SECOND DIVISION

G.R. No. 170631, February 10, 2016

CARAVAN TRAVEL AND TOURS
INTERNATIONAL, INC., Petitioner, v.
ERMILINDA R. ABEJAR,Respondent.
LEONEN, J.:
The plaintiff may first prove the employer's
ownership of the vehicle involved in a mishap by
presenting the vehicle's registration in evidence.
Thereafter, a disputable presumption that the
requirements for an employer's liability under
Article 21801 of the Civil Code have been satisfied
will arise. The burden of evidence then shifts to the
defendant to show that no liability under Article
2180 has ensued.
This case, thus, harmonizes the requirements of
Article 2180, in relation to Article 21762 of the Civil
Code, and the so-called registered-owner rule as
established in this court's rulings in Aguilar, Sr. v.
Commercial Savings Bank,3Del Carmen, Jr. v.
Bacoy,4Filcar
Transport
Services
v.
Espinas,5 and Mendoza v. Spouses Gomez.6
Through
this
Petition
for
Review
on
Certiorari,7 Caravel Travel and Tours International,
Inc. (Caravan) prays that the Decision8 dated
October 3, 2005 and the Resolution9 dated
November 29, 2005 of the Court of Appeals
Twelfth Division be reversed and set aside.10
On July 13, 2000, Jesmariane R. Reyes (Reyes)
was walking along the west-bound lane of
Sampaguita Street, United Paraaque Subdivision
IV, Paraaque City.11 A Mitsubishi L-300 van with
plate number PKM 19512 was travelling along the
east-bound lane, opposite Reyes.13 To avoid an
incoming vehicle, the van swerved to its left and hit
Reyes.14 Alex Espinosa (Espinosa), a witness to
the accident, went to her aid and loaded her in the
back of the van.15 Espinosa told the driver of the
van, Jimmy Bautista (Bautista), to bring Reyes to
the hospital.16 Instead of doing so, Bautista
appeared to have left the van parked inside a
nearby subdivision with Reyes still in the
van.17 Fortunately for Reyes, an unidentified
civilian came to help and drove Reyes to the
hospital.18
Upon investigation, it was found that the registered
owner of the van was Caravan.19 Caravan is a
corporation engaged in the business of organizing

travels and tours.20 Bautista was Caravan's

employee assigned to drive the van as its service
driver.21
Caravan shouldered the hospitalization expenses
of Reyes.22 Despite medical attendance, Reyes
died two (2) days after the accident.23
Respondent Ermilinda R. Abejar (Abejar), Reyes'
paternal aunt and the person who raised her since
she was nine (9) years old,24 filed before the
Regional
Trial
Court
of
Paraaque
a
Complaint25 for damages against Bautista and
Caravan. In her Complaint, Abejar alleged that
Bautista was an employee of Caravan and that
Caravan is the registered owner of the van that hit
Reyes.26
Summons could not be served on Bautista.27 Thus,
Abejar moved to drop Bautista as a
defendant.28The Regional Trial Court granted her
Motion.29
After trial, the Regional Trial Court found that
Bautista was grossly negligent in driving the
vehicle.30 It awarded damages in favor of Abejar,
as
follows:

WHEREFORE, considering that the [respondent]

was able to provide by preponderance of evidence
her cause of action against the defendants,
judgment is hereby rendered ordering defendants
JIMMY BAUTISTA and CARAVAN TRAVEL and
TOURS[,] INC., to jointly and solidarity pay the
plaintiff,
the
following,
to
wit:
1. The amount of P35,000.00 representing
actual
damages;
2. The amount of P300,000.00 as moral
damages;
3. The amount of P30,000.00 as exemplary
damages;
4. The amount of P50,000.00 as and by
way
of
attorney's
fees;
and
5. The cost of suit.
SO ORDERED.31
Caravan's Motion for Reconsideration32 was
denied through the October 20, 2003 Order33 of
the
Regional
Trial
Court.
The Court of Appeals affirmed with modification
the Regional Trial Court's July 31, 2003 Decision

and

October

20,

2003

Order,

as

follows:

WHEREFORE, premises considered, the instant

appeal is DENIED for lack of merit. The assailed
Decision dated 31 July 2003 and Order dated 20
October 2003 of the Regional Trial Court, City of
Para[]aque, Branch 258, in Civil Case No. 000447
are AFFIRMED
with
the
following MODIFICATIONS:
1. Moral Damages
200,000.00;

is REDUCED to

Php

2. Death Indemnity of Php 50,000.00 is

awarded;
3. The Php 35,000.00 actual damages, Php
200,000.00
moral
damages,
Php
30,000.00 exemplary damages and Php
50,000.00 attorney's fees shall earn
interest
at
the
rate
of
6% per
annum computed from 31 July 2003, the
date of the [Regional Trial Court's]
decision; and upon finality of this Decision,
all the amounts due shall earn interest at
the rate of 12% per annum, in lieu of
6% per annum, until full payment; and
4. The Php 50,000.00 death indemnity shall
earn interest at the rate of 6% per
annum computed from the date of
promulgation of this Decision; and upon
finality of this Decision, the amount due
shall earn interest at the rate of 12% per
annum, in lieu of 6% per annum, until full
payment.

Costs against [Caravan].

SO ORDERED.34
Caravan filed a Motion for Reconsideration, but it
was denied in the Court of Appeals' assailed
November 29, 2005 Resolution.35
Hence, this Petition was filed.
Caravan argues that Abejar has no personality to
bring this suit because she is not a real party in
interest. According to Caravan, Abejar does not
exercise legal or substitute parental authority. She
is also not the judicially appointed guardian or the
only living relative of the deceased.36 She is also
not "the executor or administrator of the estate of
the deceased."37 According to Caravan, only the
victim herself or her heirs can enforce an action

based on culpa aquiliana such as Abejar's action

for damages.38
Caravan adds that Abejar offered no documentary
or testimonial evidence to prove that Bautista, the
driver, acted "within the scope of his assigned
tasks"39 when the accident occurred.40 According
to Caravan, Bautista's tasks only pertained to the
transport of company personnel or products, and
when the accident occurred, he had not been
transporting personnel or delivering products of
and for the company.41
Caravan also argues that "it exercised the
diligence of a good father of a family in the
selection and supervision of its employees."42
Caravan further claims that Abejar should not have
been awarded moral damages, actual damages,
death indemnity, exemplary damages, and
attorney's fees.43 It questions the Certificate
provided by Abejar as proof of expenses since its
signatory, a certain Julian Pealoza (Pealoza),
was not presented in court, and Caravan was
denied the right to cross-examine him.44 Caravan
argues that the statements in the Certification
constitute hearsay.45 It also contends that based
on Article 2206(3)46 of the Civil Code, Abejar is not
entitled to moral damages.47 It insists that moral
and exemplary damages should not have been
awarded to Abejar because Caravan acted in good
faith.48 Considering that moral and exemplary
damages are unwarranted, Caravan claims that
the award of attorney's fees should have also been
removed.49
Lastly, Caravan argues that it should not be held
solidarily liable with Bautista since Bautista was
already
dropped
as
a
party.50
Abejar counters that Caravan failed to provide
proof that it exercised the requisite diligence in the
selection and supervision of Bautista.51 She adds
that the Court of Appeals' ruling that Caravan is
solidarily liable with Bautista for moral damages,
exemplary damages, civil indemnity ex delicto, and
attorney's fees should be upheld.52 Abejar argues
that since Caravan is the registered owner of the
van, it is directly, primarily, and solidarity liable for
the tortious acts of its driver.53
For

resolution

are

the

following

issues:

First, whether respondent Ermilinda R. Abejar is a

real party in interest who may bring an action for
damages against petitioner Caravan Travel and

Tours International, Inc. on account of Jesmariane

R. Reyes' death; and
Second, whether petitioner should be held liable
as an employer, pursuant to Article 2180 of the
Civil Code.
We deny the Petition.
I
Having exercised substitute parental authority,
respondent suffered actual loss and is, thus, a real
party in interest in this case.
In her Complaint, respondent made allegations
that would sustain her action for damages: that
she exercised substitute parental authority over
Reyes; that Reyes' death was caused by the
negligence of petitioner and its driver; and that
Reyes' death caused her damage.54 Respondent
properly filed an action based on quasi-delict. She
is a real party in interest.
Rule 3, Section 2 of the 1997 Rules of Civil
Procedure defines a real party in interest:
RULE 3. Parties to Civil Actions
.

SECTION 2. Parties in Interest. A real party in

interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party
entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action
must be prosecuted or defended in the name of
the real party in interest.
"To qualify a person to be a real party in interest in
whose name an action must be prosecuted, he [or
she] must appear to be the present real owner of
the right sought to be enforced."55 Respondent's
capacity to file a complaint against petitioner stems
from her having exercised substitute parental
authority over Reyes.
Article 216 of the Family Code identifies the
persons who exercise substitute parental authority:
Art. 216. In default of parents or a judicially
appointed guardian, the following persons shall
exercise substitute parental authority over the child
in the order indicated:
(1) The surviving grandparent, as provided in Art.
214;56
(2) The oldest brother or sister, over twenty-one

years of age, unless unfit or disqualified; and

(3) The child's actual custodian, over twenty-one
years of age, unless unfit or disqualified.
Whenever the appointment or a judicial guardian
over the property of the child becomes necessary,
the same order of preference shall be observed.
(Emphasis supplied)
Article 233 of the Family Code provides for the
extent of authority of persons exercising substitute
parental authority, that is, the same as those of
actual parents:
Art. 233. The person exercising substitute parental
authority shall have the sameauthority over the
person of the child as the parents. (Emphasis
supplied)
Both
of
Reyes'
parents
are
already
deceased.57 Reyes' paternal grandparents are also
both deceased.58The whereabouts of Reyes'
maternal grandparents are unknown.59 There is
also no record that Reyes has brothers or sisters.
It was under these circumstances that respondent
took custody of Reyes when she was a child,
assumed the role of Reyes' parents, and thus,
exercised substitute parental authority over
her.60 As Reyes' custodian, respondent exercised
the full extent of the statutorily recognized rights
and duties of a parent. Consistent with Article
22061 of the Family Code, respondent supported
Reyes' education62 and provided for her personal
needs.63 To echo respondent's words in her
Complaint, she treated Reyes as if she were her
own daughter.64
Respondent's right to proceed against petitioner,
therefore,
is
based
on
two
grounds.
First, respondent suffered actual personal loss.
With her affinity for Reyes, it stands to reason that
when Reyes died, respondent suffered the same
anguish that a natural parent would have felt upon
the loss of one's child. It is for this injury as
authentic and personal as that of a natural parent
that respondent seeks to be indemnified.
Second, respondent is capacitated to do what
Reyes' actual parents would have been
capacitated to do.
In Metro Manila Transit Corporation v. Court of
Appeals,65Tapdasan, Jr. v. People,66 and Aguilar,
Sr. v. Commercial Savings Bank,67 this court
allowed natural parents of victims to recover
damages for the death of their children. Inasmuch
as persons exercising substitute parental authority
have the full range of competencies of a child's

actual parents, nothing prevents persons

exercising substitute parental authority from
similarly possessing the right to be indemnified for
their ward's death.
We note that Reyes was already 18 years old
when she died. Having reached the age of
majority, she was already emancipated upon her
death. While parental authority is terminated upon
emancipation,68respondent continued to support
and care for Reyes even after she turned
18.69 Except for the legal technicality of Reyes'
emancipation, her relationship with respondent
remained the same. The anguish and damage
caused to respondent by Reyes' death was no
different because of Reyes' emancipation.
In any case, the termination of respondent's
parental authority is not an insurmountable legal
bar that precludes the filing of her Complaint. In
interpreting Article 190270 of the old Civil Code,
which is substantially similar to the first sentence
of Article 217671 of the Civil Code, this court in The
Receiver For North Negros Sugar Company, Inc.
v. Ybaez, et al.72 ruled that brothers and sisters
may recover damages, except moral damages, for
the death of their sibling.73 This court declared that
Article 1902 of the old Civil Code (now Article
2176) is broad enough to accommodate even
plaintiffs who are not relatives of the deceased,
thus:74
This Court said: "Article 1902 of the Civil Code
declares that any person who by an act or
omission, characterized by fault or negligence,
causes damage to another shall be liable for the
damage done ... a person is liable for damage
done to another by any culpable act; and by any
culpable act is meant any act which is
blameworthy when judged by accepted legal
standards. The idea thus expressed is
undoubtedly broad enough to include any rational
conception of liability for the tortious acts likely to
be developed in any society." The word "damage"
in said article, comprehending as it does all that
are embraced in its meaning, includes any and all
damages that a human being may suffer in any
and all the manifestations of his life: physical or
material, moral or psychological, mental or
spiritual, financial, economic, social, political, and
religious.
It is particularly noticeable that Article 1902
stresses the passive subject of the obligation to
pay damages caused by his fault or
negligence. The article does not limit or specify the
active subjects, much less the relation that must
exist between the victim of the culpa aquiliana and
the person who may recover damages, thus

warranting the inference that, in principle, anybody

who
suffers
any
damage
from
culpa
aquiliana, whether a relative or not of the victim,
may recover damages from the person responsible
therefor[.]75(Emphasis supplied, citations omitted)
II
Respondent's Complaint is anchored on an
employer's liability for quasi-delict provided in
Article 2180, in relation to Article 2176 of the Civil
Code.
Articles
2176
and
2180
read:
chanRoblesvirtualLawlibrary
ARTICLE 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.
.

ARTICLE 2180. The obligation imposed by article

2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom
one
is
responsible.
The father and, in case of his death or incapacity,
the mother, are responsible for the damages
caused by the minor children who live in their
company.
Guardians are liable for damages caused by the
minors or incapacitated persons who are under
their authority and live in their company.
The owners and managers of an establishment or
enterprise are likewise responsible for damages
caused by their employees in the service of the
branches in which the latter are employed or on
the
occasion
of
their
functions.
Employers shall be liable for the damages caused
by their employees and household helpers acting
within the scope of their assigned tasks, even
though the former are not engaged in any
business
or
industry.
The State is responsible in like manner when it
acts through a special agent; but not when the
damage has been caused by the official to whom
the task done properly pertains, in which case
what is provided in article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts
and trades shall be liable for damages caused by
their pupils and students or apprentices, so long as
they
remain
in
their
custody.

The responsibility treated of in this article shall

cease when the persons herein mentioned prove
that they observed all the diligence of a good
father of a family to prevent damage. (Emphasis
supplied)
Contrary to petitioner's position, it was not fatal to
respondent's cause that she herself did not adduce
proof that Bautista acted within the scope of his
authority. It was sufficient that Abejar proved that
petitioner was the registered owner of the van that
hit Reyes.
The resolution of this case must consider two (2)
rules. First, Article 2180's specification that
"[e]mployers shall be liable for the damages
caused by their employees . . . acting within the
scope of their assigned tasks[.]" Second, the
operation of the registered-owner rule that
registered owners are liable for death or injuries
caused by the operation of their vehicles.76
These rules appear to be in conflict when it comes
to cases in which the employer is also the
registered owner of a vehicle. Article 2180 requires
proof of two things: first, an employment
relationship between the driver and the owner; and
second, that the driver acted within the scope of
his or her assigned tasks. On the other hand,
applying the registered-owner rule only requires
the plaintiff to prove that the defendant-employer is
the registered owner of the vehicle.
The registered-owner rule was articulated as early
as 1957 in Erezo, et al. v. Jepte,77 where this court
explained that the registration of motor vehicles, as
required by Section 5(a)78 of Republic Act No.
4136, the Land Transportation and Traffic Code,
was necessary "not to make said registration the
operative act by which ownership in vehicles is
transferred, . . . but to permit the use and operation
of the vehicle upon any public highway[.]"79 Its
"main aim . . . is to identify the owner so that if any
accident happens, or that any damage or injury is
caused by the vehicle on the public highways,
responsibility therefor can be fixed on a definite
individual, the registered owner."80
Erezo notwithstanding, Castilex
Industrial
Corporation v. Vasquez, Jr.81 relied on Article 2180
of the Civil Code even though the employer was
also the registered owner of the vehicle.82 The
registered-owner rule was not mentioned.
In Castilex, Benjamin Abad (Abad) was a manager
of Castilex Industrial Corporation (Castilex).
Castilex was also the registered owner of a Toyota
Hi-Lux pick-up truck. While Abad was driving the

pick-up truck, it collided with a motorcycle driven

by Romeo Vasquez (Vasquez). Vasquez died a
few days after. Vasquez's parents filed a case for
damages against Abad and Castilex.83 Castilex
denied liability, arguing that Abad was acting in his
private capacity at the time of the accident.84
This court absolved Castilex of liability, reasoning
that it was incumbent upon the plaintiff to prove
that the negligent employee was acting within the
scope of his assigned tasks.85 Vasquez's parents
failed to prove this.86 This court outlined the
process necessary for an employer to be held
liable for the acts of its employees and applied the
process to the case:
Under the fifth paragraph of Article 2180, whether
or not engaged in any business or industry, an
employer is liable for the torts committed by
employees within the scope of his assigned tasks.
But it is necessary to establish the employeremployee relationship; once this is done, the
plaintiff must show, to hold the employer liable,
that the employee was acting within the scope of
his assigned task when the tort complained of was
committed. It is only then that the employer may
find it necessary to interpose the defense of due
diligence in the selection and supervision of the
employee.
.

Since there is paucity of evidence that ABAD was

acting within the scope of the functions entrusted
to him, petitioner CASTILEX had no duty to show
that it exercised the diligence of a good father of a
family in providing ABAD with a service vehicle.
Thus, justice and equity require that petitioner be
relieved of vicarious liability for the consequences
of the negligence of ABAD in driving its vehicle.
(Emphasis supplied, citations omitted)87
Aguilar,
Sr.
v.
Commercial
Savings
Bank recognized the seeming conflict between
Article 2180 and the registered-owner rule and
applied the latter.88
In Aguilar, Sr., a Mitsubishi Lancer, registered in
the name of Commercial Savings Bank and driven
by the bank's assistant vice-president Ferdinand
Borja, hit Conrado Aguilar, Jr. The impact killed
Conrado Aguilar, Jr. His father, Conrado Aguilar,
Sr. filed a case for damages against Ferdinand
Borja and Commercial Savings Bank. The
Regional Trial Court found Commercial Savings
Bank solidarity liable with Ferdinand Borja.89
However, the Court of Appeals disagreed with the
trial court's Decision and dismissed the complaint

against the bank. The Court of Appeals reasoned

that Article 2180 requires the plaintiff to prove that
at the time of the accident, the employee was
acting within the scope of his or her assigned
tasks. The Court of Appeals found no evidence
that Ferdinand Borja was acting as the bank's
assistant vice-president at the time of the
accident.90
The Court of Appeals' ruling was reversed by this
court.91Aguilar,
Sr. reiterated
the
following
pronouncements made in Erezo in ruling that the
bank, as the registered owner of the vehicle, was
primarily liable to the plaintiff:92
The main aim of motor vehicle registration is to
identify the owner so that if any accident happens,
or that any damage or injury is caused by the
vehicle on the public highways, responsibility
therefor can be fixed on a definite individual, the
registered owner....
....
A victim of recklessness on the public highways is
usually without means to discover or identify the
person actually causing the injury or damage. He
has no means other than by a recourse to the
registration in the Motor Vehicles Office to
determine who is the owner. The protection that
the law aims to extend to him would become
illusory were the registered owner given the
opportunity to escape liability by disproving his
ownership.93
Thus, Aguilar, Sr. concluded:
In our view, respondent bank, as the registered
owner of the vehicle, is primarily liable for Aguilar,
Jr.'s death. The Court of Appeals erred when it
concluded that the bank was not liable simply
because (a) petitioner did not prove that Borja was
acting as the bank's vice president at the time of
the accident; and (b) Borja had, according to
respondent bank, already bought the car at the
time of the mishap. For as long as the respondent
bank remained the registered owner of the car
involved in the vehicular accident, it could not
escape primary liability for the death of petitioner's
son.94 (Emphasis supplied)
Preference for the registered-owner rule became
more pronounced in Del Carmen, Jr. v. Bacoy:95
Without disputing the factual finding of the [Court
of Appeals] that Allan was still his employee at the
time of the accident, a finding which we see no
reason to disturb, Oscar Jr. contends that Allan
drove the jeep in his private capacity and thus, an

employer's vicarious liability for the employee's

fault under Article 2180 of the Civil Code cannot
apply
to
him.
The contention is no longer novel. In Aguilar Sr. v.
Commercial Savings Bank, the car of therein
respondent bank caused the death of Conrado
Aguilar, Jr. while being driven by its assistant vice
president. Despite Article 2180, we still held the
bank liable for damages for the accident as said
provision should defer to the settled doctrine
concerning accidents involving registered
motor vehicles, i.e., that the registered owner of
any vehicle, even if not used for public service,
would primarily be responsible to the public or to
third persons for injuries caused the latter while the
vehicle was being driven on the highways or
streets. We have already ratiocinated that:
The main aim of motor vehicle registration is to
identify the owner so that if any accident happens,
or that any damage or injury is caused by the
vehicle on the public highways, responsibility
therefor can be fixed on a definite individual, the
registered owner. Instances are numerous where
vehicles running on public highways caused
accidents or injuries to pedestrians or other
vehicles without positive identification of the owner
or drivers, or with very scant means of
identification. It is to forestall these circumstances,
so inconvenient or prejudicial to the public, that the
motor vehicle registration is primarily ordained, in
the interest of the determination of persons
responsible for damages or injuries caused on
public highways.96 (Emphasis supplied, citations
omitted)
Filcar Transport Services v. Espinas97 stated that
the registered owner of a vehicle can no longer
use the defenses found in Article 2180:98
Neither can Filcar use the defenses available
under Article 2180 of the Civil Code - that the
employee acts beyond the scope of his assigned
task or that it exercised the due diligence of a good
father of a family to prevent damage - because the
motor vehicle registration law, to a certain extent,
modified Article 2180 of the Civil Code by making
these defenses unavailable to the registered
owner of the motor vehicle. Thus, for as long as
Filcar is the registered owner of the car involved in
the vehicular accident, it could not escape primary
liability for the damages caused to Espinas.99
Mendoza v. Spouses Gomez100 reiterated this
doctrine.
However, Aguilar, Sr., Del Carmen, Filcar,
and Mendoza should not be taken to mean that
Article 2180 of the Civil Code should be completely

discarded in cases where the registered-owner

rule
finds
application.
As acknowledged in Filcar, there is no categorical
statutory
pronouncement
in
the
Land
Transportation and Traffic Code stipulating the
liability of a registered owner.101 The source of a
registered owner's liability is not a distinct statutory
provision, but remains to be Articles 2176 and
2180 of the Civil Code:
While Republic Act No. 4136 or the Land
Transportation and Traffic Code does not contain
any provision on the liability of registered owners
in case of motor vehicle mishaps, Article 2176, in
relation with Article 2180, of the Civil Code
imposes an obligation upon Filcar, as registered
owner, to answer for the damages caused to
Espinas' car.102
Thus, it is imperative to apply the registered-owner
rule in a manner that harmonizes it with Articles
2176 and 2180 of the Civil Code. Rules must be
construed in a manner that will harmonize them
with other rules so as to form a uniform and
consistent system of jurisprudence.103 In light of
this, the words used in Del Carmen are particularly
notable. There, this court stated that Article 2180
"should defer to"104 the registered-owner rule. It
never stated that Article 2180 should be totally
abandoned.
Therefore, the appropriate approach is that in
cases where both the registered-owner rule and
Article 2180 apply, the plaintiff must first establish
that the employer is the registered owner of the
vehicle in question. Once the plaintiff successfully
proves ownership, there arises a disputable
presumption that the requirements of Article 2180
have been proven. As a consequence, the burden
of proof shifts to the defendant to show that no
liability under Article 2180 has arisen.
This disputable presumption, insofar as the
registered owner of the vehicle in relation to the
actual driver is concerned, recognizes that
between the owner and the victim, it is the former
that should carry the costs of moving forward with
the evidence. The victim is, in many cases, a
hapless pedestrian or motorist with hardly any
means to uncover the employment relationship of
the owner and the driver, or any act that the owner
may have done in relation to that employment.
The registration of the vehicle, on the other hand,
is accessible to the public.
Here, respondent presented a copy of the
Certificate of Registration105 of the van that hit

Reyes.106 The Certificate attests to petitioner's

ownership of the van. Petitioner itself did not
dispute its ownership of the van. Consistent with
the rule we have just stated, a presumption that
the requirements of Article 2180 have been
satisfied arises. It is now up to petitioner to
establish that it incurred no liability under Article
2180. This it can do by presenting proof of any of
the following: first, that it had no employment
relationship with Bautista; second, that Bautista
acted outside the scope of his assigned tasks; or
third, that it exercised the diligence of a good
father of a family in the selection and supervision
of Bautista.107
On the first, petitioner admitted that Bautista was
its employee at the time of the accident.108
On the second, petitioner was unable to prove that
Bautista was not acting within the scope of his
assigned tasks at the time of the accident. When
asked by the court why Bautista was at the place
of the accident when it occurred, Sally Bellido,
petitioner's accountant and supervisor,109 testified
that she did not "have the personal capacity to
answer [the question]"110 and that she had no
knowledge to answer it:
COURT

Madam Witness, do you know

the reason why your driver,
Jimmy Bautista, at around 10:00
o' clock in the morning of July 13,
2000 was in the vicinity of
Barangay Marcelo Green, United
Paraaque Subdivision 4?

WITNESS

I don't have the personal capacity

to answer that, Sir.

So
you
don't
have
any
knowledge why he was there?

Yes, Sir.111 (Emphasis supplied)

Sally Bellido's testimony does not affect the

presumption that Article 2180's requirements have
been satisfied. Mere disavowals are not proof that
suffice to overturn a presumption. To this end,
evidence must be adduced. However, petitioner
presented no positive evidence to show that
Bautista was acting in his private capacity at the
time of the incident.
On the third, petitioner likewise failed to prove that

it exercised the requisite diligence in the selection

and supervision of Bautista.
In its selection of Bautista as a service driver,
petitioner
contented
itself
with
Bautista's
submission
of
anon-professional driver's
license.112 Hence, in Sally Balledo's crossexamination:
Q

. . . when he was promoted as

service driver, of course, there were
certain requirements and among
other else, you made mention
about a driver's license.

Yes, Sir.

Would you be able to show to this

Honorable Court whether indeed
this person did submit a driver's
license to your company?

Yes, Sir.

....

Do you recall what kind of driver's

license is this?

The Land Transportation Office.

Is it a professional driver's license

or non-proffesional [sic] driver's
license?

Non-professional.

You are not sure?

COURT

Non professional, professional?

It's
a
professional.113 (Emphasis
supplied)

non-

Employing a person holding a non-professional

driver's license to operate another's motor vehicle
violates Section 24 of the Land Transportation and
Traffic
Code,
which
provides:
SEC. 24. Use of driver's license and badge. ...
.

No owner of a motor vehicle shall engage, employ,

or hire any person to operate such motor vehicle,
unless the person sought to be employed is a duly
licensed professional driver.
Evidently, petitioner did not only fail to exercise
due diligence when it selected Bautista as service
driver; it also committed an actual violation of law.
To prove that it exercised the required diligence in
supervising Bautista, petitioner presented copies
of
several
memoranda
and
company
rules.114 These, however, are insufficient because
petitioner failed to prove actual compliance. Metro
Manila
Transit Corporation
v. Court of
Appeals115 emphasized that to establish diligence
in the supervision of employees, the issuance of
company policies must be coupled with proof of
compliance:
Due diligence in the supervision of employees, on
the other hand, includes the formulation of suitable
rules and regulations for the guidance of
employees and the issuance of proper instructions
intended for the protection of the public and
persons with whom the employer has relations
through his or its employees and the imposition of
necessary disciplinary measures upon employees
in case of breach or as may be warranted to
ensure the performance of acts indispensable to
the business of and beneficial to their employer.
To this, we add that actual implementation and
monitoring ofconsistent compliance with said rules
should be the constant concern of the employer,
acting through dependable supervisors who should
regularly report on their supervisory functions.
In order that the defense of due diligence in the
selection and supervision of employees may be
deemed sufficient and plausible, it is not enough
to emptily invoke the existence of said
company guidelines and policies on hiring and
supervision. As the negligence of the employee
gives rise to the presumption of negligence on the
part of the employer, the latter has the burden of
proving that it has been diligent not only in the
selection of employees but also in the actual

supervision of their work. The mere allegation of

the existence of hiring procedures and supervisory
policies, without anything more, is decidedly not
sufficient
to
overcome
presumption.
We emphatically reiterate our holding, as a
warning to all employers, that "(t)he mere
formulation of various company policies on
safety without showing that they were being
complied with is not sufficient to exempt
petitioner from liability arising from negligence of
its employees. It is incumbent upon petitioner to
show that in recruiting and employing the erring
driver the recruitment procedures and company
policies on efficiency and safety were followed."
Paying lip-service to these injunctions or merely
going through the motions of compliance therewith
will
warrant
stern
sanctions
from
the
Court.116(Emphasis supplied, citations omitted)
For failing to overturn the presumption that the
requirements of Article 2180 have been satisfied,
petitioner must be held liable.
III
Petitioner's argument that it should be excused
from liability because Bautista was already
dropped as a party is equally unmeritorious. The
liability imposed on the registered owner is direct
and primary.117 It does not depend on the inclusion
of the negligent driver in the action. Agreeing to
petitioner's assertion would render impotent the
rationale of the motor registration law in fixing
liability
on
a
definite
person.
Bautista, the driver, was not an indispensable
party under Rule 3, Section 7118 of the 1997 Rules
of Civil Procedure. Rather, he was a necessary
party under Rule 3, Section 8.119 Instead of
insisting that Bautista who was nothing more
than a necessary party should not have been
dropped as a defendant, or that petitioner, along
with Bautista, should have been dropped,
petitioner (as a co-defendant insisting that the
action must proceed with Bautista as party) could
have opted to file a cross-claim against Bautista as
its
remedy.
The 1997 Rules of Civil Procedure spell out the
rules on joinder of indispensable and necessary
parties. These are intended to afford "a complete
determination of all possible issues, not only
between the parties themselves but also as
regards to other persons who may be affected by
the
judgment."120
However, while an exhaustive resolution of
disputes is desired in every case, the distinction
between indispensable parties and necessary

parties delineates a court's capacity to render

effective judgment. As defined by Rule 3, Section
7, indispensable parties are "[p]arties in interest
without whom no final determination can be had of
an action[.]" Thus, their non-inclusion is
debilitating: "the presence of indispensable parties
is a condition for the exercise of juridical power
and when an indispensable party is not before the
court, the action should be dismissed."121
In contrast, a necessary party's presence is not
imperative, and his or her absence is not
debilitating. Nevertheless, it is preferred that they
be included in order that relief may be complete.
The concept of indispensable parties, as against
parties whose inclusion only allows complete relief,
was explained in Arcelona v. Court of Appeals:122
An indispensable party is a party who has such an
interest in the controversy or subject matter that a
final adjudication cannot be made, in his absence,
without injuring or affecting that interest, a party
who has not only an interest in the subject matter
of the controversy, but also has an interest of such
nature that a final decree cannot be made without
affecting his interest or leaving the controversy in
such a condition that its final determination may be
wholly inconsistent with equity and good
conscience. It has also been considered that an
indispensable party is a person in whose absence
there cannot be a determination between the
parties already before the court which is effective,
complete, or equitable. Further, an indispensable
party is one who must be included in an action
before
it
may
properly
go
forward.
A person is not an indispensable party, however, if
his interest in the controversy or subject matter is
separable from the interest of the other parties, so
that it will not necessarily be directly or injuriously
affected by a decree which does complete justice
between them. Also, a person is not an
indispensable party if his presence would merely
permit complete relief between him and those
already parties to the action, or if he has no
interest in the subject matter of the action. It is not
a sufficient reason to declare a person to be an
indispensable party that his presence will avoid
multiple litigation.123
Petitioner's interest and liability is distinct from that
of its driver. Regardless of petitioner's employeremployee relationship with Bautista, liability
attaches to petitioner on account of its being the
registered owner of a vehicle that figures in a
mishap. This alone suffices. A determination of its
liability as owner can proceed independently of a
consideration of how Bautista conducted himself
as a driver. While certainly it is desirable that a
determination of Bautista's liability be made

alongside that of the owner of the van he was

driving, his non-inclusion in these proceedings
does not absolutely hamper a judicious resolution
of respondent's plea for relief.

A:

Meron po.

IV

Q:

The Court of Appeals committed no reversible

error when it awarded actual damages to
respondent. Respondent's claim for actual
damages was based on the Certificate124 issued
and signed by a certain Pealoza showing that
respondent paid Pealoza P35,000.00 for funeral
expenses.

Showing to you this sort of certification.

What relation has this...

A:

'Yan po' yung contractor nagumawa.

Q:

Contractor of what?

A:

'Yan po' yung mismong binilhan ko ng

lupa at nitso.

Contrary to petitioner's claim, this Certificate is not

hearsay. Evidence is hearsay when its probative
value is based on the personal knowledge of a
person
other
than
the
person
actually
testifying.125 Here, the Certificate sought to
establish that respondent herself paid Pealoza
P35,000.00 as funeral expenses for Reyes'
death:126
3. Na ang aking kontrata ay nagkakahalaga
ng P35,000-00 [sic] sa lahat ng nagamit na
materiales at labor nito kasama ang lote na
ibinayad sa akin ni Gng. ERMILINDA
REYES
ABEJAR na
siyang
aking
kakontrata sa pagsasagawa ng naturang
paglilibingan.127 (Emphasis supplied)
It was respondent herself who identified the
Certificate. She testified that she incurred funeral
expenses amounting to P35,000.00, that she paid
this amount to Pealoza, and that she was present
when
Pealoza
signed
the
Certificate:
[ATTY.
LIM] :

....

ATTY.
LIM :

There is a signature at the top of the

printed name Julian Penalosa [sic].
Whose signature is this?

A:

'Yan po' yung mismong contractor.

....

Q:

Did you see him sign this?

A:

Opo.128 (Emphasis supplied)

Did you incur any expenses?

A:

Meron po.

Q:

How much did you spend for the death

of Jesmarian [sic] Reyes?

A:

'Yun
pong P35,000.00
pagpapalibing at saka...

na

Respondent had personal knowledge of the facts

sought to be proved by the Certificate, i.e. that she
spent P35,000.00 for the funeral expenses of
Reyes. Thus, the Certificate that she identified and
testified to is not hearsay. It was not an error to
admit this Certificate as evidence and basis for
awarding P35,000.00 as actual damages to
respondent.
The Court of Appeals likewise did not err in
awarding civil indemnity and exemplary damages.
Article

Q:

You said that you spent P35,000.00.

Do you have any evidence or proof
that you spent that amount?

2206

of

the

Civil

Code

provides:

ARTICLE 2206. The amount of damages for death

caused by a crime or quasi-delict shall be at least

three thousand pesos, even though there may

have been mitigating circumstances[.]
Further, Article 2231 of the Civil Code provides:
ARTICLE 2231. In quasi-delicts, exemplary
damages may be granted if the defendant acted
with gross negligence.
Both the Court of Appeals and the Regional Trial
Court found Bautista grossly negligent in driving
the van and concluded that Bautista's gross
negligence was the proximate cause of Reyes'
death. Negligence and causation are factual
issues.129 Findings of fact, when established by the
trial court and affirmed by the Court of Appeals,
are binding on this court unless they are patently
unsupported by evidence or unless the judgment is
grounded
on
a
misapprehension
of
facts.130 Considering that petitioner has not
presented any evidence disputing the findings of
the lower courts regarding Bautista's negligence,
these findings cannot be disturbed in this appeal.
The evidentiary bases for the award of civil
indemnity and exemplary damages stand. As
such, petitioner must pay the exemplary damages
arising from the negligence of its driver.131 For the
same reasons, the award of P50,000.00 by way of
civil
indemnity
is
justified.132
The award of moral damages is likewise proper.
Article 2206(3) of the Civil Code provides:
ARTICLE 2206. The amount of damages
for death caused by a crime or quasi-delict shall be
at least three thousand pesos, even though there
may have been mitigating circumstances. In
addition:
.
(3)

The spouse, legitimate and illegitimate

descendants and ascendants of the
deceased may demand moral damages for
mental anguish by reason of the death of the
deceased. (Emphasis supplied)

For deaths caused by quasi-delict, the recovery of

moral damages is limited to the spouse, legitimate
and illegitimate descendants, and ascendants of
the
deceased.133
Persons exercising substitute parental authority
are to be considered ascendants for the purpose
of awarding moral damages. Persons exercising
substitute parental authority are intended to stand
in place of a child's parents in order to ensure the
well-being and welfare of a child.134 Like natural
parents, persons exercising substitute parental
authority are required to, among others, keep their

wards in their company,135 provide for their

upbringing,136 show
them
love
and
affection,137 give them advice and counsel,138 and
provide
them
with
companionship
and
understanding.139 For their part, wards shall
always observe respect and obedience towards
the person exercising parental authority.140 The
law forges a relationship between the ward and the
person exercising substitute parental authority
such that the death or injury of one results in the
damage
or
prejudice
of
the
other.
Moral damages are awarded to compensate the
claimant for his or her actual injury, and not to
penalize the wrongdoer.141 Moral damages enable
the injured party to alleviate the moral suffering
resulting from the defendant's actions.142 It aims to
restore to the extent possible "the spiritual
status
quo
ante[.]"143
Given the policy underlying Articles 216 and 220 of
the Family Code as well as the purposes for
awarding moral damages, a person exercising
substitute parental authority is rightly considered
an ascendant of the deceased, within the meaning
of Article 2206(3) of the Civil Code. Hence,
respondent is entitled to moral damages.
As exemplary damages have been awarded and
as respondent was compelled to litigate in order to
protect her interests, she is rightly entitled to
attorney's
fees.144
However, the award of interest should be modified.
This modification must be consistent with Nacar v.
Gallery
Frames,145 in
which
we
ruled:

2. When an obligation, not constituting a loan

or forbearance of money, is breached, an
interest on the amount of damages
awarded may be imposed at the discretion
of the court at the rate of 6% per annum.
No interest, however, shall be adjudged on
unliquidated claims or damages, except
when or until the demand can be
established with reasonable certainty.
Accordingly, where
the
demand
is
established with reasonable certainty, the
interest shall begin to run from the time the
claim is made judicially or extrajudicially
(Art. 1169, Civil Code), but when such
certainty cannot be so reasonably
established at the time the demand is
made, the interest shall begin to run only
from the date the judgment of the court is
made (at which time the quantification of
damages may be deemed to have been
reasonably ascertained). The actual base

for the computation of legal interest shall,

in any case, be on the amount finally
adjudged.
3. When the judgment of the court awarding a
sum of money becomes final and
executory, the rate of legal interest,
whether the case falls under paragraph 1
or paragraph 2, above, shall be 6% per
annum from
such
finality
until
its
satisfaction, this interim period being
deemed to be by then an equivalent to a
forbearance
of
credit.146 (Emphasis
supplied)
WHEREFORE, the Decision of the Court of
Appeals dated October 3, 2005 is AFFIRMED
with the following MODIFICATIONS: (a) actual
damages in the amount of P35,000.00 shall earn
interest at the rate of 6% per annum from the time
it was judicially or extrajudicially demanded from
petitioner Caravan Travel and Tours International,
Inc. until full satisfaction; (b) moral damages,
exemplary damages, and attorney's fees shall earn
interest at the rate of 6% per annum from the date
of the Regional Trial Court Decision until full
satisfaction; and (c) civil indemnity shall earn
interest at the rate of 6% per annum from the date
of the Court of Appeals Decision until full
satisfaction.
SO ORDERED.

