progress"to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and
Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it
refers to "fault or negligencia covers not only acts "not punishable by law"
but also acts criminal in character, whether intentional and voluntary or
negligent. Consequently, a separate civil action lies against the offender in a
criminal act, whether or not he is criminally prosecuted and found guilty or

acquitted, provided that the offended party is not allowed, if he is actually

charged also criminally, to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of the two, assuming the
awards made in the two cases vary. In other words, the extinction of civil
liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil
liability founded on Article 100 of the Revised Penal Code, whereas the civil
liability for the same act considered as a quasi-delict only and not as a crime
is not estinguished even by a declaration in the criminal case that the
criminal act charged has not happened or has not been committed by the
accused. Briefly stated, We here hold, in reiteration of Garcia, thatculpa
aquiliana includes voluntary and negligent acts which may be punishable by
law.4
It results, therefore, that the acquittal of Reginal Hill in the criminal case has
not extinguished his liability for quasi-delict, hence that acquittal is not a bar
to the instant action against him.
Coming now to the second issue about the effect of Reginald's emancipation
by marriage on the possible civil liability of Atty. Hill, his father, it is also Our
considered opinion that the conclusion of appellees that Atty. Hill is already
free from responsibility cannot be upheld.
While it is true that parental authority is terminated upon emancipation of
the child (Article 327, Civil Code), and under Article 397, emancipation takes
place "by the marriage of the minor (child)", it is, however, also clear that
pursuant to Article 399, emancipation by marriage of the minor is not really
full or absolute. Thus "(E)mancipation by marriage or by voluntary
concession shall terminate parental authority over the child's person. It shall
enable the minor to administer his property as though he were of age, but he
cannot borrow money or alienate or encumber real property without the
consent of his father or mother, or guardian. He can sue and be sued in court
only with the assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by article 2176 is
demandable not only for one's own acts or omissions, but also for those of
persons for whom one is responsible. The father and, in case of his death or
incapacity, the mother, are responsible. The father and, in case of his death
or incapacity, the mother, are responsible for the damages caused by the
minor children who live in their company." In the instant case, it is not
controverted that Reginald, although married, was living with his father and
getting subsistence from him at the time of the occurrence in question.
Factually, therefore, Reginald was still subservient to and dependent on his
father, a situation which is not unusual.
It must be borne in mind that, according to Manresa, the reason behind the
joint and solidary liability of presuncion with their offending child under
Article 2180 is that is the obligation of the parent to supervise their minor
children in order to prevent them from causing damage to third persons. 5 On
the other hand, the clear implication of Article 399, in providing that a minor

emancipated by marriage may not, nevertheless, sue or be sued without the

assistance of the parents, is that such emancipation does not carry with it
freedom to enter into transactions or do any act that can give rise to judicial
litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing
someone else invites judicial action. Otherwise stated, the marriage of a
minor child does not relieve the parents of the duty to see to it that the child,
while still a minor, does not give answerable for the borrowings of money and
alienation or encumbering of real property which cannot be done by their
minor married child without their consent. (Art. 399; Manresa, supra.)
Accordingly, in Our considered view, Article 2180 applies to Atty. Hill
notwithstanding the emancipation by marriage of Reginald. However,
inasmuch as it is evident that Reginald is now of age, as a matter of equity,
the liability of Atty. Hill has become milling, subsidiary to that of his son.
WHEREFORE, the order appealed from is reversed and the trial court is
ordered to proceed in accordance with the foregoing opinion. Costs against
appellees.

[G.R. No. 150255. April 22, 2005]

SCHMITZ TRANSPORT & BROKERAGE CORPORATION vs. TRANSPORT
VENTURE, INC., INDUSTRIAL INSURANCE COMPANY, LTD., and BLACK
SEA SHIPPING AND DODWELL now INCHCAPE SHIPPING SERVICES
On petition for review is the June 27, 2001 Decision [1] of the Court of Appeals,
as well as its Resolution[2] dated September 28, 2001 denying the motion for
reconsideration, which affirmed that of Branch 21 of the Regional Trial Court
(RTC) of Manila in Civil Case No. 92-63132 [3] holding petitioner Schmitz
Transport Brokerage Corporation (Schmitz Transport), together with Black Sea
Shipping Corporation (Black Sea), represented by its ship agent Inchcape
Shipping Inc. (Inchcape), and Transport Venture (TVI), solidarily liable for the
loss of 37 hot rolled steel sheets in coil that were washed overboard a barge.
On September 25, 1991, SYTCO Pte Ltd. Singapore shipped from the port of
Ilyichevsk, Russia on board M/V Alexander Saveliev (a vessel of Russian
registry and owned by Black Sea) 545 hot rolled steel sheets in coil weighing
6,992,450 metric tons.
The cargoes, which were to be discharged at the port of Manila in favor of the
consignee, Little Giant Steel Pipe Corporation (Little Giant), [4]were insured
against all risks with Industrial Insurance Company Ltd. (Industrial Insurance)
under Marine Policy No. M-91-3747-TIS.[5]
The vessel arrived at the port of Manila on October 24, 1991 and the
Philippine Ports Authority (PPA) assigned it a place of berth at the outside
breakwater at the Manila South Harbor.[6]
Schmitz Transport, whose services the consignee engaged to secure the
requisite clearances, to receive the cargoes from the shipside, and to deliver

them to its (the consignees) warehouse at Cainta, Rizal, [7] in turn engaged
the services of TVI to send a barge and tugboat at shipside.
On October 26, 1991, around 4:30 p.m., TVIs tugboat Lailani towed the barge
Erika V to shipside.[8]
By 7:00 p.m. also of October 26, 1991, the tugboat, after positioning the
barge alongside the vessel, left and returned to the port terminal. [9] At 9:00
p.m., arrastre operator Ocean Terminal Services Inc. commenced to unload
37 of the 545 coils from the vessel unto the barge.
By 12:30 a.m. of October 27, 1991 during which the weather condition had
become inclement due to an approaching storm, the unloading unto the
barge of the 37 coils was accomplished. [10] No tugboat pulled the barge back
to the pier, however.
At around 5:30 a.m. of October 27, 1991, due to strong waves, [11] the crew of
the barge abandoned it and transferred to the vessel. The barge pitched and
rolled with the waves and eventually capsized, washing the 37 coils into the
sea.[12] At 7:00 a.m., a tugboat finally arrived to pull the already empty and
damaged barge back to the pier.[13]
Earnest efforts on the part of both the consignee Little Giant and Industrial
Insurance to recover the lost cargoes proved futile. [14]
Little Giant thus filed a formal claim against Industrial Insurance which paid it
the amount of P5,246,113.11. Little Giant thereupon executed a subrogation
receipt[15] in favor of Industrial Insurance.
Industrial Insurance later filed a complaint against Schmitz Transport, TVI,
and Black Sea through its representative Inchcape (the defendants) before
the RTC of Manila, for the recovery of the amount it paid to Little Giant plus
adjustment fees, attorneys fees, and litigation expenses.[16]
Industrial Insurance faulted the defendants for undertaking the unloading of
the cargoes while typhoon signal No. 1 was raised in Metro Manila. [17]
By Decision of November 24, 1997, Branch 21 of the RTC held all the
defendants negligent for unloading the cargoes outside of the breakwater
notwithstanding the storm signal.[18] The dispositive portion of the decision
reads:
WHEREFORE, premises considered, the Court renders judgment in favor of
the plaintiff, ordering the defendants to pay plaintiff jointly and severally the
sum of P5,246,113.11 with interest from the date the complaint was filed
until fully satisfied, as well as the sum of P5,000.00 representing the
adjustment fee plus the sum of 20% of the amount recoverable from the
defendants as attorneys fees plus the costs of suit. The counterclaims and
cross claims of defendants are hereby DISMISSED for lack of [m]erit. [19]
To the trial courts decision, the defendants Schmitz Transport and TVI filed a
joint motion for reconsideration assailing the finding that they are common
carriers and the award of excessive attorneys fees of more than P1,000,000.
And they argued that they were not motivated by gross or evident bad faith
and that the incident was caused by a fortuitous event. [20]

By resolution of February 4, 1998, the trial court denied the motion for
reconsideration. [21]
All the defendants appealed to the Court of Appeals which, by decision of
June 27, 2001, affirmed in toto the decision of the trial court, [22] it finding that
all the defendants were common carriers Black Sea and TVI for engaging in
the transport of goods and cargoes over the seas as a regular business and
not as an isolated transaction,[23] and Schmitz Transport for entering into a
contract with Little Giant to transport the cargoes from ship to port for a fee.
[24]

In holding all the defendants solidarily liable, the appellate court ruled that
each one was essential such that without each others contributory
negligence the incident would not have happened and so much so that the
person principally liable cannot be distinguished with sufficient accuracy. [25]
In discrediting the defense of fortuitous event, the appellate court held that
although defendants obviously had nothing to do with the force of nature,
they however had control of where to anchor the vessel, where discharge will
take place and even when the discharging will commence.[26]
The defendants respective motions for reconsideration having been denied
by Resolution[27] of September 28, 2001, Schmitz Transport (hereinafter
referred to as petitioner) filed the present petition against TVI, Industrial
Insurance and Black Sea.
Petitioner asserts that in chartering the barge and tugboat of TVI, it was
acting for its principal, consignee Little Giant, hence, the transportation
contract was by and between Little Giant and TVI.[28]
By Resolution of January 23, 2002, herein respondents Industrial Insurance,
Black Sea, and TVI were required to file their respective Comments. [29]
By its Comment, Black Sea argued that the cargoes were received by the
consignee through petitioner in good order, hence, it cannot be faulted, it
having had no control and supervision thereover. [30]
For its part, TVI maintained that it acted as a passive party as it merely
received the cargoes and transferred them unto the barge upon the
instruction of petitioner.[31]
In issue then are:
(1) Whether the loss of the cargoes was due to a fortuitous event,
independent of any act of negligence on the part of petitioner Black Sea and
TVI, and
(2) If there was negligence, whether liability for the loss may attach to Black
Sea, petitioner and TVI.
When a fortuitous event occurs, Article 1174 of the Civil Code absolves any
party from any and all liability arising therefrom:
ART. 1174. Except in cases expressly specified by the law, or when it is
otherwise declared by stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall be responsible for those

events which could not be foreseen, or which though foreseen, were

inevitable.
In order, to be considered a fortuitous event, however, (1) the cause of the
unforeseen and unexpected occurrence, or the failure of the debtor to
comply with his obligation, must be independent of human will; (2) it must be
impossible to foresee the event which constitute the caso fortuito, or if it can
be foreseen it must be impossible to avoid; (3) the occurrence must be such
as to render it impossible for the debtor to fulfill his obligation in any manner;
and (4) the obligor must be free from any participation in the aggravation of
the injury resulting to the creditor.[32]
[T]he principle embodied in the act of God doctrine strictly requires that the
act must be occasioned solely by the violence of nature. Human intervention
is to be excluded from creating or entering into the cause of the mischief.
When the effect is found to be in part the result of the participation of man,
whether due to his active intervention or neglect or failure to act, the whole
occurrence is then humanized and removed from the rules applicable to the
acts of God.[33]
The appellate court, in affirming the finding of the trial court that human
intervention in the form of contributory negligence by all the defendants
resulted to the loss of the cargoes, [34] held that unloading outside the
breakwater, instead of inside the breakwater, while a storm signal was up
constitutes negligence.[35] It thus concluded that the proximate cause of the
loss was Black Seas negligence in deciding to unload the cargoes at an
unsafe place and while a typhoon was approaching.[36]
From a review of the records of the case, there is no indication that there was
greater risk in loading the cargoes outside the breakwater. As the defendants
proffered, the weather on October 26, 1991 remained normal with moderate
sea condition such that port operations continued and proceeded normally. [37]
The weather data report,[38] furnished and verified by the Chief of the Climate
Data Section of PAG-ASA and marked as a common exhibit of the parties,
states that while typhoon signal No. 1 was hoisted over Metro Manila on
October 23-31, 1991, the sea condition at the port of Manila at 5:00 p.m. 11:00 p.m. of October 26, 1991 was moderate. It cannot, therefore, be said
that the defendants were negligent in not unloading the cargoes upon the
barge on October 26, 1991 inside the breakwater.
That no tugboat towed back the barge to the pier after the cargoes were
completely loaded by 12:30 in the morning [39] is, however, a material fact
which the appellate court failed to properly consider and appreciate [40] the
proximate cause of the loss of the cargoes. Had the barge been towed back
promptly to the pier, the deteriorating sea conditions notwithstanding, the
loss could have been avoided. But the barge was left floating in open sea
until big waves set in at 5:30 a.m., causing it to sink along with the cargoes.
[41]
The loss thus falls outside the act of God doctrine.

The proximate cause of the loss having been determined, who among the
parties is/are responsible therefor?
Contrary to petitioners insistence, this Court, as did the appellate court, finds
that petitioner is a common carrier. For it undertook to transport the cargoes
from the shipside of M/V Alexander Saveliev to the consignees warehouse at
Cainta, Rizal. As the appellate court put it, as long as a person or corporation
holds [itself] to the public for the purpose of transporting goods as [a]
business, [it] is already considered a common carrier regardless if [it] owns
the vehicle to be used or has to hire one. [42] That petitioner is a common
carrier, the testimony of its own Vice-President and General Manager Noel
Aro that part of the services it offers to its clients as a brokerage firm
includes the transportation of cargoes reflects so.
Atty. Jubay: Will you please tell us what [are you] functions x x x as Executive
Vice-President and General Manager of said Company?
Mr. Aro: Well, I oversee the entire operation of the brokerage and transport
business of the company. I also handle the various division heads of the
company for operation matters, and all other related functions that the
President may assign to me from time to time, Sir.
Q: Now, in connection [with] your duties and functions as you mentioned, will
you please tell the Honorable Court if you came to know the company by the
name Little Giant Steel Pipe Corporation?
A: Yes, Sir. Actually, we are the brokerage firm of that Company.
Q: And since when have you been the brokerage firm of that company, if you
can recall?
A: Since 1990, Sir.
Q: Now, you said that you are the brokerage firm of this Company. What work
or duty did you perform in behalf of this company?
A: We handled the releases (sic) of their cargo[es] from the Bureau of
Customs. We [are] also in-charged of the delivery of the goods to their
warehouses. We also handled the clearances of their shipment at the Bureau
of Customs, Sir.
xxx
Q: Now, what precisely [was] your agreement with this Little Giant Steel Pipe
Corporation with regards to this shipment? What work did you do with this
shipment?
A: We handled the unloading of the cargo[es] from vessel to lighter and then
the delivery of [the] cargo[es] from lighter to BASECO then to the truck and
to the warehouse, Sir.
Q: Now, in connection with this work which you are doing, Mr. Witness, you
are supposed to perform, what equipment do (sic) you require or did you use
in order to effect this unloading, transfer and delivery to the warehouse?
A: Actually, we used the barges for the ship side operations, this unloading
[from] vessel to lighter, and on this we hired or we sub-contracted with
[T]ransport Ventures, Inc. which [was] in-charged (sic) of the barges. Also, in

BASECO compound we are leasing cranes to have the cargo unloaded from
the barge to trucks, [and] then we used trucks to deliver [the cargoes] to the
consignees warehouse, Sir.
Q: And whose trucks do you use from BASECO compound to the consignees
warehouse?
A: We utilized of (sic) our own trucks and we have some other contracted
trucks, Sir.
xxx
ATTY. JUBAY: Will you please explain to us, to the Honorable Court why is it
you have to contract for the barges of Transport Ventures Incorporated in this
particular operation?
A: Firstly, we dont own any barges. That is why we hired the services of
another firm whom we know [al]ready for quite sometime, which is Transport
Ventures, Inc. (Emphasis supplied)[43]
It is settled that under a given set of facts, a customs broker may be
regarded as a common carrier. Thus, this Court, in A.F. Sanchez Brokerage,
Inc. v. The Honorable Court of Appeals,[44] held:
The appellate court did not err in finding petitioner, a customs broker, to be
also a common carrier, as defined under Article 1732 of the Civil Code, to wit,
Art. 1732. Common carriers are persons, corporations, firms or associations
engaged in the business of carrying or transporting passengers or goods or
both, by land, water, or air, for compensation, offering their services to the
public.
xxx
Article 1732 does not distinguish between one whose principal business
activity is the carrying of goods and one who does such carrying only as an
ancillary activity. The contention, therefore, of petitioner that it is not a
common carrier but a customs broker whose principal function is to prepare
the correct customs declaration and proper shipping documents as required
by law is bereft of merit. It suffices that petitioner undertakes to deliver the
goods for pecuniary consideration.[45]
And in Calvo v. UCPB General Insurance Co. Inc.,[46] this Court held that as the
transportation of goods is an integral part of a customs broker, the customs
broker is also a common carrier. For to declare otherwise would be to deprive
those with whom [it] contracts the protection which the law affords them
notwithstanding the fact that the obligation to carry goods for [its]
customers, is part and parcel of petitioners business.[47]
As for petitioners argument that being the agent of Little Giant, any
negligence it committed was deemed the negligence of its principal, it does
not persuade.
True, petitioner was the broker-agent of Little Giant in securing the release of
the cargoes. In effecting the transportation of the cargoes from the shipside
and into Little Giants warehouse, however, petitioner was discharging its own
personal obligation under a contact of carriage.