FIRST DIVISION
G.R. No. 167797

June 15, 2015

METRO MANILA TRANSIT

CORPORATION, Petitioner,
vs.
REYNALDO CUEVAS and JUNNEL CUEVAS,
represented by REYNALDO
CUEVAS, Respondents.
BERSAMIN, J.:
The registered owner of a motor vehicle whose
operation causes injury to another is legally liable
to the latter. But it is error not to allow the
registered owner to recover reimbursement from
the actual and present owner by way of its crossclaim.
Antecedents

Metro Manila Transit Corporation (MMTC) and

Mina's Transit Corporation (Mina's Transit) entered
into an agreement to sell dated August 31,
1990,1 whereby the latter bought several bus units
from the former at a stipulated price. They agreed
that MMTC would retain the ownership of the
buses until certain conditions were met, but in the
meantime Mina's Transit could operate the buses
within Metro Manila.
On October 14, 1994, one of the buses subject of
the agreement to sell, bearing plate number NXM449-TB-pil 94, hit and damaged a Honda
Motorcycle owned by Reynaldo and driven by
Junnel. Reynaldo and Junnel sued MMTC and
Minas Transit for damages in the Regional Trial
Court (RTC) in Cavite, docketed as Civil Case No.
N-6127, pertinently alleging and praying as
follows:
5. Defendants Metro Manila Transit
Corporation and Minas Transit are
registered joint-owners or operators of an
MMTC/Minas Transit passenger bus with
Plate No. NXM-449-TB-pil 94, and is the
employers (sic) of the driver Jessie Rillera
y Gaceta.
6. On October 14, 1994, at around 7:45
P.M., while Plaintiff was riding on a Honda
Motocycle, with a companion at the back,
along South Superhighway, in front of
Magallanes Supermarket in Makati, Metro
Manila, a few meters away from the
approaches of Magallanes Overpass
complex, coming from the South and
heading toward the North, the defendants
driver Jessie Rillera Y Gaceta, driving the
MMTC/Minas Transit Passenger bus with
Plate No. NXM-449-TB-pil 94, heading in
the same direction and following Plain tiffs
motorcycle, recklessly and carelessly
attempted to overtake Plaintiffs Motorcycle
on the right side of the lane, in the course
of which the said Jessie Rillera side swiped
the Plaintiff as the said Jessie Rillera
accelerated speed;
7. As a result, plaintiff Junnel Cuevas and
his companion were thrown to the road and
Plaintiffs right leg was severely fractured,
and the Honda Motorcycle owned by
plaintiff Reynaldo Cuevas was extensively
damaged;
8. Plaintiff Junnel Cuevas and his
companion were then brought to the
Philippine General Hospital along Taft

Avenue in Manila, where the said Plaintiff

had to undergo several operations on his
right leg; but in spite of the several
operations which he had undergone,
Plaintiff Junnel Cuevas, even up to now, is
unable to walk on his own without the aid
of crutches and is still scheduled for more
operations; a xerox copy of his medical
certificate is hereto attached as Annex A
hereof;2
WHEREFORE, it is most respectfully prayed that
after notice and hearing a judgment be rendered
ordering the defendants jointly and severally to pay
Plaintiffs the following sums of money:
1) P200,000.00 more or less, representing
actual medical expenses;
2) P18,940.00 representing the cost of
repair of the damaged motorcycle
3) P300,000.00 as moral damage(s)
4) P100,000.00 as exemplary damage(s)

to property
amount.6

of P20,000.00

as

the

maximum

In its answer to the third-party complaint, Perla

denied liability as insurer because Minas Transit
had waived its recourse by failing to notify Perla of
the incident within one year from its occurrence, as
required by Section 384 of the Insurance Code.7 It
submitted that even assuming that the claim had
not yet prescribed, its liability should be limited to
the maximum of P50,000.00 for third-party liability
and P20,000.00 for third-party damage.8
After trial, the RTC rendered judgment in favor of
the respondents on September 17, 19999 ordering
petitioner Metro Manila Transit Corporation
(MMTC) and its co-defendant Minas Transit
Corporation (Minas Transit) to pay damages in
favor of respondents Reynaldo Cuevas and Junnel
Cuevas to wit:
WHEREFORE, premises considered, defendants
Metro Manila Transit Corporation and Minas
Transit Corporation are hereby held solidarily liable
for the payment to the plaintiffs of the following:

5) P50,000.00 as nominal damage(s)

a. P115,436.50 as actual damages;

6) P15,000.00 as litigation expenses

b. P100,000.00 as moral damages

7) P30,000.00 as attorneys fees

c. P50,000.00 as exemplary damages; and

8) to pay the cost of the suit.3

d. P20,000.00 as attorneys fees.

In its answer with compulsory counterclaim and

cross-claim,4 MMTC denied liability, and averred
that although it retained the ownership of the bus,
the actual operator and employer of the bus driver
was Minas Transit; and that, in support of its
cross-claim against Minas Transit, a provision in
the agreement to sell mandated Mina s Transport
to hold it free from liability arising from the use and
operation of the bus units.5
On its part, Minas Transit contended that it was
not liable because: (a) it exercised due diligence in
the selection and supervision of its employees; (b)
its bus driver exercised due diligence; and (c)
Junnels negligence was the cause of the accident.
Meanwhile, Minas Transit filed a third-party
complaint against its insurer, Perla Compania de
Seguros, Inc. (Perla), seeking reimbursement
should it be adjudged liable, pursuant to its
insurance policy issued by Perla with the following
coverage: (a) third-party liability of P50,000.00 as
the maximum amount; and (b) third-party damage

Costs are also adjudged against defendants.

SO ORDERED.10
The RTC concluded that the proximate cause of
the mishap was the negligence of the bus driver;
that following Article 2180 of the Civil Code, his
employers should be solidarily liable; that MMTC
and Minas Transit, being the joint owners of the
bus, were liable; and that the third-party complaint
was dismissed because no evidence was
presented to prove it. The RTC, however, did not
rule on the propriety of the cross-claim.
On appeal, the CA affirmed the RTCs decision.11
Issue
Hence, this appeal, in which MMTC posits the sole
issue of whether or not it was liable for the injuries
sustained by the respondents despite the provision
in the agreement to se ll that shielded it from
liability.

Ruling of the Court

The appeal is partly meritorious.
MMTC urges the revisit of the register ed-owner
rule in order to gain absolution from liability. It
contends that although it retained ownership of the
bus at the time of the vehicular accident, the actual
operation was transferred to Minas Transit; that
for it to be held liable for the acts of the bus driver,
the
existence
of
an
employer-employee
relationship between them must be established;
and that because the bus driver was not its
employee, it was not liable for his negligent act.
The contentions of MMTC cannot persuade.
In view of MMTCs admission in its pleadings that
it had remained the registered owner of the bus at
the time of the incident, it could not escape liability
for the personal injuries and property damage
suffered by the Cuevases. This is because of the
registered-owner rule, whereby the registered
owner of the motor vehicle involved in a vehicular
accident could be held liable for the
consequences. The registered-owner rule has
remained good law in this jurisdiction considering
its impeccable and timeless rationale, as
enunciated in the 1957 ruling in Erezo, et al. v.
Jepte,12 where the Court pronounced:
Registration is required not to make said
registration the operative act by which ownership
in vehicles is transferred, as in land registration
cases, because the administrative proceeding of
registration does not bear any essential relation to
the contract of sale between the parties (Chinchilla
vs. Rafael and Verdaguer, 39 Phil. 888), but to
permit the use and operation of the vehicle upon
any public highway (section 5 [a], Act No. 3992, as
amended.) The main aim of motor vehicle
registration is to identify the owner so that if any
accident happens, or that any damage or injury is
caused by the vehicle on the public highways,
responsibility therefore can be fixed on a definite
individual, the registered owner. Instances are
numerous where vehicles running on public
highways caused accidents or injuries to
pedestrians or other vehicles without positive
identification of the owner or drivers, or with very
scant means of identification. It is to forestall these
circumstances, so inconvenient or prejudicial to
the public, that the motor vehicle registration is
primarily ordained, in the interest of the
determination of persons responsible for damages
or injuries caused on public highways.

"One of the principal purposes of motor vehicles

legislation is identification of the vehicle and of the
operator, in case of accident; and another is that
the knowledge that means of detection are always
available may act as a deterrent from lax
observance of the law and of the rules of
conservative and safe operation. Whatever
purpose there may be in these statutes, it is
subordinate at the last to the primary purpose of
rendering it certain that the violator of the law or of
the rules of safety shall not escape because of
lack of means to discover him. The purpose of the
statute is thwarted, and the displayed number
becomes a snare and delusion, if courts would
entertain such defenses as that put forward by
appellee in this case. No responsible person or
corporation could be held liable for the most
outrageous acts of negligence, if they should be
allowed to place a middleman between them and
the public, and escape liability by the manner in
which they recompense their servants." (King vs.
Brenham Automobile Co., 145 S.W. 278, 279.)
The Court has reiterated the registered-owner rule
in other rulings, like in Filcar Transport Services v.
Espinas ,13 to wit:
It is well settled that in case of motor vehicle
mishaps, the registered owner of the motor vehicle
is considered as the employer of the tortfeasordriver , and is made primarily liable for the tort
committed by the latter under Article 2176, in
relation with Article 2180, of the Civil Code.
In Equitable Leasing Corporation v. Suyom, we
ruled that in so far as third persons are concerned,
the registered owner of the motor vehicle is the
employer of the negligent driver, and the actual
employer is considered merely as an agent of such
owner .
In that case, a tractor registered in the name of
Equitable Leasing Corporation ( Equitable ) figured
in an accident, killing and seriously injuring several
persons. As part of its defense, Equitable claimed
that the tractor was initially leased to Mr. Edwin
Lim under a Lease Agreement, which agreement
has been overtaken by a Deed of Sale entered into
by Equitable and Ecatine Corporation (Ecatine).
Equitable argued that it cannot be held liable for
damages because the tractor had already been
sold to Ecatine at the time of the accident and the
negligent driver was not its employee but of
Ecatine.
In upholding the liability of Equitable, as registered
owner of the tractor, this Court said that
"regardless of sales made of a motor vehicle, the

registered owner is the lawful operator insofar as

the public and third persons are concerned;
consequently, it is directly and primarily
responsible for the consequences of its operation."
The Court further stated that " [i]n contemplation of
law, the owner/operator of record is the employer
of the driver, the actual operator and employer
being considered as merely its agent. " Thus,
Equitable, as the registered owner of the tractor,
was considered under the law on quasi delict to be
the employer of the driver, Raul Tutor; Ecatine,
Tutors actual employer, was deemed merely as
an agent of Equitable.
Thus, it is clear that for the purpose of holding the
registered owner of the motor vehicle primarily and
directly liable for damages under Article 2176, in
relation with Article 2180, of the Civil Code, the
existence of an employer-employee relationship,
as it is understood in labor relations law, is not
required. It is sufficient to establish that Filcar is
the registered owner of the motor vehicle causing
damage in order that it may be held vicariously
liable under Article 2180 of the Civil Code.
Indeed, MMTC could not evade liability by passing
the buck to Minas Transit. The stipulation in the
agreement to sell did not bind third parties like the
Cuevases, who were expected to simply rely on
the data contained in the registration certificate of
the erring bus.
Although the registered-owner rule might seem to
be unjust towards MMTC, the law did not leave it
without
any
remedy
or
recourse.1wphi1 According to Filcar Transport
Services v. Espinas ,14 MMTC could recover from
Minas Transit, the actual employer of the
negligent driver, under the principle of unjust
enrichment, by means of a cross-claim seeking
reimbursement of all the amounts that it could be
required to pay as damages arising from the
drivers negligence. A cross-claim is a claim by
one party against a co-party arising out of the
transaction or occurrence that is the subject matter
either of the original action or of a counterclaim
therein, and may include a claim that the party
against whom it is asserted is or may be liable to
the cross-claimant for all or part of a claim
asserted in the action against the cross-claimant.15
MMTC set up its cross-claim against Mina's Transit
precisely to ensure that Mina's Transit would
reimburse whatever liability would be adjudged
against MMTC. Yet, it is a cause of concern for the
Court that the RTC ignored to rule on the propriety
of MMTC's cross-claim. Such omission was
unwarranted, inasmuch as Mina's Transit did not
dispute the cross-claim, or did not specifically deny

the agreement to sell with MMTC, the actionable

document on which the cross-claim was based.
Even more telling was the fact that Mina's Transit
did not present controverting evidence to disprove
the cross-claim as a matter of course if it was
warranted for it to do so. Under the circumstances,
the RTC should have granted the cross-claim to
prevent the possibility of a multiplicity of suits, and
to spare not only the MMTC but also the other
parties in the case from further expense and
bother. Compounding the RTC's uncharacteristic
omission was the CA's oversight in similarly
ignoring the cross-claim. The trial and the
appellate courts should not forget that a crossclaim is like the complaint and the counterclaim
that the court must rule upon.
WHEREFORE, the Court AFFIRMS the decision
promulgated on June 28, 2004 subject to the
MODIFICATION that the cross-claim of Metro
Manila Transit Corporation against Mina's Transit
Corporation is GRANTED, and, ACCORDINGLY,
Mina's Transit Corporation is
ORDERED to reimburse to Metro Manila Transit
Corporation whatever amounts the latter shall pay
to the respondents pursuant to the judgment of the
Regional Trial Court in Civil Case No. N-6127.
No pronouncement on costs of suit.
SO ORDERED.
SECOND DIVISION
G.R. No. L-25142 March 25, 1975
PHILIPPINE RABBIT BUS LINES, INC. and
FELIX PANGALANGAN, plaintiffs-appellants,
vs.
PHIL-AMERICAN FORWARDERS, INC.,
ARCHIMEDES J. BALINGIT and FERNANDO
PINEDA, defendants-appellees.
AQUINO, J.:+.wph!1
Philippine Rabbit Bus Lines, Inc. and Felix
Pangalangan appealed on pure questions of law
from the order of the Court of First Instance of
Tarlac, dismissing their complaint against
Archimedes J. Balingit.
The dismissal was based on the ground that
Balingit as the manager of Phil-American
Forwarders, Inc., which together with Fernando
Pineda and Balingit, was sued for damages in an
action based on quasi-delict or culpa aquiliana, is

not the manager of an establishment contemplated

in article 2180 of the Civil Code (Civil Case No.
3865).
In the complaint for damages filed by the bus
company and Pangalangan against Phil-American
Forwarders, Inc., Balingit and Pineda, it was
alleged that on November 24, 1962, Pineda drove
recklessly a freight truck, owned by Phil-American
Forwarders, Inc., along the national highway at
Sto. Tomas, Pampanga. The truck bumped the
bus driven by Pangalangan, which was owned by
Philippine Rabbit Bus Lines, Inc. As a result of the
bumping, Pangalangan suffered injuries and the
bus was damaged and could not be used for
seventy-nine days, thus depriving the company of
earnings amounting to P8,665.51. Balingit was the
manager of Phil-American Forwarders, Inc.
Among the defenses interposed by the defendants
in their answer was that Balingit was not Pineda's
employer.
Balingit moved that the complaint against him be
dismissed on the ground that the bus company
and the bus driver had no cause of action against
him. As already stated, the lower court dismissed
the action as to Balingit. The bus company and its
driver appealed.

the latter are employed or on the

occasion of their functions.
Employers shall be liable for the
damages
caused
by
their
employees and household helpers
acting within the scope of their
assigned tasks, even though the
former are not engaged in any
business or industry.
xxx xxx xxx
The responsibility treated of in this
article shall cease when the
persons herein mentioned prove
that they observed all the diligence
of a good father of a family to
prevent damage. (1903a)
The novel and unprecedented legal issue in this
appeal is whether the terms "employers" and
"owners and managers of an establishment or
enterprise" (dueos o directores de un
establicimiento o empresa) used in article 2180 of
the Civil Code, formerly article 1903 of the old
Code, embrace the manager of a corporation
owning a truck, the reckless operation of which
allegedly resulted in the vehicular accident from
which the damage arose.

The Civil Code provides:t.hqw

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 preexisting
contractual
relation
between the parties, is called
a quasi-delict and is governed by
the provisions of this Chapter.
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
The owners and managers of an
establishment or enterprise are
likewise responsible for damages
caused by their employees in the
service of the branches in which

We are of the opinion that those terms do not

include the manager of a corporation. It may be
gathered from the context of article 2180 that the
term "manager" ("director" in the Spanish version)
is used in the sense of "employer".
Hence, under the allegations of the complaint, no
tortious or quasi-delictual liability can be fastened
on Balingit as manager of Phil-American
Forwarders, Inc., in connection with the vehicular
accident already mentioned because he himself
may
be
regarded
as
an employee
or
dependiente of his employer, Phil-American
Forwarders, Inc.
Thus, it was held "que es dependiente, a los
efectos de la responsabilidad subsidiaria
establecida en el num 3.0 del (art.) 1903,
el director de un periodico explotado por una
sociedad, porque cualquiera que sea su jerarquia
y aunque Ileve la direccion de determinadas
convicciones politicas no por eso deja de estar
subordinado a la superior autoridad de la
Empresa" (Decision of Spanish Supreme Court
dated December 6, 1912 cited in 12 Manresa,
Codigo Civil Espaol 5th Ed. 662; 1913
Enciclopedia Juridica Espaola 992).

The bus company and its driver, in their appellants'

brief, injected a new factual issue which was not
alleged in their complaint. They argue that PhilAmerican Forwarders, Inc. is merely a business
conduit of Balingit because out of its capital stock
with a par value of P41,200, Balingit and his wife
had subscribed P40,000 and they paid P10,000 on
their subscription, while the other incorporators,
namely, Rodolfo Limjuco, Ponciano Caparas and
Rafael Suntay paid P250.25 and P25, respectively.
That argument implies that the veil of corporate
fiction should be pierced and that Phil-American
Forwarders, Inc. and Balingit and his wife should
be treated as one and the same civil personality.
We cannot countenance that argument in this
appeal. It was not raised in the lower court. The
case has to be decided on the basis of the
pleadings filed in the trial court where it was
assumed that Phil-American Forwarders, Inc. has
a personality separate and distinct from that of the
Balingit spouses.
The legal issue, which the plaintiffs-appellants can
ventilate in this appeal, is one which was raised in
the lower court and which is within the issues
framed by the parties (Sec. 18, Rule 46, Rules of
Court).
When a party deliberately adopts a certain theory
and the case is decided upon that theory in the
court below, he will not be permitted to change his
theory on appeal because, to permit him to do so,
could be unfair to the adverse party (2 Moran's
Comments on the Rules of Court, 1970 Ed. p.
505).
WHEREFORE, the lower court's order of dismissal
is affirmed. Costs against the plaintiffs-appellants.
SO ORDERED.

THIRD DIVISION
G.R. No. 163609

November 27, 2008

SPS. BUENAVENTURA JAYME AND ROSARIO

JAYME, petitioners,
vs.
RODRIGO APOSTOL, FIDEL LOZANO,
ERNESTO SIMBULAN, MAYOR FERNANDO Q.
MIGUEL, MUNICIPALITY OF KORONADAL
(NOW CITY OF KORONADAL), PROVINCE OF
SOUTH COTABATO, represented by the
MUNICIPAL TREASURER and/or MUNICIPAL

MAYOR FERNANDO Q. MIGUEL, and THE

FIRST INTEGRATED BONDING AND
INSURANCE COMPANY, INC., respondents.
REYES, R.T., J.:
MAY a municipal mayor be held solidarily liable for
the negligent acts of the driver assigned to him,
which resulted in the death of a minor pedestrian?
Challenged
in
this
petition
for
review
on certiorari is the Decision1 of the Court of
Appeals (CA) which reversed and set aside the
decision of the Regional Trial Court (RTC),
Polomolok, Cotabato City, Branch 39, insofar as
defendant Mayor Fernando Q. Miguel is
concerned. The CA absolved Mayor Miguel from
any liability since it was not he, but the Municipality
of Koronadal, that was the employer of the
negligent driver.
The Facts
On February 5, 1989, Mayor Miguel of Koronadal,
South Cotabato was on board the Isuzu pick-up
truck driven by Fidel Lozano, an employee of the
Municipality of Koronadal.2 The pick-up truck was
registered under the name of Rodrigo Apostol, but
it was then in the possession of Ernesto
Simbulan.3 Lozano borrowed the pick-up truck
from Simbulan to bring Miguel to Buayan Airport at
General Santos City to catch his Manila flight.4
The pick-up truck accidentally hit Marvin C. Jayme,
a minor, who was then crossing the National
Highway in Poblacion, Polomolok, South
Cotabato.5 The intensity of the collision sent
Marvin some fifty (50) meters away from the point
of impact, a clear indication that Lozano was
driving at a very high speed at the time of the
accident.6
Marvin sustained severe head injuries with
subdural hematoma and diffused cerebral
contusion.7 He was initially treated at the Howard
Hubbard
Memorial
Hospital.8 Due
to
the
seriousness of his injuries, he was airlifted to the
Ricardo Limso Medical Center in Davao City for
more
intensive
treatment.9Despite
medical
attention, Marvin expired six (6) days after the
accident.10
Petitioners spouses Buenaventura and Rosario
Jayme, the parents of Marvin, filed a complaint for
damages with the RTC against respondents.11 In
their complaint, they prayed that all respondents
be held solidarily liable for their loss. They pointed
out that that proximate cause of Marvin's death

was Lozano's negligent and reckless operation of

the vehicle. They prayed for actual, moral, and
exemplary damages, attorney's fees, and litigation
expenses.
In their respective Answers, all respondents
denied liability for Marvin's death. Apostol and
Simbulan averred that Lozano took the pick-up
truck without their consent. Likewise, Miguel and
Lozano pointed out that Marvin's sudden sprint
across the highway made it impossible to avoid the
accident. Yet, Miguel denied being on board the
vehicle when it hit Marvin. The Municipality of
Koronadal adopted the answer of Lozano and
Miguel. As for First Integrated Bonding and
Insurance Company, Inc., the vehicle insurer, it
insisted that its liability is contributory and is only
conditioned on the right of the insured. Since the
insured did not file a claim within the prescribed
period, any cause of action against it had
prescribed.
RTC Disposition
On January 25, 1999, the RTC rendered judgment
in favor of spouses Jayme, the dispositive portion
of which reads:
WHEREFORE, in view of the foregoing,
the defendant Municipality of Koronadal
cannot be held liable for the damages
incurred by other defendant (sic) being an
agency of the State performing a (sic)
governmental functions. The same with
defendant Hermogenes Simbulan, not
being the owner of the subject vehicle, he
is absolved of any liability. The complaint
against defendant First Integrated Bonding
Insurance Company, Inc. is hereby ordered
dismissed there being no cause of action
against said insurance company.
However, defendants Fidel Lozano,
Rodrigo Apostol, and Mayor Fernando
Miguel of Koronadal, South Cotabato, are
hereby ordered jointly and severally to pay
the plaintiff (sic) the following sums:
1. One Hundred Seventy Three
Thousand One Hundred One and
Forty Centavos (P173,101.40)
Pesos as actual damages with
legal interest of 12% per annum
computed from February 11, 1989
until fully paid;
2. Fifty Thousand (P50,000.00)
Pesos as moral damages;

3. Twenty Thousand (P20,000.00)

Pesos as exemplary damages;
4. Twenty Thousand (P20,000.00)
Pesos as Attorney's fees;
5. Fifty Thousand (P50,000.00)
Pesos for the death of Marvin
Jayme;
6. Three Thousand (P3,000.00) as
litigation expenses; and
7. To pay the cost of this suit.
SO ORDERED.12
Dissatisfied with the RTC ruling, Mayor Miguel
interposed an appeal to the CA.
CA Disposition
In his appeal, Mayor Miguel contended that the
RTC erred in ruling that he was Lozano's employer
and, hence, solidarily liable for the latter's
negligent act. Records showed that the
Municipality of Koronadal was the driver's true and
lawful employer. Mayor Miguel also denied that he
did not exercise due care and diligence in the
supervision of Lozano. The incident, although
unfortunate, was unexpected and cannot be
attributed to him.
On October 22, 2003, the CA granted the appeal,
disposing as follows:
WHEREFORE, the Decision appealed
from is REVERSED and SET ASIDE,
insofar as defendant-appellant Mayor
Fernando Q. Miguel is concerned, and the
complaint against him is DISMISSED.
IT IS SO ORDERED.13
The CA held that Mayor Miguel should not be held
liable for damages for the death of Marvin Jayme.
Said the appellate court:
Moreover, plaintiffs-appellees admitted that
Mayor Miguel was not the employer of
Lozano. Thus, paragraph 9 of the
complaint alleged that the Municipality of
Koronadal was the employer of both
Mayor Miguel and Lozano. Not being the
employer of Lozano, Mayor Miguel could
not thus be held liable for the damages
caused by the former. Mayor Miguel was

a mere passenger in the Isuzu pick-up

at the time of the accident.14 (Emphasis
supplied)
The CA also reiterated the settled rule that it is the
registered owner of a vehicle who is jointly and
severally liable with the driver for damages
incurred by passengers or third persons as a
consequence of injuries or death sustained in the
operation of the vehicle.
Issues
The spouses Jayme have resorted to the present
recourse and assign to the CA the following errors:
I.
THE HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT MAYOR
FERNANDO MIGUEL CANNOT BE HELD
LIABLE FOR THE DEATH OF MARVIN
JAYME
WHICH
CONCLUSION
IS
CONTRARY TO LAW AND THE SETTLED
PRONOUNCEMENTS
OF
THIS
HONORABLE TRIBUNAL;
II.
THE FINDINGS OF FACTS OF THE
HONORABLE COURT OF APPEALS ARE
CONTRARY TO THE FINDINGS OF THE
TRIAL
COURT
AND
ARE
CONTRADICTED BY THE EVIDENCE ON
RECORD;
MOREOVER,
THE
CONCLUSIONS
DRAWN
BY
THE
HONORABLE COURT OF APPEALS ARE
ALL BASED ON CONJECTURES AND
SURMISES AND AGAINST ACCEPTED
COURSE OF JUDICIAL PROCEEDINGS
WHICH URGENTLY CALL FOR AN
EXERCISE OF THIS HONORABLE
COURT'S SUPERVISION.15
Our Ruling
The doctrine of vicarious liability or imputed
liability finds no application in the present
case.
Spouses Jayme contend, inter alia, that vicarious
liability attaches to Mayor Miguel. He was not a
mere passenger, but instead one who had direct
control and supervision over Lozano during the
time of the accident. According to petitioners, the
element of direct control is not negated by the fact
that Lozano's employer was the Municipality of
Koronadal. Mayor Miguel, being Lozano's superior,

still had control over the manner the vehicle was

operated.
Article 218016 of the Civil Code provides that a
person is not only liable for one's own quasidelictual acts, but also for those persons for whom
one is responsible for. This liability is popularly
known as vicarious or imputed liability. To sustain
claims against employers for the acts of their
employees, the following requisites must be
established: (1) That the employee was chosen by
the employer personally or through another; (2)
That the service to be rendered in accordance with
orders which the employer has the authority to
give at all times; and (3) That the illicit act of the
employee was on the occasion or by reason of the
functions entrusted to him.17
Significantly, to make the employee liable under
paragraphs 5 and 6 of Article 2180, it must be
established that the injurious or tortuous act was
committed at the time the employee was
performing his functions.18
Furthermore, the employer-employee relationship
cannot be assumed. It is incumbent upon the
plaintiff to prove the relationship by preponderant
evidence. In Belen v. Belen,19 this Court ruled that
it was enough for defendant to deny an alleged
employment relationship. The defendant is under
no obligation to prove the negative averment. This
Court said:
It is an old and well-settled rule of the
courts that the burden of proving the action
is upon the plaintiff, and that if he fails
satisfactorily to show the facts upon which
he bases his claim, the defendant is under
no obligation to prove his exceptions. This
rue is in harmony with the provisions of
Section 297 of the Code of Civil Procedure
holding that each party must prove his own
affirmative allegations, etc.20
In resolving the present controversy, it is
imperative to find out if Mayor Miguel is, indeed,
the employer of Lozano and therefore liable for the
negligent acts of the latter. To determine the
existence of an employment relationship, We rely
on the four-fold test. This involves: (1) the
employer's power of selection; (2) payment of
wages or other remuneration; (3) the employer's
right to control the method of doing the work; and
(4) the employer's right of suspension or
dismissal.21
Applying the foregoing test, the CA correctly held
that it was the Municipality of Koronadal which was

the lawful employer of Lozano at the time of the

accident. It is uncontested that Lozano was
employed as a driver by the municipality. That he
was subsequently assigned to Mayor Miguel
during the time of the accident is of no moment.
This Court has, on several occasions, held that an
employer-employee relationship still exists even if
the employee was loaned by the employer to
another person or entity because control over the
employee subsists.22 In the case under review, the
Municipality of Koronadal remains to be Lozano's
employer notwithstanding Lozano's assignment to
Mayor Miguel.
Spouses Jayme argued that Mayor Miguel had at
least supervision and control over Lozano and how
the latter operated or drove the Isuzu pick-up
during the time of the accident. They, however,
failed to buttress this claim.
Even assuming arguendo that Mayor Miguel had
authority to give instructions or directions to
Lozano, he still can not be held liable. In Benson v.
Sorrell,23 the New England Supreme Court ruled
that mere giving of directions to the driver does not
establish that the passenger has control over the
vehicle. Neither does it render one the employer of
the driver. This Court, in Soliman, Jr. v.
Tuazon,24 ruled in a similar vein, to wit:
x x x The fact that a client company may
give instructions or directions to the
security guards assigned to it, does not,
by itself, render the client responsible as
an employer of the security guards
concerned and liable for their wrongful acts
and omissions. Those instructions or
directions are ordinarily no more than
requests commonly envisaged in the
contract for services entered into with the
security agency. x x x25 (Emphasis
supplied)
Significantly, no negligence may be imputed
against a fellow employee although the person
may have the right to control the manner of the
vehicle's operation.26 In the absence of an
employer-employee
relationship
establishing
vicarious liability, the driver's negligence should
not be attributed to a fellow employee who only
happens
to
be
an
occupant
of
the
vehicle.27 Whatever right of control the occupant
may have over the driver is not sufficient by itself
to justify an application of the doctrine of vicarious
liability. Handley v. Lombardi28 is instructive on this
exception to the rule on vicarious liability:

Plaintiff was not the master or principal of

the driver of the truck, but only an
intermediate and superior employee or
agent. This being so, the doctrine
of respondeat superior or qui facit per
alium is not properly applicable to him. His
power to direct and control the driver was
not as master, but only by virtue of the fact
that they were both employed by Kruse,
and the further fact that as Kruse's agent
he was delegated Kruse's authority over
the driver. x x x
In the case of actionable negligence, the
rule is well settled both in this state and
elsewhere that the negligence of a
subordinate employee or subagent is not to
be imputed to a superior employee or
agent, but only to the master or principal.
(Hilton v. Oliver, 204 Cal. 535 [61 A. L. R.
297, 269 Pac. 425; Guild v. Brown, 115
Cal. App. 374 [1 Pac. (2d) 528; Ellis v.
Southern Ry. Co., 72 S. C. 464 [2 L. R. A.
(N. S.) 378, 52 S. E. 228; Thurman v.
Pittsburg & M. Copper Co., 41 Mont. 141
[108 Pac. 588]; 2 Cor. Jur., p. 829; and see
the elaborate note in 61 A. L. R. 277, and
particularly that part commencing at p.
290.) We can see no logical reason for
drawing any distinction in this regard
between actionable negligence and
contributory negligence. x x x29
The rule was reiterated in Bryant v. Pacific Elec.
Ry. Co.[30 and again in Sichterman v.
Hollingshead Co.31
In Swanson v. McQuown,32 a case involving a
military officer who happened to be riding in a car
driven by a subordinate later involved in an
accident, the Colorado Supreme Court adhered to
the general rule that a public official is not liable for
the wrongful acts of his subordinates on a
vicarious basis since the relationship is not a true
master-servant situation.33 The court went on to
rule that the only exception is when they cooperate
in the act complained of, or direct or encourage
it.34
In the case at bar, Mayor Miguel was neither
Lozano's employer nor the vehicle's registered
owner. There existed no causal relationship
between him and Lozano or the vehicle used that
will make him accountable for Marvin's death.
Mayor Miguel was a mere passenger at the time of
the accident.

Parenthetically, it has been held that the failure of

a passenger to assist the driver, by providing him
warnings or by serving as lookout does not make
the passenger liable for the latter's negligent
acts.35The driver's duty is not one that may be
delegated to others.36
As correctly held by the trial court, the true and
lawful employer of Lozano is the Municipality of
Koronadal. Unfortunately for Spouses Jayme, the
municipality may not be sued because it is an
agency of the State engaged in governmental
functions and, hence, immune from suit. This
immunity is illustrated in Municipality of San
Fernando, La Union v. Firme,37 where this Court
held:
It has already been remarked that
municipal corporations are suable because
their charters grant them the competence
to sue and be sued. Nevertheless, they are
generally not liable for torts committed by
them in the discharge of governmental
functions and can only be held answerable
only if it can be shown that they were
acting in proprietary capacity. In permitting
such entities to be sued, the State merely
gives the claimant the right to show that
the defendant was not acting in
governmental capacity when the injury was
committed or that the case comes under
the exceptions recognized by law. Failing
this, the claimant cannot recover.38
Verily, liability attaches to the registered owner, the
negligent driver and his direct employer. The CA
observation along this line are worth restating:
Settled is the rule that the registered owner
of a vehicle is jointly and severally liable
with the driver for damages incurred by
passengers and third persons as a
consequence of injuries or death sustained
in the operation of said vehicles.
Regardless of who the actual owner of the
vehicle is, the operator of record continues
to be the operator of the vehicle as regards
the public and third persons, and as such
is directly and primarily responsible for the
consequences incident (sic) to its operation
x x x.39
The accidental death of Marvin Jayme is a tragic
loss for his parents. However, justice demands
that only those liable under our laws be held
accountable for Marvin's demise. Justice can not
sway in favor of petitioners simply to assuage their
pain and loss. The law on the matter is clear: only

the negligent driver, the driver's employer, and the

registered owner of the vehicle are liable for the
death of a third person resulting from the negligent
operation of the vehicle.
WHEREFORE, the petition is DENIED and the
appealed Decision AFFIRMED.
SO ORDERED.
FIRST DIVISION
G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in
their own behalf and as natural guardians of
the minors, ROMMEL RAMOS, ROY RODERICK
RAMOS and RON RAYMOND
RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS
MEDICAL CENTER, DR. ORLINO HOSAKA and
DRA. PERFECTA GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give
primordial consideration to the health and welfare
of their patients. If a doctor fails to live up to this
precept, he is made accountable for his acts. A
mistake,
through
gross
negligence
or
incompetence or plain human error, may spell the
difference between life and death. In this sense,
the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule
whether a surgeon, an anesthesiologist and a
hospital should be made liable for the unfortunate
comatose condition of a patient scheduled for
cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of
the Court of Appeals, dated 29 May 1995, which
overturned the decision4 of the Regional Trial
Court, dated 30 January 1992, finding private
respondents liable for damages arising from
negligence in the performance of their professional
duties towards petitioner Erlinda Ramos resulting
in her comatose condition.
The antecedent facts as summarized by the trial
court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until
the afternoon of June 17, 1985, a
47-year old (Exh. "A") robust
woman (TSN, October 19, 1989, p.