Petitioner, which did not have any barge or tugboat, engaged the services of
TVI as handler[48] to provide the barge and the tugboat. In their Service
Contract,[49] while Little Giant was named as the consignee, petitioner did not
disclose that it was acting on commission and was chartering the vessel for
Little Giant.[50] Little Giant did not thus automatically become a party to the
Service Contract and was not, therefore, bound by the terms and conditions
therein.
Not being a party to the service contract, Little Giant cannot directly sue TVI
based thereon but it can maintain a cause of action for negligence.[51]
In the case of TVI, while it acted as a private carrier for which it was under no
duty to observe extraordinary diligence, it was still required to observe
ordinary diligence to ensure the proper and careful handling, care and
discharge of the carried goods.
Thus, Articles 1170 and 1173 of the Civil Code provide:
ART. 1170. Those who in the performance of their obligations are guilty of
fraud, negligence, or delay, and those who in any manner contravene the
tenor thereof, are liable for damages.
ART. 1173. The fault or negligence of the obligor consists in the omission of
that diligence which is required by the nature of the obligation and
corresponds with the circumstances of the persons, of the time and of the
place. When negligence shows bad faith, the provisions of articles 1171 and
2202, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in
the performance, that which is expected of a good father of a family shall be
required.
Was the reasonable care and caution which an ordinarily prudent person
would have used in the same situation exercised by TVI? [52]
This Court holds not.
TVIs failure to promptly provide a tugboat did not only increase the risk that
might have been reasonably anticipated during the shipside operation, but
was the proximate cause of the loss. A man of ordinary prudence would not
leave a heavily loaded barge floating for a considerable number of hours, at
such a precarious time, and in the open sea, knowing that the barge does not
have any power of its own and is totally defenseless from the ravages of the
sea. That it was nighttime and, therefore, the members of the crew of a
tugboat would be charging overtime pay did not excuse TVI from calling for
one such tugboat.
As for petitioner, for it to be relieved of liability, it should, following Article
1739[53] of the Civil Code, prove that it exercised due diligence to prevent or
minimize the loss, before, during and after the occurrence of the storm in
order that it may be exempted from liability for the loss of the goods.
While petitioner sent checkers [54] and a supervisor[55] on board the vessel to
counter-check the operations of TVI, it failed to take all available and
reasonable precautions to avoid the loss. After noting that TVI failed to

arrange for the prompt towage of the barge despite the deteriorating sea
conditions, it should have summoned the same or another tugboat to extend
help, but it did not.
This Court holds then that petitioner and TVI are solidarily liable[56] for the
loss of the cargoes. The following pronouncement of the Supreme Court is
instructive:
The foundation of LRTAs liability is the contract of carriage and its obligation
to indemnify the victim arises from the breach of that contract by reason of
its failure to exercise the high diligence required of the common carrier. In
the discharge of its commitment to ensure the safety of passengers, a carrier
may choose to hire its own employees or avail itself of the services of an
outsider or an independent firm to undertake the task. In either case, the
common carrier is not relieved of its responsibilities under the contract of
carriage.
Should Prudent be made likewise liable? If at all, that liability could only be
for tort under the provisions of Article 2176 and related provisions, in
conjunction with Article 2180 of the Civil Code. x x x [O]ne might ask further,
how then must the liability of the common carrier, on one hand, and an
independent contractor, on the other hand, be described? It would be
solidary. A contractual obligation can be breached by tort and when the same
act or omission causes the injury, one resulting in culpa contractual and the
other in culpa aquiliana, Article 2194 of the Civil Code can well apply. In fine,
a liability for tort may arise even under a contract, where tort is that which
breaches the contract. Stated differently, when an act which constitutes a
breach of contract would have itself constituted the source of a quasidelictual liability had no contract existed between the parties, the contract
can be said to have been breached by tort, thereby allowing the rules on tort
to apply.[57]
As for Black Sea, its duty as a common carrier extended only from the time
the goods were surrendered or unconditionally placed in its possession and
received for transportation until they were delivered actually or
constructively to consignee Little Giant.[58]
Parties to a contract of carriage may, however, agree upon a definition of
delivery that extends the services rendered by the carrier. In the case at bar,
Bill of Lading No. 2 covering the shipment provides that delivery be made to
the port of discharge or so near thereto as she may safely get, always afloat.
[59]
The delivery of the goods to the consignee was not from pier to pier but
from the shipside of M/V Alexander Saveliev and into barges, for which
reason the consignee contracted the services of petitioner. Since Black Sea
had constructively delivered the cargoes to Little Giant, through petitioner, it
had discharged its duty.[60]
In fine, no liability may thus attach to Black Sea.
Respecting the award of attorneys fees in an amount over P1,000,000.00 to
Industrial Insurance, for lack of factual and legal basis, this Court sets it

aside. While Industrial Insurance was compelled to litigate its rights, such fact
by itself does not justify the award of attorneys fees under Article 2208 of the
Civil Code. For no sufficient showing of bad faith would be reflected in a
partys persistence in a case other than an erroneous conviction of the
righteousness of his cause.[61] To award attorneys fees to a party just because
the judgment is rendered in its favor would be tantamount to imposing a
premium on ones right to litigate or seek judicial redress of legitimate
grievances.[62]
On the award of adjustment fees: The adjustment fees and expense of divers
were incurred by Industrial Insurance in its voluntary but unsuccessful efforts
to locate and retrieve the lost cargo. They do not constitute actual damages.
[63]

As for the court a quos award of interest on the amount claimed, the same
calls for modification following the ruling in Eastern Shipping Lines, Inc. v.
Court of Appeals[64] that when the demand cannot be reasonably established
at the time the demand is made, the interest shall begin to run not from the
time the claim is made judicially or extrajudicially but from the date the
judgment of the court is made (at which the time the quantification of
damages may be deemed to have been reasonably ascertained). [65]
WHEREFORE, judgment is hereby rendered ordering petitioner Schmitz
Transport & Brokerage Corporation, and Transport Venture Incorporation
jointly and severally liable for the amount of P5,246,113.11 with the
MODIFICATION that interest at SIX PERCENT per annum of the amount due
should be computed from the promulgation on November 24, 1997 of the
decision of the trial court.
Costs against petitioner.
SO ORDERED.

G.R. No. 114791 May 29, 1997

NANCY GO AND ALEX GO, vs. THE HONORABLE COURT OF APPEALS,
HERMOGENES ONG and JANE C. ONG,

No less than the Constitution commands us to protect marriage as an

inviolable social institution and the foundation of the family. 1 In our society,
the importance of a wedding ceremony cannot be underestimated as it is the
matrix of the family and, therefore, an occasion worth reliving in the
succeeding years.
It is in this light that we narrate the following undisputed facts:
Private respondents spouses Hermogenes and Jane Ong were married on
June 7, 1981, in Dumaguete City. The video coverage of the wedding was
provided by petitioners at a contract price of P1,650.00. Three times
thereafter, the newlyweds tried to claim the video tape of their wedding,
which they planned to show to their relatives in the United States where they
were to spend their honeymoon, and thrice they failed because the tape was
apparently not yet processed. The parties then agreed that the tape would be
ready upon private respondents' return.
When private respondents came home from their honeymoon, however, they
found out that the tape had been erased by petitioners and therefore, could
no longer be delivered.
Furious at the loss of the tape which was supposed to be the only record of
their wedding, private respondents filed on September 23, 1981 a complaint
for specific performance and damages against petitioners before the
Regional Trial Court, 7th Judicial District, Branch 33, Dumaguete City. After a
protracted trial, the court a quorendered a decision, to wit:
WHEREFORE, judgment is hereby granted:
1. Ordering the rescission of the agreement entered into between plaintiff
Hermogenes Ong and defendant Nancy Go;
2. Declaring defendants Alex Go and Nancy Go jointly and severally liable to
plaintiffs Hermogenes Ong and Jane C. Ong for the following sums:
a) P450.00 , the down payment made at contract time;
b) P75,000.00, as moral damages;
c) P20,000.00, as exemplary damages;
d) P5,000.00, as attorney's fees; and
e) P2,000.00, as litigation expenses;
Defendants are also ordered to pay the costs.
SO ORDERED.
Dissatisfied with the decision, petitioners elevated the case to the Court of
Appeals which, on September 14, 1993, dismissed the appeal and affirmed
the trial court's decision.
Hence, this petition.
Petitioners contend that the Court of Appeals erred in not appreciating the
evidence they presented to prove that they acted only as agents of a certain
Pablo Lim and, as such, should not have been held liable. In addition, they
aver that there is no evidence to show that the erasure of the tape was done
in bad faith so as to justify the award of damages. 2
The petition is not meritorious.

Petitioners claim that for the video coverage, the cameraman was employed
by Pablo Lim who also owned the video equipment used. They further assert
that they merely get a commission for all customers solicited for their
principal. 3
This contention is primarily premised on Article 1883 of the Civil Code which
states thus:
Art. 1883. If an agent acts in his own name, the principal has no right of
action against the persons with whom the agent has contracted; neither have
such persons against the principal.
In such case the agent is the one directly bound in favor of the person with
whom he has contracted, as if the transaction were his own, except when the
contract involves things belonging to the principal.
xxx xxx xxx
Petitioners' argument that since the video equipment used belonged to Lim
and thus the contract was actually entered into between private respondents
and Lim is not deserving of any serious consideration. In the instant case, the
contract entered into is one of service, that is, for the video coverage of the
wedding. Consequently, it can hardly be said that the object of the contract
was the video equipment used. The use by petitioners of the video
equipment of another person is of no consequence.
It must also be noted that in the course of the protracted trial below,
petitioners did not even present Lim to corroborate their contention that they
were mere agents of the latter. It would not be unwarranted to assume that
their failure to present such a vital witness would have had an adverse result
on the case. 4
As regards the award of damages, petitioners would impress upon this Court
their lack of malice or fraudulent intent in the erasure of the tape. They insist
that since private respondents did not claim the tape after the lapse of thirty
days, as agreed upon in their contract, the erasure was done in consonance
with consistent business practice to minimize losses. 5
We are not persuaded.
As correctly observed by the Court of Appeals, it is contrary to human nature
for any newlywed couple to neglect to claim the video coverage of their
wedding; the fact that private respondents filed a case against petitioners
belies such assertion. Clearly, petitioners are guilty of actionable delay for
having failed to process the video tape. Considering that private respondents
were about to leave for the United States, they took care to inform
petitioners that they would just claim the tape upon their return two months
later. Thus, the erasure of the tape after the lapse of thirty days was
unjustified.
In this regard, Article 1170 of the Civil Code provides that "those who in the
performance of their obligations are guilty of fraud, negligence or delay, and
those who is any manner contravene the tenor thereof, are liable for
damages."

In the instant case, petitioners and private respondents entered into a

contract whereby, for a fee, the former undertook to cover the latter's
wedding and deliver to them a video copy of said event. For whatever
reason, petitioners failed to provide private respondents with their tape.
Clearly, petitioners are guilty of contravening their obligation to said private
respondents and are thus liable for damages.
The grant of actual or compensatory damages in the amount of P450.00 is
justified, as reimbursement of the downpayment paid by private respondents
to petitioners. 6
Generally, moral damages cannot be recovered in an action for breach of
contract because this case is not among those enumerated in Article 2219 of
the Civil Code. However, it is also accepted in this jurisdiction that liability for
a quasi-delict may still exist despite the presence of contractual relations,
that is, the act which violates the contract may also constitute a quasidelict. 7 Consequently, moral damages are recoverable for the breach of
contract
which was palpably wanton, reckless, malicious or in bad faith, oppressive or
abusive. 8
Petitioners' act or omission in recklessly erasing the video coverage of
private respondents' wedding was precisely the cause of the suffering private
respondents had to undergo.
As the appellate court aptly observed:
Considering the sentimental value of the tapes and the fact that the event
therein recorded a wedding which in our culture is a significant milestone
to be cherished and remembered could no longer be reenacted and was
lost forever, the trial court was correct in awarding the appellees moral
damages albeit in the amount of P75,000.00, which was a great reduction
from plaintiffs' demand in the complaint in compensation for the mental
anguish, tortured feelings, sleepless nights and humiliation that the appellees
suffered and which under the circumstances could be awarded as allowed
under Articles 2217 and 2218 of the Civil Code. 9
Considering the attendant wanton negligence committed by petitioners in
the case at bar, the award of exemplary damages by the trial court is
justified 10 to serve as a warning to all entities engaged in the same business
to observe due diligence in the conduct of their affairs.
The award of attorney' s fees and litigation expenses are likewise proper,
consistent with Article 2208 11 of the Civil Code.
Finally, petitioner Alex Go questions the finding of the trial and appellate
courts holding him jointly and severally liable with his wife Nancy regarding
the pecuniary liabilities imposed. He argues that when his wife entered into
the contract with private respondent, she was acting alone for her sole
interest. 12
We find merit in this contention. Under Article 117 of the Civil Code (now
Article 73 of the Family Code), the wife may exercise any profession,

occupation or engage in business without the consent of the husband. In the

instant case, we are convinced that it was only petitioner Nancy Go who
entered into the contract with private respondent. Consequently, we rule that
she is solely liable to private respondents for the damages awarded below,
pursuant to the principle that contracts produce effect only as between the
parties who execute them. 13
WHEREFORE, the assailed decision dated September 14, 1993 is hereby
AFFIRMED with the MODIFICATION that petitioner Alex Go is absolved from
any liability to private respondents and that petitioner Nancy Go is solely
liable to said private respondents for the judgment award. Costs against
petitioners.
SO ORDERED.

G.R. No. L-21438

September 28, 1966
AIR FRANCE vs. RAFAEL CARRASCOSO and the HONORABLE COURT
OF APPEALS
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent
Rafael Carrascoso P25,000.00 by way of moral damages; P10,000.00 as
exemplary damages; P393.20 representing the difference in fare between
first class and tourist class for the portion of the trip Bangkok-Rome, these
various amounts with interest at the legal rate, from the date of the filing of
the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of
suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on
Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the
appealed decision "in all other respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the
evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that
left Manila for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent,
Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane
ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in
"first class", but at Bangkok, the Manager of the defendant airline forced
plaintiff to vacate the "first class" seat that he was occupying because, in the
words of the witness Ernesto G. Cuento, there was a "white man", who, the
Manager alleged, had a "better right" to the seat. When asked to vacate his
"first class" seat, the plaintiff, as was to be expected, refused, and told
defendant's Manager that his seat would be taken over his dead body; a
commotion ensued, and, according to said Ernesto G. Cuento, "many of the
Filipino passengers got nervous in the tourist class; when they found out that
Mr. Carrascoso was having a hot discussion with the white man [manager],

they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his
seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and
plaintiff reluctantly gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all the
findings" 4 of respondent Court of Appeals. Petitioner charges that respondent
court failed to make complete findings of fact on all the issues properly laid
before it. We are asked to consider facts favorable to petitioner, and then, to
overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be
rendered by any court of record without expressing therein clearly and
distinctly the facts and the law on which it is based". 5 This is echoed in the
statutory demand that a judgment determining the merits of the case shall
state "clearly and distinctly the facts and the law on which it is based"; 6 and
that "Every decision of the Court of Appeals shall contain complete findings
of fact on all issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct
attack. 8 The law, however, solely insists that a decision state the "essential
ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice
is not hidebound to write in its decision every bit and piece of
evidence 10 presented by one party and the other upon the issues raised.
Neither is it to be burdened with the obligation "to specify in the sentence
the facts"which a party "considered as proved". 11 This is but a part of the
mental process from which the Court draws the essential ultimate facts. A
decision is not to be so clogged with details such that prolixity, if not
confusion, may result. So long as the decision of the Court of Appeals
contains the necessary facts to warrant its conclusions, it is no error for said
court to withhold therefrom "any specific finding of facts with respect to the
evidence for the defense". Because as this Court well observed, "There is no
law that so requires". 12 Indeed, "the mere failure to specify (in the decision)
the contentions of the appellant and the reasons for refusing to believe them
is not sufficient to hold the same contrary to the requirements of the
provisions of law and the Constitution". It is in this setting that in Manigque, it
was held that the mere fact that the findings "were based entirely on the
evidence for the prosecution without taking into consideration or even
mentioning the appellant's side in the controversy as shown by his own
testimony", would not vitiate the judgment. 13 If the court did not recite in the
decision the testimony of each witness for, or each item of evidence
presented by, the defeated party, it does not mean that the court has
overlooked such testimony or such item of evidence. 14 At any rate, the legal
presumptions are that official duty has been regularly performed, and that all
the matters within an issue in a case were laid before the court and passed
upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe
defined as "the written statement of the ultimate facts as found by the

court ... and essential to support the decision and judgment rendered
thereon". 16They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has
been declared as "one which does not call for an examination of the
probative value of the evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari
from a judgment of the Court of Appeals. 19 That judgment is conclusive as to
the facts. It is not appropriately the business of this Court to alter the facts or
to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of
fact of the Court of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received
from petitioner a first class ticket. But petitioner asserts that said ticket did
not represent the true and complete intent and agreement of the parties;
that said respondent knew that he did not have confirmed reservations for
first class on any specific flight, although he had tourist class protection; that,
accordingly, the issuance of a first class ticket was no guarantee that he
would have a first class ride, but that such would depend upon the
availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed
in its brief before the Court of Appeals under its third assignment of error,
which reads: "The trial court erred in finding that plaintiff had confirmed
reservations for, and a right to, first class seats on the "definite" segments of
his journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a firstclass ticket was no guarantee that the passenger to whom the same had
been issued, would be accommodated in the first-class compartment, for as
in the case of plaintiff he had yet to make arrangements upon arrival at every
station for the necessary first-class reservation. We are not impressed by
such a reasoning. We cannot understand how a reputable firm like defendant
airplane company could have the indiscretion to give out tickets it never
meant to honor at all. It received the corresponding amount in payment of
first-class tickets and yet it allowed the passenger to be at the mercy of its
employees. It is more in keeping with the ordinary course of business that the
company should know whether or riot the tickets it issues are to be honored
or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of
petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there
can be no question. Apart from his testimony, see plaintiff's Exhibits "A", "A1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael
Altonaga, confirmed plaintiff's testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does
this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx
xxx
xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga
and Rafael Altonaga that although plaintiff paid for, and was issued a "first
class" airplane ticket, the ticket was subject to confirmation in Hongkong. The
court cannot give credit to the testimony of said witnesses. Oral evidence
cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B",
"B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show
that the plaintiff was issued, and paid for, a first class ticket without any
reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael
Altonaga testified that the reservation for a "first class" accommodation for
the plaintiff was confirmed. The court cannot believe that after such
confirmation defendant had a verbal understanding with plaintiff that the
"first class" ticket issued to him by defendant would be subject to
confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of
a few pesos in the amount refunded on Carrascoso's ticket, the decision of
the Court of First Instance was affirmed by the Court of Appeals in all other
respects. We hold the view that such a judgment of affirmance has merged
the judgment of the lower court. 24Implicit in that affirmance is a
determination by the Court of Appeals that the proceeding in the Court of
First Instance was free from prejudicial error and "all questions raised by the
assignments of error and all questions that might have been raised are to be
regarded as finally adjudicated against the appellant". So also, the judgment
affirmed "must be regarded as free from all error". 25 We reached this policy
construction because nothing in the decision of the Court of Appeals on this
point would suggest that its findings of fact are in any way at war with those
of the trial court. Nor was said affirmance by the Court of Appeals upon a
ground or grounds different from those which were made the basis of the
conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first
class seat, notwithstanding the fact that seat availability in specific flights is
therein confirmed, then an air passenger is placed in the hollow of the hands
of an airline. What security then can a passenger have? It will always be an
easy matter for an airline aided by its employees, to strike out the very
stipulations in the ticket, and say that there was a verbal agreement to the
contrary. What if the passenger had a schedule to fulfill? We have long
learned that, as a rule, a written document speaks a uniform language; that
spoken word could be notoriously unreliable. If only to achieve stability in the