10).
Except
for
occasional
complaints of discomfort due to
pains allegedly caused by the
presence of a stone in her gall
bladder (TSN, January 13, 1988,
pp. 4-5), she was as normal as any
other woman. Married to Rogelio E.
Ramos, an executive of Philippine
Long
Distance
Telephone
Company, she has three children
whose names are Rommel Ramos,
Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October
19, 1989, pp. 5-6).
Because the discomforts somehow
interfered with her normal ways,
she sought professional advice.
She was advised to undergo an
operation for the removal of a
stone in her gall bladder (TSN,
January 13, 1988, p. 5). She
underwent a series of examinations
which included blood and urine
tests (Exhs. "A" and "C") which
indicated she was fit for surgery.
Through the intercession of a
mutual friend, Dr. Buenviaje (TSN,
January 13, 1988, p. 7), she and
her husband Rogelio met for
the first time Dr. Orlino Hozaka
(should
be
Hosaka; see TSN,
February 20, 1990, p. 3), one of the
defendants in this case, on June
10, 1985. They agreed that their
date at the operating table at the
DLSMC (another defendant), would
be on June 17, 1985 at 9:00 A.M..
Dr. Hosaka decided that she
should
undergo
a
"cholecystectomy" operation after
examining the documents (findings
from the Capitol Medical Center,
FEU
Hospital
and
DLSMC)
presented to him. Rogelio E.
Ramos, however, asked Dr.
Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in
turn, assured Rogelio that he will
get a good anesthesiologist. Dr.
Hosaka
charged
a
fee
of
P16,000.00, which was to include
the anesthesiologist's fee and
which was to be paid after the
operation (TSN, October 19, 1989,
pp. 14-15, 22-23, 31-33; TSN,
February 27, 1990, p. 13; and TSN,

November 9, 1989, pp. 3-4, 10,

17).
A day before the scheduled date of
operation, she was admitted at one
of the rooms of the DLSMC,
located
along
E.
Rodriguez
Avenue, Quezon City (TSN,
October 19,1989, p. 11).
At around 7:30 A.M. of June 17,
1985 and while still in her room,
she was prepared for the operation
by the hospital staff. Her sister-inlaw, Herminda Cruz, who was the
Dean of the College of Nursing at
the Capitol Medical Center, was
also there for moral support. She
reiterated her previous request for
Herminda to be with her even
during the operation. After praying,
she was given injections. Her
hands were held by Herminda as
they went down from her room to
the operating room (TSN, January
13, 1988, pp. 9-11). Her husband,
Rogelio, was also with her (TSN,
October 19, 1989, p. 18). At the
operating room, Herminda saw
about two or three nurses and Dr.
Perfecta Gutierrez, the other
defendant, who was to administer
anesthesia.
Although
not
a
member of the hospital staff,
Herminda introduced herself as
Dean of the College of Nursing at
the Capitol Medical Center who
was to provide moral support to the
patient, to them. Herminda was
allowed to stay inside the operating
room.
At around 9:30 A.M., Dr. Gutierrez
reached a nearby phone to look for
Dr. Hosaka who was not yet in
(TSN, January 13, 1988, pp. 1112). 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, 2930).
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 maintubate 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. 2627).
Erlinda Ramos stayed at the ICU
for a month. About four months
thereafter or on November 15,
1985, the patient was released
from the hospital.
During the whole period of her
confinement, she incurred hospital
bills amounting to P93,542.25
which is the subject of a
promissory note and affidavit of
undertaking executed by Rogelio
E. Ramos in favor of DLSMC.
Since that fateful afternoon of June
17, 1985, she has been in a
comatose condition. She cannot do
anything. She cannot move any
part of her body. She cannot see or
hear. She is living on mechanical
means. She suffered brain damage
as a result of the absence of
oxygen in her brain for four to five
minutes (TSN, November 9, 1989,
pp. 21-22). After being discharged
from the hospital, she has been
staying in their residence, still
needing constant medical attention,
with her husband Rogelio incurring
a monthly expense ranging from
P8,000.00 to P10,000.00 (TSN,
October 19, 1989, pp. 32-34). She
was also diagnosed to be suffering
from "diffuse cerebral parenchymal
damage" (Exh. "G";see also TSN,
December
21,
1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil
case 6 for damages with the Regional Trial Court of
Quezon City against herein private respondents
alleging negligence in the management and care
of Erlinda Ramos.
During the trial, both parties presented evidence
as to the possible cause of Erlinda's injury. Plaintiff
presented the testimonies of Dean Herminda Cruz
and Dr. Mariano Gavino to prove that the
sustained by Erlinda was due to lack of oxygen in
her brain caused by the faulty management of her
airway by private respondents during the
anesthesia phase. On the other hand, private
respondents primarily relied on the expert
testimony of Dr. Eduardo Jamora, a pulmonologist,
to the effect that the cause of brain damage was

Erlinda's allergic reaction to the anesthetic agent,

Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the
Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as
shown in the finding of facts set
forth earlier, and applying the
aforecited provisions of law and
jurisprudence to the case at bar,
this Court finds and so holds that
defendants are liable to plaintiffs
for damages. The defendants were
guilty of, at the very least,
negligence in the performance of
their duty to plaintiff-patient Erlinda
Ramos.
On the part of Dr. Perfecta
Gutierrez, this Court finds that she
omitted to exercise reasonable
care in not only intubating the
patient, but also in not repeating
the administration of atropine
(TSN, August 20, 1991, pp. 5-10),
without due regard to the fact that
the patient was inside the operating
room for almost three (3) hours.
For after she committed a mistake
in intubating [the] patient, the
patient's nailbed became bluish
and the patient, thereafter, was
placed in trendelenburg position,
because of the decrease of blood
supply to the patient's brain. The
evidence further shows that the
hapless patient suffered brain
damage because of the absence of
oxygen in her (patient's) brain for
approximately four to five minutes
which, in turn, caused the patient to
become comatose.
On the part of Dr. Orlino Hosaka,
this Court finds that he is liable for
the acts of Dr. Perfecta Gutierrez
whom he had chosen to administer
anesthesia on the patient as part of
his obligation to provide the patient
a good anesthesiologist', and for
arriving for the scheduled operation
almost three (3) hours late.
On the part of DLSMC (the
hospital), this Court finds that it is
liable for the acts of negligence of

the doctors in their "practice of

medicine" in the operating room.
Moreover, the hospital is liable for
failing through its responsible
officials, to cancel the scheduled
operation
after
Dr.
Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court
rejects the defense raised by
defendants that they have acted
with due care and prudence in
rendering medical services to
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
P100,000.00
reasonable
attorney's fees;

of
as

3) the sum of
P800,000.00
by
way
of
moral
damages and the
further
sum
of
P200,000,00
by
way of exemplary
damages; and,
4) the costs of the
suit.
SO ORDERED. 7
Private respondents seasonably interposed an
appeal to the Court of Appeals. The appellate
court rendered a Decision, dated 29 May 1995,
reversing the findings of the trial court. The
decretal portion of the decision of the appellate
court reads:
WHEREFORE, for the foregoing
premises the appealed decision is
hereby REVERSED, and the
complaint below against the
appellants is hereby ordered
DISMISSED. The counterclaim of
appellant De Los Santos Medical
Center is GRANTED but only
insofar as appellees are hereby
ordered to pay the unpaid hospital
bills amounting to P93,542.25, plus
legal interest for justice must be
tempered with mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received
on 9 June 1995 by petitioner Rogelio Ramos who
was mistakenly addressed as "Atty. Rogelio
Ramos." No copy of the decision, however, was
sent nor received by the Coronel Law Office, then
counsel on record of petitioners. Rogelio referred
the decision of the appellate court to a new lawyer,
Atty. Ligsay, only on 20 June 1995, or four (4)
days before the expiration of the reglementary
period for filing a motion for reconsideration. On
the same day, Atty. Ligsay, filed with the appellate
court a motion for extension of time to file a motion
for reconsideration. The motion for reconsideration
was submitted on 4 July 1995. However, the
appellate court denied the motion for extension of
time
in
its
Resolution
dated
25
July
1995. 9Meanwhile,
petitioners
engaged
the
services of another counsel, Atty. Sillano, to
replace Atty. Ligsay. Atty. Sillano filed on 7 August
1995 a motion to admit the motion for
reconsideration contending that the period to file

the appropriate pleading on the assailed decision

had not yet commenced to run as the Division
Clerk of Court of the Court of Appeals had not yet
served a copy thereof to the counsel on record.
Despite this explanation, the appellate court still
denied the motion to admit the motion for
reconsideration of petitioners in its Resolution,
dated 29 March 1996, primarily on the ground that
the fifteen-day (15) period for filing a motion for
reconsideration had already expired, to wit:
We said in our Resolution on July
25, 1995, that the filing of a Motion
for Reconsideration cannot be
extended; precisely, the Motion for
Extension (Rollo, p. 12) was
denied. It is, on the other hand,
admitted in the latter Motion that
plaintiffs/appellees received a copy
of the decision as early as June 9,
1995. Computation wise, the period
to file a Motion for Reconsideration
expired on June 24. The Motion for
Reconsideration, in turn, was
received by the Court of Appeals
already on July 4, necessarily, the
15-day period already passed. For
that alone, the latter should be
denied.
Even assuming admissibility of the
Motion for the Reconsideration, but
after
considering
the
Comment/Opposition, the former,
for lack of merit, is hereby
DENIED.
SO ORDERED. 10
A copy of the above resolution was received by
Atty. Sillano on 11 April 1996. The next day, or on
12 April 1996, Atty. Sillano filed before this Court a
motion for extension of time to file the present
petition for certiorari under Rule 45. The Court
granted the motion for extension of time and gave
petitioners additional thirty (30) days after the
expiration of the fifteen-day (15) period counted
from the receipt of the resolution of the Court of
Appeals within which to submit the petition. The
due date fell on 27 May 1996. The petition was
filed on 9 May 1996, well within the extended
period given by the Court.
Petitioners assail the decision of the Court of
Appeals on the following grounds:
I

IN PUTTING MUCH RELIANCE

ON THE TESTIMONIES OF
RESPONDENTS
DRA.
GUTIERREZ, DRA. CALDERON
AND DR. JAMORA;
II
IN
FINDING
THAT
THE
NEGLIGENCE
OF
THE
RESPONDENTS DID NOT CAUSE
THE
UNFORTUNATE
COMATOSE
CONDITION
OF
PETITIONER ERLINDA RAMOS;
III
IN
NOT
APPLYING
DOCTRINE
OF RES
LOQUITUR. 11

THE
IPSA

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

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.

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 nonexpert 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.

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

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

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, 43 where the Kansas Supreme
Court in applying theres ipsa loquitur stated:
The plaintiff herein submitted
himself for a mastoid operation and
delivered his person over to the
care, custody and control of his
physician who had complete and
exclusive control over him, but the
operation was never performed. At
the time of submission he was
neurologically sound and physically
fit in mind and body, but he
suffered irreparable damage and
injury rendering him decerebrate
and totally incapacitated. The injury
was one which does not ordinarily
occur in the process of a mastoid
operation or in the absence of
negligence in the administration of
an anesthetic, and in the use and
employment of an endoctracheal
tube. Ordinarily a person being put
under anesthesia is not rendered
decerebrate as a consequence of
administering such anesthesia in
the absence of negligence. Upon
these facts and under these
circumstances a layman would be
able to say, as a matter of common
knowledge and observation, that
the consequences of professional
treatment were not as such as
would ordinarily have followed if
due care had been exercised.
Here the plaintiff could not have
been
guilty
of
contributory
negligence because he was under
the influence of anesthetics and
unconscious,
and
the
circumstances are such that the
true explanation of event is more
accessible to the defendants than
to the plaintiff for they had the
exclusive
control
of
the
instrumentalities of anesthesia.
Upon all the facts, conditions and
circumstances alleged in Count II it
is held that a cause of action is
stated under the doctrine of res
ipsa loquitur. 44
Indeed, the principles enunciated in the
aforequoted case apply with equal force here. In
the present case, Erlinda submitted herself for
cholecystectomy and expected a routine general

surgery to be performed on her gall bladder. On

that fateful day she delivered her person over to
the care, custody and control of private
respondents who exercised complete and
exclusive control over her. At the time of
submission, Erlinda was neurologically sound and,
except for a few minor discomforts, was likewise
physically fit in mind and body. However, during
the administration of anesthesia and prior to the
performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without
undergoing surgery, she went out of the operating
room
already
decerebrate
and
totally
incapacitated. Obviously, brain damage, which
Erlinda sustained, is an injury which does not
normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not in
the absence of negligence of someone in the
administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put
under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if
the proper procedure was followed. Furthermore,
the instruments used in the administration of
anesthesia, including the endotracheal tube, were
all under the exclusive control of private
respondents, who are the physicians-in-charge.
Likewise, petitioner Erlinda could not have been
guilty of contributory negligence because she was
under the influence of anesthetics which rendered
her unconscious.
Considering that a sound and unaffected member
of the body (the brain) is injured or destroyed while
the patient is unconscious and under the
immediate and exclusive control of the physicians,
we hold that a practical administration of justice
dictates the application of res ipsa loquitur. Upon
these facts and under these circumstances the
Court would be able to say, as a matter of
common knowledge and observation, if negligence
attended the management and care of the patient.
Moreover, the liability of the physicians and the
hospital in this case is not predicated upon an
alleged failure to secure the desired results of an
operation nor on an alleged lack of skill in the
diagnosis or treatment as in fact no operation or
treatment was ever performed on Erlinda. Thus,
upon all these initial determination a case is made
out for the application of the doctrine of res ipsa
loquitur.
Nonetheless, in holding that res ipsa loquitur is
available to the present case we are not saying
that the doctrine is applicable in any and all cases
where injury occurs to a patient while under
anesthesia, or to any and all anesthesia cases.
Each case must be viewed in its own light and

scrutinized in order to be within the res ipsa

loquitur coverage.

of signposts indicative of their negligence in the

care and management of Erlinda.

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.

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-inlaw, who was in the operating room right beside
the patient when the tragic event occurred.
Witness Cruz testified to this effect:

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

ATTY. PAJARES:
Q: In particular,
what
did
Dra.
Perfecta Gutierrez
do, if any on the
patient?
A: In particular, I
could see that she
was intubating the
patient.
Q: Do you know
what happened to
that
intubation
process
administered
by
Dra. Gutierrez?
ATTY. ALCERA:
She
will
incompetent
Honor.

be
Your

COURT:
Witness
answer
knows.

if

may
she

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 maintubate nito, mali

yata
ang
pagkakapasok. O
lumalaki ang tiyan.

being called, arrive

inside the operating
room?
A: Yes sir.

xxx xxx xxx

Q: What did [s]he

do, if any?
ATTY. PAJARES:
A: [S]he tried to
intubate the patient.

Q: From whom did

you hear those
words
"lumalaki
ang tiyan"?

Q: What happened
to the patient?

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: After hearing the
phrase
"lumalaki
ang tiyan," what did
you notice on the
person
of
the
patient?
xxx xxx xxx
A: I notice (sic)
some
bluish
discoloration on the
nailbeds of the left
hand where I was
at.

Q: Do you know the

reason why the
patient was placed
in
that
trendelenburg
position?

Q: Where was Dr.

Orlino
Ho[s]aka
then
at
that
particular time?
A: I saw him
approaching
the
patient during that
time.
Q:
When
he
approached
the
patient, what did he
do, if any?
A: He made
order to call on
anesthesiologist
the person of
Calderon.
Q:
Did
Calderon,

an
the
in
Dr.

Dr.
upon

A: As far as I know,
when a patient is in
that position, there
is a decrease of
blood supply to the
brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean
Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing
curriculum in our country will show
that intubation is not taught as part
of
nursing
procedures
and
techniques. Indeed, we take
judicial notice of the fact that
nurses do not, and cannot,
intubate. Even on the assumption
that she is fully capable of
determining whether or not a

patient is properly intubated,

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

Laguna College of Nursing in San Pablo City; and

then Dean of the Capitol Medical Center School of
Nursing. 50Reviewing witness Cruz' statements, we
find that the same were delivered in a
straightforward manner, with the kind of detail,
clarity, consistency and spontaneity which would
have been difficult to fabricate. With her clinical
background as a nurse, the Court is satisfied that
she was able to demonstrate through her
testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less
than respondent Dra. Gutierrez who admitted that
she experienced difficulty in inserting the tube into
Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular
case,
Doctora,
while you were
intubating at your
first attempt (sic),
you
did
not
immediately see the
trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull
away
the
tube
immediately?
A: You do not pull
the . . .
Q: Did you or did
you not?
A: I did not pull the
tube.
Q: When you said
"mahirap yata ito,"
what
were
you
referring to?
A: "Mahirap yata
itong
i-intubate,"
that
was
the
patient.
Q: So, you found
some difficulty in
inserting the tube?

A: Yes, because of
(sic)
my
first
attempt, I did not
see right away. 51
Curiously in the case at bar, respondent Dra.
Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in
the trachea of Erlinda because it was positioned
more anteriorly (slightly deviated from the normal
anatomy of a person) 52 making it harder to locate
and, since Erlinda is obese and has a short neck
and protruding teeth, it made intubation even more
difficult.
The argument does not convince us. If this was
indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to
make a thorough assessment of Erlinda's airway,
prior to the induction of anesthesia, even if this
would mean postponing the procedure. From their
testimonies, it appears that the observation was
made only as an afterthought, as a means of
defense.
The pre-operative evaluation of a patient prior to
the administration of anesthesia is universally
observed to lessen the possibility of anesthetic
accidents.
Pre-operative
evaluation
and
preparation for anesthesia begins when the
anesthesiologist reviews the patient's medical
records and visits with the patient, traditionally, the
day before elective surgery. 53 It includes taking
the patient's medical history, review of current drug
therapy, physical examination and interpretation of
laboratory data. 54 The physical examination
performed by the anesthesiologist is directed
primarily toward the central nervous system,
cardiovascular
system,
lungs
and upper
airway. 55 A thorough analysis of the patient's
airway normally involves investigating the
following:
cervical
spine
mobility,
temporomandibular mobility, prominent central
incisors, diseased or artificial teeth, ability to
visualize
uvula
and
the
thyromental
distance. 56 Thus, physical characteristics of the
patient's upper airway that could make tracheal
intubation difficult should be studied. 57 Where the
need arises, as when initial assessment indicates
possible problems (such as the alleged short neck
and protruding teeth of Erlinda) a thorough
examination of the patient's airway would go a long
way towards decreasing patient morbidity and
mortality.
In the case at bar, respondent Dra. Gutierrez
admitted that she saw Erlinda for the first time on
the day of the operation itself, on 17 June 1985.
Before this date, no prior consultations with, or

pre-operative evaluation of Erlinda was done by

her. Until the day of the operation, respondent Dra.
Gutierrez was unaware of the physiological makeup 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 preoperative 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 pre-operative evaluation of the
patient which, in turn, resulted to a wrongful
intubation, we now determine if the faulty
intubation is truly the proximate cause of Erlinda's
comatose condition.
Private respondents repeatedly hammered the
view that the cerebral anoxia which led to Erlinda's
coma was due to bronchospasm 59 mediated by
her allergic response to the drug, Thiopental
Sodium, introduced into her system. Towards this
end, they presented Dr. Jamora, a Fellow of the
Philippine College of Physicians and Diplomate of
the Philippine Specialty Board of Internal Medicine,
who advanced private respondents' theory that the
oxygen deprivation which led to anoxic
encephalopathy, 60 was due to an unpredictable
drug reaction to the short-acting barbiturate. We
find
the
theory
of
private
respondents
unacceptable.

First of all, Dr. Jamora cannot be considered an

authority in the field of anesthesiology simply
because he is not an anesthesiologist. Since Dr.
Jamora is a pulmonologist, he could not have been
capable of properly enlightening the court about
anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an
allergologist and could not therefore properly
advance expert opinion on allergic-mediated
processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an
expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed
culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting
Dr. Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is
further supported by his own admission that he
formulated his opinions on the drug not from the
practical experience gained by a specialist or
expert in the administration and use of Sodium
Pentothal on patients, but only from reading
certain references, to wit:
ATTY. LIGSAY:
Q: In your line of
expertise
on
pulmonology,
did
you
have
any
occasion to use
pentothal
as
a
method
of
management?
DR. JAMORA:
A: We do it in
conjunction with the
anesthesiologist
when they have to
intubate our patient.
Q: But not in
particular when you
practice
pulmonology?
A: No.
Q: In other words,
your
knowledge
about pentothal is
based only on what
you have read from
books and not by
your own personal

application of the
medicine
pentothal?
A: Based on my
personal
experience also on
pentothal.
Q: How many times
have
you
used
pentothal?
A: They used it on
me. I went into
bronchospasm
during
my
appendectomy.
Q: And because
they have used it
on you and on
account of your
own
personal
experience you feel
that you can testify
on pentothal here
with
medical
authority?
A: No. That is why I
used references to
support
my
claims. 61
An anesthetic accident caused by a rare druginduced 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
expert witnesses states:

62

regarding

Sec. 49. Opinion of expert witness.

The opinion of a witness on a
matter requiring special knowledge,
skill, experience or training which
he is shown to possess, may be
received in evidence.
Generally, to qualify as an expert witness, one
must have acquired special knowledge of the
subject matter about which he or she is to testify,
either by the study of recognized authorities on the
subject or by practical experience.63 Clearly, Dr.
Jamora does not qualify as an expert witness
based on the above standard since he lacks the
necessary knowledge, skill, and training in the field
of anesthesiology. Oddly, apart from submitting
testimony from a specialist in the wrong field,
private
respondents'
intentionally
avoided
providing
testimony
by
competent
and
independent experts in the proper areas.
Moreover, private respondents' theory, that
Thiopental Sodium may have produced Erlinda's
coma by triggering an allergic mediated response,
has no support in evidence. No evidence of stridor,
skin reactions, or wheezing some of the more
common accompanying signs of an allergic
reaction appears on record. No laboratory data
were ever presented to the court.
In any case, private respondents themselves admit
that
Thiopental
induced,
allergic-mediated
bronchospasm happens only very rarely. If courts
were to accept private respondents' hypothesis
without supporting medical proof, and against the
weight of available evidence, then every anesthetic
accident would be an act of God. Evidently, the
Thiopental-allergy theory vigorously asserted by
private respondents was a mere afterthought.
Such an explanation was advanced in order to
advanced in order to absolve them of any and all
responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to
believe petitioners' stand that it was the faulty
intubation which was the proximate cause of
Erlinda's comatose condition.
Proximate cause has been defined as that which,
in natural and continuous sequence, unbroken by
any efficient intervening cause, produces injury,
and without which the result would not have
occurred. 64 An injury or damage is proximately
caused by an act or a failure to act, whenever it
appears from the evidence in the case, that the act
or omission played a substantial part in bringing
about or actually causing the injury or damage;
and that the injury or damage was either a direct

result or a reasonably probable consequence of

the act or omission. 65 It is the dominant, moving or
producing cause.
Applying the above definition in relation to the
evidence at hand, faulty intubation is undeniably
the proximate cause which triggered the chain of
events leading to Erlinda's brain damage and,
ultimately, her comatosed condition.
Private respondents themselves admitted in their
testimony that the first intubation was a failure.
This fact was likewise observed by witness Cruz
when she heard respondent Dra. Gutierrez
remarked, "Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan."
Thereafter, witness Cruz noticed abdominal
distention on the body of Erlinda. The development
of abdominal distention, together with respiratory
embarrassment indicates that the endotracheal
tube entered the esophagus instead of the
respiratory tree. In other words, instead of the
intended endotracheal intubation what actually
took place was an esophageal intubation. During
intubation, such distention indicates that air has
entered the gastrointestinal tract through the
esophagus instead of the lungs through the
trachea. Entry into the esophagus would certainly
cause some delay in oxygen delivery into the lungs
as the tube which carries oxygen is in the wrong
place. That abdominal distention had been
observed during the first intubation suggests that
the length of time utilized in inserting the
endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly
significant. Due to the delay in the delivery of
oxygen in her lungs Erlinda showed signs of
cyanosis. 66 As stated in the testimony of Dr.
Hosaka, the lack of oxygen became apparent only
after he noticed that the nailbeds of Erlinda were
already blue. 67 However, private respondents
contend that a second intubation was executed on
Erlinda and this one was successfully done. We do
not think so. No evidence exists on record, beyond
private respondents' bare claims, which supports
the contention that the second intubation was
successful. Assuming that the endotracheal tube
finally found its way into the proper orifice of the
trachea, the same gave no guarantee of oxygen
delivery, the hallmark of a successful intubation. In
fact, cyanosis was again observed immediately
after the second intubation. Proceeding from this
event (cyanosis), it could not be claimed, as
private respondents insist, that the second
intubation was accomplished. Even granting that
the tube was successfully inserted during the
second attempt, it was obviously too late. As aptly
explained by the trial court, Erlinda already
suffered brain damage as a result of the

inadequate oxygenation of her brain for about four

to five minutes. 68
The above conclusion is not without basis.
Scientific studies point out that intubation problems
are responsible for one-third (1/3) of deaths and
serious
injuries
associated
with
anesthesia. 69 Nevertheless, ninety-eight percent
(98%) or the vast majority of difficult intubations
may be anticipated by performing a thorough
evaluation of the patient's airway prior to the
operation. 70 As stated beforehand, respondent
Dra. Gutierrez failed to observe the proper preoperative protocol which could have prevented this
unfortunate incident. Had appropriate diligence
and reasonable care been used in the preoperative evaluation, respondent physician could
have been much more prepared to meet the
contingency brought about by the perceived
anatomic variations in the patient's neck and oral
area, defects which would have been easily
overcome by a prior knowledge of those variations
together with a change in technique. 71 In other
words,
an
experienced
anesthesiologist,
adequately alerted by a thorough pre-operative
evaluation, would have had little difficulty going
around
the
short
neck
and
protruding
teeth. 72 Having failed to observe common medical
standards in pre-operative management and
intubation, respondent Dra. Gutierrez' negligence
resulted in cerebral anoxia and eventual coma of
Erlinda.
We now determine the responsibility of respondent
Dr. Orlino Hosaka as the head of the surgical
team. As the so-called "captain of the ship," 73 it is
the surgeon's responsibility to see to it that those
under him perform their task in the proper manner.
Respondent Dr. Hosaka's negligence can be found
in his failure to exercise the proper authority (as
the "captain" of the operative team) in not
determining if his anesthesiologist observed proper
anesthesia protocols. In fact, no evidence on
record exists to show that respondent Dr. Hosaka
verified if respondent Dra. Gutierrez properly
intubated the patient. Furthermore, it does not
escape us that respondent Dr. Hosaka had
scheduled another procedure in a different hospital
at the same time as Erlinda's cholecystectomy,
and was in fact over three hours late for the latter's
operation. Because of this, he had little or no time
to confer with his anesthesiologist regarding the
anesthesia delivery. This indicates that he was
remiss in his professional duties towards his
patient. Thus, he shares equal responsibility for
the events which resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in
this particular incident. The unique practice

(among private hospitals) of filling up specialist

staff
with
attending
and
visiting
"consultants," 74 who are allegedly not hospital
employees, presents problems in apportioning
responsibility for negligence in medical malpractice
cases. However, the difficulty is only more
apparent than real.
In the first place, hospitals exercise significant
control in the hiring and firing of consultants and in
the conduct of their work within the hospital
premises. Doctors who apply for "consultant" slots,
visiting or attending, are required to submit proof of
completion of residency, their educational
qualifications; generally, evidence of accreditation
by the appropriate board (diplomate), evidence of
fellowship in most cases, and references. These
requirements are carefully scrutinized by members
of the hospital administration or by a review
committee set up by the hospital who either accept
or reject the application. 75 This is particularly true
with respondent hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to
attend clinico-pathological conferences, conduct
bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and
perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the
hospital, and/or for the privilege of admitting
patients into the hospital. In addition to these, the
physician's performance as a specialist is
generally evaluated by a peer review committee on
the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and
residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer
review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and
exercise real control over their attending and
visiting "consultant" staff. While "consultants" are
not, technically employees, a point which
respondent hospital asserts in denying all
responsibility for the patient's condition, the control
exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an
employer-employee
relationship,
with
the
exception of the payment of wages. In assessing
whether such a relationship in fact exists, the
control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose
of allocating responsibility in medical negligence
cases, an employer-employee relationship in effect
exists between hospitals and their attending and
visiting physicians. This being the case, the
question now arises as to whether or not

respondent hospital is solidarily liable with

respondent doctors for petitioner's condition. 76
The basis for holding an employer solidarily
responsible for the negligence of its employee is
found in Article 2180 of the Civil Code which
considers a person accountable not only for his
own acts but also for those of others based on the
former's responsibility under a relationship of patria
potestas. 77 Such responsibility ceases when the
persons or entity concerned prove that they have
observed the diligence of a good father of the
family to prevent damage. 78 In other words, while
the burden of proving negligence rests on the
plaintiffs, once negligence is shown, the burden
shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they
observed the diligence of a good father of a family
to prevent damage.
In the instant case, respondent hospital, apart from
a general denial of its responsibility over
respondent physicians, failed to adduce evidence
showing that it exercised the diligence of a good
father of a family in the hiring and supervision of
the latter. It failed to adduce evidence with regard
to the degree of supervision which it exercised
over its physicians. In neglecting to offer such
proof, or proof of a similar nature, respondent
hospital thereby failed to discharge its burden
under the last paragraph of Article 2180. Having
failed to do this, respondent hospital is
consequently solidarily responsible with its
physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of
Appeals erred in accepting and relying on the
testimonies of the witnesses for the private
respondents. Indeed, as shown by the above
discussions, private respondents were unable to
rebut the presumption of negligence. Upon these
disquisitions we hold that private respondents are
solidarily liable for damages under Article
2176 79 of the Civil Code.
We now come to the amount of damages due
petitioners. The trial court awarded a total of
P632,000.00 pesos (should be P616,000.00) in
compensatory damages to the plaintiff, "subject to
its being updated" covering the period from 15
November 1985 up to 15 April 1992, based on
monthly expenses for the care of the patient
estimated at P8,000.00.
At current levels, the P8000/monthly amount
established by the trial court at the time of its
decision would be grossly inadequate to cover the
actual costs of home-based care for a comatose

individual. The calculated amount was not even

arrived at by looking at the actual cost of proper
hospice care for the patient. What it reflected were
the actual expenses incurred and proved by the
petitioners after they were forced to bring home
the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain
in a hospital or be transferred to a hospice
specializing in the care of the chronically ill for the
purpose of providing a proper milieu adequate to
meet minimum standards of care. In the instant
case for instance, Erlinda has to be constantly
turned from side to side to prevent bedsores and
hypostatic pneumonia. Feeding is done by
nasogastric tube. Food preparation should be
normally made by a dietitian to provide her with the
correct daily caloric requirements and vitamin
supplements. Furthermore, she has to be seen on
a regular basis by a physical therapist to avoid
muscle atrophy, and by a pulmonary therapist to
prevent the accumulation of secretions which can
lead to respiratory complications.
Given these considerations, the amount of actual
damages recoverable in suits arising from
negligence should at least reflect the correct
minimum cost of proper care, not the cost of the
care the family is usually compelled to undertake
at home to avoid bankruptcy. However, the
provisions of the Civil Code on actual or
compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which
may be claimed by the plaintiff are those suffered
by him as he has duly proved. The Civil Code
provides:
Art. 2199. Except as provided by
law or by stipulation, one is entitled
to an adequate compensation only
for such pecuniary loss suffered by
him as he has duly proved. Such
compensation is referred to as
actual or compensatory damages.
Our rules on actual or compensatory damages
generally assume that at the time of litigation, the
injury suffered as a consequence of an act of
negligence has been completed and that the cost
can be liquidated. However, these provisions
neglect to take into account those situations, as in
this case, where the resulting injury might be
continuing and possible future complications
directly arising from the injury, while certain to
occur, are difficult to predict.

In these cases, the amount of damages which

should be awarded, if they are to adequately and
correctly respond to the injury caused, should be
one which compensates for pecuniary loss
incurred and proved, up to the time of trial;and one
which would meet pecuniary loss certain to be
suffered but which could not, from the nature of the
case, be made with certainty. 80 In other words,
temperate damages can and should be awarded
on top of actual or compensatory damages in
instances where the injury is chronic and
continuing. And because of the unique nature of
such cases, no incompatibility arises when both
actual and temperate damages are provided for.
The reason is that these damages cover two
distinct phases.
As it would not be equitable and certainly not in
the best interests of the administration of justice
for the victim in such cases to constantly come
before the courts and invoke their aid in seeking
adjustments to the compensatory damages
previously awarded temperate damages are
appropriate. The amount given as temperate
damages, though to a certain extent speculative,
should take into account the cost of proper care.
In the instant case, petitioners were able to provide
only home-based nursing care for a comatose
patient who has remained in that condition for over
a decade. Having premised our award for
compensatory damages on the amount provided
by petitioners at the onset of litigation, it would be
now much more in step with the interests of justice
if the value awarded for temperate damages would
allow petitioners to provide optimal care for their
loved one in a facility which generally specializes
in such care. They should not be compelled by dire
circumstances to provide substandard care at
home without the aid of professionals, for anything
less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in
temperate
damages
would
therefore
be
reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court
was confronted with a situation where the injury
suffered by the plaintiff would have led to
expenses which were difficult to estimate because
while they would have been a direct result of the
injury (amputation), and were certain to be
incurred by the plaintiff, they were likely to arise
only in the future. We awarded P1,000,000.00 in
moral damages in that case.
Describing the nature of the injury, the Court
therein stated:

As a result of the accident, Ma.

Lourdes Valenzuela underwent a
traumatic amputation of her left
lower extremity at the distal left
thigh just above the knee. Because
of this, Valenzuela will forever be
deprived of the full ambulatory
functions of her left extremity, even
with the use of state of the art
prosthetic technology. Well beyond
the period of hospitalization (which
was paid for by Li), she will be
required to undergo adjustments in
her prosthetic devise due to the
shrinkage of the stump from the
process of healing.
These adjustments entail costs,
prosthetic
replacements
and
months
of
physical
and
occupational rehabilitation and
therapy. During the lifetime, the
prosthetic devise will have to be
replaced
and
readjusted
to
changes in the size of her lower
limb effected by the biological
changes
of
middle-age,
menopause and aging. Assuming
she reaches menopause, for
example, the prosthetic will have to
be adjusted to respond to the
changes in bone resulting from a
precipitate decrease in calcium
levels observed in the bones of all
post-menopausal women. In other
words, the damage done to her
would not only be permanent and
lasting,
it
would
also
be
permanently
changing
and
adjusting
to
the
physiologic
changes which her body would
normally undergo through the
years. The replacements, changes,
and adjustments will require
corresponding adjustive physical
and occupational therapy. All of
these adjustments, it has been
documented, are painful.
xxx xxx xxx
A prosthetic devise, however
technologically advanced, will only
allow a reasonable amount of
functional restoration of the motor
functions of the lower limb. The
sensory functions are forever lost.
The
resultant
anxiety,
sleeplessness,
psychological

injury, mental and physical pain are

inestimable. 83
The injury suffered by Erlinda as a consequence of
private respondents' negligence is certainly much
more serious than the amputation in the
Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties
when the incident occurred. She has been in a
comatose state for over fourteen years now. The
burden of care has so far been heroically
shouldered by her husband and children, who, in
the intervening years have been deprived of the
love of a wife and a mother.
Meanwhile, the actual physical, emotional and
financial cost of the care of petitioner would be
virtually impossible to quantify. Even the temperate
damages herein awarded would be inadequate if
petitioner's condition remains unchanged for the
next ten years.
We recognized, in Valenzuela that a discussion of
the victim's actual injury would not even scratch
the surface of the resulting moral damage because
it would be highly speculative to estimate the
amount of emotional and moral pain, psychological
damage and injury suffered by the victim or those
actually affected by the victim's condition. 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.