relations between passenger and air carrier, adherence to the ticket so

issued is desirable. Such is the case here. The lower courts refused to believe
the oral evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there
are facts upon which the Court of Appeals predicated the finding that
respondent Carrascoso had a first class ticket and was entitled to a first class
seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the
flight. 27 We perceive no "welter of distortions by the Court of Appeals of
petitioner's statement of its position", as charged by petitioner. 28 Nor do we
subscribe
to petitioner's
accusation
that respondent Carrascoso
"surreptitiously took a first class seat to provoke an issue". 29 And this
because, as petitioner states, Carrascoso went to see the Manager at his
office in Bangkok "to confirm my seat and because from Saigon I was told
again to see the Manager". 30 Why, then, was he allowed to take a first class
seat in the plane at Bangkok, if he had no seat? Or, if another had a better
right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's
trenchant claim is that Carrascoso's action is planted upon breach of
contract; that to authorize an award for moral damages there must be an
averment of fraud or bad faith;31 and that the decision of the Court of Appeals
fails to make a finding of bad faith. The pivotal allegations in the complaint
bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine
Air Lines for a valuable consideration, the latter acting as general agents for
and in behalf of the defendant, under which said contract, plaintiff was
entitled to, as defendant agreed to furnish plaintiff, First Class passage on
defendant's plane during the entire duration of plaintiff's tour of Europe with
Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and
from Saigon to Bangkok, defendant furnished to the plaintiff First Class
accommodation but only after protestations, arguments and/or insistence
were made by the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead
furnished plaintiff only TouristClass accommodations from Bangkok to
Teheran and/or Casablanca, ... the plaintiff has been compelled by
defendant's employees to leave the First Class accommodation berths at
Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience
and embarrassments brought by defendant's breach of contract was forced
to take a Pan American World Airways plane on his return trip from Madrid to
Manila.32
xxx
xxx
xxx
2. That likewise, as a result of defendant's failure to furnish First Class
accommodations
aforesaid,
plaintiff
suffered
inconveniences,

embarrassments, and humiliations, thereby causing plaintiff mental anguish,

serious anxiety, wounded feelings, social humiliation, and the like injury,
resulting in moral damages in the amount of P30,000.00. 33
xxx
xxx
xxx
The foregoing, in our opinion, substantially aver: First, That there was a
contract to furnish plaintiff a first class passage covering, amongst others,
the Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok;
and Third, that there was bad faith when petitioner's employee compelled
Carrascoso to leave his first class accommodation berth "after he was
already, seated" and to take a seat in the tourist class, by reason of which he
suffered inconvenience, embarrassments and humiliations, thereby causing
him mental anguish, serious anxiety, wounded feelings and social
humiliation, resulting in moral damages. It is true that there is no specific
mention of the term bad faith in the complaint. But, the inference of bad faith
is there, it may be drawn from the facts and circumstances set forth
therein. 34 The contract was averred to establish the relation between the
parties. But the stress of the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial,
respondent's counsel placed petitioner on guard on what Carrascoso
intended to prove: That while sitting in the plane in Bangkok, Carrascoso
was oustedby petitioner's manager who gave his seat to a white man; 35 and
(b) evidence of bad faith in the fulfillment of the contract was presented
without objection on the part of the petitioner. It is, therefore, unnecessary to
inquire as to whether or not there is sufficient averment in the complaint to
justify an award for moral damages. Deficiency in the complaint, if any, was
cured by the evidence. An amendment thereof to conform to the evidence is
not even required. 36 On the question of bad faith, the Court of Appeals
declared:
That the plaintiff was forced out of his seat in the first class compartment of
the plane belonging to the defendant Air France while at Bangkok, and was
transferred to the tourist class not only without his consent but against his
will, has been sufficiently established by plaintiff in his testimony before the
court, corroborated by the corresponding entry made by the purser of the
plane in his notebook which notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will,
and that the captain refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a copassenger. The captain of the plane who was asked by the manager of
defendant company at Bangkok to intervene even refused to do so. It is
noteworthy that no one on behalf of defendant ever contradicted or denied
this evidence for the plaintiff. It could have been easy for defendant to
present its manager at Bangkok to testify at the trial of the case, or yet to
secure his disposition; but defendant did neither. 37

The Court of appeals further stated

Neither is there evidence as to whether or not a prior reservation was made
by the white man. Hence, if the employees of the defendant at Bangkok sold
a first-class ticket to him when all the seats had already been taken, surely
the plaintiff should not have been picked out as the one to suffer the
consequences and to be subjected to the humiliation and indignity of being
ejected from his seat in the presence of others. Instead of explaining to the
white man the improvidence committed by defendant's employees, the
manager adopted the more drastic step of ousting the plaintiff who was then
safely ensconsced in his rightful seat. We are strengthened in our belief that
this probably was what happened there, by the testimony of defendant's
witness Rafael Altonaga who, when asked to explain the meaning of the
letters "O.K." appearing on the tickets of plaintiff, said "that the space is
confirmed for first class. Likewise, Zenaida Faustino, another witness for
defendant, who was the chief of the Reservation Office of defendant, testified
as follows:
"Q How does the person in the ticket-issuing office know what reservation the
passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June
19, 1959)
In this connection, we quote with approval what the trial Judge has said on
this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have
a "better right" to the seat occupied by Mr. Carrascoso? The record is silent.
The defendant airline did not prove "any better", nay, any right on the part of
the "white man" to the "First class" seat that the plaintiff was occupying and
for which he paid and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in
Bangkok, the defendant could have easily proven it by having taken the
testimony of the said Manager by deposition, but defendant did not do so;
the presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the
Court is constrained to find, as it does find, that the Manager of the
defendant airline in Bangkok not merely asked but threatened the plaintiff to
throw him out of the plane if he did not give up his "first class" seat because
the said Manager wanted to accommodate, using the words of the witness
Ernesto G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted portion first
transcribed did not use the term "bad faith". But can it be doubted that the
recital of facts therein points to bad faith? The manager not only prevented
Carrascoso from enjoying his right to a first class seat; worse, he imposed his
arbitrary will; he forcibly ejected him from his seat, made him suffer the
humiliation of having to go to the tourist class compartment - just to give
way to another passenger whose right thereto has not been established.

Certainly, this is bad faith. Unless, of course, bad faith has assumed a
meaning different from what is understood in law. For, "bad faith"
contemplates a "state of mind affirmatively operating with furtive design or
with some motive of self-interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding
of bad faith in the judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation
with plaintiff in bad faith, with the aggravating circumstances that
defendant's Manager in Bangkok went to the extent of threatening the
plaintiff in the presence of many passengers to have him thrown out of the
airplane to give the "first class" seat that he was occupying to, again using
the words of the witness Ernesto G. Cuento, a "white man" whom he
(defendant's Manager) wished to accommodate, and the defendant has not
proven that this "white man" had any "better right" to occupy the "first class"
seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him. 40
5. The responsibility of an employer for the tortious act of its employees need
not be essayed. It is well settled in law. 41 For the willful malevolent act of
petitioner's manager, petitioner, his employer, must answer. Article 21 of the
Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate
the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we
held that upon the provisions of Article 2219 (10), Civil Code, moral damages
are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree
from any other contractual relation. 43And this, because of the relation which
an air-carrier sustains with the public. Its business is mainly with the
travelling public. It invites people to avail of the comforts and advantages it
offers. The contract of air carriage, therefore, generates a relation attended
with a public duty. Neglect or malfeasance of the carrier's employees,
naturally, could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be
treated by the carrier's employees with kindness, respect, courtesy and due
consideration. They are entitled to be protected against personal misconduct,
injurious language, indignities and abuses from such employees. So it is, that
any rule or discourteous conduct on the part of employees towards a
passenger gives the latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it
was a breach of contract and a tort, giving a right of action for its agent in
the presence of third persons to falsely notify her that the check was
worthless and demand payment under threat of ejection, though the
language used was not insulting and she was not ejected." 46 And this,

because, although the relation of passenger and carrier is "contractual both

in origin and nature" nevertheless "the act that breaks the contract may be
also a tort". 47 And in another case, "Where a passenger on a railroad train,
when the conductor came to collect his fare tendered him the cash fare to a
point where the train was scheduled not to stop, and told him that as soon as
the train reached such point he would pay the cash fare from that point to
destination, there was nothing in the conduct of the passenger which justified
the conductor in using insulting language to him, as by calling him a
lunatic," 48 and the Supreme Court of South Carolina there held the carrier
liable for the mental suffering of said passenger.1awphl.nt
Petitioner's contract with Carrascoso is one attended with public duty. The
stress of Carrascoso's action as we have said, is placed upon his wrongful
expulsion. This is a violation of public duty by the petitioner air carrier a
case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already that was already in the trip I could not help it. So
one of the flight attendants approached me and requested from me my ticket
and I said, What for? and she said, "We will note that you transferred to the
tourist class". I said, "Nothing of that kind. That is tantamount to accepting
my transfer." And I also said, "You are not going to note anything there
because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you
don't have enough leg room, I stood up and I went to the pantry that was
next to me and the purser was there. He told me, "I have recorded the
incident in my notebook." He read it and translated it to me because it was
recorded in French "First class passenger was forced to go to the tourist
class against his will, and that the captain refused to intervene."
Mr. VALTE
I move to strike out the last part of the testimony of the witness because the
best evidence would be the notes. Your Honor.
COURT
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser
made an entry in his notebook reading "First class passenger was forced to
go to the tourist class against his will, and that the captain refused to
intervene" is predicated upon evidence [Carrascoso's testimony above] which
is incompetent. We do not think so. The subject of inquiry is not the entry,
but the ouster incident. Testimony on the entry does not come within the
proscription of the best evidence rule. Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue
happened, the impact of the startling occurrence was still fresh and
continued to be felt. The excitement had not as yet died down. Statements
then, in this environment, are admissible as part of the res gestae. 50 For,
they grow "out of the nervous excitement and mental and physical condition
of the declarant". 51 The utterance of the purser regarding his entry in the
notebook was spontaneous, and related to the circumstances of the ouster
incident. Its trustworthiness has been guaranteed. 52 It thus escapes the
operation of the hearsay rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an
employee of petitioner. It would have been an easy matter for petitioner to
have contradicted Carrascoso's testimony. If it were really true that no such
entry was made, the deposition of the purser could have cleared up the
matter.
We, therefore, hold that the transcribed testimony of Carrascoso is
admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court
ample power to grant exemplary damages in contracts and quasicontracts. The only condition is that defendant should have "acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The
manner of ejectment of respondent Carrascoso from his first class seat fits
into this legal precept. And this, in addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of exemplary
damages justifies a similar judgment for attorneys' fees. The least that can
be said is that the courts below felt that it is but just and equitable that
attorneys' fees be given. 55 We do not intend to break faith with the tradition
that discretion well exercised as it was here should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court
and the Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00,
by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of
fixing these amounts is primarily with the trial court. 56 The Court of Appeals
did not interfere with the same. The dictates of good sense suggest that we
give our imprimatur thereto. Because, the facts and circumstances point to
the reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does not suffer
from reversible error. We accordingly vote to affirm the same. Costs against
petitioner. So ordered.

G.R. No. L-28589 January 8, 1973

RAFAEL ZULUETA, ET AL. vs. PAN AMERICAN WORLD AIRWAYS, INC
Both parties in this case have moved for the reconsideration of the decision
of this Court promulgated on February 29, 1972. Plaintiffs maintain that the

decision appealed from should be affirmed in toto. The defendant, in turn,

prays that the decision of this Court be "set aside ... with or without a new
trial, ... and that the complaint be dismissed, with costs; or, in the alternative,
that the amount of the award embodied therein be considerably reduced." .
Subsequently to the filing of its motion for reconsideration, the defendant
filed a "petition to annul proceedings and/or to order the dismissal of
plaintiffs-appellees' complaint" upon the ground that "appellees' complaint
actually seeks the recovery of only P5,502.85 as actual damages, because,
for the purpose of determining the jurisdiction of the lower court, the
unspecified sums representing items of alleged damages, may not be
considered, under the settled doctrines of this Honorable Court," and "the
jurisdiction of courts of first instance when the complaint in the present case
was filed on Sept. 30, 1965" was limited to cases "in which the demand,
exclusive of interest, or the value of the property in controversy amounts to
more than ten thousand pesos" and "the mere fact that the complaint also
prays for unspecified moral damages and attorney's fees, does not bring the
action within the jurisdiction of the lower court."
We find no merit in this contention. To begin with, it is not true that "the
unspecified sums representing items or other alleged damages, may not be
considered" for the purpose of determining the jurisdiction of the court
"under the settled doctrines of this Honorable Court." In fact, not a single
case has been cited in support of this allegation.
Secondly, it has been held that a clam for moral damages is one not
susceptible of pecuniary estimation. 1 In fact, Article 2217 of the Civil Code of
the Philippines explicitly provides that "(t)hough incapable of pecuniary
computation, moral damages may be recovered if they are the proximate
result of the defendant's wrongful act or omission." Hence, "(n)o proof
pecuniary loss necessary" pursuant to Article 2216 of the same Code "in
order that moral ... damages may be adjudicated." And "(t)he assessment of
such damages ... is left to the discretion of the court" - said article adds "according to the circumstances of each case." Appellees' complaint is,
therefore, within the original jurisdiction of courts of first instance, which
includes "all civil actions in which the subject of the litigation is not capable
of pecuniary estimation." 2
Thirdly, in its answer to plaintiffs' original and amended complainants,
defendant had set up a counterclaim in the aggregate sum of P12,000, which
is, also, within the original jurisdiction of said courts, thereby curing the
alleged defect if any, in plaintiffs' complaint. 3
We need not consider the jurisdictional controversy as to the amount the
appellant sues to recover because the counterclaim interposed establishes
the jurisdiction of the District Court. Merchants' Heat & Light Co. v. James B.
Clow & Sons, 204 U.S. 286, 27 S. Ct. 285, 51 L. Ed. 488; O. J. Lewis Mercantile
Co. v. Klepner, 176 F. 343 (C.C.A. 2), certiorari denied 216 U.S. 620, 30 S Ct.
575, 54 L. Ed. 641. ... . 4

... courts have said that "when the jurisdictional amount is in question, the
tendering of a counterclaim in an amount which in itself, or added to the
amount claimed in the petition, makes up a sum equal to the amount
necessary to the jurisdiction of this court, jurisdiction is established,
whatever may be the state of the plaintiff's complaint." American Sheet & Tin
Plate Co. v. Winzeler (D.C.) 227 F. 321, 324. 5
Thus, in Ago v. Buslon, 6 We held:
... . Then, too, petitioner's counterclaim for P37,000.00 was, also, within the
exclusive original jurisdiction of the latter courts, and there are ample
precedents to the effect that "although the original claim involves less than
the jurisdictional amount, ... jurisdiction can be sustained if the counterclaim
(of the compulsory type)" such as the one set up by petitioner herein,
based upon the damages allegedly suffered by him in consequence of the
filing of said complaint "exceeds the jurisdictional amount." (Moore Federal
Practice, 2nd ed. [1948], Vol. 3, p. 41; Ginsburg vs. Pacific Mutual Life Ins. Co.
of California, 69 Fed. [2d] 97; Home Life Ins. Co. vs. Sipp., 11 Fed. [2d]474;
American Sheet & Tin Plate Co. vs. Winzeler [D.C.], 227 Fed. 321, 324; Brix
vs. People's Mutual Life Ins. Co., 41 P. 2d. 537, 2 Cal. 2d. 446; Emery vs.
Pacific Employees Ins. Co., 67 P. 2d. 1046, 8 Cal. 2d. 663).
Needless to say, having not only failed to question the jurisdiction of the trial
court either in that court or in this Court, before the rendition of the latter's
decision, and even subsequently thereto, by filing the aforementioned motion
for reconsideration and seeking the reliefs therein prayed for but,
also, urged both courts to exercise jurisdiction over the merits of the case,
defendant is now estopped from impugning said jurisdiction. 7
Before taking up the specific questions raised in defendant's motion for
reconsideration, it should be noted that the same is mainly predicated upon
the premise that plaintiffs' version is inherently incredible, and that this Court
should accept the theory of the defense to the effect that petitioner was offloaded because of a bomb-scare allegedly arising from his delay in boarding
the aircraft and subsequent refusal to open his bags for inspection. We need
not repeat here the reasons given in Our decision for rejecting defendant's
contention and not disturbing the findings of fact of His Honor, the Trial
Judge, who had the decided advantage denied to Us of observing the
behaviour of the witnesses in the course of the trial and found those of the
plaintiffs worthy of credence, not the evidence for the defense.
It may not be amiss however, to stress the fact that, in his written
report, made in transit from Wake to Manila or immediately after the
occurrence and before the legal implications or consequences thereof could
have been the object of mature deliberation, so that it could, in a way, be
considered as part of the res gestae Capt. Zentner stated that Zulueta had
been off-loaded "due to drinking" and "belligerent attitude," thereby belying
the story of the defense about said alleged bomb-scare, and confirming the
view that said agent of the defendant had acted out of resentment because

his ego had been hurt by Mr. Zulueta's adamant refusal to be bullied by him.
Indeed, had there been an iota of truth in said story of the defense, Capt.
Zentner would have caused every one of the passengers to be frisked or
searched and the luggage of all of them examined as it is done now
before resuming the flight from Wake Island. His failure to do so merely
makes the artificious nature of defendant's version more manifest. Indeed,
the fact that Mrs. Zulueta and Miss Zulueta were on board the plane shows
beyond doubt that Mr. Zulueta could not possibly have intended to blow it up.
The defense tries to explain its failure to introduce any evidence to contradict
the testimony of Mr. Zulueta as to why he had gone to the beach and what
he did there, alleging that, in the very nature of things, nobody else could
have witnessed it. Moreover, the defense insists, inter alia, that the
testimony of Mr. Zulueta is inherently incredible because he had no idea as to
how many toilets the plane had; it could not have taken him an hour to
relieve himself in the beach; there were eight (8) commodes at the terminal
toilet for men ; if he felt the need of relieving himself, he would have seen to
it that the soldiers did not beat him to the terminal toilets; he did not tell
anybody about the reason for going to the beach, until after the plane had
taken off from Wake.
We find this pretense devoid of merit. Although Mr. Zulueta had to look for a
secluded place in the beach to relieve himself, beyond the view of others,
defendant's airport manager, whom Mr. Zulueta informed about it,soon
after the departure of the plane, could have forthwith checked the veracity of
Mr. Zulueta's statement by asking him to indicate the specific place where he
had been in the beach and then proceeding thereto for purposes of
verification.
Then, again, the passenger of a plane seldom knows how many toilets it has.
As a general rule, his knowledge is limited to the toilets for the class first
class or tourist class in which he is. Then, too, it takes several minutes for
the passengers of big aircrafts, like those flying from the U.S. to the
Philippines, to deplane. Besides, the speed with which a given passenger
may do so depends, largely, upon the location of his seat in relation to the
exit door. He cannot go over the heads of those nearer than he thereto.
Again, Mr. Zulueta may have stayed in the toilet terminal for some time,
expecting one of the commodes therein to be vacated soon enough, before
deciding to go elsewhere to look for a place suitable to his purpose. But he
had to walk, first, from the plane to the terminal building and, then, after
vainly waiting therein for a while, cover a distance of about 400 yards
therefrom to the beach, and seek there a place not visible by the people in
the plane and in the terminal, inasmuch as the terrain at Wake Island is flat.
What is more, he must have had to takeoff part, at least, of his clothing,
because, without the facilities of a toilet, he had to wash himself and, then,
dry himself up before he could be properly attired and walk back the 400
yards that separated him from the terminal building and/or the plane.