FIRST DIVISION
G.R. No. 124354

April 11, 2002

ROGELIO E. RAMOS and ERLINDA RAMOS, in

their own behalf and as natural guardians of
the minors, ROMMEL RAMOS, ROY RODERICK
RAMOS, and RON RAYMOND
RAMOS, petitioners,
vs.
COURT OF APPEALS, DE LOS SANTOS
MEDICAL CENTER, DR. ORLINO HOSAKA and
DR. PERFECTA GUTIERREZ, respondents.
KAPUNAN, J.:
Private respondents De Los Santos Medical
Center, Dr. Orlino Hosaka and Dr. Perfecta
Gutierrez move for a reconsideration of the
Decision, dated December 29, 1999, of this Court
holding them civilly liable for petitioner Erlinda
Ramos comatose condition after she delivered

herself to them for their professional care and

management.
For better understanding of the issues raised in
private respondents respective motions, we will
briefly restate the facts of the case as follows:
Sometime in 1985, petitioner Erlinda Ramos, after
seeking professional medical help, was advised to
undergo an operation for the removal of a stone in
her gall bladder (cholecystectomy). She was
referred to Dr. Hosaka, a surgeon, who agreed to
perform the operation on her. The operation was
scheduled for June 17, 1985 at 9:00 in the morning
at private respondent De Los Santos Medical
Center (DLSMC). Since neither petitioner Erlinda
nor her husband, petitioner Rogelio, knew of any
anesthesiologist, Dr. Hosaka recommended to
them the services of Dr. Gutierrez.
Petitioner Erlinda was admitted to the DLSMC the
day before the scheduled operation. By 7:30 in the
morning of the following day, petitioner Erlinda was
already being prepared for operation. Upon the
request of petitioner Erlinda, her sister-in-law,
Herminda Cruz, who was then Dean of the College
of Nursing at the Capitol Medical Center, was
allowed to accompany her inside the operating
room.
At around 9:30 in the morning, Dr. Hosaka had not
yet arrived so Dr. Gutierrez tried to get in touch
with him by phone. Thereafter, Dr. Gutierrez
informed Cruz that the operation might be delayed
due to the late arrival of Dr. Hosaka. In the
meantime, the patient, petitioner Erlinda said to
Cruz, "Mindy, inip na inip na ako, ikuha mo ako ng
ibang Doctor."
By 10:00 in the morning, when Dr. Hosaka was still
not around, petitioner Rogelio already wanted to
pull out his wife from the operating room. He met
Dr. Garcia, who remarked that he was also tired of
waiting for Dr. Hosaka. Dr. Hosaka finally arrived
at the hospital at around 12:10 in the afternoon, or
more than three (3) hours after the scheduled
operation.
Cruz, who was then still inside the operating room,
heard about Dr. Hosakas arrival. While she held
the hand of Erlinda, Cruz saw Dr. Gutierrez trying
to intubate the patient. Cruz heard Dr. Gutierrez
utter: "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan." Cruz noticed
a bluish discoloration of Erlindas nailbeds on her
left hand. She (Cruz) then heard Dr. Hosaka
instruct someone to call Dr. Calderon, another
anesthesiologist. When he arrived, Dr. Calderon

attempted to intubate the patient. The nailbeds of

the patient remained bluish, thus, she was placed
in a trendelenburg position a position where the
head of the patient is placed in a position lower
than her feet. At this point, Cruz went out of the
operating room to express her concern to
petitioner Rogelio that Erlindas operation was not
going well.
Cruz quickly rushed back to the operating room
and saw that the patient was still in trendelenburg
position. At almost 3:00 in the afternoon, she saw
Erlinda being wheeled to the Intensive Care Unit
(ICU). The doctors explained to petitioner Rogelio
that his wife had bronchospasm. Erlinda stayed in
the ICU for a month. She was released from the
hospital only four months later or on November 15,
1985. Since the ill-fated operation, Erlinda
remained in comatose condition until she died on
August 3, 1999.1
Petitioners filed with the Regional Trial Court of
Quezon City a civil case for damages against
private respondents. After due trial, the court a
quo rendered judgment in favor of petitioners.
Essentially, the trial court found that private
respondents were negligent in the performance of
their duties to Erlinda. On appeal by private
respondents, the Court of Appeals reversed the
trial courts decision and directed petitioners to pay
their "unpaid medical bills" to private respondents.
Petitioners filed with this Court a petition for review
on certiorari. The private respondents were then
required to submit their respective comments
thereon. On December 29, 1999, this Court
promulgated
the
decision
which
private
respondents now seek to be reconsidered. The
dispositive portion of said Decision states:
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 exemplary
damages and attorneys fees; and 5) the
costs of the suit.2

In his Motion for Reconsideration, private

respondent Dr. Hosaka submits the following as
grounds therefor:
I
THE
HONORABLE
SUPREME
COURT
COMMITTED REVERSIBLE ERROR WHEN IT
HELD RESPONDENT DR. HOSAKA LIABLE ON
THE BASIS OF THE "CAPTAIN-OF-THE-SHIP"
DOCTRINE.
II
THE HONORABLE SUPREME COURT ERRED
IN HOLDING RESPONDENT DR. HOSAKA
LIABLE DESPITE THE FACT THAT NO
NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.
III
ASSUMING
WITHOUT
ADMITTING
THAT
RESPONDENT DR. HOSAKA IS LIABLE, THE
HONORABLE SUPREME COURT ERRED IN
AWARDING DAMAGES THAT WERE CLEARLY
EXCESSIVE AND WITHOUT LEGAL BASIS.3
Private respondent Dr. Gutierrez, for her part,
avers that:
A. THE HONORABLE SUPREME COURT
MAY
HAVE
INADVERTENTLY
OVERLOOKED THE FACT THAT THE
COURT OF APPEALS DECISION DATED
29 MAY 1995 HAD ALREADY BECOME
FINAL AND EXECUTORY AS OF 25
JUNE 1995, THEREBY DEPRIVING THIS
HONORABLE COURT OF JURISDICTION
OVER THE INSTANT PETITION;
B. THE HONORABLE SUPREME COURT
MAY
HAVE
INADVERTENTLY
OVERLOOKED SEVERAL MATERIAL
FACTUAL CIRCUMSTANCES WHICH, IF
PROPERLY
CONSIDERED,
WOULD
INDUBITABLY LEAD TO NO OTHER
CONCLUSION BUT THAT PRIVATE
RESPONDENT DOCTORS WERE NOT
GUILTY OF ANY NEGLIGENCE IN
RESPECT OF THE INSTANT CASE;
B.1
RESPONDENT
DOCTOR
PERFECTA GUTIERREZ HAS
SUFFICIENTLY
DISCHARGED
THE BURDEN OF EVIDENCE BY
SUBSTANTIAL PROOF OF HER
COMPLIANCE
WITH
THE
STANDARDS OF DUE CARE

EXPECTED IN HER RESPECTIVE

FIELD
OF
MEDICAL
SPECIALIZATION.
B.2
RESPONDENT
DOCTOR
PERFECTA GUTIERREZ HAS
SUFFICIENTLY
DISCHARGED
THE BURDEN OF EVIDENCE BY
SUBSTANTIAL PROOF OF HER
HAVING
SUCCESSFULLY
INTUBATED PATIENT ERLINDA
RAMOS
C. THE SUPREME COURT MAY HAVE
INADVERTENTLY PLACED TOO MUCH
RELIANCE ON THE TESTIMONY OF
PETITIONERS WITNESS HERMINDA
CRUZ, DESPITE THE EXISTENCE OF
SEVERAL FACTUAL CIRCUMSTANCES
WHICH RENDERS DOUBT ON HER
CREDIBILITY
D. THE SUPREME COURT MAY HAVE
INADVERTENTLY DISREGARDED THE
EXPERT TESTIMONY OF DR. JAMORA
AND DRA. CALDERON
E. THE HONORABLE SUPREME COURT
MAY HAVE INADVERTENTLY AWARDED
DAMAGES TO PETITIONERS DESPITE
THE FACT THAT THERE WAS NO
NEGLIGENCE ON THE PART OF
RESPONDENT DOCTOR.4
Private respondent De Los Santos Medical Center
likewise moves for reconsideration on the following
grounds:
I
THE HONORABLE COURT ERRED IN GIVING
DUE COURSE TO THE INSTANT PETITION AS
THE DECISION OF THE HONORABLE COURT
OF APPEALS HAD ALREADY BECOME FINAL
AND EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED
IN FINDING THAT AN EMPLOYER-EMPLOYEE
[RELATIONSHIP]
EXISTS
BETWEEN
RESPONDENT DE LOS SANTOS MEDICAL
CENTER AND DRS. ORLINO HOSAKA AND
PERFECTA GUTIERREZ
III

THE HONORABLE SUPREME COURT ERRED

IN FINDING THAT RESPONDENT DE LOS
SANTOS MEDICAL CENTER IS SOLIDARILY
LIABLE WITH RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED
IN INCREASING THE AWARD OF DAMAGES IN
FAVOR OF PETITIONERS.5
In the Resolution of February 21, 2000, this Court
denied the motions for reconsideration of private
respondents Drs. Hosaka and Gutierrez. They
then filed their respective second motions for
reconsideration. The Philippine College of
Surgeons
filed
its
Petition-in-Intervention
contending in the main that this Court erred in
holding private respondent Dr. Hosaka liable under
the captain of the ship doctrine. According to the
intervenor, said doctrine had long been abandoned
in the United States in recognition of the
developments in modern medical and hospital
practice.6 The Court noted these pleadings in the
Resolution of July 17, 2000.7
On March 19, 2001, the Court heard the oral
arguments of the parties, including the intervenor.
Also present during the hearing were the amicii
curiae: Dr. Felipe A. Estrella, Jr., Consultant of the
Philippine Charity Sweepstakes, former Director of
the Philippine General Hospital and former
Secretary of Health; Dr. Iluminada T. Camagay,
President
of
the
Philippine
Society
of
Anesthesiologists, Inc. and Professor and ViceChair
for
Research,
Department
of
Anesthesiology, College of Medicine-Philippine
General Hospital, University of the Philippines; and
Dr. Lydia M. Egay, Professor and Vice-Chair for
Academics, Department of Anesthesiology,
College of Medicine-Philippine General Hospital,
University of the Philippines.
The Court enumerated the issues to be resolved in
this case as follows:
1. WHETHER OR NOT DR. ORLINO
HOSAKA (SURGEON) IS LIABLE FOR
NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA
GUTIERREZ (ANESTHESIOLOGIST) IS
LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL
(DELOS SANTOS MEDICAL CENTER) IS
LIABLE FOR ANY ACT OF NEGLIGENCE
COMMITTED
BY
THEIR
VISITING

CONSULTANT
SURGEON
ANESTHESIOLOGIST.8

AND

We shall first resolve the issue pertaining to private

respondent Dr. Gutierrez. She maintains that the
Court erred in finding her negligent and in holding
that it was the faulty intubation which was the
proximate cause of Erlindas comatose condition.
The following objective facts allegedly negate a
finding of negligence on her part: 1) That the
outcome of the procedure was a comatose patient
and not a dead one; 2) That the patient had a
cardiac arrest; and 3) That the patient was revived
from that cardiac arrest.9 In effect, Dr. Gutierrez
insists that, contrary to the finding of this Court, the
intubation she performed on Erlinda was
successful.
Unfortunately, Dr. Gutierrez claim of lack of
negligence on her part is belied by the records of
the case. It has been sufficiently established that
she failed to exercise the standards of care in the
administration of anesthesia on a patient. Dr. Egay
enlightened the Court on what these standards
are:
x x x What are the standards of care that
an anesthesiologist should do before we
administer anesthesia? The initial step is
the preparation of the patient for surgery
and this is a pre-operative evaluation
because
the
anesthesiologist
is
responsible for determining the medical
status of the patient, developing the
anesthesia plan and acquainting the
patient or the responsible adult particularly
if we are referring with the patient or to
adult patient who may not have, who may
have some mental handicaps of the
proposed plans. We do pre-operative
evaluation because this provides for an
opportunity for us to establish identification
and personal acquaintance with the
patient. It also makes us have an
opportunity to alleviate anxiety, explain
techniques and risks to the patient, given
the patient the choice and establishing
consent to proceed with the plan. And
lastly, once this has been agreed upon by
all parties concerned the ordering of preoperative medications. And following this
line at the end of the evaluation we usually
come up on writing, documentation is very
important as far as when we train an
anesthesiologist we always emphasize this
because we need records for our
protection, well, records. And it entails
having brief summary of patient history and
physical findings pertinent to anesthesia,

plan, organize as a problem list, the plan

anesthesia technique, the plan post
operative, pain management if appropriate,
special issues for this particular patient.
There are needs for special care after
surgery and if it so it must be written down
there and a request must be made known
to proper authorities that such and such
care is necessary. And the request for
medical evaluation if there is an indication.
When we ask for a cardio-pulmonary
clearance it is not in fact to tell them if this
patient is going to be fit for anesthesia, the
decision to give anesthesia rests on the
anesthesiologist. What we ask them is
actually to give us the functional capacity
of certain systems which maybe affected
by the anesthetic agent or the technique
that we are going to use. But the burden of
responsibility in terms of selection of agent
and how to administer it rest on the
anesthesiologist.10
The conduct of a preanesthetic/preoperative
evaluation prior to an operation, whether elective
or emergency, cannot be dispensed with.11 Such
evaluation is necessary for the formulation of a
plan of anesthesia care suited to the needs of the
patient concerned.
Pre-evaluation for anesthesia involves taking the
patients medical history, reviewing his current
drug therapy, conducting physical examination,
interpreting laboratory data, and determining the
appropriate
prescription
of
preoperative
medications as necessary to the conduct of
anesthesia.12
Physical examination of the patient entails not only
evaluating the patients central nervous system,
cardiovascular system and lungs but also the
upper airway. Examination of the upper airway
would in turn include an analysis of the patients
cervical
spine
mobility,
temporomandibular
mobility, prominent central incisors, deceased or
artificial teeth, ability to visualize uvula and the
thyromental distance.13
Nonetheless, Dr. Gutierrez omitted to perform a
thorough preoperative evaluation on Erlinda. As
she herself admitted, she saw Erlinda for the first
time on the day of the operation itself, one hour
before
the
scheduled
operation.
She
auscultated14 the patients heart and lungs and
checked the latters blood pressure to determine if
Erlinda was indeed fit for operation.15 However,
she did not proceed to examine the patients
airway. Had she been able to check petitioner
Erlindas airway prior to the operation, Dr.

Gutierrez would most probably not have

experienced difficulty in intubating the former, and
thus the resultant injury could have been avoided.
As we have stated in our Decision:
In the case at bar, respondent Dra.
Gutierrez admitted that she saw Erlinda for
the first time on the day of the operation
itself, on 17 June 1985. Before this date,
no prior consultations with, or pre-operative
evaluation of Erlinda was done by her.
Until the day of the operation, respondent
Dra. Gutierrez was unaware of the
physiological make-up and needs of
Erlinda. She was likewise not properly
informed of the possible difficulties she
would face during the administration of
anesthesia to Erlinda. Respondent Dra.
Gutierrez act of seeing her patient for the
first time only an hour before the scheduled
operative procedure was, therefore, an act
of exceptional negligence and professional
irresponsibility. The measures cautioning
prudence and vigilance in dealing with
human lives lie at the core of the
physicians centuries-old Hippocratic Oath.
Her failure to follow this medical procedure
is, therefore, a clear indicia of her
negligence.16
Further, there is no cogent reason for the Court to
reverse its finding that it was the faulty intubation
on Erlinda that caused her comatose condition.
There is no question that Erlinda became
comatose after Dr. Gutierrez performed a medical
procedure on her. Even the counsel of Dr.
Gutierrez admitted to this fact during the oral
arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your
argument saying that this involves
a comatose patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a
comatose, a comatose after any
other acts were done by Dr.
Gutierrez or comatose before any
act was done by her?
ATTY. GANA:

No, we meant comatose as a final

outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient
became comatose after some
intervention, professional acts have
been done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose
status was a consequence of some
acts performed by D. Gutierrez?
ATTY. GANA:
It was a consequence of the well,
(interrupted)
CHIEF JUSTICE:
An acts performed by her, is that
not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.17
What is left to be determined therefore is whether
Erlindas hapless condition was due to any fault or
negligence on the part of Dr. Gutierrez while she
(Erlinda) was under the latters care. Dr. Gutierrez
maintains that the bronchospasm and cardiac
arrest resulting in the patients comatose condition
was brought about by the anaphylactic reaction of
the patient to Thiopental Sodium (pentothal).18 In
the Decision, we explained why we found Dr.
Gutierrez theory unacceptable. In the first place,
Dr. Eduardo Jamora, the witness who was
presented to support her (Dr. Gutierrez) theory,
was a pulmonologist. Thus, he could not be
considered an authority on anesthesia practice
and procedure and their complications.19
Secondly, there was no evidence on record to
support the theory that Erlinda developed an
allergic reaction to pentothal. Dr. Camagay

enlightened the Court as to the manifestations of

an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic
reaction. In medical terminology an
allergic reaction is something which
is not usual response and it is
further qualified by the release of a
hormone called histamine and
histamine has an effect on all the
organs of the body generally
release because the substance
that entered the body reacts with
the particular cell, the mass cell,
and the mass cell secretes this
histamine. In a way it is some form
of response to take away that
which is not mine, which is not part
of the body. So, histamine has
multiple effects on the body. So,
one of the effects as you will see
you will have redness, if you have
an allergy you will have tearing of
the eyes, you will have swelling,
very crucial swelling sometimes of
the larynges which is your voice
box main airway, that swelling may
be enough to obstruct the entry of
air to the trachea and you could
also have contraction, constriction
of the smaller airways beyond the
trachea, you see you have the
trachea this way, we brought some
visual aids but unfortunately we do
not have a projector. And then you
have the smaller airways, the
bronchi and then eventually into
the mass of the lungs you have the
bronchus. The difference is that
these tubes have also in their walls
muscles and this particular kind of
muscles is smooth muscle so,
when histamine is released they
close up like this and that
phenomenon is known as bronco
spasm. However, the effects of
histamine also on blood vessels
are different. They dilate blood
vessel open up and the patient or
whoever has this histamine release
has hypertension or low blood
pressure to a point that the patient
may have decrease blood supply to
the brain and may collapse so, you
may have people who have this.20

These symptoms of an allergic reaction were not

shown to have been extant in Erlindas case. As
we held in our Decision, "no evidence of stridor,
skin reactions, or wheezing some of the more
common accompanying signs of an allergic
reaction appears on record. No laboratory data
were ever presented to the court."21
Dr. Gutierrez, however, insists that she
successfully intubated Erlinda as evidenced by the
fact that she was revived after suffering from
cardiac arrest. Dr. Gutierrez faults the Court for
giving credence to the testimony of Cruz on the
matter of the administration of anesthesia when
she (Cruz), being a nurse, was allegedly not
qualified to testify thereon. Rather, Dr. Gutierrez
invites the Courts attention to her synopsis on
what transpired during Erlindas intubation:
12:15 p.m. Patient was inducted with
sodium pentothal 2.5% (250 mg) given by
slow IV. 02 was started by mask. After
pentothal injection this was followed by IV
injection of Norcuron 4mg. After 2 minutes
02 was given by positive pressure for
about one minute. Intubation with
endotracheal tube 7.5 m in diameter was
done with slight difficulty (short neck &
slightly prominent upper teeth) chest was
examined for breath sounds & checked if
equal on both sides. The tube was then
anchored to the mouth by plaster & cuff
inflated. Ethrane 2% with 02 4 liters was
given. Blood pressure was checked 120/80
& heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was
cyanotic. Ethrane was discontinued & 02
given alone. Cyanosis disappeared. Blood
pressure and heart beats stable.
12:30 p.m. Cyanosis again reappeared this
time with sibilant and sonorous rales all
over the chest. D_5%_H20 & 1 ampule of
aminophyline by fast drip was started. Still
the cyanosis was persistent. Patient was
connected to a cardiac monitor. Another
ampule of of [sic] aminophyline was given
and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra
cardiac massage and intercardiac injection
of adrenalin was given & heart beat
reappeared in less than one minute.
Sodium bicarbonate & another dose of solu
cortef was given by IV. Cyanosis slowly
disappeared & 02 continuously given &

assisted positive pressure. Laboratory

exams done (see results in chart).
Patient was transferred
management.22

to

ICU

for

further

From the foregoing, it can be allegedly seen that

there was no withdrawal (extubation) of the tube.
And the fact that the cyanosis allegedly
disappeared after pure oxygen was supplied
through the tube proved that it was properly
placed.
The Court has reservations on giving evidentiary
weight to the entries purportedly contained in Dr.
Gutierrez synopsis. It is significant to note that the
said record prepared by Dr. Gutierrez was made
only after Erlinda was taken out of the operating
room. The standard practice in anesthesia is that
every single act that the anesthesiologist performs
must be recorded. In Dr. Gutierrez case, she
could not account for at least ten (10) minutes of
what happened during the administration of
anesthesia on Erlinda. The following exchange
between Dr. Estrella, one of the amicii curiae, and
Dr. Gutierrez is instructive:
DR. ESTRELLA
Q
You mentioned that there were two
(2) attempts in the intubation period?
DR. GUTIERREZ
Yes.
Q
There were two attempts. In the
first attempt was the tube inserted or was
the laryngoscope only inserted, which was
inserted?
A

All the laryngoscope.

Q
All the laryngoscope. But if I
remember right somewhere in the re-direct,
a certain lawyer, you were asked that you
did a first attempt and the question was
did you withdraw the tube? And you said
you never withdrew the tube, is that right?
A

is it recorded in the anesthesia record

when the cyanosis, in your recording when
did the cyanosis occur?

Yes.

Q
Yes. And so if you never withdrew
the tube then there was no, there was no
insertion of the tube during that first
attempt. Now, the other thing that we have
to settle here is when cyanosis occurred,

(sic)

Q
Is it a standard practice of
anesthesia that whatever you do during
that period or from the time of induction to
the time that you probably get the patient
out of the operating room that every single
action that you do is so recorded in your
anesthesia record?
A
I was not able to record everything I
did not have time anymore because I did
that after the, when the patient was about
to leave the operating room. When there
was second cyanosis already that was the
(interrupted)
Q

When was the first cyanosis?

A
The first cyanosis when I was
(interrupted)
Q

What time, more or less?

I think it was 12:15 or 12:16.

Q
Well, if the record will show you
started induction at 12:15?
A

Yes, Your Honor.

Q
And the first medication you gave
was what?
A
The first medication, no, first the
patient was oxygenated for around one to
two minutes.
Q

Yes, so, that is about 12:13?

A
Yes, and then, I asked the resident
physician to start giving the pentothal very
slowly and that was around one minute.
Q
So, that is about 12:13 no, 12:15,
12:17?
A
Yes, and then, after one minute
another oxygenation was given and after
(interrupted)
Q

12:18?

A
Yes, and then after giving the
oxygen we start the menorcure which is a
relaxant. After that relaxant (interrupted)

A
On the second attempt I was able to
intubate right away within two to three
seconds.

Q
After that relaxant, how long do you
wait before you do any manipulation?

Q
At what point, for purposes of
discussion without accepting it, at what
point did you make the comment "na
mahirap ata to intubate, mali ata ang
pinasukan"

A
Usually you wait for two minutes or
three minutes.
Q
So, if our estimate of the time is
accurate we are now more or less 12:19, is
that right?
A

Maybe.

Q
12:19. And at that time, what would
have been done to this patient?
A
After that time you examine the, if
there is relaxation of the jaw which you
push it downwards and when I saw that the
patient was relax because that monorcure
is a relaxant, you cannot intubate the
patient or insert the laryngoscope if it is not
keeping him relax. So, my first attempt
when I put the laryngoscope on I saw the
trachea was deeply interiorly. So, what I
did ask "mahirap ata ito ah." So, I removed
the laryngoscope and oxygenated again
the patient.
Q
So, more or less you attempted to
do an intubation after the first attempt as
you claimed that it was only the
laryngoscope that was inserted.
A

Yes.

Q
And in the second attempt you
inserted the laryngoscope and now
possible intubation?
A

Yes.

Q
And at that point, you made a
remark, what remark did you make?
A
I said "mahirap ata ito" when the
first attempt I did not see the trachea right
away. That was when I (interrupted)

A
I did not say "mali ata ang
pinasukan" I never said that.
Q
Well, just for the information of the
group here the remarks I am making is
based on the documents that were
forwarded to me by the Supreme Court.
That is why for purposes of discussion I am
trying to clarify this for the sake of
enlightenment. So, at what point did you
ever make that comment?
A

Q
The "mahirap intubate ito"
assuming that you (interrupted)
A
Iyon lang, that is what I only said
"mahirap intubate (interrupted)
Q

At what point?

A
When the first attempt when I
inserted the laryngoscope for the first time.
Q
So, when you claim that at the first
attempt you inserted the laryngoscope,
right?
A

Yes.

Q
But in one of the recordings
somewhere at the, somewhere in the
transcript of records that when the lawyer
of the other party try to inquire from you
during the first attempt that was the time
when "mayroon ba kayong hinugot sa
tube, I do not remember the page now, but
it seems to me it is there. So, that it was on
the second attempt that (interrupted)
A

Which one, sir?

I was able to intubate.

That was the first attempt?

Yes.

What about the second attempt?

Q
And this is more or less about what
time 12:21?

A
Maybe, I cannot remember the
time, Sir.
Q
Okay, assuming that this was done
at 12:21 and looking at the anesthesia
records from 12:20 to 12:30 there was no
recording of the vital signs. And can we
presume that at this stage there was
already some problems in handling the
patient?
A

Not yet.

Q
But why are there no recordings in
the anesthesia record?
A

I did not have time.

Q
Ah, you did not have time, why did
you not have time?
A
Because it was so fast, I really (at
this juncture the witness is laughing)
Q
No, I am just asking. Remember I
am not here not to pin point on anybody I
am here just to more or less clarify
certainty more ore less on the record.
A

Yes, Sir.

Q
And so it seems that there were no
recording during that span of ten (10)
minutes. From 12:20 to 12:30, and going
over your narration, it seems to me that the
cyanosis appeared ten (10) minutes after
induction, is that right?
A

Q
12:20?
A

A
No,
23
(interrupted).

the

first

cyanosis

We cannot thus give full credence to Dr. Gutierrez

synopsis in light of her admission that it does not
fully reflect the events that transpired during the
administration of anesthesia on Erlinda. As pointed
out by Dr. Estrella, there was a ten-minute gap in
Dr. Gutierrez synopsis, i.e., the vital signs of
Erlinda were not recorded during that time. The
absence of these data is particularly significant
because, as found by the trial court, it was the
absence of oxygen supply for four (4) to five (5)
minutes that caused Erlindas comatose condition.
On the other hand, the Court has no reason to
disbelieve the testimony of Cruz. As we stated in
the Decision, she is competent to testify on
matters which she is capable of observing such as,
the statements and acts of the physician and
surgeon, external appearances and manifest
conditions which are observable by any
one.24 Cruz, Erlindas sister-in-law, was with her
inside the operating room. Moreover, being a
nurse and Dean of the Capitol Medical Center
School of Nursing at that, she is not entirely
ignorant of anesthetic procedure. Cruz narrated
that she heard Dr. Gutierrez remark, "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan." She observed that the
nailbeds of Erlinda became bluish and thereafter
Erlinda
was
placed
in
trendelenburg
position.25Cruz further averred that she noticed
that the abdomen of Erlinda became distended.26

Yes.

Q
And that is after induction 12:15
that is 12:25 that was the first cyanosis?
A

during the period and then of course the

second cyanosis, after the first cyanosis. I
think that was the time Dr. Hosaka came
in?

Yes.
And that the 12:25 is after the

We cannot (interrupted)

Q
Huwag ho kayong makuwan, we
are just trying to enlighten, I am just going
over the record ano, kung mali ito kuwan
eh di ano. So, ganoon po ano, that it
seems to me that there is no recording
from 12:20 to 12:30, so, I am just
wondering why there were no recordings

The cyanosis (bluish discoloration of the skin or

mucous membranes caused by lack of oxygen or
abnormal hemoglobin in the blood) and
enlargement of the stomach of Erlinda indicate that
the endotracheal tube was improperly inserted into
the esophagus instead of the trachea.
Consequently, oxygen was delivered not to the
lungs but to the gastrointestinal tract. This
conclusion is supported by the fact that Erlinda
was placed in trendelenburg position. This
indicates that there was a decrease of blood
supply to the patients brain. The brain was thus
temporarily deprived of oxygen supply causing
Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not
normally happen absent any negligence in the
administration of anesthesia and in the use of an

endotracheal tube. As was noted in our Decision,

the instruments used in the administration of
anesthesia, including the endotracheal tube, were
all under the exclusive control of private
respondents
Dr.
Gutierrez
and
Dr.
Hosaka.27 In Voss vs. Bridwell,28 which involved a
patient who suffered brain damage due to the
wrongful administration of anesthesia, and even
before the scheduled mastoid operation could be
performed, the Kansas Supreme Court applied the
doctrine of res ipsa loquitur, reasoning that the
injury to the patient therein was one which does
not ordinarily take place in the absence of
negligence in the administration of an anesthetic,
and in the use and employment of an endotracheal
tube. The court went on to say that "[o]rdinarily a
person being put under anesthesia is not rendered
decerebrate as a consequence of administering
such anesthesia in the absence of negligence.
Upon these facts and under these circumstances,
a layman would be able to say, as a matter of
common knowledge and observation, that the
consequences of professional treatment were not
as such as would ordinarily have followed if due
care had been exercised."29 Considering the
application of the doctrine ofres ipsa loquitur, the
testimony of Cruz was properly given credence in
the case at bar.
For his part, Dr. Hosaka mainly contends that the
Court erred in finding him negligent as a surgeon
by applying the Captain-of-the-Ship doctrine.30 Dr.
Hosaka argues that the trend in United States
jurisprudence has been to reject said doctrine in
light of the developments in medical practice. He
points out that anesthesiology and surgery are two
distinct and specialized fields in medicine and as a
surgeon, he is not deemed to have control over the
acts of Dr. Gutierrez. As anesthesiologist, Dr.
Gutierrez is a specialist in her field and has
acquired skills and knowledge in the course of her
training which Dr. Hosaka, as a surgeon, does not
possess.31 He states further that current American
jurisprudence on the matter recognizes that the
trend towards specialization in medicine has
created situations where surgeons do not always
have the right to control all personnel within the
operating room,32 especially a fellow specialist.33
Dr. Hosaka cites the case of Thomas v. Raleigh
General Hospital,34 which involved a suit filed by a
patient who lost his voice due to the wrongful
insertion of the endotracheal tube preparatory to
the administration of anesthesia in connection with
the laparotomy to be conducted on him. The
patient sued both the anesthesiologist and the
surgeon for the injury suffered by him. The
Supreme Court of Appeals of West Virginia held
that the surgeon could not be held liable for the

loss of the patients voice, considering that the

surgeon did not have a hand in the intubation of
the patient. The court rejected the application of
the "Captain-of-the-Ship Doctrine," citing the fact
that the field of medicine has become specialized
such that surgeons can no longer be deemed as
having control over the other personnel in the
operating room. It held that "[a]n assignment of
liability based on actual control more realistically
reflects the actual relationship which exists in a
modern operating room."35 Hence, only the
anesthesiologist who inserted the endotracheal
tube into the patients throat was held liable for the
injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to
do away with the Captain-of-the-Ship doctrine
does not mean that this Court will ipso facto follow
said trend. Due regard for the peculiar factual
circumstances obtaining in this case justify the
application of the Captain-of-the-Ship doctrine.
From the facts on record it can be logically inferred
that Dr. Hosaka exercised a certain degree of, at
the very least, supervision over the procedure then
being performed on Erlinda.
First, it was Dr. Hosaka who recommended to
petitioners the services of Dr. Gutierrez. In effect,
he represented to petitioners that Dr. Gutierrez
possessed the necessary competence and skills.
Drs. Hosaka and Gutierrez had worked together
since 1977. Whenever Dr. Hosaka performed a
surgery, he would always engage the services of
Dr. Gutierrez to administer the anesthesia on his
patient.36
Second, Dr. Hosaka himself admitted that he was
the attending physician of Erlinda. Thus, when
Erlinda showed signs of cyanosis, it was Dr.
Hosaka who gave instructions to call for another
anesthesiologist
and
cardiologist
to
help
resuscitate Erlinda.37
Third, it is conceded that in performing their
responsibilities to the patient, Drs. Hosaka and
Gutierrez worked as a team. Their work cannot be
placed in separate watertight compartments
because their duties intersect with each other.38
While the professional services of Dr. Hosaka and
Dr. Gutierrez were secured primarily for their
performance of acts within their respective fields of
expertise for the treatment of petitioner Erlinda,
and that one does not exercise control over the
other, they were certainly not completely

independent of each other so as to absolve one

from the negligent acts of the other physician.
That they were working as a medical team is
evident from the fact that Dr. Hosaka was keeping
an eye on the intubation of the patient by Dr.
Gutierrez, and while doing so, he observed that
the patients nails had become dusky and had to
call Dr. Gutierrezs attention thereto. The Court
also notes that the counsel for Dr. Hosaka
admitted that in practice, the anesthesiologist
would also have to observe the surgeons acts
during the surgical process and calls the attention
of the surgeon whenever necessary39 in the course
of the treatment. The duties of Dr. Hosaka and
those of Dr. Gutierrez in the treatment of petitioner
Erlinda are therefore not as clear-cut as
respondents claim them to be. On the contrary, it
is quite apparent that they have a common
responsibility to treat the patient, which
responsibility necessitates that they call each
others attention to the condition of the patient
while the other physician is performing the
necessary medical procedures.
It is equally important to point out that Dr. Hosaka
was remiss in his duty of attending to petitioner
Erlinda promptly, for he arrived more than three (3)
hours late for the scheduled operation.
The cholecystectomy was set for June 17, 1985 at
9:00 a.m., but he arrived at DLSMC only at around
12:10 p.m. In reckless disregard for his patients
well being, Dr. Hosaka scheduled two procedures
on the same day, just thirty minutes apart from
each other, at different hospitals. Thus, when the
first procedure (protoscopy) at the Sta. Teresita
Hospital did not proceed on time, Erlinda was kept
in a state of uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlindas
scheduled operation subjected her to continued
starvation and consequently, to the risk of
acidosis,40 or the condition of decreased alkalinity
of the blood and tissues, marked by sickly sweet
breath, headache, nausea and vomiting, and
visual disturbances.41 The long period that Dr.
Hosaka made Erlinda wait for him certainly
aggravated the anxiety that she must have been
feeling at the time. It could be safely said that her
anxiety adversely affected the administration of
anesthesia on her. As explained by Dr. Camagay,
the patients anxiety usually causes the outpouring
of adrenaline which in turn results in high blood
pressure or disturbances in the heart rhythm:
DR. CAMAGAY:

x x x Pre-operative medication has

three main functions: One is to
alleviate anxiety. Second is to dry
up the secretions and Third is to
relieve pain. Now, it is very
important to alleviate anxiety
because anxiety is associated with
the
outpouring
of
certain
substances formed in the body
called adrenalin. When a patient is
anxious there is an outpouring of
adrenalin which would have
adverse effect on the patient. One
of it is high blood pressure, the
other is that he opens himself to
disturbances in the heart rhythm,
which
would
have
adverse
implications. So, we would like to
alleviate patients anxiety mainly
because he will not be in control of
his body there could be adverse
results to surgery and he will be
opened up; a knife is going to open
up his body. x x x42
Dr. Hosaka cannot now claim that he was entirely
blameless of what happened to Erlinda. His
conduct clearly constituted a breach of his
professional duties to Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor,
you were talking about anxiety,
would you consider a patient's stay
on the operating table for three
hours
sufficient
enough
to
aggravate or magnify his or her
anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in
this particular case that was the
case, three hours waiting and the
patient was already on the
operating table (interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:

Would you therefore conclude that

the surgeon contributed to the
aggravation of the anxiety of the
patient?
DR. CAMAGAY:
That this operation did not take
place as scheduled is already a
source of anxiety and most
operating tables are very narrow
and that patients are usually at risk
of falling on the floor so there are
restraints that are placed on them
and they are never, never left alone
in
the
operating
room
by
themselves specially if they are
already pre-medicated because
they may not be aware of some of
their movement that they make
which would contribute to their
injury.

of his duties, to act with justice and give everyone

his due.
Anent private respondent DLSMCs liability for the
resulting injury to petitioner Erlinda, we held that
respondent hospital is solidarily liable with
respondent doctors therefor under Article 2180 of
the Civil Code45 since there exists an employeremployee relationship between private respondent
DLSMC and Drs. Gutierrez and Hosaka:
In other words, private hospitals, hire, fire
and exercise real control over their
attending and visiting "consultant" staff.
While "consultants" are not, technically
employees, x x x the control exercised, the
hiring and the right to terminate consultants
all fulfill the important hallmarks of an
employer-employee relationship, with the
exception of the payment of wages. In
assessing whether such a relationship in
fact exists, the control test is determining. x
x x46

CHIEF JUSTICE:
In other words due diligence would
require a surgeon to come on
time?
DR. CAMAGAY:
I think it is not even due diligence it
is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.43
Dr. Hosaka's irresponsible conduct of arriving very
late for the scheduled operation of petitioner
Erlinda is violative, not only of his duty as a
physician "to serve the interest of his patients with
the greatest solicitude, giving them always his best
talent and skill,"44 but also of Article 19 of the Civil
Code which requires a person, in the performance

DLSMC however contends that applying the fourfold test in determining whether such a relationship
exists between it and the respondent doctors, the
inescapable conclusion is that DLSMC cannot be
considered an employer of the respondent doctors.
It has been consistently held that in determining
whether an employer-employee relationship exists
between the parties, the following elements must
be present: (1) selection and engagement of
services; (2) payment of wages; (3) the power to
hire and fire; and (4) the power to control not only
the end to be achieved, but the means to be used
in reaching such an end.47
DLSMC maintains that first, a hospital does not
hire or engage the services of a consultant, but
rather, accredits the latter and grants him or her
the privilege of maintaining a clinic and/or
admitting patients in the hospital upon a showing
by the consultant that he or she possesses the
necessary qualifications, such as accreditation by
the appropriate board (diplomate), evidence of
fellowship and references.48 Second, it is not the
hospital but the patient who pays the consultants
fee for services rendered by the latter.49 Third, a
hospital does not dismiss a consultant; instead, the
latter may lose his or her accreditation or privileges
granted by the hospital.50 Lastly, DLSMC argues
that when a doctor refers a patient for admission in
a hospital, it is the doctor who prescribes the
treatment to be given to said patient. The
hospitals obligation is limited to providing the
patient with the preferred room accommodation,

the nutritional diet and medications prescribed by

the doctor, the equipment and facilities necessary
for the treatment of the patient, as well as the
services of the hospital staff who perform the
ministerial tasks of ensuring that the doctors
orders are carried out strictly.51
After a careful consideration of the arguments
raised by DLSMC, the Court finds that respondent
hospitals position on this issue is meritorious.
There is no employer-employee relationship
between DLSMC and Drs. Gutierrez and Hosaka
which would hold DLSMC solidarily liable for the
injury suffered by petitioner Erlinda under Article
2180 of the Civil Code.
As explained by respondent hospital, that the
admission of a physician to membership in
DLSMCs medical staff as active or visiting
consultant is first decided upon by the Credentials
Committee thereof, which is composed of the
heads of the various specialty departments such
as the Department of Obstetrics and Gynecology,
Pediatrics, Surgery with the department head of
the particular specialty applied for as chairman.
The Credentials Committee then recommends to
DLSMC's
Medical
Director
or
Hospital
Administrator the acceptance or rejection of the
applicant physician, and said director or
administrator
validates
the
committee's
recommendation.52 Similarly, in cases where a
disciplinary action is lodged against a consultant,
the same is initiated by the department to whom
the consultant concerned belongs and filed with
the Ethics Committee consisting of the department
specialty heads. The medical director/hospital
administrator merely acts as ex-officio member of
said committee.
Neither is there any showing that it is DLSMC
which pays any of its consultants for medical
services rendered by the latter to their respective
patients. Moreover, the contract between the
consultant in respondent hospital and his patient is
separate and distinct from the contract between
respondent hospital and said patient. The first has
for its object the rendition of medical services by
the consultant to the patient, while the second
concerns the provision by the hospital of facilities
and services by its staff such as nurses and
laboratory personnel necessary for the proper
treatment of the patient.
Further, no evidence was adduced to show that
the injury suffered by petitioner Erlinda was due to
a failure on the part of respondent DLSMC to
provide for hospital facilities and staff necessary
for her treatment.

For these reasons, we reverse the finding of

liability on the part of DLSMC for the injury
suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to
modify the award of damages to petitioners in view
of the supervening event of petitioner Erlindas
death. In the assailed Decision, the Court awarded
actual damages of One Million Three Hundred
Fifty Two Thousand Pesos (P1,352,000.00) to
cover the expenses for petitioner Erlindas
treatment and care from the date of promulgation
of the Decision up to the time the patient expires or
survives.53 In addition thereto, the Court awarded
temperate damages of One Million Five Hundred
Thousand Pesos (P1,500,000.00) in view of the
chronic and continuing nature of petitioner
Erlindas injury and the certainty of further
pecuniary loss by petitioners as a result of said
injury, the amount of which, however, could not be
made with certainty at the time of the promulgation
of the decision. The Court justified such award in
this manner:
Our rules on actual or compensatory
damages generally assume that at the time
of litigation, the injury suffered as a
consequence of an act of negligence has
been completed and that the cost can be
liquidated. However, these provisions
neglect to take into account those
situations, as in this case, where the
resulting injury might be continuing and
possible future complications directly
arising from the injury, while certain to
occur, are difficult to predict.
In these cases, the amount of damages
which should be awarded, if they are to
adequately and correctly respond to the
injury caused, should be one which
compensates for pecuniary loss incurred
and proved, up to the time of trial; and one
which would meet pecuniary loss certain to
be suffered but which could not, from the
nature of the case, be made with certainty.
In other words, temperate damages can
and should be awarded on top of actual or
compensatory damages in instances
where the injury is chronic and continuing.
And because of the unique nature of such
cases, no incompatibility arises when both
actual and temperate damages are
provided for. The reason is that these
damages cover two distinct phases.
As it would not be equitableand certainly
not in the best interests of the
administration of justicefor the victim in

such cases to constantly come before the

courts and invoke their aid in seeking
adjustments to the compensatory damages
previously awardedtemperate damages
are appropriate. The amount given as
temperate damages, though to a certain
extent speculative, should take into
account the cost of proper care.
In the instant case, petitioners were able to
provide only home-based nursing care for
a comatose patient who has remained in
that condition for over a decade. Having
premised our award for compensatory
damages on the amount provided by
petitioners at the onset of litigation, it would
be now much more in step with the
interests of justice if the value awarded for
temperate
damages
would
allow
petitioners to provide optimal care for their
loved one in a facility which generally
specializes in such care. They should not
be compelled by dire circumstances to
provide substandard care at home without
the aid of professionals, for anything less
would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00
in temperate damages would therefore be
reasonable.54
However, subsequent to the promulgation of the
Decision, the Court was informed by petitioner
Rogelio that petitioner Erlinda died on August 3,
1999.55 In view of this supervening event, the
award of temperate damages in addition to the
actual or compensatory damages would no longer
be justified since the actual damages awarded in
the Decision are sufficient to cover the medical
expenses incurred by petitioners for the patient.
Hence, only the amounts representing actual,
moral and exemplary damages, attorneys fees
and costs of suit should be awarded to petitioners.
WHEREFORE, the assailed Decision is hereby
modified as follows:
(1) Private respondent De Los Santos Medical
Center is hereby absolved from liability arising
from the injury suffered by petitioner Erlinda
Ramos on June 17, 1985;
(2) Private respondents Dr. Orlino Hosaka and Dr.
Perfecta Gutierrez are hereby declared to be
solidarily liable for the injury suffered by petitioner
Erlinda on June 17, 1985 and are ordered to pay
petitioners
(a) P1,352,000.00 as actual damages;

(b) P2,000,000.00 as moral damages;

(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorneys fees; and
(e) the costs of the suit.
SO ORDERED.

FIRST DIVISION
G.R. No. 126297

January 31, 2007

PROFESSIONAL SERVICES, INC., Petitioner,

vs.
NATIVIDAD and ENRIQUE
AGANA, Respondents.
x-----------------------x
G.R. No. 126467

January 31, 2007

NATIVIDAD (Substituted by her children

MARCELINO AGANA III, ENRIQUE AGANA, JR.,
EMMA AGANA ANDAYA, JESUS AGANA, and
RAYMUND AGANA) and ENRIQUE
AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590

January 31, 2007

MIGUEL AMPIL, Petitioner,

vs.
NATIVIDAD AGANA and ENRIQUE
AGANA, Respondents.
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankinds
most important and delicate endeavors, must
assume the grave responsibility of pursuing it with
appropriate care. The care and service dispensed
through this high trust, however technical, complex
and esoteric its character may be, must meet
standards of responsibility commensurate with the
undertaking to preserve and protect the health,
and indeed, the very lives of those placed in the
hospitals keeping.1

Assailed in these three consolidated petitions for

review on certiorari is the Court of Appeals
Decision2 dated September 6, 1996 in CA-G.R. CV
No. 42062 and CA-G.R. SP No. 32198 affirming
with modification the Decision3dated March 17,
1993 of the Regional Trial Court (RTC), Branch 96,
Quezon City in Civil Case No. Q-43322 and
nullifying its Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to
the Medical City General Hospital (Medical City
Hospital) because of difficulty of bowel movement
and bloody anal discharge. After a series of
medical examinations, Dr. Miguel Ampil, petitioner
in G.R. No. 127590, diagnosed her to be suffering
from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the
medical staff4 of the Medical City Hospital,
performed an anterior resection surgery on
Natividad. He found that the malignancy in her
sigmoid area had spread on her left ovary,
necessitating the removal of certain portions of it.
Thus, Dr. Ampil obtained the consent of
Natividads husband, Enrique Agana, to permit Dr.
Juan Fuentes, respondent in G.R. No. 126467, to
perform hysterectomy on her.
After
Dr.
Fuentes
had
completed
the
hysterectomy, Dr. Ampil took over, completed the
operation and closed the incision.
However, the operation appeared to be flawed. In
the corresponding Record of Operation dated April
11, 1984, the attending nurses entered these
remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to
no avail continue for closure."
On April 24, 1984, Natividad was released from
the hospital. Her hospital and medical bills,
including the doctors fees, amounted to
P60,000.00.
After a couple of days, Natividad complained of
excruciating pain in her anal region. She consulted
both Dr. Ampil and Dr. Fuentes about it. They told
her that the pain was the natural consequence of
the surgery. Dr. Ampil then recommended that she
consult an oncologist to examine the cancerous
nodes which were not removed during the
operation.

On May 9, 1984, Natividad, accompanied by her

husband, went to the United States to seek further
treatment. After four months of consultations and
laboratory examinations, Natividad was told she
was free of cancer. Hence, she was advised to
return to the Philippines.
On August 31, 1984, Natividad flew back to the
Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze
protruding from her vagina. Upon being informed
about it, Dr. Ampil proceeded to her house where
he managed to extract by hand a piece of gauze
measuring 1.5 inches in width. He then assured
her that the pains would soon vanish.
Dr. Ampils assurance did not come true. Instead,
the pains intensified, prompting Natividad to seek
treatment at the Polymedic General Hospital.
While confined there, Dr. Ramon Gutierrez
detected the presence of another foreign object in
her vagina -- a foul-smelling gauze measuring 1.5
inches in width which badly infected her vaginal
vault. A recto-vaginal fistula had formed in her
reproductive organs which forced stool to excrete
through the vagina. Another surgical operation was
needed to remedy the damage. Thus, in October
1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her
husband filed with the RTC, Branch 96, Quezon
City a complaint for damages against the
Professional Services, Inc. (PSI), owner of the
Medical City Hospital, Dr. Ampil, and Dr. Fuentes,
docketed as Civil Case No. Q-43322. They alleged
that the latter are liable for negligence for leaving
two pieces of gauze inside Natividads body and
malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the
Professional Regulation Commission (PRC) an
administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes,
docketed as Administrative Case No. 1690. The
PRC Board of Medicine heard the case only with
respect to Dr. Fuentes because it failed to acquire
jurisdiction over Dr. Ampil who was then in the
United States.
On February 16, 1986, pending the outcome of the
above cases, Natividad died and was duly
substituted by her above-named children (the
Aganas).
On March 17, 1993, the RTC rendered its Decision
in favor of the Aganas, finding PSI, Dr. Ampil and
Dr. Fuentes liable for negligence and malpractice,
the decretal part of which reads:

WHEREFORE, judgment is hereby rendered for

the
plaintiffs
ordering
the
defendants
PROFESSIONAL SERVICES, INC., DR. MIGUEL
AMPIL and DR. JUAN FUENTES to pay to the
plaintiffs, jointly and severally, except in respect of
the award for exemplary damages and the interest
thereon which are the liabilities of defendants Dr.
Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following
amounts:
a. The equivalent in
Currency
of
the
US$19,900.00 at the
P21.60-US$1.00,
reimbursement of actual
incurred in the United
America;

Philippine
total
of
rate of
as
expenses
States of

b. The sum of P4,800.00 as travel

taxes of plaintiffs and their
physician daughter;
c. The total sum of P45,802.50,
representing
the
cost
of
hospitalization
at
Polymedic
Hospital, medical fees, and cost of
the saline solution;
2. As moral damages,
P2,000,000.00;

the

sum

of

3. As exemplary damages, the sum of

P300,000.00;
4. As attorneys
P250,000.00;

fees,

the

sum

of

5. Legal interest on items 1 (a), (b), and

(c); 2; and 3 hereinabove, from date of
filing of the complaint until full payment;
and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil
interposed an appeal to the Court of Appeals,
docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with
the RTC a motion for a partial execution of its
Decision, which was granted in an Order dated
May 11, 1993. Thereafter, the sheriff levied upon
certain properties of Dr. Ampil and sold them for

P451,275.00 and delivered the amount to the

Aganas.
Following their receipt of the money, the Aganas
entered into an agreement with PSI and Dr.
Fuentes to indefinitely suspend any further
execution of the RTC Decision. However, not long
thereafter, the Aganas again filed a motion for an
alias writ of execution against the properties of PSI
and Dr. Fuentes. On September 21, 1993, the
RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file
with the Court of Appeals a petition for certiorari
and prohibition, with prayer for preliminary
injunction, docketed as CA-G.R. SP No. 32198.
During its pendency, the Court of Appeals issued a
Resolution5 dated October 29, 1993 granting Dr.
Fuentes prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was
consolidated with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board
of
Medicine
rendered
its
Decision6 in
Administrative Case No. 1690 dismissing the case
against Dr. Fuentes. The Board held that the
prosecution failed to show that Dr. Fuentes was
the one who left the two pieces of gauze inside
Natividads body; and that he concealed such fact
from Natividad.
On September 6, 1996, the Court of Appeals
rendered its Decision jointly disposing of CA-G.R.
CV No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the
case against defendant-appellant Dr. Juan
Fuentes is hereby DISMISSED, and with the
pronouncement that defendant-appellant Dr.
Miguel Ampil is liable to reimburse defendantappellant Professional Services, Inc., whatever
amount the latter will pay or had paid to the
plaintiffs-appellees, the decision appealed from is
hereby AFFIRMED and the instant appeal
DISMISSED.
Concomitant with the above, the petition for
certiorari and prohibition filed by herein defendantappellant Dr. Juan Fuentes in CA-G.R. SP No.
32198 is hereby GRANTED and the challenged
order of the respondent judge dated September
21, 1993, as well as the alias writ of execution
issued pursuant thereto are hereby NULLIFIED
and SET ASIDE. The bond posted by the
petitioner in connection with the writ of preliminary
injunction issued by this Court on November 29,
1993 is hereby cancelled.

Costs against defendants-appellants Dr. Miguel

Ampil and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration,
but it was denied in a Resolution7 dated December
19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that
the Court of Appeals erred in holding that: (1) it is
estopped from raising the defense that Dr. Ampil is
not its employee; (2) it is solidarily liable with Dr.
Ampil; and (3) it is not entitled to its counterclaim
against the Aganas. PSI contends that Dr. Ampil is
not its employee, but a mere consultant or
independent contractor. As such, he alone should
answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the
Court of Appeals erred in finding that Dr. Fuentes
is not guilty of negligence or medical malpractice,
invoking the doctrine of res ipsa loquitur. They
contend that the pieces of gauze are prima facie
proofs that the operating surgeons have been
negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that
the Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he
left the two pieces of gauze in Natividads vagina.
He pointed to other probable causes, such as: (1)
it was Dr. Fuentes who used gauzes in performing
the hysterectomy; (2) the attending nurses failure
to properly count the gauzes used during surgery;
and (3) the medical intervention of the American
doctors who examined Natividad in the United
States of America.
For our resolution are these three vital issues: first,
whether the Court of Appeals erred in holding Dr.
Ampil liable for negligence and malpractice;
second, whether the Court of Appeals erred in
absolving Dr. Fuentes of any liability; and third,
whether PSI may be held solidarily liable for the
negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr.
Ampil
Liable for Negligence and Malpractice.

Dr. Ampil, in an attempt to absolve himself, gears

the Courts attention to other possible causes of
Natividads detriment. He argues that the Court
should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in
Natividads body after performing hysterectomy;
second, the attending nurses erred in counting the
gauzes; and third, the American doctors were the
ones who placed the gauzes in Natividads body.
Dr. Ampils arguments are purely conjectural and
without basis. Records show that he did not
present any evidence to prove that the American
doctors were the ones who put or left the gauzes
in Natividads body. Neither did he submit
evidence to rebut the correctness of the record of
operation, particularly the number of gauzes used.
As to the alleged negligence of Dr. Fuentes, we
are mindful that Dr. Ampil examined his (Dr.
Fuentes) work and found it in order.
The glaring truth is that all the major
circumstances, taken together, as specified by the
Court of Appeals, directly point to Dr. Ampil as the
negligent party, thus:
First, it is not disputed that the surgeons
used gauzes as sponges to control the
bleeding of the patient during the surgical
operation.
Second, immediately after the operation,
the nurses who assisted in the surgery
noted in their report that the sponge count
(was) lacking 2; that such anomaly was
announced to surgeon and that a search
was done but to no avail prompting Dr.
Ampil to continue for closure x x x.
Third, after the operation, two (2) gauzes
were extracted from the same spot of the
body of Mrs. Agana where the surgery was
performed.
An operation requiring the placing of sponges in
the incision is not complete until the sponges are
properly removed, and it is settled that the leaving
of sponges or other foreign substances in the
wound after the incision has been closed is at least
prima facie negligence by the operating
surgeon.8 To put it simply, such act is considered
so inconsistent with due care as to raise an
inference of negligence. There are even legions of
authorities to the effect that such act is negligence
per se.9
Of course, the Court is not blind to the reality that
there are times when danger to a patients life

precludes a surgeon from further searching

missing sponges or foreign objects left in the body.
But this does not leave him free from any
obligation. Even if it has been shown that a
surgeon was required by the urgent necessities of
the case to leave a sponge in his patients
abdomen, because of the dangers attendant upon
delay, still, it is his legal duty to so inform his
patient within a reasonable time thereafter by
advising her of what he had been compelled to do.
This is in order that she might seek relief from the
effects of the foreign object left in her body as her
condition might permit. The ruling in Smith v.
Zeagler10 is explicit, thus:
The removal of all sponges used is part of a
surgical operation, and when a physician or
surgeon fails to remove a sponge he has placed in
his patients body that should be removed as part
of the operation, he thereby leaves his operation
uncompleted and creates a new condition which
imposes upon him the legal duty of calling the new
condition to his patients attention, and
endeavoring with the means he has at hand to
minimize and avoid untoward results likely to
ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the
missing two pieces of gauze. Worse, he even
misled her that the pain she was experiencing was
the ordinary consequence of her operation. Had he
been more candid, Natividad could have taken the
immediate and appropriate medical remedy to
remove the gauzes from her body. To our mind,
what was initially an act of negligence by Dr. Ampil
has ripened into a deliberate wrongful act of
deceiving his patient.
This is a clear case of medical malpractice or more
appropriately, medical negligence. To successfully
pursue this kind of case, a patient must only prove
that a health care provider either failed to do
something which a reasonably prudent health care
provider would have done, or that he did
something that a reasonably prudent provider
would not have done; and that failure or action
caused injury to the patient.11 Simply put, the
elements are duty, breach, injury and proximate
causation. Dr, Ampil, as the lead surgeon, had the
duty to remove all foreign objects, such as gauzes,
from Natividads body before closure of the
incision. When he failed to do so, it was his duty to
inform Natividad about it. Dr. Ampil breached both
duties. Such breach caused injury to Natividad,
necessitating her further examination by American
doctors and another surgery. That Dr. Ampils
negligence is the proximate cause12 of Natividads
injury could be traced from his act of closing the
incision despite the information given by the

attending nurses that two pieces of gauze were

still missing. That they were later on extracted from
Natividads vagina established the causal link
between Dr. Ampils negligence and the injury.
And what further aggravated such injury was his
deliberate concealment of the missing gauzes from
the knowledge of Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial
court of the case against Dr. Fuentes on the
ground that it is contrary to the doctrine of res ipsa
loquitur. According to them, the fact that the two
pieces of gauze were left inside Natividads body is
a prima facie evidence of Dr. Fuentes negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks
for itself." It is the rule that the fact of the
occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiffs
prima facie case, and present a question of fact for
defendant to meet with an explanation.13 Stated
differently, where the thing which caused the
injury, without the fault of the injured, is under the
exclusive control of the defendant and the injury is
such that it should not have occurred if he, having
such control used proper care, it affords
reasonable evidence, in the absence of
explanation that the injury arose from the
defendants want of care, and the burden of proof
is shifted to him to establish that he has observed
due care and diligence.14
From the foregoing statements of the rule, the
requisites for the applicability of the doctrine of res
ipsa loquitur are: (1) the occurrence of an injury;
(2) the thing which caused the injury was under the
control and management of the defendant; (3) the
occurrence was such that in the ordinary course of
things, would not have happened if those who had
control or management used proper care; and (4)
the absence of explanation by the defendant. Of
the foregoing requisites, the most instrumental is
the "control and management of the thing which
caused the injury."15
We find the element of "control and management
of the thing which caused the injury" to be wanting.
Hence, the doctrine of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead

surgeon during the operation of Natividad. He
requested the assistance of Dr. Fuentes only to
perform hysterectomy when he (Dr. Ampil) found
that the malignancy in her sigmoid area had
spread to her left ovary. Dr. Fuentes performed the
surgery and thereafter reported and showed his
work to Dr. Ampil. The latter examined it and
finding everything to be in order, allowed Dr.
Fuentes to leave the operating room. Dr. Ampil
then resumed operating on Natividad. He was
about to finish the procedure when the attending
nurses informed him that two pieces of gauze were
missing. A "diligent search" was conducted, but the
misplaced gauzes were not found. Dr. Ampil then
directed that the incision be closed. During this
entire period, Dr. Fuentes was no longer in the
operating room and had, in fact, left the hospital.
Under the "Captain of the Ship" rule, the operating
surgeon is the person in complete charge of the
surgery room and all personnel connected with the
operation. Their duty is to obey his orders.16 As
stated before, Dr. Ampil was the lead surgeon. In
other words, he was the "Captain of the Ship."
That he discharged such role is evident from his
following conduct: (1) calling Dr. Fuentes to
perform a hysterectomy; (2) examining the work of
Dr. Fuentes and finding it in order; (3) granting Dr.
Fuentes permission to leave; and (4) ordering the
closure of the incision. To our mind, it was this act
of ordering the closure of the incision
notwithstanding that two pieces of gauze remained
unaccounted for, that caused injury to Natividads
body. Clearly, the control and management of the
thing which caused the injury was in the hands of
Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of
substantive law, hence, does not per se create or
constitute an independent or separate ground of
liability, being a mere evidentiary rule.17 In other
words, mere invocation and application of the
doctrine does not dispense with the requirement of
proof of negligence. Here, the negligence was
proven to have been committed by Dr. Ampil and
not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr.
Ampil
The third issue necessitates a glimpse at the
historical development of hospitals and the
resulting theories concerning their liability for the
negligence of physicians.

Until the mid-nineteenth century, hospitals were

generally charitable institutions, providing medical
services to the lowest classes of society, without
regard for a patients ability to pay.18 Those who
could afford medical treatment were usually
treated at home by their doctors.19 However, the
days of house calls and philanthropic health care
are over. The modern health care industry
continues to distance itself from its charitable past
and has experienced a significant conversion from
a not-for-profit health care to for-profit hospital
businesses. Consequently, significant changes in
health law have accompanied the business-related
changes in the hospital industry. One important
legal change is an increase in hospital liability for
medical malpractice. Many courts now allow
claims for hospital vicarious liability under the
theories of respondeat superior, apparent
authority, ostensible authority, or agency by
estoppel. 20
In this jurisdiction, the statute governing liability for
negligent acts is Article 2176 of the Civil Code,
which reads:
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of
this Chapter.
A derivative of this provision is Article 2180, the
rule governing vicarious liability under the doctrine
of respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176
is demandable not only for ones own acts or
omissions, but also for those of persons for whom
one is responsible.
x
x x x

The owners and managers of an establishment or

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

x
x

x
x

The responsibility treated of in this article shall

cease when the persons herein mentioned prove
that they observed all the diligence of a good
father of a family to prevent damage.
A prominent civilist commented that professionals
engaged by an employer, such as physicians,
dentists, and pharmacists, are not "employees"
under this article because the manner in which
they perform their work is not within the control of
the latter (employer). In other words, professionals
are considered personally liable for the fault or
negligence they commit in the discharge of their
duties, and their employer cannot be held liable for
such fault or negligence. In the context of the
present case, "a hospital cannot be held liable for
the fault or negligence of a physician or surgeon in
the treatment or operation of patients."21
The foregoing view is grounded on the traditional
notion that the professional status and the very
nature of the physicians calling preclude him from
being classed as an agent or employee of a
hospital, whenever he acts in a professional
capacity.22 It has been said that medical practice
strictly involves highly developed and specialized
knowledge,23 such that physicians are generally
free to exercise their own skill and judgment in
rendering
medical
services
sans
interference.24 Hence, when a doctor practices
medicine in a hospital setting, the hospital and its
employees are deemed to subserve him in his
ministrations to the patient and his actions are of
his own responsibility.25
The case of Schloendorff v. Society of New York
Hospital26 was then considered an authority for this
view. The "Schloendorff doctrine" regards a
physician, even if employed by a hospital, as an
independent contractor because of the skill he
exercises and the lack of control exerted over his
work. Under this doctrine, hospitals are exempt
from the application of the respondeat superior
principle for fault or negligence committed by
physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has
weakened with the significant developments in
medical care. Courts came to realize that modern
hospitals are increasingly taking active role in
supplying and regulating medical care to patients.
No longer were a hospitals functions limited to
furnishing room, food, facilities for treatment and
operation, and attendants for its patients. Thus, in
Bing v. Thunig,27 the New York Court of Appeals

deviated from the Schloendorff doctrine, noting

that modern hospitals actually do far more than
provide facilities for treatment. Rather, they
regularly employ, on a salaried basis, a large staff
of physicians, interns, nurses, administrative and
manual workers. They charge patients for medical
care and treatment, even collecting for such
services through legal action, if necessary. The
court then concluded that there is no reason to
exempt hospitals from the universal rule of
respondeat superior.
In our shores, the nature of the relationship
between the hospital and the physicians is
rendered inconsequential in view of our categorical
pronouncement
in
Ramos
v.
Court
of
Appeals28 that for purposes of apportioning
responsibility in medical negligence cases, an
employer-employee relationship in effect exists
between hospitals and their attending and visiting
physicians. This Court held:
"We now discuss the responsibility of the hospital
in this particular incident. The unique practice
(among private hospitals) of filling up specialist
staff with attending and visiting "consultants," who
are allegedly not hospital employees, presents
problems in apportioning responsibility for
negligence in medical malpractice cases.
However, the difficulty is more apparent than real.
In the first place, hospitals exercise significant
control in the hiring and firing of consultants and in
the conduct of their work within the hospital
premises. Doctors who apply for consultant slots,
visiting or attending, are required to submit proof of
completion of residency, their educational
qualifications, generally, evidence of accreditation
by the appropriate board (diplomate), evidence of
fellowship in most cases, and references. These
requirements are carefully scrutinized by members
of the hospital administration or by a review
committee set up by the hospital who either accept
or reject the application. x x x.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to
attend clinico-pathological conferences, conduct
bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and
perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the
hospital, and/or for the privilege of admitting
patients into the hospital. In addition to these, the
physicians performance as a specialist is
generally evaluated by a peer review committee on
the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and
residents. A consultant remiss in his duties, or a

consultant who regularly falls short of the minimum

standards acceptable to the hospital or its peer
review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and
exercise real control over their attending and
visiting consultant staff. While consultants are
not, technically employees, x x x, the control
exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an
employer-employee
relationship,
with
the
exception of the payment of wages. In assessing
whether such a relationship in fact exists, the
control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose
of allocating responsibility in medical negligence
cases, an employer-employee relationship in effect
exists between hospitals and their attending and
visiting physicians. "
But the Ramos pronouncement is not our only
basis in sustaining PSIs liability. Its liability is also
anchored upon the agency principle of apparent
authority or agency by estoppel and the doctrine of
corporate negligence which have gained
acceptance in the determination of a hospitals
liability for negligent acts of health professionals.
The present case serves as a perfect platform to
test the applicability of these doctrines, thus,
enriching our jurisprudence.
Apparent authority, or what is sometimes referred
to as the "holding
out" theory, or doctrine of ostensible agency or
agency by estoppel,29 has its origin from the law of
agency. It imposes liability, not as the result of the
reality of a contractual relationship, but rather
because of the actions of a principal or an
employer in somehow misleading the public into
believing that the relationship or the authority
exists.30 The concept is essentially one of estoppel
and has been explained in this manner:
"The principal is bound by the acts of his agent
with the apparent authority which he knowingly
permits the agent to assume, or which he holds
the agent out to the public as possessing. The
question in every case is whether the principal has
by his voluntary act placed the agent in such a
situation that a person of ordinary prudence,
conversant with business usages and the nature of
the particular business, is justified in presuming
that such agent has authority to perform the
particular act in question.31
The applicability of apparent authority in the field of
hospital liability was upheld long time ago in Irving

v. Doctor Hospital of Lake Worth, Inc.32 There, it

was explicitly stated that "there does not appear to
be any rational basis for excluding the concept of
apparent authority from the field of hospital
liability." Thus, in cases where it can be shown that
a hospital, by its actions, has held out a particular
physician as its agent and/or employee and that a
patient has accepted treatment from that physician
in the reasonable belief that it is being rendered in
behalf of the hospital, then the hospital will be
liable for the physicians negligence.
Our jurisdiction recognizes the concept of an
agency by implication or estoppel. Article 1869 of
the Civil Code reads:
ART. 1869. Agency may be express, or implied
from the acts of the principal, from his silence or
lack of action, or his failure to repudiate the
agency, knowing that another person is acting on
his behalf without authority.
In this case, PSI publicly displays in the lobby of
the Medical City Hospital the names and
specializations of the physicians associated or
accredited by it, including those of Dr. Ampil and
Dr. Fuentes. We concur with the Court of Appeals
conclusion that it "is now estopped from passing all
the blame to the physicians whose names it
proudly paraded in the public directory leading the
public to believe that it vouched for their skill and
competence." Indeed, PSIs act is tantamount to
holding out to the public that Medical City Hospital,
through its accredited physicians, offers quality
health care services. By accrediting Dr. Ampil and
Dr. Fuentes and publicly advertising their
qualifications, the hospital created the impression
that they were its agents, authorized to perform
medical or surgical services for its patients. As
expected, these patients, Natividad being one of
them, accepted the services on the reasonable
belief that such were being rendered by the
hospital or its employees, agents, or servants. The
trial court correctly pointed out:
x x x regardless of the education and status in life
of the patient, he ought not be burdened with the
defense of absence of employer-employee
relationship between the hospital and the
independent physician
whose
name
and
competence are certainly certified to the general
public by the hospitals act of listing him and his
specialty in its lobby directory, as in the case
herein. The high costs of todays medical and
health care should at least exact on the hospital
greater, if not broader, legal responsibility for the
conduct of treatment and surgery within its facility
by its accredited physician or surgeon, regardless
of whether he is independent or employed."33

The wisdom of the foregoing ratiocination is easy

to discern. Corporate entities, like PSI, are capable
of acting only through other individuals, such as
physicians. If these accredited physicians do their
job well, the hospital succeeds in its mission of
offering quality medical services and thus profits
financially. Logically, where negligence mars the
quality of its services, the hospital should not be
allowed to escape liability for the acts of its
ostensible agents.
We now proceed to the doctrine of corporate
negligence or corporate responsibility.
One allegation in the complaint in Civil Case No.
Q-43332 for negligence and malpractice is that
PSI as owner, operator and manager of Medical
City Hospital, "did not perform the necessary
supervision nor exercise diligent efforts in the
supervision of Drs. Ampil and Fuentes and its
nursing staff, resident doctors, and medical interns
who assisted Drs. Ampil and Fuentes in the
performance
of
their
duties
as
surgeons."34 Premised on the doctrine of corporate
negligence, the trial court held that PSI is directly
liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate
negligence as the judicial answer to the problem of
allocating hospitals liability for the negligent acts
of health practitioners, absent facts to support the
application of respondeat superior or apparent
authority. Its formulation proceeds from the
judiciarys acknowledgment that in these modern
times, the duty of providing quality medical service
is no longer the sole prerogative and responsibility
of the physician. The modern hospitals have
changed structure. Hospitals now tend to organize
a highly professional medical staff whose
competence and performance need to be
monitored by the hospitals commensurate with
their inherent responsibility to provide quality
medical care.35
The doctrine has its genesis in Darling v.
Charleston Community Hospital.36 There, the
Supreme Court of Illinois held that "the jury could
have found a hospital negligent, inter alia, in failing
to have a sufficient number of trained nurses
attending the patient; failing to require a
consultation with or examination by members of
the hospital staff; and failing to review the
treatment rendered to the patient." On the basis of
Darling, other jurisdictions held that a hospitals
corporate negligence extends to permitting a
physician known to be incompetent to practice at

the hospital.37 With the passage of time, more

duties were expected from hospitals, among them:
(1) the use of reasonable care in the maintenance
of safe and adequate facilities and equipment; (2)
the selection and retention of competent
physicians; (3) the overseeing or supervision of all
persons who practice medicine within its walls; and
(4) the formulation, adoption and enforcement of
adequate rules and policies that ensure quality
care for its patients.38 Thus, in Tucson Medical
Center, Inc. v. Misevich,39 it was held that a
hospital, following the doctrine of corporate
responsibility, has the duty to see that it meets the
standards of responsibilities for the care of
patients. Such duty includes the proper
supervision of the members of its medical staff.
And in Bost v. Riley,40 the court concluded that a
patient who enters a hospital does so with the
reasonable expectation that it will attempt to cure
him. The hospital accordingly has the duty to make
a reasonable effort to monitor and oversee the
treatment prescribed and administered by the
physicians practicing in its premises.
In the present case, it was duly established that
PSI operates the Medical City Hospital for the
purpose and under the concept of providing
comprehensive medical services to the public.
Accordingly, it has the duty to exercise reasonable
care to protect from harm all patients admitted into
its facility for medical treatment. Unfortunately, PSI
failed to perform such duty. The findings of the trial
court are convincing, thus:
x x x PSIs liability is traceable to its failure to
conduct an investigation of the matter reported in
the nota bene of the count nurse. Such failure
established PSIs part in the dark conspiracy of
silence and concealment about the gauzes. Ethical
considerations, if not also legal, dictated the
holding of an immediate inquiry into the events, if
not for the benefit of the patient to whom the duty
is primarily owed, then in the interest of arriving at
the truth. The Court cannot accept that the medical
and the healing professions, through their
members like defendant surgeons, and their
institutions like PSIs hospital facility, can callously
turn their backs on and disregard even a mere
probability of mistake or negligence by refusing or
failing to investigate a report of such seriousness
as the one in Natividads case.
It is worthy to note that Dr. Ampil and Dr. Fuentes
operated on Natividad with the assistance of the
Medical City Hospitals staff, composed of resident
doctors, nurses, and interns. As such, it is
reasonable to conclude that PSI, as the operator of
the hospital, has actual or constructive knowledge
of the procedures carried out, particularly the

report of the attending nurses that the two pieces

of gauze were missing. In Fridena v. Evans,41 it
was held that a corporation is bound by the
knowledge acquired by or notice given to its
agents or officers within the scope of their authority
and in reference to a matter to which their authority
extends. This means that the knowledge of any of
the staff of Medical City Hospital constitutes
knowledge of PSI. Now, the failure of PSI, despite
the attending nurses report, to investigate and
inform Natividad regarding the missing gauzes
amounts to callous negligence. Not only did PSI
breach its duties to oversee or supervise all
persons who practice medicine within its walls, it
also failed to take an active step in fixing the
negligence committed. This renders PSI, not only
vicariously liable for the negligence of Dr. Ampil
under Article 2180 of the Civil Code, but also
directly liable for its own negligence under Article
2176. In Fridena, the Supreme Court of Arizona
held:
x x x In recent years, however, the duty of care
owed to the patient by the hospital has expanded.
The emerging trend is to hold the hospital
responsible where the hospital has failed to
monitor and review medical services being
provided within its walls. See Kahn Hospital
Malpractice Prevention, 27 De Paul . Rev. 23
(1977).
Among the cases indicative of the emerging trend
is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d
335 (1972). In Purcell, the hospital argued that it
could not be held liable for the malpractice of a
medical practitioner because he was an
independent contractor within the hospital. The
Court of Appeals pointed out that the hospital had
created a professional staff whose competence
and performance was to be monitored and
reviewed by the governing body of the hospital,
and the court held that a hospital would be
negligent where it had knowledge or reason to
believe that a doctor using the facilities was
employing a method of treatment or care which fell
below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona
Court of Appeals held that a hospital has certain
inherent responsibilities regarding the quality of
medical care furnished to patients within its walls
and it must meet the standards of responsibility
commensurate with this undertaking. Beeck v.
Tucson General Hospital, 18 Ariz. App. 165, 500
P. 2d 1153 (1972). This court has confirmed the
rulings of the Court of Appeals that a hospital has
the duty of supervising the competence of the
doctors on its staff. x x x.

In the amended complaint, the plaintiffs did plead

that the operation was performed at the hospital
with its knowledge, aid, and assistance, and that
the negligence of the defendants was the
proximate cause of the patients injuries. We find
that such general allegations of negligence, along
with the evidence produced at the trial of this case,
are sufficient to support the hospitals liability
based on the theory of negligent supervision."
Anent the corollary issue of whether PSI is
solidarily liable with Dr. Ampil for damages, let it be
emphasized that PSI, apart from a general denial
of its responsibility, failed to adduce evidence
showing that it exercised the diligence of a good
father of a family in the accreditation and
supervision of the latter. In neglecting to offer such
proof, PSI failed to discharge its burden under the
last paragraph of Article 2180 cited earlier, and,
therefore, must be adjudged solidarily liable with
Dr. Ampil. Moreover, as we have discussed, PSI is
also directly liable to the Aganas.
One final word. Once a physician undertakes the
treatment and care of a patient, the law imposes
on him certain obligations. In order to escape
liability, he must possess that reasonable degree
of learning, skill and experience required by his
profession. At the same time, he must apply
reasonable care and diligence in the exercise of
his skill and the application of his knowledge, and
exert his best judgment.
WHEREFORE, we DENY all the petitions and
AFFIRM the challenged Decision of the Court of
Appeals in CA-G.R. CV No. 42062 and CA-G.R.
SP No. 32198.
Costs against petitioners PSI and Dr. Miguel
Ampil.
SO ORDERED.