Considering, in addition to the foregoing, the fact that he was not feeling
well, at that time, We are not prepared to hold that it could not have taken
him around an hour to perform the acts narrated by him.
But, why asks the defendant did he not reveal the same before the
plane took off? The record shows that, even before Mr. Zulueta had reached
the ramp leading to the plane, Capt. Zentner was already demonstrating at
him in an intemperate and arrogant tone and attitude ("What do you think
you are?), thereby impelling Mr. Zulueta to answer back in the same vein. As
a consequence, there immediately ensued an altercation in the course of
which each apparently tried to show that he could not be cowed by the other.
Then came the order of Capt. Zentner to off-load all of the Zuluetas, including
Mrs. Zulueta and the minor Miss Zulueta, as well as their luggage, their
overcoats and other effects handcarried by them; but, Mr. Zulueta requested
that the ladies be allowed to continue the trip. Meanwhile, it had taken time
to locate his four (4) pieces of luggage. As a matter of fact, only three (3) of
them were found, and the fourth eventually remained in the plane. In short,
the issue between Capt. Zentner and Mr. Zulueta had been limited to
determining whether the latter would allow himself to be browbeaten by the
former. In the heat of the altercation, nobody had inquired about the cause of
Mr. Zulueta's delay in returning to the plane, apart from the fact that it was
rather embarrassing for him to explain, in the presence and within the
hearing of the passengers and the crew, then assembled around them, why
he had gone to the beach and why it had taken him some time to answer
there a call of nature, instead of doing so in the terminal building.
Defendant's motion for reconsideration assails: (1) the amount of damages
awarded as excessive; (2) the propriety of accepting as credible plaintiffs'
theory; (3) plaintiffs' right to recover either moral or exemplary damages; (4)
plaintiffs' right to recover attorney's fees; and (5) the non-enforcement of the
compromise agreement between the defendant and plaintiff's wife, Mrs.
Zulueta. Upon the other hand, plaintiffs' motion for reconsideration contests
the decision of this Court reducing the amount of damages awarded by the
trial court to approximately one-half thereof, upon the ground, not only that,
contrary to the findings of this Court, in said decision, plaintiff had not
contributed to the aggravation of his altercation or incident with Capt.
Zentner by reacting to his provocation with extreme belligerency thereby
allowing himself to be dragged down to the level on which said agent of the
defendant had placed himself, but, also, because the purchasing power of
our local currency is now much lower than when the trial court rendered its
appealed decision, over five (5) years ago, on July 5, 1967, which is an
undeniable and undisputed fact. Precisely, for this reason, defendant's
characterization as exorbitant of the aggregate award of over P700,000 by
way of damages, apart from attorney's fees in the sum of P75,000, is
untenable. Indeed, said award is now barely equivalent to around 100,000 U.
S. dollars.

It further support of its contention, defendant cites the damages awarded in

previous cases to passengers of airlines, 8 as well as in several criminal cases,
and some cases for libel and slander. None of these cases is, however, in
point. Said cases against airlines referred to passengers who were merely
constrained to take a tourist class accommodation, despite the fact that they
had first class tickets, and that although, in one of such cases, there was
proof that the airline involved had acted as it did to give preference to a
"white" passenger, this motive was not disclosed until the trial in court. In the
case at bar, plaintiff Rafael Zulueta was "off-loaded" at Wake Island, for
having dared to retort to defendant's agent in a tone and manner matching,
if not befitting his intemperate language and arrogant attitude. As a
consequence, Capt. Zentner's attempt to humiliate Rafael Zulueta had
boomeranged against him (Zentner), in the presence of the other passengers
and the crew. It was, also, in their presence that defendant's agent had
referred to the plaintiffs as "monkeys," a racial insult not made openly and
publicly in the abovementioned previous cases against airlines.
In other words, Mr. Zulueta was off-loaded, not to protect the safety of the
aircraft and its passengers, but to retaliate and punish him for the
embarrassment and loss of face thus suffered by defendant's agent. This
vindictive motive is made more manifest by the note delivered to Mr. Zulueta
by defendant's airport manager at Wake Island, Mr. Sitton, stating that the
former's stay therein would be "for a minimum of one week," during which he
would be charged $13.30 per day. This reference to a "minimum of one
week" revealed the intention to keep him there stranded that long, for no
other plane, headed for Manila, was expected within said period of time,
although Mr. Zulueta managed to board, days later, a plane that brought him
to Hawaii, whence he flew back to the Philippines, via Japan.
Neither may criminal cases, nor the cases for libel and slander cited in the
defendant's motion for reconsideration, be equated with the present case.
Indeed, in ordinary criminal cases, the award for damages is, in actual
practice, of purely academic value, for the convicts generally belong to the
poorest class of society. There is, moreover, a fundamental difference
between said cases and the one at bar. The Zuluetas had a contract of
carriage with the defendant, as a common carrier, pursuant to which the
latter was bound, for a substantial monetary considerationpaid by the former,
not merely to transport them to Manila, but, also, to do so with "extraordinary
diligence" or "utmost diligence." 9 The responsibility of the common carrier,
under said contract, as regards the passenger's safety, is of such a nature,
affecting as it does public interest, that it "cannot be dispensed with" or even
"lessened by stipulation, by the posting of notices, by statements on tickets,
or otherwise." 10 In the present case, the defendant did not only fail to
comply with its obligation to transport Mr. Zulueta to Manila, but, also, acted
in a manner calculated to humiliate him, to chastise him, to make him suffer,
to cause to him the greatest possible inconvenience, by leaving him in a

desolate island, in the expectation that he would be stranded there for a

"minimum of one week" and, in addition thereto, charged therefor $13.30 a
day.
It is urged by the defendant that exemplary damages are not recoverable in
quasi-delicts, pursuant to Article 2231 of our Civil Code, except when the
defendant has acted with "gross negligence," and that there is no specific
finding that it had so acted. It is obvious, however, that in off-loading plaintiff
at Wake Island, under the circumstances heretofore adverted to, defendant's
agents had acted with malice aforethought and evident bad faith. If "gross
negligence" warrants the award of exemplary damages, with more reason is
its imposition justified when the act performed is deliberate, malicious and
tainted with bad faith. Thus, in Lopez v. PANAM, 11 We held:
The rationale behind exemplary or corrective damages is, as the name
implies, to provide an example or correction for public good. Defendant
having breached its contracts in bad faith, the court, as stated earlier, may
award exemplary damages in addition to moral damages (Articles 2229,
2232, New Civil Code.)
Similarly, in NWA v. Cuenca, 12 this Court declared that an award for
exemplary damages was justified by the fact that the airline's "agent had
acted in a wanton, reckless and oppressive manner" in compelling Cuenca,
upon arrival at Okinawa, to transfer, over his objection, from the first class,
where he was accommodated from Manila to Okinawa, to the tourist class, in
his trip to Japan, "under threat of otherwise leaving him in Okinawa," despite
the fact that he had paid in full the first class fare and was issued in Manila a
first class ticket.
Defendant cites Rotea v. Halili, 13 in support of the proposition that a principal
is not liable for exemplary damages owing to acts of his agent unless the
former has participated in said acts or ratified the same. Said case involved,
however, the subsidiary civil liability of an employer arising from criminal
acts of his employee, and "exemplary damages ... may be imposed when the
crime
was
committed
with
one
or
more
aggravating
circumstances." 14 Accordingly, the Rotea case is not in point, for the case at
bar involves a breach of contract, as well as a quasi-delict.
Neither may the case of Palisoc v. Brillantes, 15 invoked by the defendant, be
equated with the case at bar. The Palisoc case dealt with the liability of
school officials for damages arising from the death of a student (Palisoc) due
to fist blows given by another student (Daffon), in the course of a quarrel
between them, while in a laboratory room of the Manila Technical Institute. In
an action for damages, the head thereof and the teacher in charge of said
laboratory were held jointly and severally liable with the student who caused
said death, for failure of the school to provide "adequate supervision over the
activities of the students in the school premises," to protect them "from
harm, whether at the hands of fellow students or other parties." Such liability

was predicated upon Article 2180 of our Civil Code, the pertinent part of
which reads:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is
responsible.
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades shall be liable
for damages caused by their pupils and students or apprentices, so long as
they remain in their custody.
xxx xxx xxx
Obviously, the amount of damages warded in the Palisoc case is not and
cannot serve as the measure of the damages recoverable in the present
case, the latter having been caused directly and intentionally by an
employee or agent of the defendant, whereas the student who killed the
young Palisoc was in no wise an agent of the school. Moreover, upon her
arrival in the Philippines, Mrs. Zulueta reported her husband's predicament to
defendant's local manager and asked him to forthwith have him (Mr. Zulueta)
brought to Manila, which defendant's aforementioned manager refused to do,
thereby impliedly ratifying the off-loading of Mr. Zulueta at Wake Island.
It is next urged that, under the contract of carriage with the defendant, Mr.
Zulueta was bound to be present at the time scheduled for the departure of
defendant's plane and that he had, consequently, violated said contract
when he did not show up at such time. This argument might have had some
weight had defendant's plane taken off before Mr. Zulueta had shown up. But
the fact is that he was ready, willing and able to board the plane about two
hours before it actually took off, and that he was deliberately and maliciously
off-loaded on account of his altercation with Capt. Zentner. It should, also, be
noted that, although Mr. Zulueta was delayed some 20 to 30 minutes, the
arrival or departure of planes is often delayed for much longer periods of
time. Followed to its logical conclusion, the argument adduced by the
defense suggests that airlines should be held liable for damages due to the
inconvenience and anxiety, aside from actual damages, suffered by many
passengers either in their haste to arrive at the airport on scheduled time
just to find that their plane will not take off until later, or by reason of the late
arrival of the aircraft at its destination.
PANAM impugns the award of attorney's fees upon the ground that no
penalty should be imposed upon the right to litigate; that, by law, it may be
awarded only in exceptional cases; that the claim for attorney's fees has not
been proven; and that said defendant was justified in resisting plaintiff's
claim "because it was patently exorbitant."
Nothing, however, can be farther from the truth. Indeed apart from plaintiff's
claim for actual damages, the amount of which is not contested, plaintiffs
did not ask any specific sum by way of exemplary and moral damages, as
well as attorney's fees, and left the amount thereof to the "sound discretion"

of the lower court. This, precisely, is the reason why PANAM, now, alleges
without justification that the lower court had no jurisdiction over the subject
matter of the present case.
Moreover, Article 2208 of our Civil Code expressly authorizes the award of
attorney's fees "when exemplary damages are awarded," as they are in
this case as well as "in any other case where the court deems it just and
equitable that attorney's fees ... be recovered," and We so deem it just and
equitable in the present case, considering the "exceptional" circumstances
obtaining therein, particularly the bad faith with which defendant's agent had
acted, the place where and the conditions under which Rafael Zulueta was
left at Wake Island, the absolute refusal of defendant's manager in Manila to
take any step whatsoever to alleviate Mr. Zulueta's predicament at Wake and
have him brought to Manila which, under their contract of carriage, was
defendant's obligation to discharge with "extra-ordinary" or "utmost"
diligence and, the "racial" factor that had, likewise, tainted the decision of
defendant's agent, Capt. Zentner, to off-load him at Wake Island.
As regards the evidence necessary to justify the sum of P75,000 awarded as
attorney's fees in this case, suffice it to say that the quantity and quality of
the services rendered by plaintiffs' counsel appearing on record, apart from
the nature of the case and the amount involved therein, as well as his
prestige as one of the most distinguished members of the legal profession in
the Philippines, of which judicial cognizance may be taken, amply justify said
award, which is a little over 10% of the damages (P700,000) collectible by
plaintiffs herein. Indeed, the attorney's fees in this case is proportionally
much less than that adjudged in Lopez v. PANAM 16 in which the judgment
rendered for attorney's fees (P50,000) was almost 20% of the damages
(P275,000) recovered by the plaintiffs therein.
The defense assails the last part of the decision sought to be reconsidered, in
which relying upon Article 172 of our Civil Code, which provides that "(t)he
wife cannot bind the conjugal partnership without the husband's consent,
except in cases provided by law," and it is not claimed that this is one of such
cases We denied a motion, filed by Mrs. Zulueta, for the dismissal of this
case, insofar as she is concerned - she having settled all her differences with
the defendant, which appears to have paid her the sum of P50,000 therefor "without prejudice to this sum being deducted from the award made in said
decision." Defendant now alleges that this is tantamount to holding that said
compromise agreement is both effective and ineffective.
This, of course, is not true. The payment is effective, insofar as it is
deductible from the award, and, because it is due (or part of the amount due)
from the defendant, with or without its compromise agreement with Mrs.
Zulueta. What is ineffective is the compromise agreement, insofar as the
conjugal partnership is concerned. Mrs. Zulueta's motion was for the
dismissal of the case insofar as she was concerned, and the defense cited in
support thereof Article 113 of said Code, pursuant to which "(t)he husband

must be joined in all suits by or against the wife except: ... (2) If they have in
fact been separated for at least one year." This provision, We held, however,
refers to suits in which the wife is the principal or real party in interest, not to
the case at bar, "in which the husband is the main party in interest, both as
the person principally aggrieved and as administrator of the conjugal
partnership ... he having acted in this capacity in entering into the contract of
carriage with PANAM and paid the amount due to the latter, under the
contract, with funds of the conjugal partnership," to which the amounts
recoverable for breach of said contract, accordingly, belong. The damages
suffered by Mrs. Zulueta were mainly an in accident of the humiliation to
which her husband had been subjected. The Court ordered that said sum of
P50,00 paid by PANAM to Mrs. Zulueta be deducted from the aggregate
award in favor of the plaintiffs herein for the simple reason that upon
liquidation of the conjugal partnership, as provided by law, said amount
would have to be reckoned with, either as part of her share in the
partnership, or as part of the support which might have been or may be due
to her as wife of Rafael Zulueta. It would surely be inane to sentence the
defendant to pay the P700,000 due to the plaintiffs and to direct Mrs. Zulueta
to return said P50,000 to the defendant.
In this connection, it is noteworthy that, for obvious reasons of public policy,
she is not allowed by law to waive her share in the conjugal partnership,
before the dissolution thereof. 17 She cannot even acquire any property by
gratuitous title, without the husband's consent, except from her ascendants,
descendants, parents-in-law, and collateral relatives within the fourth
degree. 18
It is true that the law favors and encourages the settlement of litigations by
compromise agreement between the contending parties, but, it certainly
does not favor a settlement with one of the spouses, both of whom are
plaintiffs or defendants in a common cause, such as the defense of the rights
of the conjugal partnership, when the effect, even if indirect, of the
compromise is to jeopardize "the solidarity of the family" which the
law 19 seeks to protect by creating an additional cause for the
misunderstanding that had arisen between such spouses during the
litigation, and thus rendering more difficult a reconciliation between them.
It is urged that there is no proof as to the purpose of the trip of the plaintiffs,
that neither is there any evidence that the money used to pay the plane
tickets came from the conjugal funds and that the award to Mrs. Zulueta was
for her personal suffering or injuries. There was, however, no individual or
specific award in favor of Mrs. Zulueta or any of the plaintiffs. The award was
made in their favor collectively. Again, in the absence of said proof, the
presumption is that the purpose of the trip was for the common benefit of the
plaintiffs and that the money had come from the conjugal funds, for, unless
there is proof to the contrary, it is presumed "(t)hat things have happened
according to the ordinary course of nature and the ordinary habits of

life." 20 In fact Manresa maintains 21 that they are deemed conjugal, when the
source of the money used therefor is not established, even if the purchase
had been made by the wife. 22 And this is the rule obtaining in the
Philippines. Even property registered, under the Torrens system, in the name
of one of the spouses, or in that of the wife only, if acquired during the
marriage, is presumed to belong to the conjugal partnership, unless there is
competent proof to the contrary. 23
PANAM maintains that the damages involved in the case at bar are not
among those forming part of the conjugal partnership pursuant to Article 153
of the Civil Code, reading:
ART. 153. The following are conjugal partnership property:
(1) That which is acquired by onerous title during the marriage at the
expense of the common fund, whether the acquisition be for the partnership,
or for only one of the spouses;
(2) That which is obtained by the industry, or work, or as salary of the
spouses, or of either of them;
(3) The fruits, rents or interests received or due during the marriage, coming
from the common property or from the exclusive property of each spouse.
Considering that the damages in question have arisen from, inter alia, a
breach of plaintiffs' contract of carriage with the defendant, for which
plaintiffs paid their fare with funds presumably belonging to the conjugal
partnership, We hold that said damages fall under paragraph (1) of said
Article 153, the right thereto having been "acquired byonerous title during
the marriage ... ." This conclusion is bolstered up by Article 148 of our Civil
Code, according to which:
ART. 148. The following shall be the exclusive property of each spouse:
(1) That which is brought to the marriage as his or her own;
(2) That which each acquires, during the marriage, by lucrative title;
(3) That which is acquired by right of redemption or by exchange with other
property belonging to only one of the spouses;
(4) That which is purchased with exclusive money of the wife or of the
husband.
The damages involved in the case at bar do not come under any of these
provisions or of the other provisions forming part of Chapter 3, Title VI, of
Book I of the Civil Code, which chapter is entitled "Paraphernal Property."
What is more, if "(t)hat which is acquired by right of redemption or by
exchange with other property belonging to only one of the spouses," and
"(t)hat which is purchased with exclusive money of the wife or of the
husband," 24belong exclusively to such wife or husband, it follows necessarily
that that which is acquired with money of the conjugal partnership belongs
thereto or forms part thereof. The rulings in Maramba v. Lozano 25 and Perez
v. Lantin, 26 cited in defendant's motion for reconsideration, are, in effect,
adverse thereto. In both cases, it was merely held that the presumption
under Article 160 of our Civil Code to the effect that all property of the