THIRD DIVISION
G.R. No. 199282, March 14, 2016
TRAVEL & TOURS ADVISERS,
INCORPORATED, Petitioner, v. ALBERTO
CRUZ, SR., EDGAR HERNANDEZ AND
VIRGINIA MUOZ, Respondents.

PERALTA, J.:

2. For plaintiff Virginia Muoz:

For resolution of this Court is the Petition

for Review on Certiorari under Rule 45 of the
Revised Rules of Court dated December 28, 2011,
of petitioner Travel & Tours Advisers, Inc. assailing
the Decision1 dated May 16, 2011 and
Resolution2 dated November 10, 2011 of the Court
of Appeals (CA), affirming with modifications the
Decision3 dated January 30, 2008 of the Regional
Trial Court (RTC), Branch 61, Angeles City finding
petitioner jointly and solidarity liable for damages
incurred
in
a
vehicular
accident.
The

facts

follow.

Respondent Edgar Hernandez was driving an

Isuzu Passenger Jitney (jeepney) that he owns
with plate number DSG-944 along AngelesMagalang Road, Barangay San Francisco,
Magalang, Pampanga, on January 9, 1998, around
7:50 p.m. Meanwhile,. a Daewoo passenger bus
(RCJ Bus Lines) with plate number NXM-116,
owned by petitioner Travel and Tours Advisers,
Inc. and driven by Edgar Calaycay travelled in the
same direction as that of respondent Edgar
Hernandez vehicle. Thereafter, the bus bumped
the rear portion of the jeepney causing it to ram
into an acacia tree which resulted in the death of
Alberto Cruz, Jr. and the serious physical injuries
of
Virginia
Muoz.
Thus, respondents Edgar Hernandez, Virginia
Muoz and Alberto Cruz, Sr., father of the
deceased Alberto Cruz, Jr., filed a complaint for
damages, docketed as Civil Case No. 9006 before
the RTC claiming that the collision was due to the
reckless, negligent and imprudent manner by
which Edgar Calaycay was driving the bus, in
complete disregard to existing traffic laws, rules
and regulations, and praying that judgment be
rendered ordering Edgar Calaycay and petitioner
Travel & Tours Advisers, Inc. to pay the following:
chanRoblesvirtualLawlibrary
1. For plaintiff Alberto Cruz, Sr.
a. The sum of P140,000.00 for the reimbursement
of the expenses incurred for coffin, funeral
expenses, for vigil, food, drinks for the internment
(sic) of Alberto Cruz, Jr. as part of actual damages;
b. The sum of P300,000.00, Philippine Currency,
as moral, compensatory and consequential
damges.
c. The sum of P6,000.00 a month as lost of (sic)
income from January 9, 1998 up to the time the
Honorable Court may fixed (sic);

a. The sum of P40,000.00, Philippine Currency, for

the reimbursement of expenses for hospitalization,
medicine, treatment and doctor's fee as part of
actual damages;
b. The sum of P150,000.00 as moral,
compensatory and consequential damages;
3. For plaintiff Edgar Hernandez:
a. The sum of P42,400.00 for the damage
sustained by plaintiffs Isuzu Passenger Jitney as
part of actual damages, plus P500.00 a day as
unrealized net income for four (4) months;
b. The sum of P150,000.00, Philippine Currency,
as moral, compensatory and consequential
damages;
4. The sum of P50,000.00 pesos, Philippine
Currency, as attorney's fees, plus P1,000.00 per
appearance fee in court;
5. Litigation expenses in the sum of P30,000.00;
and
6. To pay the cost of their suit.
Other reliefs just and equitable are likewise prayed
for.4ChanRoblesVirtualawlibrary
For its defense, the petitioner claimed that it
exercised the diligence of a good father of a family
in the selection and supervision of its employee
Edgar Calaycay and further argued that it was
Edgar Hernandez who was driving his passenger
jeepney in a reckless and imprudent manner by
suddenly entering the lane of the petitioner's bus
without seeing to it that the road was clear for him
to enter said lane. In addition, petitioner alleged
that at the time of the incident, Edgar Hernandez
violated his franchise by travelling along an
unauthorized line/route and that the jeepney was
overloaded with passengers, and the deceased
Alberto Cruz, Jr. was clinging at the back thereof.
On January 30, 2008, after trial on the merits, the
RTC rendered judgment in favor of the
respondents, the dispositive portion of the decision
reads:
chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, judgment is
hereby rendered ordering the defendants Edgar
Calaycay Ranese and Travel & Tours Advisers,
Inc. to jointly and solidarity pay the following:
chanRoblesvirtualLawlibrary
I. 1. To plaintiff Alberto Cruz, Sr. and his family -

a) the sum of P50,000.00 as actual and

compensatory damages;
b) the sum of P250,000.00 for loss of earning
capacity of the decedent Alberto Cruz, Jr. and;
c) the sum of P50,000.00 as moral damages.
2. To plaintiff Virginia Muoz a) the sum of P16,744.00 as actual and
compensatory damages; and

SO ORDERED.6ChanRoblesVirtualawlibrary
Hence, the present petition wherein the petitioner
assigned the following errors:
chanRoblesvirtualLawlibrary
I.
THE PETITIONER'S BUS WAS NOT "OUT OF
LINE;"
II.

b) the sum of P150,000.00 as moral damages.

3. To Edgar Hernandez a) the sum of P50,000.00 as actual and
compensatory damages.
II. The sum of P50,000.00 as attorney's fees, and
III. The sum of P4,470.00 as cost of litigation
SO ORDERED.
Angeles City, Philippines, January 30,
2008.5ChanRoblesVirtualawlibrary
Petitioner filed its appeal with the CA, and on May
16, 2011, the appellate court rendered its decision,
the decretal portion of which reads as follows:
WHEREFORE, the instant appeal is PARTLY
GRANTED. The assailed Decision of the RTC,
Branch 61, Angeles City, dated January 30, 2008,
is AFFIRMED with MODIFICATIONS. The
defendants are ordered to pay, jointly and
severally, the following:

THE FACT THAT THE JEEPNEY WAS BUMPED

ON ITS LEFT REAR PORTION DOES NOT
PREPONDERANTLY PROVE THAT THE DRIVER
OF THE BUS WAS THE NEGLIGENT PARTY;
III.
THE DECEASED ALBERTO CRUZ, JR. WAS
POSITIONED AT THE RUNNING BOARD OF
THE JEEPNEY;
IV.
THE BUS DRIVER WAS NOT SPEEDING OR
NEGLIGENT WHEN HE FAILED TO STEER THE
BUS TO A COMPLETE STOP;
V.
THE PETITIONER EXERCISED
EXTRAORDINARY DILIGENCE OF A GOOD
FATHER OF A FAMILY IN ITS SELECTION AND
SUPERVISION OF DRIVER CALAYCAY; AND

1. To plaintiff Alberto Cruz, Sr. and family VI.

a) the sum of P25,000.00 as actual damages;
b) the sum of P250.000.00 for the loss of earning
capacity of the decedent Alberto Cruz, Jr.;
c) the sum of P50,000.00 as civil indemnity for the
death of Alberto Cruz, Jr.;
d) the sum of P50,000.00 as moral damages.
2. To plaintiff Virginia Muoz a) the sum of P16,744.00 as actual damages; and
b) the sum of P30,000.00 as moral damages.
3. To plaintiff Edgar Hernandez a) The sum of P40,200.00 as actual damages.
4. The award of attorney's fees (P50,000.00) and
cost of litigation (P4,470.00) remains.

THERE IS NO FACTUAL AND LEGAL BASIS

FOR THE VARIOUS AWARDS OF MONETARY
DAMAGES.7ChanRoblesVirtualawlibrary
According to petitioner, contrary to the declaration
of the RTC, the petitioner's passenger bus was not
"out-of-line" and that petitioner is actually the
holder of a PUB (public utility bus) franchise for
provincial
operation
from
Manila-Ilocos
Norte/Cagayan-Manila, meaning the petitioner's
passenger bus is allowed to traverse any point
between Manila-Ilocos Norte/Cagayan-Manila.
Petitioner further asseverates that the fact that the
driver of the passenger bus took the Magalang
Road instead of the Bamban Bridge is of no
moment because the bridge was under
construction due to the effects of the lahar; hence
closed to traffic and the Magalang Road is still in
between the points of petitioner's provincial
operation. Furthermore, petitioner claims that the
jeepney was traversing a road way out of its
allowed route, thus, the presumption that

respondent Edgar Hernandez was the negligent

party.
Petitioner further argues that respondent Edgar
Hernandez failed to observe that degree of care,
precaution and vigilance that his role as a public
utility called for when he allowed the deceased
Alberto Cruz, Jr., to hang on to the rear portion of
the
jeepney.
After due consideration of the issues and
arguments presented by petitioner, this Court finds
no
merit
to
grant
the
petition.
Jurisprudence teaches us that "(a)s a rule, the
jurisdiction of this Court in cases brought to it from
the Court of Appeals x x x is limited to the review
and revision of errors of law allegedly committed
by the appellate court, as its findings of fact are
deemed conclusive. As such, this Court is not
duty-bound to analyze and weigh all over again the
evidence already considered in the proceedings
below.8 This rule, however, is not without
exceptions."9 The findings of fact of the Court of
Appeals, which are, as a general rule, deemed
conclusive, may admit of review by this Court:10
(1) when the factual findings of the Court of
Appeals and the trial court are contradictory;
(2) when the findings are grounded entirely on
speculation, surmises, or conjectures;
(3) when the inference made by the Court of
Appeals from its findings of fact is manifestly
mistaken, absurd, or impossible;

Appeals are premised on the absence of evidence

but such findings are contradicted by the evidence
on record.
The issues presented are all factual in nature and
do not fall under any of the exceptions upon which
this Court may review. Moreover, well entrenched
is the prevailing jurisprudence that 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 Revised Rules of Court, which applies with
greater force to the Petition under consideration
because the factual findings by the Court of
Appeals are in full agreement with what the trial
court found.11
Nevertheless, a review of the issues presented in
this petition would still lead to the finding that
petitioner is still liable for the damages awarded to
the respondents but with certain modifications.
The RTC and the CA are one in finding that both
vehicles were not in their authorized routes at the
time of the incident. The conductor of petitioner's
bus admitted on cross-examination that the driver
of the bus veered off from its usual route to avoid
heavy
traffic.
The
CA
thus
observed:
chanRoblesvirtualLawlibrary
First. As pointed out in the assailed Decision, both
vehicles were not in their authorized routes at the
time of the mishap. FRANCISCO TEJADA, the
conductor of defendant-appellant's bus, admitted
on cross-examination that the driver of the bus
passed through Magalang Road instead of Sta.
Ines, which was the usual route, thus:

(4) when there is grave abuse of discretion in the

appreciation of facts;

(5) when the appellate court, in making its findings,

goes beyond the issues of the case, and such
findings are contrary to the admissions of both
appellant and appellee;

Q: What route did you take from Manila to Laoag,

Ilocos Sur?
A: Instead of Sta. Ines, we took Magalang Road,
sir.

(6) when the judgment of the Court of Appeals is

premised on a misapprehension of facts;

Q: So that is not your usual route that you are

taking?
A: No, sir, it so happened that there was heavy
traffic at Bamban, Tarlac, that is why we took
the Magalang Road.

(7) when the Court of Appeals fails to notice

certain relevant facts which, if properly considered,
will justify a different conclusion;

xxx
(8) when the findings of fact are themselves
conflicting;
(9) when the findings of fact are conclusions
without citation of the specific evidence on which
they are based; and
(10) when the findings of fact of the Court of

The foregoing testimony of defendant-appellant's

own witness clearly belies the contention that its
driver took the Magalang Road instead of the
Bamban Bridge because said bridge was closed
and under construction due to the effects of lahar.
Regardless of the reason, however, the irrefutable

fact remains that defendant-appellant's

likewise veered from its usual route.12

bus

Petitioner now claims that the bus was not out of

line when the vehicular accident happened
because the PUB (public utility bus) franchise that
the petitioner holds is for provincial operation from
Manila-Ilocos Norte/Cagayan-Manila, thus, the bus
is allowed to traverse any point between ManilaIlocos Norte/Cagayan-Manila. Such assertion is
correct. "Veering away from the usual route" is
different from being "out of line." A public utility
vehicle can and may veer away from its usual
route as long as it does not go beyond its allowed
route in its franchise, in this case, Manila-Ilocos
Norte/Cagayan-Manila. Therefore, the bus cannot
be considered to have violated the contents of its
franchise. On the other hand, it is indisputable that
the jeepney was traversing a road out of its
allowed route. Necessarily, this case is not that of
"in pari delicto" because only one party has
violated a traffic regulation. As such, it would seem
that Article 2185 of the New Civil Code is
applicable
where
it
provides
that:

VIRGINIA
MUOZ,
chanRoblesvirtualLawlibrary
EDGAR HERNANDEZ

as

follows:

xxx
Q: Now, according to you, you were not able to
reach the town proper of Magalang because your
vehicle was bumped. In what portion of your
vehicle was it bumped, Mr. Witness?
A: At the left side edge portion of the vehicle, sir.
Q: When it was bumped on the rear left side
portion, what happened to your vehicle?
A: It was bumped strongly, sir, and then, "sinulpit
ya", sir.
Q: When your vehicle was "sinulpit" and hit an
acacia tree, what happened to the acacia tree?
A: The jeepney stopped and Alberto Cruz died and
some of my passengers were injured, sir.
xxx
VIRGINIA MUOZ

Art. 2185. Unless there is proof to the contrary, it is

presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap, he
was violating any traffic regulation.
The above provision, however, is merely a
presumption. From the factual findings of both the
RTC and the CA based on the evidence
presented, the proximate cause of the collision is
the negligence of the driver of petitioner's bus. The
jeepney was bumped at the left rear portion. Thus,
this Court's past ruling,13 that drivers of vehicles
who bump the rear of another vehicle are
presumed to be the cause of the accident, unless
contradicted by other evidence, can be applied.
The rationale behind the presumption is that the
driver of the rear vehicle has full control of the
situation as he is in a position to observe the
vehicle in front of him.14 Thus, as found by the CA:
Second. The evidence on record preponderantly
shows that it was the negligence of defendantappellant's driver, EDGAR CALAYCAY, that was
the
proximate
cause
of
the
collision.
Even without considering the photographs (Exhibit
"N", " " and "N-2") showing the damage to the
jeepney, it cannot be denied that the said
vehicle was bumped in its left rear portion by
defendant-appellant's bus. The same was
established by the unrebutted testimonies of
plaintiffs-appellees EDGAR HERNANDEZ and

xxx
Q: what portion of the vehicle wherein you were
boarded that was hit by the Travel Tours Bus?
A: The rear portion of the jeep, sir.
Q: It was hit by the Travel Tours Bus?
A: Yes, sir.
Q: What happened to you when the vehicle was
bumped?
A: I was thrown off the vehicle, sir.
xxx
It has been held that drivers of vehicles "who bump
the rear of another vehicle" are presumed to be
"the cause of the accident, unless contradicted by
other evidence." The rationale behind the
presumption is that the driver of the rear vehicle
has full control of the situation as he is in a position
to observe the vehicle in front of him.
In the case at bar, defendant-appellant failed to
overturn the foregoing presumption. FRANCISCO
TEJADA, the conductor of the bus who was
admittedly "seated in front, beside the driver's
seat," and thus had an unimpeded view of the
road, declared on direct examination that the
jeepney was about 10 to 15 meters away from the
bus when he first saw said vehicle on the road.
Clearly, the bus driver, EDGAR CALAYCAY,
would have also been aware of the presence of

the jeepney and, thus, was expected to anticipate

its
movements.
However, on cross-examination, TEJADA claimed
that the jeepney "suddenly appeared" before the
bus, passing it diagonally, and causing it to be hit
in its left rear side. Such uncorroborated testimony
cannot be accorded credence by this Court
because it is inconsistent with the physical
evidence of the actual damage to the jeepney. On
this score, We quote with approval the following
disquisition
of
the
trial
court:
x x x (F)rom the evidence presented, it was
established that it was the driver of the RCJ Line
Bus which was negligent and recklessly driving the
bus of the defendant corporation.
Francisco Tejada, who claimed to be the
conductor of the bus, testified that it was the
passenger jeepney coming from the pavement
which suddenly entered diagonally the lane of the
bus causing the bus to hit the rear left portion of
the passenger jeepney. But such testimony is
belied by the photographs of the jeepney (Exhs. N
and N-1). As shown by Exh. N-1, the jeepney was
hit at the rear left portion and not when the jeepney
was in a diagonal position to the bus otherwise, it
should have been the left side of the passenger
jeepney near the rear portion that could have been
bumped by the bus. It is clear from Exh. N-1 and it
was even admitted that the rear left portion of the
passenger jeepney was bumped by the bus.
Further, if the jeepney was in diagonal position
when it was hit by the bus, it should have been the
left side of the body of the jeepney that could have
sustained markings of such bumping. In this case,
it is clear that it is the left rear portion of the
jeepney that shows the impact of the markings of
the bumping. The jeepney showed that it had great
damage on the center of the front portion (Exh. N2). It was the center of the front portion that hit the
acacia tree (Exh. N). As admitted by the parties,
both vehicles were running along the same
direction from west to east. As testified to by
Francisco Tejada, the jeepney was about ten (10)
to fifteen (15) meters away from the bus when he
noticed the jeepney entering diagonally the lane of
the bus. If this was so, the middle left side portion
of the jeepney could have been hit, not the rear
portion. The evidence is clear that the bus was in
fast running condition, otherwise, it could have
stopped to evade hitting the jeepney. The hitting of
the acacia tree by the jeepney, and the damages
caused on the jeepney in its front (Exh. N-2) and
on its rear left side show that the bus was running
very
fast.

xxxx
Assuming ex gratia argumenti that the jeepney
was in a "stop position," as claimed by defendantappellant, on the pavement of the road 10 to 15
meters ahead of the bus before swerving to the left
to merge into traffic, a cautious public utility driver
should have stepped on his brakes and slowed
down. The distance of 10 to 15 meters would have
allowed the bus with slacked speed to give way to
the jeepney until the latter could fully enter the
lane. Obviously, as correctly found by the court a
quo, the bus was running very fast because even if
the driver stepped on the brakes, it still made
contact with the jeepney with such force that sent
the latter vehicle crashing head-on against an
acacia tree. In fact, FRANCISCO TEJADA
effectively admitted that the bus was very fast
when he declared that the driver "could not
suddenly apply the break (sic) in full stop because
our bus might turn turtle xxx." Incidentally, the
allegation in the appeal brief that the driver could
not apply the brakes with force because of the
possibly that the bus might turn turtle "as they
were approaching the end of the gradient or the
decline of the sloping terrain or topography of the
roadway" was only raised for the first time in this
appeal and, thus, may not be considered. Besides,
there is nothing on record to substantiate the
same.
Rate of speed, in connection with other
circumstances,
is
one
of
the
principal
considerations in determining whether a motorist
has been reckless in driving a vehicle, and
evidence of the extent of the damage caused may
show the force of the impact from which the rate of
speed of the vehicle may be modestly inferred.
From the evidence presented in this case, it
cannot be denied that the bus was running very
fast. As held by the Supreme Court, the very fact
of speeding is indicative of imprudent behavior, as
a motorist must exercise ordinary care and drive at
a reasonable rate of speed commensurate with the
conditions encountered, which will enable him to
keep the vehicle under control and avoid injury to
others using the highway.15
From the above findings, it is apparent that the
proximate cause of the accident is the petitioner's
bus and that the petitioner was not able to present
evidence that would show otherwise. Petitioner
also raised the issue that the deceased passenger,
Alberto Cruz, Jr. was situated at the running board
of the jeepney which is a violation of a traffic
regulation and an indication that the jeepney was
overloaded with passengers. The CA correctly
ruled that no evidence was presented to show the

same,

thus:

That the deceased passenger, ALBERTO CRUZ,

JR., was clinging at the back of the jeepney at the
time of the mishap cannot be gleaned from the
testimony of plaintifff-appellee VIRGINIA MUOZ
that it was she who was sitting on the left rearmost
of
the
jeepney.
VIRGINIA MUOZ herself testified that there were
only about 16 passengers on board the jeepney
when the subject incident happened. Considering
the testimony of plaintiff-appellee EDGAR
HERNANDEZ that the seating capacity of his
jeepney is 20 people, VIRGINIA'S declaration
effectively
overturned
defendant-appellant's
defense that plaintiff-appellee overloaded his
jeepney and allowed the deceased passenger to
cling to the outside railings. Yet, curiously, the
defense declined to cross-examine VIRGINIA, the
best witness from whom defendant-appellant could
have extracted the truth about the exact location of
ALBERTO CRUZ, JR. in or out of the jeepney.
Such failure is fatal to defendant-appellant's case.
The only other evidence left to support its claim is
the testimony of theconductor, FRANCISCO
TEJADA, that there were 3 passengers who
were clinging to the back of the jeepney, and it
was the passenger clinging to the left side that
was bumped by the bus. However, in answer to
the clarificatory question from the court a quo,
TEJADA admitted that he did not really see
what happened, thus:
Q: What happened to the passenger clinging to
the left side portion?
A: He was bumped, your Honor.
Q: Why, the passenger fell?
A: I did not really see what happened, Mam
[sic], what I know he was bumped.
This, despite his earlier declaration that he was
seated in front of the bus beside the driver's seat
and knew what happened to the passengers who
were clinging to the back of the jeepney.
Indubitably, therefore, TEJADA was not a credible
witness, and his testimony is not worthy of belief.16
Consequently, the petitioner, being the owner of
the bus and the employer of the driver, Edgar
Calaycay, cannot escape liability. Article 2176 of
the
Civil
Code
provides:
Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-

delict and is governed by the provisions of this

Chapter.
Complementing Article 2176 is Article 2180 which
states the following:
The obligation imposed by Article 2176 is
demandable not only for one's own acts or
omissions, but also for those of persons for whom
one is responsible x x x.
Employers shall be liable for the damages caused
by their employees and household helpers acting
within the scope of their assigned tasks, even
though the former are not engaged in any
business or industry x x x.
The responsibility treated of in this article shall
cease when the persons herein mentioned prove
that they observed all the diligence of a good
father of a family to prevent damage.
Article 2180, in relation to Article 2176, of the Civil
Code provides that the employer of a negligent
employee is liable for the damages caused by the
latter. When an injury is caused by the negligence
of an employee there instantly arises a
presumption of the law that there was negligence
on the part of the employer either in the selection
of his employee or in the supervision over him
after such selection. The presumption, however,
may be rebutted by a clear showing on the part of
the employer that it had exercised the care and
diligence of a good father of a family in the
selection and supervision of his employee. Hence,
to escape solidary liability for quasi-delict
committed by an employee, the employer must
adduce sufficient proof that it exercised such
degree of care.17 In this case, the petitioner failed
to do so. The RTC and the CA exhaustively and
correctly ruled as to the matter, thus:
Thus, whenever an employee's (defendant
EDGAR ALAYCAY) negligence causes- damage
or injury to another, there instantly arises a
presumption that the employer (defendantappellant) failed to exercise the due diligence of a
good father of the family in the selection or
supervision of its employees. To avoid liability for a
quasi-delict committed by its employee, an
employer must overcome the presumption by
presenting convincing proof that it exercised the
care and diligence of a good father of a family in
the selection and supervision of its employee. The
failure of the defendant-appellant to overturn this
presumption was meticulously explained by the
court a
quo as
follows:

The position of the defendant company that it

cannot be held jointly and severally liable for such
damages because it exercised the diligence of a
good father of a family, that (sic) does not merit
great
credence.
As admitted, Edgar Calaycay was duly authorized
by the defendant company to drive the bus at the
time of the incident. Its claim that it has issued
policies, rules and regulation's to be followed,
conduct seminars and see to it that their drivers
and employees imbibe such policies, rules and
regulations, have their drivers and conductors
medically checked-up and undergo drug-testing,
did not show that all these rudiments were applied
to Edgar Calaycay. No iota of evidence was
presented that Edgar Calaycay had undergone all
these activities to ensure that he is a safe and
capable drivers [sic]. In fact, the defendant
company did not put up a defense on the said
driver. The defendant company did not even
secure a counsel to defend the driver. It did not
present any evidence to show it ever counseled
such driver to be careful in his driving. As
appearing from the evidence of the defendant
corporation, the driver at the time of the incident
was Calaycay Francisco (Exh. 9) and the
conductor was Tejada. This shows that the
defendant corporation does not exercise the
diligence of a good father of a family in the
selection and supervision of the employees. It
does not even know the correct and true name of
its drivers. The testimony of Rolando Abadilla, Jr.
that they do not have the records of Edgar
Calaycay because they ceased operation due to
the death of his father is not credible. Why only the
records of Edgar Calaycay? It has the inspection
and dispatcher reports for January 9, 1998 and yet
it could not find the records of Edgar Calaycay. As
pointed out by the Supreme Court in a line of
cases, the evidence must not only be credible but
must come from a credible witness. No proof was
submitted that Edgar Calaycay attended such
alleged seminars and examinations. Thus, under
Art. 2180 of the Civil Code, Employers shall be
liable for the damage caused by their employees
and household helper acting within the scope of
their assigned tasks, even though the former are
not engaged in any business or industry. The
liability of the employer for the tortuous acts or
negligence of its employer [sic] is primary and
solidary, direct and immediate, and not conditional
upon the insolvency of prior recourse against the
negligent employee. The cash voucher for the
alleged lecture on traffic rules and regulations
(Exh. 12) presented by the defendant corporation
is for seminar allegedly conducted on May 20 and
21, 1995 when Edgar Calaycay was not yet in the
employ of the defendant corporation. As testified to

by Rolando Abadilla, Jr., Edgar Calaycay stated

his employment with the company only in 1996.
Rolando Abadilla, Jr. testified that copies of the
manual (Exh. 8) are given to the drivers and
conductors for them to memorize and know the
same, but no proof was presented that indeed
Edgar Calaycay was among the recipients.
Nobody testified categorically that indeed Edgar
Calaycay underwent any of the training before
being employed by the defendant company. All the
testimonies are generalizations as to the alleged
policies, rules and regulations but no concrete
evidence was presented that indeed Edgar
Calaycay underwent such familiarization, trainings
and seminars before he got employed and during
that time that he was performing his duties as a
bus driver of the defendant corporation. Moreover,
the driver's license of the driver was not even
presented. These omissions did not overcome the
liability of the defendant corporation under Article
2180 of the Civil Code. x x x
The observation of the court a quo that defendantappellant failed to show proof that EDGAR
CALAYCAY did in fact undergo the seminars
conducted by it assumes greater significance
when viewed in the light of the following admission
made by ROLANDO ABADILLA, JR., General
Manager of the defendant-appellant corporation,
that suggest compulsory attendance of said
seminars only among drivers and conductors in
Manila,
thus:
chanRoblesvirtualLawlibrary
xxxx
Q: How many times does (sic) the seminars being
conducted by your company a year?
A: Normally, it is a minimum of two (2) seminars
per year, sir.
Q: In these seminars that you conduct, are all
drivers and conductors obliged to attend?
A: Yes, sir, if they are presently in Manila.
Q: It is only in Manila that you conduct seminars?
A: Yes, sir.
xxx
Moreover, with respect to the selection process,
ROLANDO ABADILLA, JR. categorically admitted
in open court that EDGAR CALAYCAY was not
able to produce the clearances required by
defendant-appellant upon employment, thus:
chanRoblesvirtualLawlibrary
xxxx
Q: By the way, Mr. Witness, do you know this
Edgar Calaycay who was once employed by your
company as a driver?

A: Yes, sir.
Q: Have you seen the application of Edgar
Calaycay?
A: Yes, sir.
Q: From what I have seen, what documents did he
submit in applying as a driver in your business?
Atty. De Guzman: Very leading, your Honor.
Q: Before a driver could be accepted, what
document is he required to submit?
A: The company application form; NBI clearance;
police clearance; barangay clearance; mayor's
clearance and other clearances, sir.
Q: Was he able to reproduce these clearances by
Mr. Calaycay?
A: No, sir.
x x x18
In the selection of prospective employees,
employers are required to examine them as to
their qualifications, experience, and service
records.19 On the other hand, due diligence in the
supervision of employees includes the formulation
of suitable rules and regulations for the guidance
of employees, the issuance of proper instructions
intended for the protection of the public and
persons with whom the employer has relations
through his or its employees and the imposition of
necessary disciplinary measures upon employees
in case of breach or as may be warranted to
ensure the performance of acts indispensable to
the business of and beneficial to their employer.
To this, we add that actual implementation and
monitoring of consistent compliance with said rules
should be the constant concern of the employer,
acting through dependable supervisors who should
regularly report on their supervisory functions.20 In
this case, as shown by the above findings of the
RTC, petitioner was not able to prove that it
exercised the required diligence needed in the
selection and supervision of its employee.
Be that as it may, this doesn't erase the fact that at
the time of the vehicular accident, the jeepney was
in violation of its allowed route as found by the
RTC and the CA, hence, the owner and driver of
the jeepney likewise, are guilty of negligence as
defined under Article 2179 of the Civil Code, which
reads
as
follows:
When the plaintiffs negligence was the immediate
and proximate cause of his injury, he cannot
recover damages. But if his negligence was only
contributory, the immediate and proximate cause

of the injury being the defendant's lack of due care,

the plaintiff may recover damages, but the courts
shall mitigate the damages to be awarded.
The petitioner and its driver, therefore, are not
solely liable for the damages caused to the victims.
The petitioner must thus be held liable only for the
damages actually caused by his negligence.21 It is,
therefore, proper to mitigate the liability of the
petitioner and its driver. The determination of the
mitigation of the defendant's liability varies
depending on the circumstances of each
case.22 The Court had sustained a mitigation of
50% in Rakes v. AG & P;23 20% in Phoenix
Construction, Inc. v. Intermediate Appellate
Court24 and LBC Air Cargo, Inc. v. Court of
Appeals;25 and 40% in Bank of the Philippine
Islands v. Court of Appeals26 and Philippine Bank
of Commerce v. Court of Appeals.27cralawred
In the present case, it has been established that
the proximate cause of the death of Alberto Cruz,
Jr. is the negligence of petitioner's bus driver, with
the contributory negligence of respondent Edgar
Hernandez, the driver and owner of the jeepney,
hence, the heirs of Alberto Cruz, Jr. shall recover
damages of only 50% of the award from petitioner
and its driver. Necessarily, 50% shall be bourne by
respondent Edgar Hernandez. This is pursuant
to Rakes v. AG & P and after considering the
circumstances
of
this
case.
In awarding damages for the death of Alberto
Cruz,
Jr.,
the
CA
ruled
as
follows:
For the death of ALBERTO CRUZ, JR. the court a
quo awarded his heirs P50,000.00 as actual and
compensatory damages; P250,000.00 for loss of
earning capacity; and another P50,000.00 as
moral damages. However, as pointed out in the
assailed Decision dated January 30, 2008, only
the amount paid (P25,000.00) for funeral services
rendered by Magalena Memorial Home was duly
receipted (Exhibit "E-1"). It is settled that actual
damages must be substantiated by documentary
evidence, such as receipts, in order to prove
expenses incurred as a result of the death of the
victim. As such, the award for actual damages in
the amount of P50,000.00 must be modified
accordingly.
Under Article 2206 of the Civil Code, the damages
for death caused by a quasi-delictshall, in addition
to the indemnity for the death itself which is fixed
by current jurisprudence at P50,000.00 and which
the court a quo failed to award in this case, include
loss of the earning capacity of the deceased and
moral damages for mental anguish by reason of
such death. The formula for the computation of

loss

of

earning

capacity

is

as

follows:

Net earning capacity = Life expectancy x [Gross

Annual Income - Living Expenses (50% of gross
annual income)], where life expectancy = 2/3 (80 the
age
of
the
deceased)
Evidence on record shows that the deceased was
earning P6,000.00 a month as smoke house
operator at Pampanga's Best, Inc., as per
Certification (Exhibit "K") issued by the company's
Production Manager, Enrico Ma. O. Hizon, on
March 18, 1998, His gross income therefore
amounted to P72,000.00 [P6,000.00 x 12].
Deducting
50%
therefrom
(P36,000.00)
representing the living expenses, his net annual
income amounted to P36,000.00. Multiplying this
by his life expectancy of 40.67 years [2/3(80-19)]
having died at the young age of 19, the award for
loss of earning capacity should have been
P1,464,000.00. Considering, however, that his
heirs represented by his father, ALBERTO CRUZ,
SR., no longer appealed from the assailed
Decision dated January 30, 2008, and no
discussion thereon was even attempted in
plaintiffs-appellees' appeal brief, the award for loss
of earning capacity in the amount of P250,000.00
stands.
Moral damages in the amount of P50,000.00 is
adequate and reasonable, bearing in mind that the
purpose for making such award is not to enrich the
heirs of the victim but to compensate them
however inexact for injuries to their feelings.
xxx28ChanRoblesVirtualawlibrary
In summary, the following were awarded to the
heirs of Alberto Cruz, Jr.:
chanRoblesvirtualLawlibrary
1) P25,000.00 as actual damages;
2) P250,000.00 for the loss of earning;
3) P50,000.00 as civil indemnity for the death of
Alberto Cruz, Jr.; and
4) P50,000.00 as moral damages
Petitioner contends that the CA erred in awarding
an amount for the loss of earning capacity of
Alberto Cruz, Jr. It claims that the certification from
the employer of the deceased stating that when he
was still alive - he earned P6,000.00 per month
was not presented and identified in open court.
In that aspect, petitioner is correct. The records
are bereft that such certification was presented
and identified during the trial. It bears stressing
that compensation for lost income is in the nature
of damages and as such requires due proof of the

damages suffered; there must be unbiased proof

of the deceased's average income.29
Therefore, applying the above disquisitions, the
heirs of Alberto Cruz, Jr. shall now be awarded the
following:
chanRoblesvirtualLawlibrary
1) P12,500.00 as actual damages;
2) P25,000.00 as civil indemnity for the death of
Alberto Cruz, Jr., and
3) P25,000.00 as moral damages.
In the same manner, petitioner is also partly
responsible for the injuries sustained by
respondent Virginia Muoz hence, of the
P16,744.00 actual damages and P30,000.00 moral
damages awarded by the CA, petitioner is liable
for half of those amounts. Anent respondent Edgar
Hernandez, due to his contributory negligence, he
is only entitled to receive half the amount
(P40,200.00) awarded by the CA as actual
damages which is P20,100.00.
As to the award of attorney's fees, it is settled that
the award of attorney's fees is the exception rather
than the general rule; counsel's fees are not
awarded every time a party prevails in a suit
because of the policy that no premium should be
placed on the right to litigate. Attorney's fees, as
part of damages, are not necessarily equated to
the amount paid by a litigant to a lawyer. In the
ordinary sense, attorney's fees represent the
reasonable compensation paid to a lawyer by his
client for the legal services he has rendered to the
latter; while in its extraordinary concept, they may
be awarded by the court as indemnity for damages
to be paid by the losing party to the prevailing
party. Attorney's fees as part of damages are
awarded only in the instances specified in Article
220830 of the Civil Code. As such, it is necessary
for the court to make findings of fact and law that
would bring the case within the ambit of these
enumerated instances to justify the grant of such
award, and in all cases it must be reasonable.31 In
this case, the RTC, in awarding attorney's fees,
reasoned out that [w]hile there is no document
submitted to prove that the plaintiffs spent
attorney's fees, it is clear that they paid their
lawyer in the prosecution of this case for which
they are entitled to the same.32 Such reason is
conjectural and does not justify the grant of the
award, thus, the attorney's fees should be deleted.
However, petitioner shall still have to settle half of
the
cost
of
the
suit.chanrobleslaw
WHEREFORE,
the
Petition
for
Review
on Certiorari under Rule 45, dated December 28,

2011, of petitioner Travel & Tours Advisers, Inc.

is DENIED. However, the Decision dated May 16,
2011 of the Court of Appeals is MODIFIED as
follows:
The
petitioner
and
Edgar
Calaycay
are ORDERED to jointly and severally PAY the
following:
1. To respondent Alberto Cruz, Sr. and family:
a) P12,500.00 as actual damages;
b) P25,000.00 as civil indemnity for the death of
Alberto Cruz, Jr., and
c) P25,000.00 as moral damages.
2. To respondent Virginia Muoz:
a) P8,372.00 as actual damages;
b) P15,000.00 as moral damages.
3. To respondent Edgar Hernandez:
a) P20,100.00 as actual damages, and
4. The sum of P2,235.00 as cost of litigation.
Respondent Edgar Hernandez is
also ORDERED to PAY the following:
1. To respondent Alberto Cruz, Sr. and family:
a) P12,500.00 as actual damages;
b) P25,000.00 as civil indemnity for the death of
Alberto Cruz, Jr., and
c) P25,000.00 as moral damages.
2. To respondent Virginia Muoz:
a) P8,372.00 as actual damages;
b) P15,000.00 as moral damages, and
3. The sum of P2,235.00 as cost of litigation.

vs.
JAIME T. TORRES, substituted by his son
JAMES KENLEY M. TORRES, and the
HONORABLE COURT OF
APPEALS, respondent.
CHICO-NAZARIO, J.:
Before
Us
is
a
Petition
for
Review
on Certiorari under Rule 45 of the Rules of Civil
Procedure, assailing the Decision1 of the Court of
Appeals in CA-G.R. CV No. 55895, dated 21
March 2003, which reversed and set aside the
Judgment2 of the Regional Trial Court (RTC) of
Quezon City, Branch 104, in Civil Case No. Q-9314408, dated 8 April 1997, ordering respondent to
pay petitioner damages in the total amount
of P1,600,000.00 and attorneys fees.
The instant case sprang from an action for
damages filed by the original petitioner, the late
Jose Roque, Jr., against respondent, the recently
deceased Jaime Torres, for injuries sustained by
petitioner on 27 August 1989, allegedly inflicted by
the security guards employed by respondent.
In this petition, the deceased petitioner Jose
Roque, Jr. is substituted by his wife Norma Roque
while respondent Jaime T. Torres, per agreement
of all his heirs, is herein represented by his son
James Kenley M. Torres.
Petitioner was the administrator of certain parcels
of land in Upper Boso-Boso, Antipolo, Rizal,
particularly Lots No. 13259 and 13260 covered by
Original Certificates of Titles (OCTs) No. NP-419
and NP-422, both registered in the name of his
son Rafael Roque. Sometime before the incident,
respondent, claiming to be the owner of said
property, hired security guards from Anchor
Security and Detective Agency, namely Cesar
Aquino, Alfredo Negro, and Mariano Cabos, who
allegedly barred petitioner from entering the
property and threatened him with physical harm
should he attempt to tend the said land. As a
result, petitioner filed a case for grave threats
against said security guards before the Municipal
Trial Court (MTC) of Rizal.

SO ORDERED.

FIRST DIVISION
G.R. No. 157632

December 6, 2006

JOSE S. ROQUE, JR., substituted by his wife

NORMA ROQUE, petitioner,

Prior to the incident, or on 9 September 1988,

respondent instituted an Action3 for cancellation of
OCTs No. NP-419 and NP-422 in the name of
petitioners son Rafael Roque before the RTC of
Antipolo which was dismissed by the trial court in
an Order4 dated 26 June 1989. According to the
court a quo, therein petitioner Torres action was
premature for failure to exhaust administrative
remedies in the Bureau of Lands, consistent with

the established doctrine that where a party seeks

for the cancellation of a Free Patent, he must
pursue his action in the proper agency and a
review by the court will not be permitted unless
administrative remedies have been exhausted.
The trial court also declared that the said action
was in effect an action for reversion under Section
101 of the Public Land Act, thus, the action should
be in the name of the government and not the
private complainants. Respondent appealed the
dismissal before the Court of Appeals, which later
affirmed the decision of the lower court in a
Decision5 dated 11 June 1990. Respondents
appeal to this Court was also dismissed in a
Resolution dated 11 February 1991.
Petitioner maintained that at around four oclock in
the afternoon of 27 August 1989, he, together with
his housemaid Leilyn Saplot Kandt, Magno
Imperial, Jose Imperial, and Eliseo Pesito, visited
the said property and was surprised to see seven
security guards, including the above-mentioned
security guards, guarding the property upon orders
of respondent. Aquino, Negro, and Cabos
approached petitioner and asked: "Bakit wala ka
noong arraignment sa Antipolo noong August 16,
1989?"6 to which he replied that his presence was
not necessary since he was not the accused.
Thereafter, the said security guards asked him to
leave the property and uttered: "Bakit mo kami
kinakalaban? Utos ni Torres na itoy bantayan
pagkat itoy kanyang property raw!." Petitioner
showed his sons titles to the property but the
security guards merely answered: "Fake yan at
hindi kayo maaaring pumasok dito. Kayo ay dapat
paalisin." A security guard then cocked his shotgun
and warned petitioner to leave the place. Petitioner
offered to settle the dispute in the office of Anchor
Security Agency, through its manager, Mrs.
Nassam, but the security guards merely
replied: "Wala kaming pakialam kay Nassam.
Lahat ginagawa dito, lahat ay utos ni Torres. At
yan ay sinusunod naming dahil si Torres ang
bumubuhay sa amin."
When petitioner refused to leave the premises,
Cabos threatened petitioner that should he stay
inside, Cabos would shoot him, so petitioner
immediately left the place. However, Cabos still
fired at him but missed. Petitioner ran fast to his
makeshift hut where Cabos followed him.
Petitioner ran to the back of his makeshift hut and
was shot again by Cabos, hitting petitioner on the
back. When petitioner fell, he turned and saw
Cabos and Negro shooting at him. At the same
time, Aquino was also firing at the makeshift hut.
After a while, the other security guards, namely
Sulla, Betasulo, and Romy Mendoza, came, and
together with Cabos and Negro, mauled and

kicked petitioner all over his body until he lost

consciousness.
As a result of the incident, petitioner was
hospitalized and placed under continuous
treatment and medication. Due to the multiple
gunshot wounds, hematoma, and contusions
sustained by petitioner, his left eye became 90 to
95% blind and his body was paralyzed from the
bustline down. Consequently, petitioner filed a
criminal case7 for frustrated murder before the
RTC of Antipolo against the security guards.
Eventually, after suffering for more than nine
years, petitioner died.
On his part, respondent admits the existence of
the titles in the name of Rafael Roque but denies
the latters ownership over the property. He further
admits the dismissal of his case for cancellation of
Roques titles based on a technical ground.
Respondent likewise admits to the posting of the
security guards on the property to guard the same
from any intruder but denies that they were his
personal security guards, and moreover claimed
that they were security guards of the Antipolo
Landowners and Farmers Association, Inc.
(ALFAI), of which he was president. Respondent
further asserts that being the President of ALFAI,
his instruction to the security guards was to
prevent squatters or intruders from entering the
property and to make use of reasonable force to
repel aggression in the event of any untoward
incident.
After trial, the lower court, on 8 April 1997,
rendered judgment in favor of petitioner. According
to the court a quo:
After a thorough examination of the
evidence presented by both parties, the
Court is faced with the issue of: "Whether
or not defendant Torres can be held liable
for damages to herein plaintiff as a result of
the injuries inflicted by the security guards
deployed in the property in question on
August 28, 1989 [sic].
There is no question that the security
guards involved in the shooting incident on
August 28, 1989 [sic] were employed of
[sic] Anchor Security and Detective
Agency. There is also no question that the
same security guards were hired by
defendant Torres to man and guard the
property in question in Boso-Boso,
Antipolo, Rizal. In this simple scenario
and in the event that said security
guards caused wrong to others while in

their tour of duty, the law provides that

the liability falls on the employer being
the principal. On the contrary, for illegal
or harmful acts committed by the
security guards as [sic] per order of the
client or the one who hired them,
liability attaches to the latter. In the
instant
case,
the
unlawful
act
committed by the security guards
against the plaintiff is within the strict
compliance of the instruction of the
defendant. This is because of the fact that
defendant
Torres
exercised
direct
supervision of the said security guards. As
a matter of fact, he provided the guards
with his school bus to perform their duties
effectively. Hence, defendant Torres is
liable for the unlawful acts committed by
the said security guards against herein
plaintiff. Such unlawful acts would not have
been accomplished had defendant Torres
being their "employer" at that time, not
instructed them so. What resulted to the
shooting of the plaintiff by the security
guards cannot be given justice except by
indemnifying him. And considering that
plaintiff suffered paralization of his body
and
blindness
in
his
left
eye,
notwithstanding the fact of incurring the
amount of P300,000.00 as hospitalization
and medical expenses plus the continuous
medication up to the present, the Court
believes that the plaintiff should be
compensated. (Emphasis ours.)
WHEREFORE,
judgment
is
hereby
rendered in favor of the plaintiff as against
defendant Torres and the latter is ordered
to pay the plaintiff the following:
a) the amount of P300,000.00 as
actual damages;
b) the amount of P1,000,000.00 as
moral damages;
c) the amount of P300,000.00 as
exemplary damages; and
d) the amount of P50,000.00 as
attorneys fee.8
Aggrieved by the above judgment, respondent
lodged an appeal before the Court of Appeals.
According to respondent, he did not know that the
security guards would commit the alleged
aggressive acts until the commission thereof, and
that said security guards acted upon their own

judgment. Respondent claimed that petitioner was

an intruder and squatter on the property who
entered it without permission from members of the
ALFAI, the real owners of the said property. Thus,
respondent argued that petitioner forcibly entered
the property and that the security guards merely
repelled the unlawful aggression.
Subsequently, the appellate court reversed the
RTC judgment and rendered a Decision, the
pertinent portions of which read:
It is appellees contention that appellant as
employer of the said security guards is
liable for the injuries inflicted by the latter
who acted under his instructions to guard
the subject premises.
Verily, the obligation imposed under Article
2176 of the Civil Code is demandable not
only for ones own acts or omissions but
also for those persons for whom, one is
responsible. The owners and managers of
an establishment or enterprise are likewise
responsible for damages caused by their
employees in exercise of their duties
and/or functions.
Relevantly, Article 2180 of the Civil Code
provides that:
Art. 2180. The obligation imposed
by article 2176 is not demandable
not only for ones own acts or
omissions, but also for those
persons
for
whom
one
is
responsible.
xxxx
The owners and managers of an
establishment or enterprise are
likewise responsible for damages
caused by their employees in the
service of the branches in which
the latter are employed or on
occasion of their functions.
Under the facts obtaining, the above
provision of law does not apply. The court
a quo succinctly declared:
"There is no question that the
security guards involved in the
shooting incident on August 28,
1989 were employed (sic) of
Anchor Security Detective Agency.
There is also no question that the

same security guards were hired

by defendant Torres to man and
guard the property in question in
Boso-Boso, Antipolo, Rizal.
xxxx
There is no question therefore that the said
security guards who inflicted the injuries
sustained by the appellee were not
employees of herein appellant. This being
so, the ruling in the case of Soliman, Jr. vs.
Tuazon applies, viz:
It is settled that where the security
agency, as here recruits, hires and
assigns the work of its watchmen
or security guards, the agency is
the employer of such security
guards or watchmen. Liability for
illegal or harmful acts committed by
the security guards attaches to the
employer agency, and not to the
clients or customers of such
agency.
At any rate, the appellant cannot be held
liable under Art. 33 of the Civil Code as no
evidence whatsoever, was adduced to
show his participation in the commission of
the acts complained of. Neither was
appellee able to prove that appellant can
be held liable in the alternative under
Article 2176 in relation to Article 2180 of
the Civil Code.
xxxx
WHEREFORE, the assailed decision is
hereby REVERSED and SET ASIDE and
the complaint as well as the counterclaim
filed before the court a quo is
DISMISSED.9
With the reversal of the trial court judgment,
petitioner filed the instant appeal, raising the
following issues:

2176 of the Civil Code is not applicable to

the case at bar; and
III. Whether or not the Court of Appeals
committed grave and reversible error in
applying the case of Soliman, Jr. v. Tuazon
to the case at bar.
We agree with the Court of Appeals finding that
respondent cannot be held liable under Article
2180 of the Civil Code for the damages suffered by
petitioner because respondent is not the employer
of the security guards who inflicted the injuries
upon the person of the petitioner. As reiterated in
the recent case of Mercury Drug Corporation v.
Libunao:[10]
In Soliman, Jr. v. Tuazon, we held that
where the security agency recruits, hires
and assigns the works of its watchmen or
security guards to a client, the employer of
such guards or watchmen is such agency,
and not the client, since the latter has no
hand in selecting the security guards.
Thus, the duty to observe the diligence of a
good father of a family cannot be
demanded from the said client:
x x x [I]t is settled in our jurisdiction that
where the security agency, as here,
recruits, hires and assigns the work of its
watchmen or security guards, the agency
is the employer of such guards or
watchmen. Liability for illegal or harmful
acts committed by the security guards
attaches to the employer agency, and not
to the clients or customers of such agency.
As a general rule, a client or customer of a
security agency has no hand in selecting
who among the pool of security guards or
watchmen employed by the agency shall
be assigned to it; the duty to observe the
diligence of a good father of a family in the
selection of the guards cannot, in the
ordinary course of events, be demanded
from the client whose premises or property
are protected by the security guards.

I. Whether or not the Court of Appeals

committed grave and reversible error in
ruling that petitioner failed to prove by
mere preponderance of evidence that
respondent Torres was involved in any
malevolent designs on petitioner;

x x x [T]he fact that a client company may

give instructions or directions to the
security guards assigned to it, does not, by
itself, render the client responsible as an
employer of the security guards concerned
and liable for their wrongful acts or
omissions.11

II. Whether or not the Court of Appeals

committed grave and reversible error in
ruling that Article 2180 in relation to Article

This conclusion, however, does not necessarily

preclude this Court from holding respondent liable

under the law for damages resulting from the

injuries inflicted on petitioner by the unlawful acts
of the security guards. As stressed by petitioner in
his Memorandum:
Assuming arguendo that the security
guards are not respondents employees,
the same does not constitute a valid
defense at all. Article 2176 of the Civil
Code provides that a person who, by act or
omission, causes damage to another
through fault or negligence may be held
liable in damages. By making it appear
that he owns the disputed properties,
putting security guards thereat to
inti[mi]date, harass or cause the rightful
owner and his representatives and by
providing the escape vehicle, more than
sufficient evidence was established on
the civil liability of private respondent
under Article 2176 of the Civil Code of
the Philippines.
It must be emphasized that private
respondent committed all these overt acts
despite an earlier Decision by the Regional
Trial Court of Antipolo, Branch 71, affirming
Rafael Roques ownership of the properties
and dismissing the case he (private
respondent) filed for the cancellation of
NP-419 and NP-422 in Rafael Roques
name. Had he not misrepresented to the
security guards that he owns the
properties and had he not hired these
security guards/common thugs to
secure the premises which he does not
own, then the untoward incident would
not have happened. To allow private
respondent to escape liability, despite his
misdeeds, will not only result in grave
injustice to Jose Roque, Jr. who eventually
died after having been paralyzed for
several years as a result of [the] incident
but will likewise result in the implied
tolerance by this Honorable Court of
private respondents disobedience or
disrespect of a lawful order/decision of the
trial court (RTC Branch 71, Antipolo) which
he failed or refused to honor.12 (Emphasis
ours.)
Article 2176 of the Civil Code states that "whoever
by act or omission causes damage to another,
there being fault or negligence, is obliged to pay
for the damage done." In the case at bar,
respondent cannot feign ignorance of the fact that
at the time of the shooting incident, the titles to the
disputed property were already registered in the
name of petitioners son, the cancellation for title

case filed by respondent having been dismissed.

In fact, during trial, the offer for stipulation of
petitioners counsel that at the time of the shooting
incident, there is a valid and existing title in the
name of petitioners son which was never
cancelled by the court, was accepted by the
respondent. Therefore, by hiring the security
guards to prevent entry, possibly even by the
registered owner, to the subject property, titles to
which he fully knew he did not possess,
respondent blatantly acted in bad faith.
Respondents unwarranted act of posting security
guards within the property, which he clearly knew
is registered in the name of another, unduly placed
petitioner at harm and deprived him of his right to
fully exercise his privileges and duties as
administrator of said property. Respondent, by his
grossly faulty acts, paved the way to the infliction
of injuries by the security guards on petitioner.
Furthermore, respondents palpable display of bad
faith in claiming a superior right to the property
over petitioners son entitles petitioner to damages
resulting therefrom. In order that a plaintiff may
maintain an action for the injuries which he
sustained, he must establish that such injuries
resulted from a breach of duty which the defendant
owed to the plaintiff a concurrence of injury to
the plaintiff and legal responsibility by the person
causing it.13 In other words, in order that the law
will give redress for an act causing damage, the
act must be not only hurtful, but wrongful.14
In the case at bar, it is clear that respondent
violated the principle embodied in Article 19 of the
Civil Code which mandates that "every person
must, in the exercise of his rights and in the
performance of his duties, act with justice, give
everyone his due, and observe honesty and
good faith." When a right is exercised in a manner
which discards these norms resulting in damage to
another, a legal wrong is committed for which the
actor can be held accountable.15 As we have
stated in a previous case, if mere fault or
negligence in ones acts can make him liable for
damages for injury caused thereby, with more
reason should abuse or bad faith make him
liable.16
With respect to the award of damages, we sustain
the ruling of the trial court. It is essential in the
award of damages that the claimant must have
satisfactorily proven during the trial the existence
of the factual basis of the damages and its causal
connection to defendants acts.17 During trial,
petitioner, through his own testimony and that of
his wife, was able to establish that they have
incurred actual damages in the amount
of P300,000.00 for the hospitalization of petitioner

as a result of the shooting and the mauling

incident, thus, the award of actual damages in said
amount is proper.
As regards the award of moral damages, we have
ruled that there is no hard and fast rule in the
determination of what would be a fair amount of
moral damages, since each case must be
governed by its own peculiar circumstances.18 As
reflected in the records of the instant case, there is
no gainsaying the fact that petitioner, together with
his family, had suffered physical suffering, mental
anguish, fright, serious anxiety and moral shock
resulting from respondents acts which caused
petitioner grave physical injuries eventually leading
to his death. The several years of torment and
agonizing on the part of the deceased petitioner
and his family more than justifiy the award of moral
damages. It must be emphasized that moral
damages are not intended to enrich the
complainant at the expense of a defendant.19 They
are awarded only to enable the injured parties to
obtain means, diversions or amusements that will
serve to alleviate the moral sufferings the injured
parties have undergone by reason of defendants
culpable action.20 In other words, the award of
moral damages is aimed at a restoration within the
limits of the possible, of the spiritual status quo
ante; and therefore it must be proportionate to the
suffering inflicted.21Therefore, in light of the
sufferings sustained by petitioner and his family,
we are inclined to sustain the award
ofP1,000,000.00 as moral damages.
As to exemplary damages, Article 2229 of the Civil
Code provides that such damages may be
imposed by way of example or correction for the
public good, in addition to the moral, temperate,
liquidated or compensatory damages. While
exemplary damages cannot be recovered as a
matter of right, they need not be proved, although
plaintiff must show that he is entitled to moral,
temperate or compensatory damages before the
court may consider the question of whether or not
exemplary damages should be awarded.22 In the
case at bar, having determined that petitioner is
entitled to the award of actual and moral damages
as a result of the wanton act of respondent in
stationing security guards in the property, the title
of which is under the name of petitioners son, said
act ultimately resulting in the paralysis and
blindness of petitioner, we find the award of
exemplary damages to be proper by way of
correction for the public good of respondents
flagrant display of bad faith.
WHEREFORE, premises considered, the Petition
for Review is hereby GRANTED. The Decision of
the Court of Appeals in CA-G.R. CV No. 55895 is

hereby REVERSED and SET

ASIDE.
The
Judgment of the Regional Trial Court of Quezon
City, Branch 104, in Civil Case No. Q-93-14408
ordering respondent Torres to pay petitioner
Roque the amount of P300,000.00 as actual
damages; the amount of P1,000,000.00 as moral
damages;
the
amount
ofP300,000.00
as
exemplary
damages;
and
the
amount
of P50,000.00
as
attorneys
fee
is
hereby REINSTATED.
SO ORDERED.

THIRD DIVISION
G.R. No. 155990

September 12, 2007

UNIVERSAL AQUARIUS, INC. and CONCHITA

TAN, petitioners,
vs.
Q.C. HUMAN RESOURCES MANAGEMENT
CORPORATION, respondent *.
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review
on Certiorari under Rule 45 of the Rules of Court
assailing the Decision1dated August 23, 2002 of
the Court of Appeals (CA) in CA-G.R. SP No.
65570 and the CA Resolution2 dated October 22,
2002 which denied petitioners' Motion for
Reconsideration.
The facts:
Universal Aquarius, Inc. (Universal) is engaged in
the manufacture and distribution of chemical
products in Metro Manila. It operates a chemical
plant in Antipolo City. Conchita Tan (Tan), as a
proprietor under the name and style of Marman
Trading (Marman), is engaged in the trading,
delivery and distribution of chemical products in
Metro Manila, with a depot in Antipolo City
adjoining Universal's chemical plant.
Q.C. Human Resources Management Corporation
(Resources) is engaged in supplying manpower to
various establishments. It supplied Universal with
about seventy-four (74) temporary workers to
assist Universal in the operation of its chemical
plant in Antipolo City.
On December 13, 2000, Rodolfo Capocyan
(Capocyan), claiming to be the general
counsel/national
president
of
the
labor

organization
called Obrero Pilipino
(Universal
Aquarius Chapter), hereinafter referred to
as Obrero Filipino, sent a Notice of Strike to
Universal.

itself out as a manpower firm with a pool of

what can generally be described as lawabiding workers, as that is essential in its
business of job-contracting;

On the same date, Resources informed the

Regional Office of the Department of Labor and
Employment that the officers and members
of Obrero Pilipino are its employees and not
employees of Universal.

(32) Defendant Resources instead sent a

band
of
scoundrels
who
allowed
themselves to be misdirected and
misguided by Capocyan, an attorney (?),
and "national president" of Obrero Pilipino
(?)

Five days later, or on December 19, 2000,

Capocyon and 36 other union officers and
members3 of Obrero Pilipino, picketed, barricaded
and obstructed the entry and exit of Universal's
Antipolo City chemical plant and intercepted
Universal's delivery trucks thereby disrupting its
business operations. Marman's depot, which
adjoined Universal's plant, suffered a similar fate.
On December 27, 2000, Universal and Tan filed a
Complaint against the strikers and Resources
before the Regional Trial Court, Branch 74,
Antipolo City (RTC) for breach of contract and
damages suffered due to the disruption of their
respective business operations, docketed as Civil
Case No. 00-6029.4 The Complaint alleges, in part:
(17) On December 19, 2000, at about 2:00
o'clock in the morning, in gross violation of
all applicable laws, rules and regulations,
defendants Capocyan, et al., willfully,
unlawfully
and
feloniously
picketed,
barricaded and otherwise obstructed entry
and exit to and from the main gate of
plaintiff Universal's plant; x x x
(23) In a parallel move, and a companion
activity to their unlawful obstruction of
plaintiff Universal's premises, Capocyan, et
al., likewise picketed , obstructed and
otherwise barricaded the premises of
plaintiff Marman, whose depot adjoined
that of plaintiff Universal; x x x
(26) As a consequence of the companion
blockade on plaintiff Marman's premises,
its business operations were paralyzed;
(27) Plaintiff Universal's and plaintiff
Marman's operations continue to be at a
standstill, causing damages in the form of
unearned sales x x x
(31) Defendant Resources represented
itself to be able to provide temporary
workers who are competent to assist in
plaintiff Universal's plant operations; it held

x x x5
On January 3, 2001, Universal forged an
Agreement
(To
End
Labor
Dispute)
with Obrero Pilipino.6 Thus, the strike which
affected the business operations of Universal and
Marman ended. Universal and Tan then filed a
Notice of Dismissal as against the strikers.7
On January 8, 2001, Resources filed a Motion to
Dismiss on the grounds that the complaint stated
no cause of action against it; that, assuming the
existence of such cause of action, the same was
lost upon dismissal of the case against the
individual defendants; and lack of jurisdiction.8
In an Order dated February 2, 2001, the RTC
denied the Motion to Dismiss.9 Resources filed a
Motion for Reconsideration10 but it was denied by
the RTC in its Order dated May 11, 2001.11
On July 11, 2001, Resources filed a petition
for certiorari and prohibition with the CA.12 On
August 23, 2002, the CA rendered a Decision
which set aside the Orders dated February 2, 2001
and May 11, 2001 of the RTC and dismissed the
complaint for lack of cause of action.13 The CA
held that:
It was very clear from the allegations in the
complaint that the claims of plaintiffs
(private respondents in this case) stemmed
from the strike, which resulted in the
disruption of their business operations.
From the four corners of the complaint, it
was apparent that the right of the plaintiffs
to operate their business was violated
when the defendants, Rodolfo Capocyan
and company, staged the strike in the
premises of Universal Aquarius and
Marman, thereby disrupting the plant's
operations. Q.C. Human Resources
Management Corporation (the petitioner in
this case) was made defendant in the
complaint only because it was the
employer of the strikers. However,

subsequent events erased the cause of

action of plaintiffs, that is, when Universal
Aquarius agreed to end the dispute by
giving financial assistance to the striking
workers and the dismissal of the case
against them. With this turn of events, the
trial court had no more issue to resolve,
and the dismissal of the complaint against
the strikers necessarily warranted the
dismissal of the complaint against Q.C.
Human
Resources
Management
Corporation because plaintiffs had no more
cause of action against it.14
Universal and Tan filed a Motion for
Reconsideration15 but it was denied by the CA in
its Resolution dated October 22, 2002.16
The present petition is anchored on the following
grounds:
The Honorable Court of Appeals seriously
erred in dismissing Civil Case No. 00-6829
for lack of cause of action.
The Honorable Court of Appeals seriously
erred in holding that the lower court
committed grave abuse of discretion
tantamount to lack of jurisdiction when he
denied the motion to dismiss filed by
respondent Resources.17
Universal and Tan aver that the complaint stated a
cause of action against Resources that would
warrant cognizance by the RTC; the allegations of
the complaint clearly point out that Universal is
suing Resources for the latter's failure to supply
the former with temporary workers who will help in
its business.
On the other hand, Resources contends that the
complaint stated no cause of action against it since
there is nothing in the allegations thereof that it
participated in the acts committed by its
employees.
The petition is partly impressed with merit.
Section 1(g) Rule 1618 of the 1997 Rules of Civil
Procedure makes it clear that failure to make a
sufficient allegation of a cause of action in the
complaint warrants the dismissal thereof. Section
2, Rule 2 of the 1997 Rules of Civil Procedure
defines a cause of action as the act or omission by
which a party violates the right of another. It is the
delict or the wrongful act or omission committed by
the defendant in violation of the primary right of the
plaintiff.19 Its essential elements are as follows:

1. A right in favor of the plaintiff by

whatever means and under whatever law it
arises or is created;
2. An obligation on the part of the named
defendant to respect or not to violate such
right; and
3. Act or omission on the part of such
defendant in violation of the right of the
plaintiff or constituting a breach of the
obligation of the defendant to the plaintiff
for which the latter may maintain an action
for recovery of damages or other
appropriate relief.20
It is only upon the occurrence of the last element
that a cause of action arises, giving the plaintiff the
right to maintain an action in court for recovery of
damages or other appropriate relief.21
In Hongkong and Shanghai Banking Corporation
Limited v. Catalan,22 this Court held:
The elementary test for failure to state a
cause of action is whether the complaint
alleges facts which if true would justify the
relief demanded. Stated otherwise, may
the court render a valid judgment upon the
facts alleged therein? The inquiry is into
the sufficiency, not the veracity of the
material allegations. If the allegations in the
complaint furnish sufficient basis on which
it can be maintained, it should not be
dismissed regardless of the defense that
may be presented by the defendants.23
Verily, it is beside the point whether or not the
allegations in the complaint are true, for with a
motion to dismiss complaint based on lack of
cause of action, the movant only hypothetically
admits the truth of the facts alleged in the
complaint; that is, assuming arguendo that the
facts alleged are true, those allegations are
insufficient for the court to render a valid judgment
upon the same in accordance with the prayer of
the complaint.24
The complaint does not have to establish or allege
facts proving the existence of a cause of action at
the outset; this will have to be done at the trial on
the merits of the case.25 To sustain a motion to
dismiss for lack of cause of action, the complaint
must show that the claim for relief does not exist,
rather than that a claim has been defectively
stated, or is ambiguous, indefinite or uncertain.26

Anent Universal's claim for breach for contract and

damages, the Court is convinced that the
Complaint sufficiently states a cause of action
against Resources. The Complaint alleged that
Universal had a contract of employment of
temporary workers with Resources; and that
Resources violated said contract by supplying it
with unfit, maladjusted individuals who staged a
strike and disrupted its business operations. Given
these hypothetically admitted facts, the RTC, in the
exercise
of
its
original
and
exclusive
jurisdiction,27 could have rendered judgment over
the dispute.
However, with regard to Tan's claim for damages,
the Court finds that she has no cause of action
against Resources. A thorough reading of the
allegations of the Complaint reveals that Tan's
claim for damages clearly springs from the strike
effected by the employees of Resources. It is
settled that an employer's liability for acts of its
employees attaches only when the tortious
conduct of the employee relates to, or is in the
course of, his employment.28 The question then is
whether, at the time of the damage or injury, the
employee is engaged in the affairs or concerns of
the employer or, independently, in that of his own.
An employer incurs no liability when an
employees conduct, act or omission is beyond the
range of employment.29 Unquestionably, when
Resources' employees staged a strike, they were
acting on their own, beyond the range of their
employment. Thus, Resources cannot be held
liable for damages caused by the strike staged by
its employees.
WHEREFORE,
the
petition
is PARTLY
GRANTED. The Decision dated August 23, 2002
and Resolution dated October 22, 2002 of the
Court of Appeals in CA-G.R. SP No. 65570
are REVERSED and SET ASIDE insofar only as
the dismissal of the complaint in Civil Case No. 006029 for lack of cause of action of Universal
Aquarius, Inc. against Q.C. Human Resources
Management Corporation is concerned. The
complaint against the latter isREINSTATED. The
Regional Trial Court, Branch 74, Antipolo City
is DIRECTED to continue with the proceedings on
the cause of action of Universal Aquarius, Inc.
against Q.C. Human Resources Management
Corporation.
The dismissal of the complaint in Civil Case No.
00-6029 for lack of cause of action of Conchita
Tan against Q.C. Human Resources Management
Corporation is AFFIRMED.
SO ORDERED.

THIRD DIVISION
G.R. No. 75112 August 17, 1992
FILAMER CHRISTIAN INSTITUTE, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT,
HON. ENRIQUE P. SUPLICO, in his capacity as
Judge of the Regional Trial Court, Branch XIV,
Roxas City and POTENCIANO KAPUNAN,
SR., respondents.
GUTIERREZ, JR., J.:
The private respondents, heirs of the late
Potenciano Kapunan, seek reconsideration of the
decision rendered by this Court on October 16,
1990 (Filamer Christian Institute v. Court of
Appeals, 190 SCRA 477) reviewing the appellate
court's conclusion that there exists an employeremployee relationship between the petitioner and
its co-defendant Funtecha. The Court ruled that
the petitioner is not liable for the injuries caused by
Funtecha on the grounds that the latter was not an
authorized driver for whose acts the petitioner shall
be directly and primarily answerable, and that
Funtecha was merely a working scholar who,
under Section 14, Rule X, Book III of the Rules
and Regulations Implementing the Labor Code is
not considered an employee of the petitioner.
The private respondents assert that the
circumstances obtaining in the present case call
for the application of Article 2180 of the Civil Code
since Funtecha is no doubt an employee of the
petitioner. The private respondents maintain that
under Article 2180 an injured party shall have
recourse against the servant as well as the
petitioner for whom, at the time of the incident, the
servant was performing an act in furtherance of the
interest and for the benefit of the petitioner.
Funtecha allegedly did not steal the school jeep
nor use it for a joy ride without the knowledge of
the school authorities.
After a re-examination of the laws relevant to the
facts found by the trial court and the appellate
court, the Court reconsiders its decision. We
reinstate the Court of Appeals' decision penned by
the late Justice Desiderio Jurado and concurred in
by Justices Jose C. Campos, Jr. and Serafin E.
Camilon. Applying Civil Code provisions, the
appellate court affirmed the trial court decision
which ordered the payment of the P20,000.00
liability in the Zenith Insurance Corporation policy,
P10,000.00 moral damages, P4,000.00 litigation

and actual expenses, and P3,000.00 attorney's

fees.
It is undisputed that Funtecha was a working
student, being a part-time janitor and a scholar of
petitioner Filamer. He was, in relation to the
school, an employee even if he was assigned to
clean the school premises for only two (2) hours in
the morning of each school day.
Having a student driver's license, Funtecha
requested the driver, Allan Masa, and was
allowed, to take over the vehicle while the latter
was on his way home one late afternoon. It is
significant to note that the place where Allan lives
is also the house of his father, the school
president, Agustin Masa. Moreover, it is also the
house where Funtecha was allowed free board
while he was a student of Filamer Christian
Institute.
Allan Masa turned over the vehicle to Funtecha
only after driving down a road, negotiating a sharp
dangerous curb, and viewing that the road was
clear. (TSN, April 4, 1983, pp. 78-79) According to
Allan's testimony, a fast moving truck with glaring
lights nearly hit them so that they had to swerve to
the right to avoid a collision. Upon swerving, they
heard a sound as if something had bumped
against the vehicle, but they did not stop to check.
Actually, the Pinoy jeep swerved towards the
pedestrian, Potenciano Kapunan who was walking
in his lane in the direction against vehicular traffic,
and hit him. Allan affirmed that Funtecha followed
his advise to swerve to the right. (Ibid., p. 79) At
the time of the incident (6:30 P.M.) in Roxas City,
the jeep had only one functioning headlight.
Allan testified that he was the driver and at the
same time a security guard of the petitionerschool. He further said that there was no specific
time for him to be off-duty and that after driving the
students home at 5:00 in the afternoon, he still had
to go back to school and then drive home using
the same vehicle.
Driving the vehicle to and from the house of the
school president where both Allan and Funtecha
reside is an act in furtherance of the interest of the
petitioner-school. Allan's job demands that he drive
home the school jeep so he can use it to fetch
students in the morning of the next school day.
It is indubitable under the circumstances that the
school president had knowledge that the jeep was
routinely driven home for the said purpose.
Moreover, it is not improbable that the school
president also had knowledge of Funtecha's

possession of a student driver's license and his

desire to undergo driving lessons during the time
that he was not in his classrooms.
In learning how to drive while taking the vehicle
home in the direction of Allan's house, Funtecha
definitely was not having a joy ride. Funtecha was
not driving for the purpose of his enjoyment or for
a "frolic of his own" but ultimately, for the service
for which the jeep was intended by the petitioner
school. (See L. Battistoni v. Thomas, Can SC 144,
1 D.L.R. 577, 80 ALR 722 [1932]; See also
Association of Baptists for World Evangelism, Inc.
v. Fieldmen's Insurance Co., Inc. 124 SCRA 618
[1983]). Therefore, the Court is constrained to
conclude that the act of Funtecha in taking over
the steering wheel was one done for and in behalf
of his employer for which act the petitioner-school
cannot deny any responsibility by arguing that it
was done beyond the scope of his janitorial duties.
The clause "within the scope of their assigned
tasks" for purposes of raising the presumption of
liability of an employer, includes any act done by
an employee, in furtherance of the interests of the
employer or for the account of the employer at the
time of the infliction of the injury or damage.
(Manuel Casada, 190 Va 906, 59 SE 2d 47 [1950])
Even if somehow, the employee driving the vehicle
derived some benefit from the act, the existence of
a presumptive liability of the employer is
determined by answering the question of whether
or not the servant was at the time of the accident
performing any act in furtherance of his master's
business. (Kohlman v. Hyland, 210 NW 643, 50
ALR 1437 [1926]; Jameson v. Gavett, 71 P 2d 937
[1937])
Section 14, Rule X, Book III of the Rules
implementing the Labor Code, on which the
petitioner anchors its defense, was promulgated by
the Secretary of Labor and Employment only for
the purpose of administering and enforcing the
provisions of the Labor Code on conditions of
employment. Particularly, Rule X of Book III
provides guidelines on the manner by which the
powers of the Labor Secretary shall be exercised;
on what records should be kept; maintained and
preserved; on payroll; and on the exclusion of
working scholars from, and inclusion of resident
physicians in the employment coverage as far as
compliance with the substantive labor provisions
on working conditions, rest periods, and wages, is
concerned.
In other words, Rule X is merely a guide to the
enforcement of the substantive law on labor. The
Court, thus, makes the distinction and so holds
that Section 14, Rule X, Book III of the Rules is not
the decisive law in a civil suit for damages

instituted by an injured person during a vehicular

accident against a working student of a school and
against the school itself.
The present case does not deal with a labor
dispute on conditions of employment between an
alleged employee and an alleged employer. It
invokes a claim brought by one for damages for
injury caused by the patently negligent acts of a
person, against both doer-employee and his
employer. Hence, the reliance on the implementing
rule on labor to disregard the primary liability of an
employer under Article 2180 of the Civil Code is
misplaced. An implementing rule on labor cannot
be used by an employer as a shield to avoid
liability under the substantive provisions of the Civil
Code.
There is evidence to show that there exists in the
present case an extra-contractual obligation
arising from the negligence or reckless
imprudence of a person "whose acts or omissions
are imputable, by a legal fiction, to other(s) who
are in a position to exercise an absolute or limited
control over (him)." (Bahia v. Litonjua and Leynes,
30 Phil. 624 [1915])
Funtecha is an employee of petitioner Filamer. He
need not have an official appointment for a driver's
position in order that the petitioner may be held
responsible for his grossly negligent act, it being
sufficient that the act of driving at the time of the
incident was for the benefit of the petitioner.
Hence, the fact that Funtecha was not the school
driver or was not acting within the scope of his
janitorial duties does not relieve the petitioner of
the burden of rebutting the presumption juris
tantum that there was negligence on its part either
in the selection of a servant or employee, or in the
supervision over him. The petitioner has failed to
show proof of its having exercised the required
diligence of a good father of a family over its
employees Funtecha and Allan.
The Court reiterates that supervision includes the
formulation of suitable rules and regulations for the
guidance of its employees and the issuance of
proper instructions intended for the protection of
the public and persons with whom the employer
has relations through his employees. (Bahia v.
Litonjua and Leynes, supra, at p. 628; Phoenix
Construction, v. Intermediate Appellate Court, 148
SCRA 353 [1987])
An employer is expected to impose upon its
employees the necessary discipline called for in
the performance of any act indispensable to the
business and beneficial to their employer.