marriage belong to the conjugal partnership does not apply unless it is

shown that it was acquired during marriage. In the present case, the contract
of carriage was concededly entered into, and the damages claimed by the
plaintiffs were incurred, during marriage. Hence, the rights accruing from
said contract, including those resulting from breach thereof by the defendant,
are presumed to belong to the conjugal partnership of Mr. and Mrs. Zulueta.
The fact that such breach of contract was coupled, also, with a quasi-delict
constitutes an aggravating circumstance and can not possibly have the effect
of depriving the conjugal partnership of such property rights.
Defendant insists that the use of conjugal funds to redeem property does not
make the property redeemed conjugal if the right of redemption pertained to
the wife. In the absence, however, of proof that such right of redemption
pertains to the wife and there is no proof that the contract of carriage with
PANAM or the money paid therefor belongs to Mrs. Zulueta the property
involved, or the rights arising therefrom, must be presumed, therefore, to
form part of the conjugal partnership.
It is true that in Lilius v. Manila Railroad Co., 27 it was held that the
"patrimonial and moral damages" awarded to a young and beautiful woman
by reason of a scar in consequence of an injury resulting from an
automobile accident which disfigured her face and fractured her left leg,
as well as caused a permanent deformity, are her paraphernal property.
Defendant cites, also, in support of its contention the following passage from
Colin y Capitant:
No esta resuelta expresamente en la legislacion espaola la cuestion de si las
indemnizaciones debidas por accidentes del trabaho tienen la consideracion
de gananciales, o son bienes particulares de los conyuges.
Inclinan a la solucion de que estas indemnizaciones deben ser consideradas
como gananciales, el hecho de que la sociedad pierde la capacidad de
trabajocon el accidente, que a ella le pertenece, puesto que de la sociedad
son losfrutos de ese trabajo; en cambio, la consideracion de que igual
manera que losbienes que sustituyen a los que cada conyuge lleva al
matrimonio como propiostienen el caracter de propios, hace pensar que las
indemnizaciones que vengana suplir la capacidad de trabajo aportada por
cada conyuge a la sociedad, debenser juridicamente reputadas como bienes
propios del conyuge que haya sufrido elaccidente. Asi se llega a la misma
solucion aportada por la jurisprudencia francesca. 28
This opinion is, however, undecisive, to say the least. It should be noted that
Colin y Capitant were commenting on the French Civil Code; that their
comment referred to indemnities due in consequence of "accidentes del
trabajo "resulting in physical injuries sustained by one of the spouses (which
Mrs. Zulueta has not suffered); and that said commentators admit that the
question whether or not said damages are paraphernal property or belong to
the conjugal partnership is not settled under the Spanish law. 29 Besides, the
French law and jurisprudence to which the comments of Planiol and Ripert,

likewise, refer are inapposite to the question under consideration,

becausethey differ basically from the Spanish law in the treatment of the
property relations between husband and wife. Indeed, our Civil Code, like the
Spanish Civil Code, favors the system of conjugal partnership of gains.
Accordingly, the former provides that, "(i)n the absence of marriage
settlements, or when the same are void, the system of relative community or
conjugal partnership of gains ... shall govern the property relations between"
the spouses. 30 Hence, "(a)ll property of the marriage is presumed to belong
to the conjugal partnership, unless it be proved that it pertains exclusively to
the husband or to the wife." 31
No similar rules are found in the French Civil Code. What is more, under the
provisions thereof, the conjugal partnership exists only when so stipulated in
the "capitulaciones matrimoniales" or by way of exception. In the language of
Manresa
Prescindimos de los preceptos de los Condigos de Francia, Italia, Holanda,
Portugal, Alemania y Suiza, porsue solo excepcionalmente, o cuando asi se
pacta en las capitulaciones, admiten el sistema de gananciales. 32
Again, Colin y Capitant, as well as the Lilius case, refer to damages recovered
for physical injuries suffered by the wife. In the case at bar, the party mainly
injured, although not physically, is the husband.
Accordingly, the other Philippine cases 33 and those from Louisiana whose
civil law is based upon the French Civil Code cited by the defendant, which
similarly refer to moral damages due to physical injuries suffered by the wife,
are, likewise, inapplicable to the case at bar.
We find, therefore, no plausible reason to disturb the views expressed in Our
decision promulgated on February 29, 1972.
WHEREFORE, the motions for reconsideration above-referred to should be, as
they are hereby denied.

G.R. No. 180440

December 5, 2012
DR. GENEVIEVE L. HUANG vs. PHILIPPINE HOTELIERS, INC., DUSIT
THANI PUBLIC CO., LTD. And FIRST LEPANTO TAISHO INSURANCE
CORPORATION
For this Courts resolution is a Petition for Review on Certiorari under Rule 45
of the Rules of Court, assailing the Decision1 of the Court of Appeals in CAG.R. CV No. 87065 dated 9 August 2007, affirming the Decision 2 of Branch 56
of the Regional Trial Court (RTC) of Makati City in Civil Case No. 96-1367
dated 21 February 2006, dismissing for lack of merit herein petitioner Dr.
Genevieve L. Huangs Complaint for Damages. Assailed as well is the Court of
Appeals Resolution3 dated 5 November 2007 denying for lack of merit
petitioners Motion for Reconsideration.

This case stemmed from a Complaint for Damages filed on 28 August 1996
by petitioner Dr. Genevieve L. Huang 4 against herein respondents Philippine
Hoteliers, Inc. (PHI)5 and Dusit Thani Public Co., Ltd. (DTPCI), 6 as owners of
Dusit Thani Hotel Manila (Dusit Hotel); 7 and co-respondent First Lepanto
Taisho Insurance Corporation (First Lepanto), 8 as insurer of the aforesaid
hotel. The said Complaint was premised on the alleged negligence of
respondents PHI and DTPCIs staff, in the untimely putting off all the lights
within the hotels swimming pool area, as well as the locking of the main
entrance door of the area, prompting petitioner to grope for a way out. While
doing so, a folding wooden counter top fell on her head causing her serious
brain injury. The negligence was allegedly compounded by respondents PHI
and DTPCIs failure to render prompt and adequate medical assistance.
Petitioners version of the antecedents of this case is as follows:
On 11 June 1995, Delia Goldberg (Delia), a registered guest of Dusit Hotel,
invited her friend, petitioner Dr. Genevieve L. Huang, for a swim at the hotels
swimming pool facility. They started bathing at around 5:00 p.m. At around
7:00 p.m., the hotels swimming pool attendant informed them that the
swimming pool area was about to be closed. The two subsequently
proceeded to the shower room adjacent to the swimming pool to take a
shower and dress up. However, when they came out of the bathroom, the
entire swimming pool area was already pitch black and there was no longer
any person around but the two of them. They carefully walked towards the
main door leading to the hotel but, to their surprise, the door was locked. 9
Petitioner and Delia waited for 10 more minutes near the door hoping
someone would come to their rescue but they waited in vain. Delia became
anxious about their situation so petitioner began to walk around to look for a
house phone. Delia followed petitioner. After some time, petitioner saw a
phone behind the lifeguards counter. While slowly walking towards the
phone, a hard and heavy object, which later turned out to be the folding
wooden counter top, fell on petitioners head that knocked her down almost
unconscious.10
Delia immediately got hold of the house phone and notified the hotel
telephone operator of the incident. Not long after, the hotel staff arrived at
the main entrance door of the swimming pool area but it took them at least
20 to 30 minutes to get inside. When the door was finally opened, three hotel
chambermaids assisted petitioner by placing an ice pack and applying some
ointment on her head. After petitioner had slightly recovered, she requested
to be assisted to the hotels coffee shop to have some rest. Petitioner
demanded the services of the hotel physician. 11
Dr. Violeta Dalumpines (Dr. Dalumpines) arrived. She approached petitioner
and introduced herself as the hotel physician. However, instead of
immediately providing the needed medical assistance, Dr. Dalumpines
presented a "Waiver" and demanded that it be signed by petitioner,

otherwise, the hotel management will not render her any assistance.
Petitioner refused to do so.12
After eating her dinner and having rested for a while, petitioner left the
hotels coffee shop and went home. Thereupon, petitioner started to feel
extraordinary dizziness accompanied by an uncomfortable feeling in her
stomach, which lasted until the following day. Petitioner was constrained to
stay at home, thus, missing all her important appointments with her patients.
She also began experiencing "on" and "off" severe headaches that caused
her three (3) sleepless nights.13
Petitioner, thus, decided to consult a certain Dr. Perry Noble (Dr. Noble), a
neurologist from Makati Medical Center, who required her to have an X-ray
and a Magnetic Resonance Imaging (MRI) tests. 14 The MRI Report15dated 23
August 1995 revealed the following findings:
CONSULTATION REPORT:
MRI examination of the brain shows scattered areas of intraparenchymal
contusions and involving mainly the left middle and posterior temporal and
slightly the right anterior temporal lobe.
Other small areas of contusions with suggestive pertechiae are seen in the
left fronto-parietal, left parieto-occipital and with deep frontal periventricular
subcortical and cortical regions. There is no mass effect nor signs of localized
hemorrhagic extravasation.
The ventricles are not enlarged, quite symmetrical without shifts or
deformities; the peripheral sulci are within normal limits.
The C-P angles, petromastoids, sella, extrasellar and retro orbital areas
appear normal.
The brainstem is unremarkable.
IMPRESSION: Scattered small intraparenchymal contusions mainly involving
the left middle-posterior temporal lobe and also right medial anterior
temporal, both deep frontal subcortical, left parieto-occipital subcortical and
cortical regions. Ischemic etiology not ruled out. No localized intra - or
extracerebral hemorrhage.16
Petitioner claimed that the aforesaid MRI result clearly showed that her head
was bruised. Based also on the same MRI result, Dr. Noble told her that she
has a very serious brain injury. In view thereof, Dr. Noble prescribed the
necessary medicine for her condition.17
Petitioner likewise consulted a certain Dr. Ofelia Adapon, also a neurologist
from Makati Medical Center, who required her to undergo an
Electroencephalogram examination (EEG) to measure the electrostatic in her
brain.18Based on its result,19 Dr. Ofelia Adapon informed her that she has a
serious conditiona permanent one. Dr. Ofelia Adapon similarly prescribed
medicines for her brain injury.20
Petitioners condition did not get better. Hence, sometime in September
1995, she consulted another neuro-surgeon by the name of Dr. Renato
Sibayan (Dr. Sibayan), who required her to have an X-ray test. 21 According to

petitioner, Dr. Sibayans finding was the same as those of the previous
doctors that she had consultedshe has a serious brain injury. 22
By reason of the unfortunate 11 June 1995 incident inside the hotels
swimming pool area, petitioner also started to feel losing her memory, which
greatly affected and disrupted the practice of her chosen profession. 23 Thus,
on 25 October 1995, petitioner, through counsel, sent a demand letter 24 to
respondents PHI and DTPCI seeking payment of an amount not less than
P100,000,000.00 representing loss of earnings on her remaining life span.
But, petitioners demand was unheeded.
In November 1995, petitioner went to the United States of America (USA) for
further medical treatment. She consulted a certain Dr. Gerald Steinberg and
a certain Dr. Joel Dokson 25 from Mount Sinai Hospital who both found that she
has "post traumatic-post concussion/contusion cephalgias-vascular and
neuralgia."26 She was then prescribed to take some medications for severe
pain and to undergo physical therapy. Her condition did not improve so she
returned to the Philippines.27
Petitioner, once again, consulted Dr. Sibayan, who simply told her to just
relax and to continue taking her medicines. Petitioner also consulted other
neurologists, who all advised her to just continue her medications and to
undergo physical therapy for her neck pain.28
Sometime in 1996, petitioner consulted as well a certain Dr. Victor Lopez (Dr.
Lopez), an ophthalmologist from the Makati Medical Center, because of her
poor vision, which she has experienced for several months. 29 Petitioners Eye
Report dated 5 March 199630 issued by Dr. Lopez stated: "IMPRESSION:
Posterior vitreous detachment, right eye of floaters." Dr. Lopez told petitioner
that her detached eye is permanent and very serious. Dr. Lopez then
prescribed an eye drop to petitioner.31
For petitioners frustration to dissipate and to regain her former strength and
physical well-being, she consulted another neuro-surgeon from Makati
Medical Center by the name of Dr. Leopoldo P. Pardo, Jr. (Dr. Pardo, Jr.). 32She
disclosed to Dr. Pardo, Jr. that at the age of 18 she suffered a stroke due to
mitral valve disease and that she was given treatments, which also resulted
in thrombocytopenia. In Dr. Pardo, Jr.s medical evaluation of petitioner dated
15 May 1996,33 he made the following diagnosis and opinion:
DIAGNOSIS AND OPINION:
This patient sustained a severe head injury in (sic) 11 June 1995 and as a
result of which she developed the following injuries:
1. Cerebral Concussion and Contusion
2. Post-traumatic Epilepsy
3. Post-concussional Syndrome
4. Minimal Brain Dysfunction
5. Cervical Sprain, chronic recurrent
It is my opinion that the symptoms she complained of in the foregoing history
are all related to and a result of the injury sustained on 11 June 1995.

It is further my opinion that the above diagnosis and complaints do materially

affect her duties and functions as a practicing physician and dermatologist,
and that she will require treatment for an undetermined period of time.
The percentage of disability is not calculated at this time and will require
further evaluation and observation.34
Dr. Pardo, Jr. then advised petitioner to continue her medications. 35
Petitioner likewise consulted a certain Dr. Tenchavez 36 for her follow-up
EEG.37 He similarly prescribed medicine for petitioners deep brain injury. He
also gave her pain killer for her headache and advised her to undergo
physical therapy. Her symptoms, however, persisted all the more. 38
In 1999, petitioner consulted another neurologist at the Makati Medical
Center by the name of Dr. Martesio Perez (Dr. Perez) because of severe
fleeting pains in her head, arms and legs; difficulty in concentration; and
warm sensation of the legs, which symptoms also occurred after the 11 June
1995 incident. Upon examination, Dr. Perez observed that petitioner has been
experiencing severe pains and she has a slight difficulty in concentration. He
likewise noted that there was a slight spasm of petitioners neck muscle but,
otherwise, there was no objective neurologic finding. The rest of petitioners
neurologic examination was essentially normal. 39
Dr. Perezs neurologic evaluation40 of petitioner reflected, among others: (1)
petitioners past medical history, which includes, among others, mitral valve
stenosis; (2) an interpretation of petitioners EEG results in October 1995 and
in January 1999, i.e., the first EEG showed sharp waves seen bilaterally more
on the left while the second one was normal; and (3) interpretation of
petitioners second MRI result, i.e., petitioner has a permanent damage in the
brain, which can happen either after a head injury or after a stroke. Dr. Perez
concluded that petitioner has post-traumatic or post concussion syndrome. 41
Respondents, on the other hand, denied all the material allegations of
petitioner and, in turn, countered the latters statement of facts, thus:
According to respondents PHI and DTPCI, a sufficient notice had been posted
on the glass door of the hotel leading to the swimming pool area to apprise
the people, especially the hotel guests, that the swimming pool area is open
only from 7:00 a.m. to 7:00 p.m.42 Though the hotels swimming pool area is
open only between the aforestated time, the lights thereon are kept on until
10:00 p.m. for, (1) security reasons; (2) housekeeping personnel to do the
cleaning of the swimming pool surroundings; and (3) people doing their
exercise routine at the Slimmers World Gym adjacent to the swimming pool
area, which was then open until 10:00 p.m., to have a good view of the
hotels swimming pool. Even granting that the lights in the hotels swimming
pool area were turned off, it would not render the area completely dark as
the Slimmers World Gym near it was well-illuminated. 43
Further, on 11 June 1995, at round 7:00 p.m., the hotels swimming pool
attendant advised petitioner and Delia to take their showers as it was already
closing time. Afterwards, at around 7:40 p.m., Pearlie Benedicto-Lipana (Ms.

Pearlie), the hotel staff nurse, who was at the hotel clinic located at the
mezzanine floor, received a call from the hotel telephone operator informing
her that there was a guest requiring medical assistance at the hotels
swimming pool area located one floor above the clinic. 44
Immediately, Ms. Pearlie got hold of her medical kit and hurriedly went to the
hotels swimming pool area. There she saw Delia and petitioner, who told her
that she was hit on the head by a folding wooden counter top. Although
petitioner looked normal as there was no indication of any blood or bruise on
her head, Ms. Pearlie still asked her if she needed any medical attention to
which petitioner replied that she is a doctor, she was fine and she did not
need any medical attention. Petitioner, instead, requested for a hirudoid
cream to which Ms. Pearlie acceded.45
At about 8:00 p.m., after attending to petitioner, Ms. Pearlie went back to the
hotel clinic to inform Dr. Dalumpines of the incident at the hotels swimming
pool area. But before she could do that, Dr. Dalumpines had already chanced
upon Delia and petitioner at the hotels coffee shop and the latter reported to
Dr. Dalumpines that her head was hit by a folding wooden counter top while
she was inside the hotels swimming pool area. When asked by Dr.
Dalumpines how she was, petitioner responded she is a doctor, she was fine
and she was already attended to by the hotel nurse, who went at the hotels
swimming pool area right after the accident. Dr. Dalumpines then called Ms.
Pearlie to verify the same, which the latter confirmed.46
Afterwards, Dr. Dalumpines went back to petitioner and checked the latters
condition. Petitioner insisted that she was fine and that the hirudoid cream
was enough. Having been assured that everything was fine, Dr. Dalumpines
requested petitioner to execute a handwritten certification 47 regarding the
incident that occurred that night. Dr. Dalumpines then suggested to
petitioner to have an X-ray test. Petitioner replied that it was not necessary.
Petitioner also refused further medical attention. 48
On 13 June 1995, petitioner called up Dr. Dalumpines. The call, however, had
nothing to do with the 11 June 1995 incident. Instead, petitioner merely
engaged in small talk with Dr. Dalumpines while having her daily massage.
The two talked about petitioners personal matters, i.e., past medical history,
differences with siblings and family over inheritance and difficulty in practice.
Petitioner even disclosed to Dr. Dalumpines that she once fell from a horse;
that she had a stroke; had hysterectomy and is incapable of having children
for her uterus had already been removed; that she had blood disorder,
particularly lack of platelets, that can cause bleeding; and she had an "on"
and "off" headaches. Petitioner oftentimes called Dr. Dalumpines at the hotel
clinic to discuss topics similar to those discussed during their 13 June 1995
conversation.49
Also, during one of their telephone conversations, petitioner requested for a
certification regarding the 11 June 1995 incident inside the hotels swimming

pool area. Dr. Dalumpines accordingly issued Certification dated 7 September

1995, which states that:50
CERTIFICATION
This is to certify that as per Clinic records, duty nurse Pearlie was called to
attend to an accident at the poolside at 7:45PM on 11 June 1995.
Same records show that there, she saw petitioner who claimed the folding
countertop fell on her head when she lifted it to enter the lifeguards counter
to use the phone. She asked for Hirudoid.
The same evening petitioner met Dr. Dalumpines at the Coffee Shop. After
narrating the poolside incident and declining Dr. Dalumpines offer of
assistance, she reiterated that the Hirudoid cream was enough and that
petitioner being a doctor herself, knew her condition and she was all right.
This certification is given upon the request of petitioner for whatever purpose
it may serve, 7 September 1995 at Makati City. 51 (Emphasis supplied).
Petitioner personally picked up the afore-quoted Certification at the hotel
clinic without any objection as to its contents. 52
From 11 June 1995 until 7 September 1995, the hotel clinic never received
any complaint from petitioner regarding the latters condition. The hotel itself
neither received any written complaint from petitioner. 53
After trial, the court a quo in its Decision dated 21 February 2006 dismissed
petitioners Complaint for lack of merit.
The trial court found petitioners testimony self-serving, thus, devoid of
credibility. Petitioner failed to present any evidence to substantiate her
allegation that the lights in the hotels swimming pool area were shut off at
the time of the incident. She did not even present her friend, Delia, to
corroborate her testimony. More so, petitioners testimony was contradicted
by one of the witnesses presented by the respondents who positively
declared that it has been a normal practice of the hotel management not to
put off the lights until 10:00 p.m. to allow the housekeepers to do the
cleaning of the swimming pool surroundings, including the toilets and
counters. Also, the lights were kept on for security reasons and for the people
in the nearby gym to have a good view of the swimming pool while doing
their exercise routine. Besides, there was a remote possibility that the hotels
swimming pool area was in complete darkness as the aforesaid gym was
then open until 10:00 p.m., and the lights radiate to the hotels swimming
pool area. As such, petitioner would not have met the accident had she only
acted with care and caution.54
The trial court further struck down petitioners contention that the hotel
management did not extend medical assistance to her in the aftermath of
the accident. Records showed that the hotel management immediately
responded after being notified of the accident. The hotel nurse and the two
chambermaids placed an ice pack on petitioners head. They were willing to
extend further emergency assistance but petitioner refused and merely
asked for a hirudoid cream. Petitioner even told them she is a doctor and she

was fine. Even the medical services offered by the hotel physician were
turned down by petitioner. Emphatically, petitioner cannot fault the hotel for
the injury she sustained as she herself did not heed the warning that the
swimming pool area is open only from 7:00 a.m. to 7:00 p.m. As such, since
petitioners own negligence was the immediate and proximate cause of her
injury, she cannot recover damages.55
The trial court similarly observed that the records revealed no indication that
the head injury complained of by petitioner was the result of the alleged 11
June 1995 accident. Firstly, petitioner had a past medical history which might
have been the cause of her recurring brain injury. Secondly, the findings of
Dr. Perez did not prove a causal relation between the 11 June 1995 accident
and the brain damage suffered by petitioner. Even Dr. Perez himself testified
that the symptoms being experienced by petitioner might have been due to
factors other than the head trauma she allegedly suffered. It bears stressing
that petitioner had been suffering from different kinds of brain problems
since she was 18 years old, which may have been the cause of the recurring
symptoms of head injury she is experiencing at present. Absent, therefore, of
any proof establishing the causal relation between the injury she allegedly
suffered on 11 June 1995 and the head pains she now suffers, her claim must
fail. Thirdly, Dr. Teresita Sanchezs (Dr. Sanchez) testimony cannot be relied
upon since she testified on the findings and conclusions of persons who were
never presented in court. Ergo, her testimony thereon was hearsay. Fourthly,
the medical reports/evaluations/certifications issued by myriads of doctors
whom petitioner sought for examination or treatment were neither identified
nor testified to by those who issued them. Being deemed as hearsay, they
cannot be given probative value. Even assuming that petitioner suffered
head injury as a consequence of the 11 June 1995 accident, she cannot
blame anyone but herself for staying at the hotels swimming pool area
beyond its closing hours and for lifting the folding wooden counter top that
eventually hit her head.56
For petitioners failure to prove that her serious and permanent injury was
the result of the 11 June 1995 accident, thus, her claim for actual or
compensatory damages, loss of income, moral damages, exemplary
damages and attorneys fees, must all fail.57
With regard to respondent First Lepantos liability, the trial court ruled that
under the contract of insurance, suffice it to state that absent any cause for
any liability against respondents PHI and DTPCI, respondent First Lepanto
cannot be made liable thereon.
Dissatisfied, petitioner elevated the matter to the Court of Appeals with the
following assignment of errors: (1) the trial court erred in finding that the
testimony of petitioner is self-serving and thus void of credibility; (2) the trial
court erred in applying the doctrine of proximate cause in cases of breach of
contract and even assuming arguendo that the doctrine is applicable,
petitioner was able to prove by sufficient evidence the causal connection

between her injuries and respondents PHI and DTPCIs negligent act; and (3)
the trial court erred in holding that petitioner is not entitled to damages. 58
On 9 August 2007, the Court of Appeals rendered a Decision affirming the
findings and conclusions of the trial court.
The Court of Appeals ratiocinated in this wise:
At the outset, it is necessary for our purpose to determine whether to decide
this case on the theory that herein respondents PHI and DTPCI are liable for
breach of contract or on the theory of quasi-delict.
xxxx
It cannot be gainsaid that herein petitioners use of the hotels pool was only
upon the invitation of Delia, the hotels registered guest. As such, she cannot
claim contractual relationship between her and the hotel. Since the
circumstances of the present case do not evince a contractual relation
between petitioner and respondents, the rules on quasi-delict , thus, govern.
The pertinent provision of Art. 2176 of the Civil Code which states: "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
quasi-delict."
A perusal of Article 2176 shows that obligations arising from quasi-delict or
tort, also known as extra-contractual obligations, arise only between parties
not otherwise bound by contract, whether express or implied. Thus, to
sustain a claim liability under quasi-delict, the following requisites must
concur: (a) damages suffered by the plaintiff; (b) fault or negligence of the
defendant, or some other person for whose acts he must respond; and (c) the
connection of cause and effect between the fault or negligence of the
defendant and the damages incurred by the plaintiff.
Viewed from the foregoing, the question now is whether respondents PHI and
DTPCI and its employees were negligent? We do not think so. Several factors
militate against petitioners contention.
One. Petitioner recognized the fact that the pool areas closing time is 7:00
p.m.. She, herself, admitted during her testimony that she was well aware of
the sign when she and Delia entered the pool area. Hence, upon knowing, at
the outset, of the pools closing time, she took the risk of overstaying when
she decided to take shower and leave the area beyond the closing hour. In
fact, it was only upon the advise of the pool attendants that she thereafter
took her shower.
Two. She admitted, through her certification that she lifted the wooden bar
countertop, which then fell onto her head. The admission in her certificate
proves the circumstances surrounding the occurrence that transpired on the
night of 11 June 1995. This is contrary to her assertion in the complaint and
testimony that, while she was passing through the counter door, she was
suddenly knocked out by a hard and heavy object. In view of the fact that she

admitted having lifted the counter top, it was her own doing, therefore, that
made the counter top fell on to her head.
Three. We cannot likewise subscribe to petitioners assertion that the pool
area was totally dark in that she herself admitted that she saw a telephone at
the counter after searching for one. It must be noted that petitioner and Delia
had walked around the pool area with ease since they were able to proceed
to the glass entrance door from shower room, and back to the counter area
where the telephone was located without encountering any untoward
incident. Otherwise, she could have easily stumbled over, or slid, or bumped
into something while searching for the telephone. This negates her assertion
that the pool area was completely dark, thereby, totally impairing her vision.
xxxx
The aforementioned circumstances lead us to no other conclusion than that
the proximate and immediate cause of the injury of petitioner was due to her
own negligence.
Moreover, petitioner failed to sufficiently substantiate that the medical
symptoms she is currently experiencing are the direct result of the head
injury she sustained on 11 June 1995 as was aptly discussed in the lower
courts findings.
xxxx
It bears stressing that in civil cases, the law requires that the party who
alleges a fact and substantially asserts the affirmative of the issue has the
burden of proving it. Hence, for petitioner to be entitled to damages, she
must show that she had suffered an actionable injury. Regrettably, petitioner
failed in this regard.59 (Emphasis supplied).
Petitioners Motion for Reconsideration was denied for lack of merit in a
Resolution dated 5 November 2007.
Hence, this Petition raising the following issues:
(1) Whether or not the findings of fact of the trial court and of the Court of
Appeals are conclusive in this case.
(2) Whether or not herein respondents PHI and DTPCI are responsible by
implied contract to exercise due care for the safety and welfare of the
petitioner.
(3) Whether or not the cause of action of the petitioner can be based on both
breach of contract and tort.
(4) Whether or not it is respondents PHI and DTPCI and its employees who
are liable to the petitioner for negligence, applying the well-established
doctrines of res ipsa loquitur and respondeat superior.
(5) Whether the petitioners debilitating and permanent injuries were a result
of the accident she suffered at the hotel on 11 June 1995.
(6) Whether or not the petitioner is entitled to the payment of damages,
attorneys fees, interest, and the costs of suit.
(7) Whether or not the respondent insurance company is liable, even directly,
to the petitioner.

(8) Whether or not petitioners motion for reconsideration of the decision of

the Court of Appeals is pro forma.60
Petitioner argues that the rule that "findings of fact of the lower courts are
conclusive and must be respected on appeal" finds no application herein
because this case falls under the jurisprudentially established exceptions.
Moreover, since the rationale behind the afore-mentioned rule is that "the
trial judge is in a vantage point to appreciate the conduct and behavior of the
witnesses and has the unexcelled opportunity to evaluate their testimony,"
one logical exception to the rule that can be deduced therefrom is when the
judge who decided the case is not the same judge who heard and tried the
case.
Petitioner further faults the Court of Appeals in ruling that no contractual
relationship existed between her and respondents PHI and DTPCI since her
use of the hotels swimming pool facility was only upon the invitation of the
hotels registered guest. On the contrary, petitioner maintains that an implied
contract existed between them in view of the fact that the hotel guest status
extends to all those who avail of its servicesits patrons and invitees. It
follows then that all those who patronize the hotel and its facilities, including
those who are invited to partake of those facilities, like petitioner, are
generally regarded as guests of the hotel. As such, respondents PHI and
DTPCI are responsible by implied contract for the safety and welfare of
petitioner while the latter was inside their premises by exercising due care,
which they failed to do.
Petitioner even asserts that the existence of a contract between the parties
does not bar any liability for tort since the act that breaks a contract may
also be a tort. Hence, the concept of change of theory of cause of action
pointed to by respondents is irrelevant.
Petitioner similarly avows that the doctrines of res ipsa loquitur and
respondeat superior are applicable in this case. She argues that a person who
goes in a hotel without a "bukol" or hematoma and comes out of it with a
"bukol" or hematoma is a clear case of res ipsa loquitur. It was an accident
caused by the fact that the hotel staff was not present to lift the heavy
counter top for petitioner as is normally expected of them because they
negligently locked the main entrance door of the hotels swimming pool area.
Following the doctrine of res ipsa loquitur, respondents PHI and DTPCIs
negligence is presumed and it is incumbent upon them to prove otherwise
but they failed to do so. Further, respondents PHI and DTPCI failed to observe
all the diligence of a good father of a family in the selection and supervision
of their employees, hence, following the doctrine of respondeat superior,
they were liable for the negligent acts of their staff in not verifying if there
were still people inside the swimming pool area before turning off the lights
and locking the door. Had respondents PHI and DTPCIs employees done so,
petitioner would not have been injured. Since respondents PHI and DTPCIs
negligence need not be proved, the lower courts erred in shifting the burden

to petitioner and, thereafter, holding the hotel and its employees not
negligent for petitioners failure to prove their negligence. Moreover,
petitioner alleges that there was no contributory negligence on her part for
she did not do anything that could have contributed to her injury. And, even if
there was, the same does not bar recovery.
Petitioner equally declares that the evidence on record, including the
objective medical findings, had firmly established that her permanent
debilitating injuries were the direct result of the 11 June 1995 accident inside
the hotels swimming pool area. This fact has not been totally disputed by
the respondents. Further, the medical experts who had been consulted by
petitioner were in unison in their diagnoses of her condition. Petitioner was
also able to prove that the falling of the folding wooden counter top on her
head while she was at the hotels swimming pool area was the cause of her
head, eye and neck injuries.
Petitioner reiterates her claim for an award of damages, to wit: actual,
including loss of income; moral, exemplary; as well as attorneys fees,
interest and costs of suit. She states that respondents PHI and DTPCI are
liable for quasi-delict under Articles 19, 2176 and 2180 of the New Civil Code.
At the same time, they are liable under an implied contract for they have a
public duty to give due courtesy, to exercise reasonable care and to provide
safety to hotel guests, patrons and invitees. Respondent First Lepanto, on the
other hand, is directly liable under the express contract of insurance.
Lastly, petitioner contends that her Motion for Reconsideration before the
Court of Appeals was not pro forma for it specifically pointed out the alleged
errors in the Court of Appeals Decision.
The instant Petition is devoid of merit.
Primarily, only errors of law and not of facts are reviewable by this Court in a
Petition for Review on Certiorari under Rule 45 of the Rules of Court. 61 This
Court is not a trier of facts and it is beyond its function to re-examine and
weigh anew the respective evidence of the parties.62 Besides, this Court
adheres to the long standing doctrine that the factual findings of the trial
court, especially when affirmed by the Court of Appeals, are conclusive on
the parties and this Court.63 Nonetheless, this Court has, at times, allowed
exceptions thereto, to wit:
(a) When the findings are grounded entirely on speculation, surmises, or
conjectures;
(b) When the inference made is manifestly mistaken, absurd, or impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the Court of Appeals went beyond the issues
of the case, or its findings are contrary to the admissions of both the
appellant and the appellee;

(g) When the Court of Appeals findings are contrary to those by the trial
court;
(h) When the findings are conclusions without citation of specific evidence on
which they are based;
(i) When the facts set forth in the petition as well as in the petitioners main
and reply briefs are not disputed by the respondent;
(j) When the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record; or
(k) When the Court of Appeals manifestly overlooked certain relevant facts
not disputed by the parties, which, if properly considered, would justify a
different conclusion.64
Upon meticulous perusal of the records, however, this Court finds that none
of these exceptions is obtaining in this case. No such justifiable or compelling
reasons exist for this Court to depart from the general rule. This Court will not
disturb the factual findings of the trial court as affirmed by the Court of
Appeals and adequately supported by the evidence on record.
Also, this Court will not review the factual findings of the trial court simply
because the judge who heard and tried the case was not the same judge who
penned the decision. This fact alone does not diminish the veracity and
correctness of the factual findings of the trial court. 65 Indeed, "the efficacy of
a decision is not necessarily impaired by the fact that its writer only took over
from a colleague who had earlier presided at the trial, unless there is showing
of grave abuse of discretion in the factual findings reached by him." 66 In this
case, there was none.
It bears stressing that in this jurisdiction there is a disputable presumption
that the trial courts decision is rendered by the judge in the regular
performance of his official duties. While the said presumption is only
disputable, it is satisfactory unless contradicted or overcame by other
evidence. Encompassed in this presumption of regularity is the presumption
that the trial court judge, in resolving the case and drafting the decision,
reviewed, evaluated, and weighed all the evidence on record. That the said
trial court judge is not the same judge who heard the case and received the
evidence is of little consequence when the records and transcripts of
stenographic notes (TSNs) are complete and available for consideration by
the former,67 just like in the present case.
Irrefragably, the fact that the judge who penned the trial courts decision was
not the same judge who heard the case and received the evidence therein
does not render the findings in the said decision erroneous and unreliable.
While the conduct and demeanor of witnesses may sway a trial court judge in
deciding a case, it is not, and should not be, his only consideration. Even
more vital for the trial court judges decision are the contents and substance
of the witnesses testimonies, as borne out by the TSNs, as well as the object
and documentary evidence submitted and made part of the records of the
case.68

This Court examined the records, including the TSNs, and found no reason to
disturb the factual findings of both lower courts. This Court, thus, upholds
their conclusiveness.
In resolving the second and third issues, a determination of the cause of
action on which petitioners Complaint for Damages was anchored upon is
called for.
Initially, petitioner was suing respondents PHI and DTPCI mainly on account
of their negligence but not on any breach of contract. Surprisingly, when the
case was elevated on appeal to the Court of Appeals, petitioner had a change
of heart and later claimed that an implied contract existed between her and
respondents PHI and DTPCI and that the latter were liable for breach of their
obligation to keep her safe and out of harm. This allegation was never an
issue before the trial court. It was not the cause of action relied upon by the
petitioner not until the case was before the Court of Appeals. Presently,
petitioner claims that her cause of action can be based both on quasi-delict
and breach of contract.
A perusal of petitioners Complaint evidently shows that her cause of action
was based solely on quasi-delict. Telling are the following allegations in
petitioners Complaint:
6. THAT, in the evening of 11 June 1995, between the hours from 7:00 to 8:00
oclock, after herein petitioner and her friend from New York, Delia, the latter
being then a Hotel guest, were taking their shower after having a dip in the
hotels swimming pool, without any notice or warning, the Hotels staff put off
all the lights within the pool area including the lights on the hallway and also
locked the main entrance door of the pool area, x x x;
7. THAT, Hotel guest Delia started to panic while petitioner pacified her by
telling her not to worry as they would both find their way out. Petitioner
knowing that within the area there is a house phone, started to look around
while Delia was following her, eventually petitioner saw a phone behind the
counter x x x, that while slowly moving on towards the phone on a stooping
manner due to the darkness CAUSED BY UNTIMELY AND NEGLIGENTLY
PUTTING OFF WITH THE LIGHTS BY THE HEREIN RESPONDENTS PHI AND
DTPCIS EMPLOYEE while passing through the open counter door with its
Folding Counter Top also opened, x x x, a hard and heavy object fell onto the
head of the petitioner that knocked her down almost unconscious which hard
and heavy object turned out to be the Folding Counter Top;
8. THAT, Delia immediately got hold of the house phone and notified the
Hotel Telephone Operator about the incident, immediately the hotel staffs
(sic) arrived but they were stranded behind the main door of the pool
entrance and it too (sic) them more than twenty (20) minutes to locate the
hotel maintenance employee who holds the key of the said main entrance
door;
9. THAT, when the door was opened, two Hotel Chamber Maids assisted the
petitioner to get out of the counter door. Petitioner being a Physician tried to

control her feelings although groggy and requested for a HURIDOID, a

medicine for HEMATOMA, as a huge lump developed on her head while the
two Chamber Maids assisted petitioner by holding the bag of ice on her head
and applying the medicine on the huge lump;
10. THAT, petitioner after having recovered slightly from her nightmare,
though still feeling weak, asked to be assisted to the Hotel Coffee Shop to
take a rest but requested for the hotels Physician. Despite her insistent
requests, the Dusit Hotel refused to lift a finger to assists petitioner who was
then in distress until a lady approached and introduced herself as the Hotels
house Doctor. Instead however of assisting petitioner by asking her what kind
of assistance the Hotel could render, in a DISCOURTEOUS MANNER presented
instead a paper and demanding petitioner to affix her signature telling her
that the Hotel Management would only assists and answer for all expenses
incurred if petitioner signs the paper presented, but she refused and
petitioner instead wrote a marginal note on the said paper stating her reason
therefore, said paper later on turned out to be a WAIVER OF RIGHT or QUIT
CLAIM;
xxxx
14. THAT, due to the unfortunate incident caused by respondents PHI and
DTPCIs gross negligence despite medical assistance, petitioner started to
feel losing her memory that greatly affected and disrupted the practice of her
chosen profession x x x.
xxxx
19. THAT, due to respondents PHI and DTPCIs gross negligence as being
narrated which caused petitioner to suffer sleepless nights, depression,
mental anguish, serious anxiety, wounded feelings, and embarrassment with
her Diplomate friends in the profession and industry, her social standing in
the community was greatly affected and hence, respondents PHI and DTPCI
must be imposed the hereunder damages, prayed for x x x and Artile (sic)
2176 and 2199 of the New Civil Code of the Philippines x x x.
xxxx
22. THAT, as to Moral, Exemplary and Actual Damages, as well as petitioners
Loss of Income, the amounts are stated in its prayer hereunder. 69
It is clear from petitioners allegations that her Complaint for Damages was
predicated on the alleged negligence of respondents PHI and DTPCIs staff in
the untimely putting off of all the lights within the hotels swimming pool
area, as well as the locking of its main door, prompting her to look for a way
out leading to the fall of the folding wooden counter top on her head causing
her serious brain injury. The said negligence was allegedly compounded by
respondents PHI and DTPCIs failure to render prompt and adequate medical
assistance. These allegations in petitioners Complaint constitute a cause of
action for quasi-delict, which under the New Civil Code is defined as an act,
or omission which causes damage to another, there being fault or
negligence.70

It is evident from petitioners Complaint and from her open court testimony
that the reliance was on the alleged tortious acts committed against her by
respondents PHI and DTPCI, through their management and staff. It is now
too late in the day to raise the said argument for the first time before this
Court.71
Petitioners belated reliance on breach of contract as her cause of action
cannot be sanctioned by this Court. Well-settled is the rule that a party is not
allowed to change the theory of the case or the cause of action on appeal.
Matters, theories or arguments not submitted before the trial court cannot be
considered for the first time on appeal or certiorari. 72 When a party adopts a
certain theory in the court below, he will not be permitted to change his
theory on appeal for to permit him to do so would not only be unfair to the
other party but it would also be offensive to the basic rules of fair play,
justice and due process.73 Hence, a party is bound by the theory he adopts
and by the cause of action he stands on and cannot be permitted after
having lost thereon to repudiate his theory and cause of action and adopt
another and seek to re-litigate the matter anew either in the same forum or
on appeal.74
In that regard, this Court finds it significant to take note of the following
differences between quasi-delict (culpa aquilina) and breach of contract
(culpa contractual). In quasi-delict, negligence is direct, substantive and
independent, while in breach of contract, negligence is merely incidental to
the performance of the contractual obligation; there is a pre-existing contract
or obligation.75 In quasi-delict, the defense of "good father of a family" is a
complete and proper defense insofar as parents, guardians and employers
are concerned, while in breach of contract, such is not a complete and proper
defense in the selection and supervision of employees. 76 In quasi- delict ,
there is no presumption of negligence and it is incumbent upon the injured
party to prove the negligence of the defendant, otherwise, the formers
complaint will be dismissed, while in breach of contract, negligence is
presumed so long as it can be proved that there was breach of the contract
and the burden is on the defendant to prove that there was no negligence in
the carrying out of the terms of the contract; the rule of respondeat superior
is followed.77
Viewed from the foregoing, petitioners change of theory or cause of action
from quasi-delict to breach of contract only on appeal would necessarily
cause injustice to respondents PHI and DTPCI. First, the latter will have no
more opportunity to present evidence to contradict petitioners new
argument. Second, the burden of proof will be shifted from petitioner to
respondents PHI and DTPCI. Petitioners change of theory from quasi-delict to
breach ofcontract must be repudiated.
As petitioners cause of action is based on quasi-delict, it is incumbent upon
her to prove the presence of the following requisites before respondents PHI
and DTPCI can be held liable, to wit: (a) damages suffered by the plaintiff; (b)

fault or negligence of the defendant, or some other person for whose acts he
must respond; and (c) the connection of cause and effect between the fault
or negligence of the defendant and the damages incurred by the
plaintiff.78 Further, since petitioners case is for quasi-delict , the negligence
or fault should be clearly established as it is the basis of her action. 79 The
burden of proof is upon petitioner. Section 1, Rule 131 of the Rules of Court
provides that "burden of proof is the duty of a party to present evidence on
the facts in issue necessary to establish his claim or defense by the amount
of evidence required by law." It is then up for the plaintiff to establish his
cause of action or the defendant to establish his defense. Therefore, if the
plaintiff alleged in his complaint that he was damaged because of the
negligent acts of the defendant, he has the burden of proving such
negligence. It is even presumed that a person takes ordinary care of his
concerns. The quantum of proof required is preponderance of evidence. 80
In this case, as found by the trial court and affirmed by the Court of Appeals,
petitioner utterly failed to prove the alleged negligence of respondents PHI
and DTPCI. Other than petitioners self-serving testimony that all the lights in
the hotels swimming pool area were shut off and the door was locked, which
allegedly prompted her to find a way out and in doing so a folding wooden
counter top fell on her head causing her injury, no other evidence was
presented to substantiate the same. Even her own companion during the
night of the accident inside the hotels swimming pool area was never
presented to corroborate her allegations. Moreover, petitioners aforesaid
allegations were successfully rebutted by respondents PHI and DTPCI. Here,
we quote with conformity the observation of the trial court, thus:
x x x Besides not being backed up by other supporting evidence, said
statement is being contradicted by the testimony of Engineer Dante L.
Costas,81 who positively declared that it has been a normal practice of the
Hotel management not to put off the lights until 10:00P.M. in order to allow
the housekeepers to do the cleaning of the pools surrounding, the toilets and
the counters. It was also confirmed that the lights were kept on for security
reasons and so that the people exercising in the nearby gym may be able to
have a good view of the swimming pool. This Court also takes note that the
nearby gymnasium was normally open until 10:00 P.M. so that there was a
remote possibility the pool area was in complete darkness as was alleged by
herein petitioner, considering that the illumination which reflected from the
gym. Ergo, considering that the area were sufficient (sic) illuminated when
the alleged incident occurred, there could have been no reason for the
petitioner to have met said accident, much less to have been injured as a
consequence thereof, if she only acted with care and caution, which every
ordinary person is expected to do.82
More telling is the ratiocination of the Court of Appeals, to wit:

Viewed from the foregoing, the question now is whether respondents PHI and
DTPCI and its employees were negligent? We do not think so. Several factors
militate against petitioners contention.
One. Petitioner recognized the fact that the pool areas closing time is 7:00
p.m.. She, herself, admitted during her testimony that she was well aware of
the sign when she and Delia entered the pool area. Hence, upon knowing, at
the outset, of the pools closing time, she took the risk of overstaying when
she decided to take shower and leave the area beyond the closing hour. In
fact, it was only upon the advise of the pool attendants that she thereafter
took her shower.
Two. She admitted, through her certification, that she lifted the wooden bar
countertop, which then fell on to her head. The admission in her certificate
proves the circumstances surrounding the occurrence that transpired on the
night of 11 June 1995. This is contrary to her assertion in the complaint and
testimony that, while she was passing through the counter door, she was
suddenly knocked out by a hard and heavy object. In view of the fact that she
admitted having lifted the countertop, it was her own doing, therefore, that
made the counter top fell on to her head.
Three. We cannot likewise subscribe to petitioners assertion that the pool
area was totally dark in that she herself admitted that she saw a telephone at
the counter after searching for one. It must be noted that petitioner and Delia
had walked around the pool area with ease since they were able to proceed
to the glass entrance door from the shower room, and back to the counter
area where the telephone was located without encountering any untoward
incident. Otherwise, she could have easily stumbled over, or slid, or bumped
into something while searching for the telephone. This negates her assertion
that the pool area was completely dark, thereby, totally impairing her vision.
xxxx
The aforementioned circumstances lead us to no other conclusion than that
the proximate and immediate cause of the injury of petitioner was due to her
own negligence.83 (Emphasis supplied).
Even petitioners assertion of negligence on the part of respondents PHI and
DTPCI in not rendering medical assistance to her is preposterous. Her own
Complaint affirmed that respondents PHI and DTPCI afforded medical
assistance to her after she met the unfortunate accident inside the hotels
swimming pool facility. Below is the portion of petitioners Complaint that
would contradict her very own statement, thus:
14. THAT, due to the unfortunate incident caused by respondents PHI and
DTPCIs gross negligence despite medical assistance, petitioner started to
feel losing her memory that greatly affected and disrupted the practice of her
chosen profession. x x x.84 (Emphasis supplied).
Also, as observed by the trial court, respondents PHI and DTPCI, indeed,
extended medical assistance to petitioner but it was petitioner who refused
the same. The trial court stated, thus:

Further, herein petitioners asseverations that the Hotel Management did not
extend medical assistance to her in the aftermath of the alleged accident is
not true. Again, this statement was not supported by any evidence other that
the sole and self-serving testimony of petitioner. Thus, this Court cannot take
petitioners statement as a gospel truth. It bears stressing that the Hotel
Management immediately responded after it received notice of the incident.
As a matter of fact, Ms. Pearlie, the Hotel nurse, with two chambermaids
holding an ice bag placed on petitioners head came to the petitioner to
extend emergency assistance when she was notified of the incident, but
petitioner merely asked for Hirudoid, saying she was fine, and that she was a
doctor and know how to take care of herself. Also, the Hotel, through its inhouse physician, Dr. Dalumpines offered its medical services to petitioner
when they met at the Hotels coffee shop, but again petitioner declined the
offer. Moreover, the Hotel as a show of concern for the petitioners welfare,
shouldered the expenses for the MRI services performed on petitioner at the
Makati Medical Center. Emphatically, petitioner herself cannot fault the Hotel
for the injury she allegedly suffered because she herself did not heed the
warning at the pool to the effect that it was only open from 7:00 to 7:00 P.M.
Thus, when the petitioners own negligence was the immediate and
proximate cause of his injury, shecannot recover damages x x x. 85
With the foregoing, the following were clearly established, to wit: (1)
petitioner stayed in the hotels swimming pool facility beyond its closing
hours; (2) she lifted the folding wooden counter top that eventually hit her
head; and (3) respondents PHI and DTPCI extended medical assistance to
her. As such, no negligence can be attributed either to respondents PHI and
DTPCI or to their staff and/or management. Since the question of negligence
is one of fact, this Court is bound by the said factual findings made by the
lower courts. It has been repeatedly held that the trial court's factual
findings, when affirmed by the Court of Appeals, are conclusive and binding
upon this Court, if they are not tainted with arbitrariness or oversight of some
fact or circumstance of significance and influence. Petitioner has not
presented sufficient ground to warrant a deviation from this rule. 86
With regard to petitioners contention that the principles of res ipsa loquitur
and respondeat superior are applicable in this case, this Court holds
otherwise.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the
transaction speaks for itself." It relates to the fact of an injury that sets out an
inference to the cause thereof or establishes the plaintiffs prima facie case.
The doctrine rests on inference and not on presumption. The facts of the
occurrence warrant the supposition of negligence and they furnish
circumstantial evidence of negligence when direct evidence is
lacking.87 Simply stated, this doctrine finds no application if there is direct
proof of absence or presence of negligence. If there is sufficient proof

showing the conditions and circumstances under which the injury occurred,
then the creative reason for the said doctrine disappears. 88
Further, the doctrine of res ipsa loquitur applies where, (1) the accident was
of such character as to warrant an inference that it would not have happened
except for the defendants negligence; (2) the accident must have been
caused by an agency or instrumentality within the exclusive management or
control of the person charged with the negligence complained of; and (3) the
accident must not have been due to any voluntary action or contribution on
the part of the person injured.89
In the case at bench, even granting that respondents PHI and DTPCIs staff
negligently turned off the lights and locked the door, the folding wooden
counter top would still not fall on petitioners head had she not lifted the
same. Although the folding wooden counter top is within the exclusive
management or control of respondents PHI and DTPCI, the falling of the same
and hitting the head of petitioner was not due to the negligence of the
former. As found by both lower courts, the folding wooden counter top did not
fall on petitioners head without any human intervention. Records showed
that petitioner lifted the said folding wooden counter top that eventually fell
and hit her head. The same was evidenced by the, (1) 11 June 1995
handwritten certification of petitioner herself; (2) her Letter dated 30 August
1995 addressed to Mr. Yoshikazu Masuda (Mr. Masuda), General Manager of
Dusit Hotel; and, (3) Certification dated 7 September 1995 issued to her by
Dr. Dalumpines upon her request, which contents she never questioned.
Here, we, respectively, quote the 11 June 1995 handwritten certification of
petitioner; her letter to Mr. Masuda dated 30 August 1995; and Dr.
Dalumpines Certification dated 7 September 1995, to wit:
Petitioners 11 June 1995 Handwritten Certification:
I was requested by Dr. Dalumpines to write that I was assured of assistance
should it be necessary with regard an accident at the pool. x x x The phone
was in an enclosed area on a chair I lifted the wooden bar counter top
which then fell on my head producing a large hematoma x x x.90
Petitioners Letter addressed to Mr. Masuda dated 30 August 1995:
Dear Mr. Masuda,
xxxx
x x x We searched and saw a phone on a chair behind a towel counter.
However, in order to get behind the counter I had to lift a hinged massive
wooden section of the counter which subsequently fell and knocked me on
my head x x x.91
Dr. Dalumpines Certification dated 7 September 1995:
CERTIFICATION
This is to certify that as per Clinic records, duty nurse Pearlie was called to
attend to an accident at the poolside at 7:45PM on 11 June 1995.

Same records show that there, she saw petitioner who claimed the folding
countertop fell on her head when she lifted it to enter the lifeguards counter
to use the phone. She asked for Hirudoid.
The same evening petitioner met Dr. Dalumpnes at the Coffee Shop. After
narrating the poolside incident and declining Dr. Dalumpines offer of
assistance, she reiterated that the Hirudoid cream was enough and that
petitioner]being a doctor herself, knew her condition and she was all right.
This certification is given upon the request of petitioner for whatever purpose
it may serve, 7 September 1995 at Makati City. 92 (Emphasis supplied).
This Court is not unaware that in petitioners Complaint and in her open court
testimony, her assertion was, "while she was passing through the counter
door, she was suddenly knocked out by a hard and heavy object, which
turned out to be the folding wooden counter top." However, in her open court
testimony, particularly during cross-examination, petitioner confirmed that
she made such statement that "she lifted the hinge massive wooden section
of the counter near the swimming pool."93 In view thereof, this Court cannot
acquiesce petitioners theory that her case is one of res ipsa loquitur as it
was sufficiently established how petitioner obtained that "bukol" or
"hematoma."
The doctrine of respondeat superior finds no application in the absence of
any showing that the employees of respondents PHI and DTPCI were
negligent. Since in this case, the trial court and the appellate court found no
negligence on the part of the employees of respondents PHI and DTPCI, thus,
the latter cannot also be held liable for negligence and be made to pay the
millions of pesos damages prayed for by petitioner.
The issue on whether petitioners debilitating and permanent injuries were
the result of the accident she suffered at the hotels swimming pool area on
11 June 1995 is another question of fact, which is beyond the function of this
Court to resolve. More so, this issue has already been properly passed upon
by the trial court and the Court of Appeals. To repeat, this Court is bound by
the factual findings of the lower courts and there is no cogent reason to
depart from the said rule.
The following observations of the trial court are controlling on this matter:
Firstly, petitioner had a past medical history which might have been the
cause of her recurring brain injury.
Secondly, the findings of Dr. Perez did not prove a causal relation between
the 11 June 1995 accident and the brain damage suffered by petitioner. Dr.
Perez himself testified that the symptoms being experienced by petitioner
might have been due to factors other than the head trauma she allegedly
suffered. Emphasis must be given to the fact that petitioner had been
suffering from different kinds of brain problems since she was 18 years old,
which may have been the cause of the recurring symptoms of head injury
she is experiencing at present.

Thirdly, Dr. Sanchezs testimony cannot be relied upon since she testified on
the findings and conclusions of persons who were never presented in court.
Ergo, her testimony thereon was hearsay. A witness can testify only with
regard to facts of which they have personal knowledge. Testimonial or
documentary evidence is hearsay if it is based, not on the personal
knowledge of the witness, but on the knowledge of some other person not on
the witness stand. Consequently, hearsay evidence -- whether objected to or
not -- has no probative value.94
Fourthly, the medical reports/evaluations/certifications issued by myriads of
doctors whom petitioner sought for examination or treatment were neither
identified nor testified to by those who issued them. Being deemed as
hearsay, they cannot be given probative value.1wphi1
The aforesaid medical reports/evaluations/certifications of different doctors in
favor of petitioner cannot be given probative value and their contents cannot
be deemed to constitute proof of the facts stated therein. It must be stressed
that a document or writing which is admitted not as independent evidence
but merely as part of the testimony of a witness does not constitute proof of
the facts related therein.95 In the same vein, the medical certificate which
was identified and interpreted in court by another doctor was not accorded
probative value because the doctor who prepared it was not presented for its
identification. Similarly, in this case, since the doctors who examined
petitioner were not presented to testify on their findings, the medical
certificates issued on their behalf and identified by another doctor cannot be
admitted as evidence. Since a medical certificate involves an opinion of one
who must first be established as an expert witness, it cannot be given weight
or credit unless the doctor who issued it is presented in court to show his
qualifications.96 Thus, an unverified and unidentified private document
cannot be accorded probative value. It is precluded because the party
against whom it is presented is deprived of the right and opportunity to
cross-examine the person to whom the statements or writings are attributed.
Its executor or author should be presented as a witness to provide the other
party to the litigation the opportunity to question its contents. Being mere
hearsay evidence, failure to present the author of the letter renders its
contents suspect and of no probative value.97
All told, in the absence of negligence on the part of respondents PHI and
DTPCI, as well as their management and staff, they cannot be made Iiable to
pay for the millions of damages prayed for by the petitioner. Since
respondents PHI and DTPCI arc not liable, it necessarily follows that
respondent First Lepanto cannot also be made liable under the contract or
Insurance.
WHEREFORE, premises considered, the Decision and Resolution or the Court
of Appeals in CA-G.R. CV No. 87065 dated 9 August 2007 and 5 November
2007, respectively, are hereby AFFIRMED. Costs against petitioner.
SO ORDERED.

G.R. No. 17944 January 10, 2011

LOADMASTERS CUSTOMS SERVICES, INC., VS GLODEL BROKERAGE
CORPORATION and R&B INSURANCE CORPORATION,
This is a petition for review on certiorari under Rule 45 of the Revised Rules of
Court assailing the August 24, 2007 Decision [1]of the Court of Appeals (CA) in
CA-G.R. CV No. 82822, entitled R&B Insurance Corporation v. Glodel
Brokerage Corporation and Loadmasters Customs Services, Inc., which held
petitioner Loadmasters Customs Services, Inc. (Loadmasters) liable to
respondent
Glodel
Brokerage
Corporation (Glodel) in
the
amount
of P1,896,789.62 representing the insurance indemnity which R&B Insurance
Corporation (R&B Insurance) paid to the insured-consignee, Columbia Wire
and Cable Corporation (Columbia).
THE FACTS:
On August 28, 2001, R&B Insurance issued Marine Policy No. MN-00105/2001
in favor of Columbia to insure the shipment of 132 bundles of electric copper
cathodes against All Risks. On August 28, 2001, the cargoes were shipped on
board
the
vessel
Richard
Rey
from
Isabela, Leyte,
to
Pier
10, North Harbor, Manila. They arrived on the same date.
Columbia engaged the services of Glodel for the release and withdrawal of
the cargoes from the pier and the subsequent delivery to its
warehouses/plants. Glodel, in turn, engaged the services of Loadmasters for
the use of its delivery trucks to transport the cargoes to Columbias
warehouses/plants in Bulacan and Valenzuela City.
The goods were loaded on board twelve (12) trucks owned by Loadmasters,
driven by its employed drivers and accompanied by its employed truck
helpers. Six (6) truckloads of copper cathodes were to be delivered to
Balagtas, Bulacan, while the other six (6) truckloads were destined for
Lawang Bato, Valenzuela City. The cargoes in six truckloads for Lawang Bato
were duly delivered in Columbias warehouses there. Of the six (6) trucks en
route to Balagtas, Bulacan, however, only five (5) reached the
destination. One (1) truck, loaded with 11 bundles or 232 pieces of copper
cathodes, failed to deliver its cargo.
Later on, the said truck, an Isuzu with Plate No. NSD-117, was recovered but
without the copper cathodes. Because of this incident, Columbia filed with
R&B Insurance a claim for insurance indemnity in the amount
of P1,903,335.39. After the requisite investigation and adjustment, R&B

Insurance paid Columbia the amount of P1,896,789.62 as insurance

indemnity.
R&B Insurance, thereafter, filed a complaint for damages against both
Loadmasters and Glodel before the Regional Trial Court, Branch 14, Manila
(RTC), docketed as Civil Case No. 02-103040. It sought reimbursement of the
amount it had paid toColumbia for the loss of the subject cargo. It claimed
that it had been subrogated to the right of the consignee to recover from the
party/parties who may be held legally liable for the loss.[2]
On November 19, 2003, the RTC rendered a decision [3] holding Glodel liable
for damages for the loss of the subject cargo and dismissing Loadmasters
counterclaim for damages and attorneys fees against R&B Insurance. The
dispositive portion of the decision reads:
WHEREFORE, all premises considered, the plaintiff having established by
preponderance of evidence its claims against defendant Glodel Brokerage
Corporation, judgment is hereby rendered ordering the latter:
1.
To pay plaintiff R&B Insurance Corporation the sum of P1,896,789.62
as actual and compensatory damages, with interest from the date of
complaint until fully paid;
2.
To pay plaintiff R&B Insurance Corporation the amount equivalent to
10% of the principal amount recovered as and for attorneys fees
plus P1,500.00 per appearance in Court;
3.
To pay plaintiff R&B Insurance Corporation the sum of P22,427.18 as
litigation expenses.
WHEREAS, the defendant Loadmasters Customs Services, Inc.s counterclaim
for damages and attorneys fees against plaintiff are hereby dismissed.
With costs against defendant Glodel Brokerage Corporation.
SO ORDERED.[4]
Both R&B Insurance and Glodel appealed the RTC decision to the CA.
On August 24, 2007, the CA rendered the assailed decision which reads in
part:
Considering that appellee is an agent of appellant Glodel, whatever liability
the latter owes to appellant R&B Insurance Corporation as insurance
indemnity must likewise be the amount it shall be paid by appellee
Loadmasters.
WHEREFORE, the foregoing considered, the appeal is PARTLY GRANTED in
that the appellee Loadmasters is likewise held liable to appellant Glodel in
the amount of P1,896,789.62 representing the insurance indemnity appellant
Glodel has been held liable to appellant R&B Insurance Corporation.
Appellant Glodels appeal to absolve it from any liability is herein DISMISSED.
SO ORDERED.[5]
Hence, Loadmasters filed the present petition for review on certiorari before
this Court presenting the following
ISSUES

1. Can Petitioner Loadmasters be held liable to Respondent Glodel in

spite of the fact that the latter respondent Glodel did not file a
cross-claim against it (Loadmasters)?
2. Under the set of facts established and undisputed in the case, can
petitioner Loadmasters be legally considered as an Agent of
respondent Glodel?[6]
To totally exculpate itself from responsibility for the lost goods, Loadmasters
argues that it cannot be considered an agent of Glodel because it never
represented the latter in its dealings with the consignee. At any rate, it
further contends that Glodel has no recourse against it for its (Glodels) failure
to file a cross-claim pursuant to Section 2, Rule 9 of the 1997 Rules of Civil
Procedure.
Glodel, in its Comment,[7] counters that Loadmasters is liable to it under its
cross-claim because the latter was grossly negligent in the transportation of
the subject cargo. With respect to Loadmasters claim that it is already
estopped from filing a cross-claim, Glodel insists that it can still do so even
for the first time on appeal because there is no rule that provides
otherwise. Finally, Glodel argues that its relationship with Loadmasters is that
of Charter wherein the transporter (Loadmasters) is only hired for the specific
job of delivering the merchandise. Thus, the diligence required in this case is
merely ordinary diligence or that of a good father of the family, not the
extraordinary diligence required of common carriers.
R&B Insurance, for its part, claims that Glodel is deemed to have interposed
a cross-claim against Loadmasters because it was not prevented from
presenting evidence to prove its position even without amending its
Answer. As to the relationship between Loadmasters and Glodel, it contends
that a contract of agency existed between the two corporations. [8]
Subrogation is the substitution of one person in the place of another with
reference to a lawful claim or right, so that he who is substituted succeeds to
the rights of the other in relation to a debt or claim, including its remedies or
securities.[9]Doubtless, R&B Insurance is subrogated to the rights of the
insured to the extent of the amount it paid the consignee under the marine
insurance, as provided under Article 2207 of the Civil Code, which reads:
ART. 2207. If the plaintiffs property has been insured, and he has received
indemnity from the insurance company for the injury or loss arising out of the
wrong or breach of contract complained of, the insurance company shall be
subrogated to the rights of the insured against the wrong-doer or the person
who has violated the contract. If the amount paid by the insurance company
does not fully cover the injury or loss, the aggrieved party shall be entitled to
recover the deficiency from the person causing the loss or injury.
As subrogee of the rights and interest of the consignee, R&B Insurance has
the right to seek reimbursement from either Loadmasters or Glodel or both
for breach of contract and/or tort.

The issue now is who, between Glodel and Loadmasters, is liable to pay R&B
Insurance for the amount of the indemnity it paid Columbia.
At the outset, it is well to resolve the issue of whether Loadmasters and
Glodel are common carriers to determine their liability for the loss of the
subject cargo. Under Article 1732 of the Civil Code, common carriers are
persons, corporations, firms, or associations engaged in the business of
carrying or transporting passenger or goods, or both by land, water or air for
compensation, offering their services to the public.
Based on the aforecited definition, Loadmasters is a common carrier because
it is engaged in the business of transporting goods by land, through its
trucking service. It is a common carrier as distinguished from a private
carrier wherein the carriage is generally undertaken by special agreement
and it does not hold itself out to carry goods for the general public. [10] The
distinction is significant in the sense that the rights and obligations of the
parties to a contract of private carriage are governed principally by their
stipulations, not by the law on common carriers. [11]
In the present case, there is no indication that the undertaking in the
contract between Loadmasters and Glodel was private in character. There is
no showing that Loadmasters solely and exclusively rendered services to
Glodel.
In fact, Loadmasters admitted that it is a common carrier.[12]
In the same vein, Glodel is also considered a common carrier within the
context of Article 1732. In its Memorandum,[13]it states that it is a corporation
duly organized and existing under the laws of the Republic of
the Philippines and is engaged in the business of customs brokering. It
cannot be considered otherwise because as held by this Court in Schmitz
Transport & Brokerage Corporation v. Transport Venture, Inc., [14] a customs
broker is also regarded as a common carrier, the transportation of goods
being an integral part of its business.
Loadmasters and Glodel, being both common carriers, are mandated from
the nature of their business and for reasons of public policy, to observe the
extraordinary diligence in the vigilance over the goods transported by them
according to all the circumstances of such case, as required by Article 1733
of the Civil Code. When the Court speaks of extraordinary diligence, itis that
extreme measure of care and caution which persons of unusual prudence
and circumspection observe for securing and preserving their own property
or rights.[15] This exacting standard imposed on common carriers in a contract
of carriage of goods is intended to tilt the scales in favor of the shipper who
is at the mercy of the common carrier once the goods have been lodged for
shipment.[16] Thus, in case of loss of the goods, the common carrier is
presumed to have been at fault or to have acted negligently. [17] This
presumption of fault or negligence, however, may be rebutted by proof that
the common carrier has observed extraordinary diligence over the goods.

With respect to the time frame of this extraordinary responsibility, the Civil
Code provides that the exercise of extraordinary diligence lasts from the time
the goods are unconditionally placed in the possession of, and received by,
the carrier for transportation until the same are delivered, actually or
constructively, by the carrier to the consignee, or to the person who has a
right to receive them.[18]
Premises considered, the Court is of the view that both Loadmasters and
Glodel are jointly and severally liable to R & B Insurance for the loss of the
subject cargo. Under Article 2194 of the New Civil Code, the responsibility of
two or more persons who are liable for a quasi-delict is solidary.
Loadmasters claim that it was never privy to the contract entered into by
Glodel with the consignee Columbia or R&B Insurance as subrogee, is not a
valid defense. It may not have a direct contractual relation with Columbia,
but it is liable for tort under the provisions of Article 2176 of the Civil Code on
quasi-delicts which expressly provide:
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.
Pertinent is the ruling enunciated in the case of Mindanao Terminal and
Brokerage Service, Inc. v. Phoenix Assurance Company of New York,/McGee &
Co., Inc.[19] where this Court held that a tort may arise despite the absence of
a contractual relationship, to wit:
We agree with the Court of Appeals that the complaint filed by Phoenix and
McGee against Mindanao Terminal, from which the present case has arisen,
states a cause of action. The present action is based on quasi-delict, arising
from the negligent and careless loading and stowing of the cargoes belonging
to Del Monte Produce. Even assuming that both Phoenix and McGee have
only been subrogated in the rights of Del Monte Produce, who is not a party
to the contract of service between Mindanao Terminal and Del Monte, still the
insurance carriers may have a cause of action in light of the Courts
consistent ruling that the act that breaks the contract may be also a
tort. In fine, a liability for tort may arise even under a contract, where tort is
that which breaches the contract. In the present case, Phoenix and McGee
are not suing for damages for injuries arising from the breach of the
contract of service but from the alleged negligent manner by which
Mindanao Terminal handled the cargoes belonging to Del Monte Produce.
Despite the absence of contractual relationship between Del Monte Produce
and Mindanao Terminal, the allegation of negligence on the part of the
defendant should be sufficient to establish a cause of action arising from
quasi-delict. [Emphases supplied
In connection therewith, Article 2180 provides:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for
ones own acts or omissions, but also for those of persons for whom one is
responsible.
xxxx
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
It is not disputed that the subject cargo was lost while in the custody of
Loadmasters whose employees (truck driver and helper) were instrumental in
the hijacking or robbery of the shipment. As employer, Loadmasters should
be made answerable for the damages caused by its employees who acted
within the scope of their assigned task of delivering the goods safely to the
warehouse.
Whenever an employees negligence causes damage or injury to another,
there instantly arises a presumption juris tantumthat the employer failed to
exercise diligentissimi patris families in the selection (culpa in eligiendo) or
supervision (culpa in vigilando) of its employees.[20] To avoid liability for a
quasi-delict committed by its employee, an employer must overcome the
presumption by presenting convincing proof that he exercised the care and
diligence of a good father of a family in the selection and supervision of his
employee.[21] In this regard, Loadmasters failed.
Glodel is also liable because of its failure to exercise extraordinary
diligence. It failed to ensure that Loadmasters would fully comply with the
undertaking to safely transport the subject cargo to the designated
destination. It should have been more prudent in entrusting the goods to
Loadmasters by taking precautionary measures, such as providing escorts to
accompany the trucks in delivering the cargoes. Glodel should, therefore, be
held liable with Loadmasters. Its defense of force majeure is unavailing.
At this juncture, the Court clarifies that there exists no principal-agent
relationship between Glodel and Loadmasters, as erroneously found by the
CA. Article 1868 of the Civil Code provides: By the contract of agency a
person binds himself to render some service or to do something in
representation or on behalf of another, with the consent or authority of the
latter. The elements of a contract of agency are: (1) consent, express or
implied, of the parties to establish the relationship; (2) the object is the
execution of a juridical act in relation to a third person; (3) the agent acts as
a representative and not for himself; (4) the agent acts within the scope of
his authority.[22]
Accordingly, there can be no contract of agency between the
parties. Loadmasters never represented Glodel. Neither was it ever
authorized to make such representation. It is a settled rule that the basis for
agency is representation, that is, the agent acts for and on behalf of the
principal on matters within the scope of his authority and said acts have the
same legal effect as if they were personally executed by the principal. On the

part of the principal, there must be an actual intention to appoint or an

intention naturally inferable from his words or actions, while on the part of
the agent, there must be an intention to accept the appointment and act on
it.[23] Such mutual intent is not obtaining in this case.
What then is the extent of the respective liabilities of Loadmasters and
Glodel? Each wrongdoer is liable for the total damage suffered by R&B
Insurance. Where there are several causes for the resulting damages, a party
is not relieved from liability, even partially. It is sufficient that the negligence
of a party is an efficient cause without which the damage would not have
resulted. It is no defense to one of the concurrent tortfeasors that the
damage would not have resulted from his negligence alone, without the
negligence or wrongful acts of the other concurrent tortfeasor. As stated in
the case of Far Eastern Shipping v. Court of Appeals,[24]
X x x. Where several causes producing an injury are concurrent and each is
an efficient cause without which the injury would not have happened, the
injury may be attributed to all or any of the causes and recovery may be had
against any or all of the responsible persons although under the
circumstances of the case, it may appear that one of them was more
culpable, and that the duty owed by them to the injured person was not the
same. No actor's negligence ceases to be a proximate cause merely because
it does not exceed the negligence of other actors. Each wrongdoer is
responsible for the entire result and is liable as though his acts were the sole
cause of the injury.
There is no contribution between joint tortfeasors whose liability is solidary
since both of them are liable for the total damage. Where the concurrent or
successive negligent acts or omissions of two or more persons, although
acting independently, are in combination the direct and proximate cause of a
single injury to a third person, it is impossible to determine in what
proportion each contributed to the injury and either of them is
responsible for the whole injury. Where their concurring negligence
resulted in injury or damage to a third party, they become joint tortfeasors
and are solidarily liable for the resulting damage under Article 2194 of the
Civil Code. [Emphasis supplied]
The Court now resolves the issue of whether Glodel can collect from
Loadmasters, it having failed to file a cross-claim against the latter.
Undoubtedly, Glodel has a definite cause of action against Loadmasters for
breach of contract of service as the latter is primarily liable for the loss of the
subject cargo. In this case, however, it cannot succeed in seeking judicial
sanction against Loadmasters because the records disclose that it did not
properly interpose a cross-claim against the latter. Glodel did not even pray
that Loadmasters be liable for any and all claims that it may be adjudged
liable in favor of R&B Insurance. Under the Rules, a compulsory
counterclaim, or a cross-claim, not set up shall be barred.[25] Thus, a crossclaim cannot be set up for the first time on appeal.

For the consequence, Glodel has no one to blame but itself. The Court cannot
come to its aid on equitable grounds. Equity,which has been aptly described
as a justice outside legality, is applied only in the absence of, and never
against, statutory law or judicial rules of procedure. [26] The Court cannot be a
lawyer and take the cudgels for a party who has been at fault or negligent.
WHEREFORE, the petition is PARTIALLY GRANTED. The August 24,
2007 Decision of the Court of Appeals isMODIFIED to read as follows:
WHEREFORE, judgment is rendered declaring petitioner Loadmasters
Customs Services, Inc. and respondent Glodel Brokerage Corporation jointly
and severally liable to respondent R&B Insurance Corporation for the
insurance indemnity it paid to consignee Columbia Wire & Cable Corporation
and ordering both parties to pay, jointly and severally, R&B Insurance
Corporation a] the amount of P1,896,789.62 representing the insurance
indemnity; b] the amount equivalent to ten (10%) percent thereof for
attorneys fees; and c] the amount ofP22,427.18 for litigation expenses.
The cross-claim belatedly prayed for by respondent Glodel Brokerage
Corporation against petitioner Loadmasters Customs Services, Inc. is DENIED.
SO ORDERED.