In the present case, the petitioner has not shown

that it has set forth such rules and guidelines as
would prohibit any one of its employees from
taking control over its vehicles if one is not the
official driver or prohibiting the driver and son of
the Filamer president from authorizing another
employee to drive the school vehicle. Furthermore,
the petitioner has failed to prove that it had
imposed sanctions or warned its employees
against the use of its vehicles by persons other
than the driver.
The petitioner, thus, has an obligation to pay
damages for injury arising from the unskilled
manner by which Funtecha drove the vehicle.
(Cangco v. Manila Railroad Co., 38 Phil. 768, 772
[1918]). In the absence of evidence that the
petitioner had exercised the diligence of a good
father of a family in the supervision of its
employees, the law imposes upon it the vicarious
liability for acts or omissions of its employees.
(Umali v. Bacani, 69 SCRA 263 [1976]; Poblete v.
Fabros, 93 SCRA 200 [1979]; Kapalaran Bus Liner
v. Coronado, 176 SCRA 792 [1989]; Franco v.
Intermediate Appellate Court, 178 SCRA 331
[1989]; Pantranco North Express, Inc. v. Baesa,
179 SCRA 384 [1989]) The liability of the employer
is, under Article 2180, primary and solidary.
However, the employer shall have recourse
against the negligent employee for whatever
damages are paid to the heirs of the plaintiff.
It is an admitted fact that the actual driver of the
school jeep, Allan Masa, was not made a party
defendant in the civil case for damages. This is
quite understandable considering that as far as the
injured pedestrian, plaintiff Potenciano Kapunan,
was concerned, it was Funtecha who was the one
driving the vehicle and presumably was one
authorized by the school to drive. The plaintiff and
his heirs should not now be left to suffer without
simultaneous recourse against the petitioner for
the consequent injury caused by a janitor doing a
driving chore for the petitioner even for a short
while. For the purpose of recovering damages
under the prevailing circumstances, it is enough
that the plaintiff and the private respondent heirs
were able to establish the existence of employeremployee relationship between Funtecha and
petitioner Filamer and the fact that Funtecha was
engaged in an act not for an independent purpose
of his own but in furtherance of the business of his
employer. A position of responsibility on the part of
the petitioner has thus been satisfactorily
demonstrated.
WHEREFORE, the motion for reconsideration of
the decision dated October 16, 1990 is hereby
GRANTED. The decision of the respondent

appellate court affirming the trial court decision is

REINSTATED.

at the time. The font of the machine struck the

child in the center of the body and crushed her to
death.

SO ORDERED.

EN BANC
G.R. No. L-9734

March 31, 1915

JUAN BAHIA, plaintiff-appellant,

vs.
FAUSTA LITONJUA, defendant-appellee,
and MARIANO LEYNES, defendant-appellant.
MORELAND, J.:
This is an appeal by the defendant Leynes from a
judgment of the Court of First Instance of Manila
against him for the sum of P1,000, with costs; and
by the plaintiff from Fausta Litonjua.
This is an action to recover damages from the
defendants for the death of plaintiff's daughter
alleged to have been caused by the negligence of
defendant's servant in driving an automobile over
the child and causing her death.
It appears from the evidence that one Ramon
Ramirez was the owner and manager of a garage
in the city of Manila known as the International
Garage. His mother, the defendant Fausta
Litonjua, sometime before the accident from which
this action springs, purchased an automobile and
turned it over to the garage to assist her son in the
business in which he was engaged. On the 14th of
May, 1911, Ramirez rented the automobile so
purchased and donated by his mother to the
defendant Mariano Leynes, together with a
chauffeur and a machinist, to be used by him for a
short time between Balayan and Tuy, Province of
Batangas, to carry persons living in Balayan to and
from the fiesta which was about to take place in
Tuy. According to the arrangement between them,
Ramires was to furnish the automobile, chauffeur,
and machinist, and the defendant Leynes was to
pay him therefor P20 a day.
On the 16th of May, 1911, while passing from
Balayan to Tuy, the automobile, by reason of a
defect in the steering gear, refused to obey the
direction of the driver in turning a corner in the
streets of Balayan, and, as a consequence, ran
across the street and into the wall of a house
against which the daughter of plaintiff was leaning

The action was brought against the mother of

Ramirez, who bought the automobile, and Leynes,
under whose direction and control the automobile
was being operated at the time of the accident.
Ramirez was not made a party. The plaintiff and
the defendant Leynes appealed from the
judgment, the former on the ground that the court
erred in dismissing the action as to the mother of
Ramirez and the latter from that portion of the
judgment requiring him to pay to plaintiff P1,000.
We are of the opinion that the action was properly
dismissed as to Fuasta Litonjua. It is a fact proved
in the action and undisputed that, although the
mother purchased the automobile, she turned it
over to the garage of her son for use therein. The
establishment belonged to the son, Ramon
Ramirez, and he had the full management and
control of it and received all the profits therefrom.
So far as appears, the contract with Leynes was
made without her knowledge or consent by
Ramirez as the owner and manager of the
International Garage. While she may have been in
one sense the owner of the machine, that fact
does not, under the other facts of the case, make
her responsible for the results of the accident.
We are of the opinion that the judgment against
Leynes must be reversed and the complaint
dismissed as to him. While it may be said that, at
the time of the accident, the chauffeur who was
driving the machine was a servant of Leynes, in as
much as the profits derived from the trips of the
automobile belonged to him and the automobile
was operated under his direction, nevertheless,
this fact is not conclusive in making him
responsible for the negligence of the chauffeur or
for defects in the automobile itself. Article 1903 of
the Civil Code not only establishes liability in cases
of negligence, but also provides when that liability
shall cease. It says:
The liability referred to in this article shall
cease when the persons mentioned therein
prove that they employed all the diligence
of a good father of a family to avoid the
damages.
From this article two things are apparent: (1) That
when an injury is caused by the negligence of a
servant or employee there instantly arises a
presumption of a law that there was negligence on
the part of the master or employer either in the
selection of the servant or employee, or in

supervision over him after the selection, or both;

and (2) that presumption is juris tantum and
not juris et de jure, and consequently, may be
rebutted. It follows necessarily that if the
employees shows to the satisfaction of the court
that in selection and supervision he has exercised
the care and diligence of a good father of a family,
the presumption is overcome and he is relieved
from liability.
This theory bases the responsibility of the master
ultimately on his own negligence and not on that of
his servant. This is the notable peculiarly of the
Spanish law negligence. It is, of course, in striking
contrast to the American doctrine that, in relations
with strangers, the negligence of the servant is
conclusively the negligence of the master.
In the case before us the death of the child caused
by a defect in the steering gear of the automobile
immediately raised the presumption that Leynes
was negligent in selecting a defective automobile
or in his failure to maintain it in good condition after
selection, and the burden of proof was on him to
show that he had exercised the care of a good
father of a family. As to selection, the defendant
has clearly shown that he exercised the care and
diligence of a good father of a family. He obtained
the machine from a reputable garage and it was,
so far as appeared, in good condition. The
workmen were likewise selected from a standard
garage, were duly licensed by the Government in
their particular calling, and apparently thoroughly
competent. The machine had been used but a few
hours when the accident occurred and it is clear
from the evidence that the defendant had no
notice, either actual or constructive, of the
defective condition of the steering gear. From the
commencement of the use of the machine until the
accident occurred sufficient time had not elapsed
to require an examination of the machine by the
defendant as a part of his duty of inspection and
supervision. While it does not appear that the
defendant formulated rules and regulations for the
guidance of the drivers and gave them proper
instructions, designed for the protection of the
public and the passengers, the evidence shows,
as we have seen, that the death of the child was
not caused by a failure to promulgate rules and
regulations. It was caused by a defect in the
machine as to which the defendant has shown
himself free from responsibility.
The defendant Leynes having shown to the
satisfaction of the court that he exercised the care
and diligence of a good father of a family is
relieved of responsibility with respect to the death
of plaintiff's child.

The judgment, in so far as it dismisses the

complaint against Fausta Litonjua, is affirmed with
costs, and, in so far as to finds against Mariano
Leynes, is reversed and the complaint as to his
dismissed, without special finding as to costs in
this instance. So ordered.

FIRST DIVISON
G.R. No. 115024

February 7, 1996

MA. LOURDES VALENZUELA, petitioner,

vs.
COURT OF APPEALS, RICHARD LI and
ALEXANDER COMMERCIAL, INC., respondents.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-xx-x-x-x-x-x
G.R. No. 117944

February 7, 1996

RICHARD LI, petitioner,

vs.
COURT OF APPEALS and LOURDES
VALENZUELA, respondents.
KAPUNAN, J.:
These two petitions for review on certiorari under
Rule 45 of the Revised Rules of Court stem from
an action to recover damages by petitioner
Lourdes Valenzuela in the Regional Trial Court of
Quezon City for injuries sustained by her in a
vehicular accident in the early morning of June 24,
1990. The facts found by the trial court are
succinctly summarized by the Court of Appeals
below:
This is an action to recover damages
based on quasi-delict, for serious physical
injuries sustained in a vehicular accident.
Plaintiff's version of the accident is as
follows: At around 2:00 in the morning of
June 24, 1990, plaintiff Ma. Lourdes
Valenzuela was driving a blue Mitsubishi
lancer with Plate No. FFU 542 from her
restaurant at Marcos highway to her home
at Palanza Street, Araneta Avenue. She
was travelling along Aurora Blvd. with a
companion, Cecilia Ramon, heading
towards the direction of Manila. Before
reaching A. Lake Street, she noticed

something wrong with her tires; she

stopped at a lighted place where there
were people, to verify whether she had a
flat tire and to solicit help if needed. Having
been told by the people present that her
rear right tire was flat and that she cannot
reach her home in that car's condition, she
parked along the sidewalk, about 1-1/2 feet
away, put on her emergency lights,
alighted from the car, and went to the rear
to open the trunk. She was standing at the
left side of the rear of her car pointing to
the tools to a man who will help her fix the
tire when she was suddenly bumped by a
1987 Mitsubishi Lancer driven by
defendant Richard Li and registered in the
name of defendant Alexander Commercial,
Inc. Because of the impact plaintiff was
thrown against the windshield of the car of
the defendant, which was destroyed, and
then fell to the ground. She was pulled out
from under defendant's car. Plaintiff's left
leg was severed up to the middle of her
thigh, with only some skin and sucle
connected to the rest of the body. She was
brought to the UERM Medical Memorial
Center where she was found to have a
"traumatic amputation, leg, left up to distal
thigh (above knee)". She was confined in
the hospital for twenty (20) days and was
eventually fitted with an artificial leg. The
expenses for the hospital confinement
(P120,000.00) and the cost of the artificial
leg (P27,000.00) were paid by defendants
from the car insurance.
In her complaint, plaintiff prayed for moral
damages in the amount of P1 million,
exemplary damages in the amount of
P100,000.00 and other medical and related
expenses amounting to a total of
P180,000.00, including loss of expected
earnings.
Defendant Richard Li denied that he was
negligent. He was on his way home,
travelling at 55 kph; considering that it was
raining, visibility was affected and the road
was wet. Traffic was light. He testified that
he was driving along the inner portion of
the right lane of Aurora Blvd. towards the
direction of Araneta Avenue, when he was
suddenly confronted, in the vicinity of A.
Lake Street, San Juan, with a car coming
from the opposite direction, travelling at 80
kph, with "full bright lights". Temporarily
blinded, he instinctively swerved to the
right to avoid colliding with the oncoming
vehicle, and bumped plaintiff's car, which

he did not see because it was midnight

blue in color, with no parking lights or early
warning device, and the area was poorly
lighted. He alleged in his defense that the
left rear portion of plaintiff's car was
protruding as it was then "at a standstill
diagonally" on the outer portion of the right
lane towards Araneta Avenue (par. 18,
Answer). He confirmed the testimony of
plaintiff's witness that after being bumped
the car of the plaintiff swerved to the right
and hit another car parked on the sidewalk.
Defendants counterclaimed for damages,
alleging that plaintiff was reckless or
negligent, as she was not a licensed driver.
The police investigator, Pfc. Felic Ramos,
who prepared the vehicular accident report
and the sketch of the three cars involved in
the accident, testified that the plaintiff's car
was "near the sidewalk"; this witness did
not remember whether the hazard lights of
plaintiff's car were on, and did not notice if
there was an early warning device; there
was a street light at the corner of Aurora
Blvd. and F. Roman, about 100 meters
away. It was not mostly dark, i.e. "things
can be seen" (p. 16, tsn, Oct. 28, 1991).
A witness for the plaintiff, Rogelio
Rodriguez, testified that after plaintiff
alighted from her car and opened the trunk
compartment, defendant's car came
approaching very fast ten meters from the
scene; the car was "zigzagging". The rear
left side of plaintiff's car was bumped by
the front right portion of defendant's car; as
a consequence, the plaintiff's car swerved
to the right and hit the parked car on the
sidewalk. Plaintiff was thrown to the
windshield of defendant's car, which was
destroyed, and landed under the car. He
stated that defendant was under the
influence of liquor as he could "smell it very
well" (pp. 43, 79, tsn, June 17, 1991).
After trial, the lower court sustained the plaintiff's
submissions and found defendant Richard Li guilty
of gross negligence and liable for damages under
Article 2176 of the Civil Code. The trial court
likewise held Alexander Commercial, Inc., Li's
employer, jointly and severally liable for damages
pursuant to Article 2180. It ordered the defendants
to jointly and severally pay the following amounts:
1. P41,840.00, as actual damages,
representing the miscellaneous expenses
of the plaintiff as a result of her severed left
leg;

2. The sums of (a) P37,500.00, for the

unrealized profits because of the stoppage
of plaintiff's Bistro La Conga restaurant
three (3) weeks after the accident on June
24, 1990; (b) P20,000.00, a month, as
unrealized profits of the plaintiff in her
Bistro La Conga restaurant, from August,
1990 until the date of this judgment and (c)
P30,000.00, a month for unrealized profits
in plaintiff's two (2) beauty salons from
July, 1990 until the date of this decision;
3. P1,000,000.00, in moral damages;
4. P50,000.00, as exemplary damages;
5. P60,000.00, as reasonable attorney's
fees; and
6. Costs.
As a result of the trial court's decision, defendants
filed an Omnibus Motion for New Trial and for
Reconsideration, citing testimony in Criminal Case
O.C. No. 804367 (People vs. Richard Li), tending
to show that the point of impact, as depicted by the
pieces of glass/debris from the parties' cars,
appeared to be at the center of the right lane of
Aurora Blvd. The trial court denied the motion.
Defendants forthwith filed an appeal with the
respondent Court of Appeals. In a Decision
rendered March 30, 1994, the Court of Appeals
found that there was "ample basis from the
evidence of record for the trial court's finding that
the plaintiff's car was properly parked at the right,
beside the sidewalk when it was bumped by
defendant's car."1 Dismissing the defendants'
argument that the plaintiff's car was improperly
parked, almost at the center of the road, the
respondent court noted that evidence which was
supposed to prove that the car was at or near
center of the right lane was never presented during
the trial of the case.2 The respondent court
furthermore observed that:
Defendant Li's testimony that he was
driving at a safe speed of 55 km./hour is
self serving; it was not corroborated. It was
in fact contradicted by eyewitness
Rodriguez who stated that he was outside
his beerhouse located at Aurora Boulevard
after A. Lake Street, at or about 2:00 a.m.
of June 24, 1990 when his attention was
caught by a beautiful lady (referring to the
plaintiff) alighting from her car and opening
the trunk compartment; he noticed the car
of Richard Li "approaching very fast ten
(10) meters away from the scene";

defendant's car was zigzagging", although

there were no holes and hazards on the
street, and "bumped the leg of the plaintiff"
who was thrown against the windshield of
defendant's care, causing its destruction.
He came to the rescue of the plaintiff, who
was pulled out from under defendant's car
and was able to say "hurting words" to
Richard Li because he noticed that the
latter was under the influence of liquor,
because he "could smell it very well" (p.
36, et. seq., tsn, June 17, 1991). He knew
that plaintiff owned a beerhouse in Sta.
Mesa in the 1970's, but did not know either
plaintiff or defendant Li before the accident.
In agreeing with the trial court that the defendant Li
was liable for the injuries sustained by the plaintiff,
the Court of Appeals, in its decision, however,
absolved
the
Li's
employer,
Alexander
Commercial, Inc. from any liability towards
petitioner Lourdes Valenzuela and reduced the
amount of moral damages to P500,000.00. Finding
justification
for
exemplary
damages,
the
respondent court allowed an award of P50,000.00
for the same, in addition to costs, attorney's fees
and the other damages. The Court of Appeals,
likewise,
dismissed
the
defendants'
counterclaims.3
Consequently, both parties assail the respondent
court's decision by filing two separate petitions
before this Court. Richard Li, in G.R. No. 117944,
contends that he should not be held liable for
damages because the proximate cause of the
accident was Ma. Lourdes Valenzuela's own
negligence. Alternatively, he argues that in the
event that this Court finds him negligent, such
negligence ought to be mitigated by the
contributory negligence of Valenzuela.
On the other hand, in G.R. No. 115024, Ma.
Lourdes Valenzuela assails the respondent court's
decision insofar as it absolves Alexander
Commercial, Inc. from liability as the owner of the
car driven by Richard Li and insofar as it reduces
the amount of the actual and moral damages
awarded by the trial court.4
As the issues are intimately related, both petitions
are hereby consolidated.
It is plainly evident that the petition for review in
G.R. No. 117944 raises no substantial questions of
law. What it, in effect, attempts to have this Court
review are factual findings of the trial court, as
sustained by the Court of Appeals finding Richard
Li grossly negligent in driving the Mitsubishi Lancer

provided by his company in the early morning

hours of June 24, 1990. This we will not do. As a
general rule, findings of fact of the Court of
Appeals are binding and conclusive upon us, and
this Court will not normally disturb such factual
findings unless the findings of fact of the said court
are palpably unsupported by the evidence on
record or unless the judgment itself is based on a
misapprehension of facts.5
In the first place, Valenzuela's version of the
incident was fully corroborated by an uninterested
witness, Rogelio Rodriguez, the owner-operator of
an establishment located just across the scene of
the accident. On trial, he testified that he observed
a car being driven at a "very fast" speed, racing
towards the general direction of Araneta
Avenue.6 Rodriguez further added that he was
standing in front of his establishment, just ten to
twenty feet away from the scene of the accident,
when he saw the car hit Valenzuela, hurtling her
against the windshield of the defendant's
Mitsubishi Lancer, from where she eventually fell
under the defendant's car. Spontaneously reacting
to the incident, he crossed the street, noting that a
man reeking with the smell of liquor had alighted
from the offending vehicle in order to survey the
incident.7 Equally important, Rodriguez declared
that he observed Valenzuela's car parked parallel
and very near the sidewalk,8 contrary to Li's
allegation that Valenzuela's car was close to the
center of the right lane. We agree that as between
Li's
"self-serving"
asseverations
and
the
observations of a witness who did not even know
the accident victim personally and who
immediately gave a statement of the incident
similar to his testimony to the investigator
immediately after the incident, the latter's
testimony deserves greater weight. As the court
emphasized:
The issue is one of credibility and from Our
own examination of the transcript, We are
not prepared to set aside the trial court's
reliance on the testimony of Rodriguez
negating defendant's assertion that he was
driving at a safe speed. While Rodriguez
drives only a motorcycle, his perception of
speed is not necessarily impaired. He was
subjected to cross-examination and no
attempt was made to question .his
competence or the accuracy of his
statement that defendant was driving "very
fast". This was the same statement he
gave to the police investigator after the
incident, as told to a newspaper report
(Exh. "P"). We see no compelling basis for
disregarding his testimony.

The alleged inconsistencies in Rodriguez'

testimony are not borne out by an
examination of the testimony. Rodriguez
testified that the scene of the accident was
across the street where his beerhouse is
located about ten to twenty feet away (pp.
35-36, tsn, June 17, 1991). He did not
state that the accident transpired
immediately in front of his establishment.
The ownership of the Lambingan se
Kambingan is not material; the business is
registered in the name of his mother, but
he explained that he owns the
establishment (p. 5, tsn, June 20, 1991).
Moreover,
the
testimony
that
the
streetlights on his side of Aurora Boulevard
were on the night the accident transpired
(p. 8) is not necessarily contradictory to the
testimony of Pfc. Ramos that there was a
streetlight at the corner of Aurora
Boulevard and F. Roman Street (p. 45, tsn,
Oct. 20, 1991).
With respect to the weather condition,
Rodriguez testified that there was only a
drizzle, not a heavy rain and the rain has
stopped and he was outside his
establishment at the time the accident
transpired (pp. 64-65, tsn, June 17, 1991).
This was consistent with plaintiff's
testimony that it was no longer raining
when she left Bistro La Conga (pp. 10-11,
tsn, April 29, 1991). It was defendant Li
who stated that it was raining all the way in
an attempt to explain why he was travelling
at only 50-55 kph. (p. 11, tsn, Oct. 14,
1991). As to the testimony of Pfc. Ramos
that it was raining, he arrived at the scene
only in response to a telephone call after
the accident had transpired (pp. 9-10, tsn,
Oct. 28, 1991). We find no substantial
inconsistencies in Rodriguez's testimony
that would impair the essential integrity of
his testimony or reflect on his honesty. We
are compelled to affirm the trial court's
acceptance of the testimony of said
eyewitness.
Against the unassailable testimony of witness
Rodriguez we note that Li's testimony was
peppered with so many inconsistencies leading us
to conclude that his version of the accident was
merely adroitly crafted to provide a version,
obviously self-serving, which would exculpate him
from any and all liability in the incident. Against
Valenzuela's corroborated claims, his allegations
were neither backed up by other witnesses nor by
the circumstances proven in the course of trial. He
claimed that he was driving merely at a speed of

55 kph. when "out of nowhere he saw a dark

maroon lancer right in front of him, which was (the)
plaintiff's car". He alleged that upon seeing this
sudden "apparition" he put on his brakes to no
avail as the road was slippery.9
One will have to suspend disbelief in order to give
credence to Li's disingenuous and patently selfserving asseverations. The average motorist alert
to road conditions will have no difficulty applying
the brakes to a car traveling at the speed claimed
by Li. Given a light rainfall, the visibility of the
street, and the road conditions on a principal
metropolitan thoroughfare like Aurora Boulevard,
Li would have had ample time to react to the
changing conditions of the road if he were alert as every driver should be - to those conditions.
Driving exacts a more than usual toll on the
senses.
Physiological
"fight
or
flight" 10 mechanisms are at work, provided such
mechanisms were not dulled by drugs, alcohol,
exhaustion, drowsiness, etc.11 Li's failure to react
in a manner which would have avoided the
accident could therefore have been only due to
either or both of the two factors: 1) that he was
driving at a "very fast" speed as testified by
Rodriguez; and 2) that he was under the influence
of alcohol.12 Either factor working independently
would have diminished his responsiveness to road
conditions, since normally he would have slowed
down prior to reaching Valenzuela's car, rather
than be in a situation forcing him to suddenly apply
his brakes. As the trial court noted (quoted with
approval by respondent court):
Secondly, as narrated by defendant
Richard Li to the San Juan Police
immediately after the incident, he said that
while driving along Aurora Blvd., out of
nowhere he saw a dark maroon lancer
right in front of him which was plaintiff's
car, indicating, again, thereby that, indeed,
he was driving very fast, oblivious of his
surroundings and the road ahead of him,
because if he was not, then he could not
have missed noticing at a still far distance
the parked car of the plaintiff at the right
side near the sidewalk which had its
emergency lights on, thereby avoiding
forcefully bumping at the plaintiff who was
then standing at the left rear edge of her
car.
Since, according to him, in his narration to
the San Juan Police, he put on his brakes
when he saw the plaintiff's car in front of
him, but that it failed as the road was wet
and slippery, this goes to show again, that,
contrary to his claim, he was, indeed,

running very fast. For, were it otherwise, he

could have easily completely stopped his
car, thereby avoiding the bumping of the
plaintiff, notwithstanding that the road was
wet and slippery. Verily, since, if, indeed,
he was running slow, as he claimed, at
only about 55 kilometers per hour, then,
inspite of the wet and slippery road, he
could have avoided hitting the plaintiff by
the mere expedient or applying his brakes
at the proper time and distance.
It could not be true, therefore, as he now
claims during his testimony, which is
contrary to what he told the police
immediately after the accident and is,
therefore, more believable, that he did not
actually step on his brakes but simply
swerved a little to the right when he saw
the on-coming car with glaring headlights,
from the opposite direction, in order to
avoid it.
For, had this been what he did, he would
not have bumped the car of the plaintiff
which was properly parked at the right
beside the sidewalk. And, it was not even
necessary for him to swerve a little to the
right in order to safely avoid a collision with
the on-coming car, considering that Aurora
Blvd. is a double lane avenue separated at
the center by a dotted white paint, and
there is plenty of space for both cars, since
her car was running at the right lane going
towards Manila on the on-coming car was
also on its right lane going to Cubao.13
Having come to the conclusion that Li was
negligent in driving his company-issued Mitsubishi
Lancer, the next question for us to determine is
whether or not Valenzuela was likewise guilty of
contributory negligence in parking her car
alongside Aurora Boulevard, which entire area Li
points out, is a no parking zone.
We agree
Valenzuela
negligence.

with
was

the
not

respondent court that

guilty of contributory

Contributory negligence is conduct on the part of

the injured party, contributing as a legal cause to
the harm he has suffered, which falls below the
standard to which he is required to conform for his
own protection.14 Based on the foregoing
definition, the standard or act to which, according
to petitioner Li, Valenzuela ought to have
conformed for her own protection was not to park

at all at any point of Aurora Boulevard, a no

parking zone. We cannot agree.
Courts have traditionally been compelled to
recognize that an actor who is confronted with an
emergency is not to be held up to the standard of
conduct normally applied to an individual who is in
no such situation. The law takes stock of impulses
of humanity when placed in threatening or
dangerous situations and does not require the
same standard of thoughtful and reflective care
from persons confronted by unusual and
oftentimes threatening conditions.15
Under the "emergency rule" adopted by this Court
in Gan vs. Court of Appeals,16 an individual who
suddenly finds himself in a situation of danger and
is required to act without much time to consider the
best means that may be adopted to avoid the
impending danger, is not guilty of negligence if he
fails to undertake what subsequently and upon
reflection may appear to be a better solution,
unless the emergency was brought by his own
negligence.17
Applying this principle to a case in which the
victims in a vehicular accident swerved to the
wrong lane to avoid hitting two children suddenly
darting into the street, we held, in Mc Kee
vs. Intermediate Appellate Court,18 that the driver
therein, Jose Koh, "adopted the best means
possible in the given situation" to avoid hitting the
children. Using the "emergency rule" the Court
concluded that Koh, in spite of the fact that he was
in the wrong lane when the collision with an
oncoming truck occurred, was not guilty of
negligence.19
While the emergency rule applies to those cases in
which reflective thought, or the opportunity to
adequately weigh a threatening situation is absent,
the conduct which is required of an individual in
such cases is dictated not exclusively by the
suddenness of the event which absolutely negates
thoroughful care, but by the over-all nature of the
circumstances. A woman driving a vehicle
suddenly crippled by a flat tire on a rainy night will
not be faulted for stopping at a point which is both
convenient for her to do so and which is not a
hazard to other motorists. She is not expected to
run the entire boulevard in search for a parking
zone or turn on a dark street or alley where she
would likely find no one to help her. It would be
hazardous for her not to stop and assess the
emergency (simply because the entire length of
Aurora Boulevard is a no-parking zone) because
the hobbling vehicle would be both a threat to her
safety and to other motorists. In the instant case,
Valenzuela, upon reaching that portion of Aurora

Boulevard close to A. Lake St., noticed that she

had a flat tire. To avoid putting herself and other
motorists in danger, she did what was best under
the situation. As narrated by respondent court:
"She stopped at a lighted place where there were
people, to verify whether she had a flat tire and to
solicit help if needed. Having been told by the
people present that her rear right tire was flat and
that she cannot reach her home she parked along
the sidewalk, about 1 1/2 feet away, behind a
Toyota Corona Car."20 In fact, respondent court
noted, Pfc. Felix Ramos, the investigator on the
scene of the accident confirmed that Valenzuela's
car was parked very close to the sidewalk.21 The
sketch which he prepared after the incident
showed Valenzuela's car partly straddling the
sidewalk, clear and at a convenient distance from
motorists passing the right lane of Aurora
Boulevard. This fact was itself corroborated by the
testimony of witness Rodriguez.22
Under the circumstances described, Valenzuela
did exercise the standard reasonably dictated by
the emergency and could not be considered to
have contributed to the unfortunate circumstances
which eventually led to the amputation of one of
her lower extremities. The emergency which led
her to park her car on a sidewalk in Aurora
Boulevard was not of her own making, and it was
evident that she had taken all reasonable
precautions.
Obviously in the case at bench, the only
negligence ascribable was the negligence of Li on
the night of the accident. "Negligence, as it is
commonly understood is conduct which creates an
undue risk of harm to others."23 It is the failure to
observe that degree of care, precaution, and
vigilance which the circumstances justly demand,
whereby such other person suffers injury.24 We
stressed,
in Corliss
vs. Manila
Railroad
Company,25 that negligence is the want of care
required by the circumstances.
The circumstances established by the evidence
adduced in the court below plainly demonstrate
that Li was grossly negligent in driving his
Mitsubishi Lancer. It bears emphasis that he was
driving at a fast speed at about 2:00 A.M. after a
heavy downpour had settled into a drizzle
rendering the street slippery. There is ample
testimonial evidence on record to show that he
was under the influence of liquor. Under these
conditions, his chances of effectively dealing with
changing conditions on the road were significantly
lessened. As Presser and Keaton emphasize:
[U]nder present day traffic conditions, any
driver of an automobile must be prepared

for the sudden appearance of obstacles

and persons on the highway, and of other
vehicles at intersections, such as one who
sees a child on the curb may be required to
anticipate its sudden dash into the street,
and his failure to act properly when they
appear may be found to amount to
negligence.26
Li's obvious unpreparedness to cope with the
situation confronting him on the night of the
accident was clearly of his own making.
We now come to the question of the liability of
Alexander Commercial, Inc. Li's employer. In
denying liability on the part of Alexander
Commercial, the respondent court held that:
There is no evidence, not even defendant
Li's testimony, that the visit was in
connection with official matters. His
functions as assistant manager sometimes
required him to perform work outside the
office as he has to visit buyers and
company clients, but he admitted that on
the night of the accident he came from BF
Homes Paranaque he did not have
"business from the company" (pp. 25-26,
ten, Sept. 23, 1991). The use of the
company car was partly required by the
nature of his work, but the privilege of
using it for non-official business is a
"benefit", apparently referring to the fringe
benefits attaching to his position.
Under the civil law, an employer is liable
for the negligence of his employees in the
discharge of their respective duties, the
basis of which liability is not respondeat
superior, but the relationship of pater
familias, which theory bases the liability of
the master ultimately on his own
negligence and not on that of his servant
(Cuison v. Norton and Harrison Co., 55
Phil. 18). Before an employer may be held
liable for the negligence of his employee,
the act or omission which caused damage
must have occurred while an employee
was in the actual performance of his
assigned tasks or duties (Francis High
School vs. Court of Appeals, 194 SCRA
341). In defining an employer's liability for
the acts done within the scope of the
employee's assigned tasks, the Supreme
Court has held that this includes any act
done by an employee, in furtherance of the
interests of the employer or for the account
of the employer at the time of the infliction
of the injury or damage (Filamer Christian

Institute vs. Intermediate Appellate Court,

212 SCRA 637). An employer is expected
to impose upon its employees the
necessary discipline called for in the
performance of any act "indispensable to
the business and beneficial to their
employer" (at p. 645).
In light of the foregoing, We are unable to
sustain the trial court's finding that since
defendant Li was authorized by the
company to use the company car "either
officially or socially or even bring it home",
he can be considered as using the
company car in the service of his employer
or on the occasion of his functions. Driving
the company car was not among his
functions as assistant manager; using it for
non-official purposes would appear to be a
fringe benefit, one of the perks attached to
his position. But to impose liability upon the
employer under Article 2180 of the Civil
Code, earlier quoted, there must be a
showing that the damage was caused by
their employees in the service of the
employer or on the occasion of their
functions. There is no evidence that
Richard Li was at the time of the accident
performing any act in furtherance of the
company's business or its interests, or at
least for its benefit. The imposition of
solidary
liability
against
defendant
Alexander Commercial Corporation must
therefore fail.27
We agree with the respondent court that the
relationship in question is not based on the
principle of respondeat superior, which holds the
master liable for acts of the servant, but that
of pater familias, in which the liability ultimately
falls upon the employer, for his failure to exercise
the diligence of a good father of the family in the
selection and supervision of his employees. It is up
to this point, however, that our agreement with the
respondent court ends. Utilizing the bonus pater
familias standard expressed in Article 2180 of the
Civil Code, 28 we are of the opinion that Li's
employer, Alexander Commercial, Inc. is jointly
and solidarily liable for the damage caused by the
accident of June 24, 1990.
First, the case of St. Francis High School vs. Court
of Appeals29 upon which respondent court has
placed undue reliance, dealt with the subject of a
school and its teacher's supervision of students
during an extracurricular activity. These cases now
fall under the provision on special parental
authority found in Art. 218 of the Family Code
which generally encompasses all authorized

school activities, whether inside or outside school

premises.
Second, the employer's primary liability under the
concept of pater familias embodied by Art 2180 (in
relation to Art. 2176) of the Civil Code is quasidelictual or tortious in character. His liability is
relieved on a showing that he exercised the
diligence of a good father of the family in the
selection and supervision of its employees. Once
evidence is introduced showing that the employer
exercised the required amount of care in selecting
its employees, half of the employer's burden is
overcome. The question of diligent supervision,
however, depends on the circumstances of
employment.
Ordinarily, evidence demonstrating that the
employer has exercised diligent supervision of its
employee during the performance of the latter's
assigned tasks would be enough to relieve him of
the liability imposed by Article 2180 in relation to
Article 2176 of the Civil Code. The employer is not
expected to exercise supervision over either the
employee's private activities or during the
performance of tasks either unsanctioned by the
former or unrelated to the employee's tasks. The
case at bench presents a situation of a different
character, involving a practice utilized by large
companies with either their employees of
managerial rank or their representatives.
It is customary for large companies to provide
certain classes of their employees with courtesy
vehicles. These company cars are either wholly
owned and maintained by the company itself or
are subject to various plans through which
employees eventually acquire their vehicles after a
given period of service, or after paying a token
amount. Many companies provide liberal "car
plans" to enable their managerial or other
employees of rank to purchase cars, which, given
the cost of vehicles these days, they would not
otherwise be able to purchase on their own.
Under the first example, the company actually
owns and maintains the car up to the point of
turnover of ownership to the employee; in the
second example, the car is really owned and
maintained by the employee himself. In furnishing
vehicles to such employees, are companies totally
absolved of responsibility when an accident
involving a company-issued car occurs during
private use after normal office hours?
Most pharmaceutical companies, for instance,
which provide cars under the first plan, require
rigorous tests of road worthiness from their agents

prior to turning over the car (subject of company

maintenance) to their representatives. In other
words, like a good father of a family, they entrust
the company vehicle only after they are satisfied
that the employee to whom the car has been given
full use of the said company car for company or
private purposes will not be a threat or menace to
himself, the company or to others. When a
company gives full use and enjoyment of a
company car to its employee, it in effect
guarantees that it is, like every good father,
satisfied that its employee will use the privilege
reasonably and responsively.
In the ordinary course of business, not all company
employees are given the privilege of using a
company-issued car. For large companies other
than those cited in the example of the preceding
paragraph, the privilege serves important business
purposes either related to the image of success an
entity intends to present to its clients and to the
public in general, or - for practical and utilitarian
reasons - to enable its managerial and other
employees of rank or its sales agents to reach
clients conveniently. In most cases, providing a
company car serves both purposes. Since
important business transactions and decisions
may occur at all hours in all sorts of situations and
under all kinds of guises, the provision for the
unlimited
use
of
a
company
car
therefore principally serves the business and
goodwill of a company and only incidentally the
private purposes of the individual who actually
uses the car, the managerial employee or
company sales agent. As such, in providing for a
company car for business use and/or for the
purpose of furthering the company's image, a
company owes a responsibility to the public to see
to it that the managerial or other employees to
whom it entrusts virtually unlimited use of a
company issued car are able to use the company
issue capably and responsibly.
In the instant case, Li was an Assistant Manager of
Alexander Commercial, Inc. In his testimony
before the trial court, he admitted that his functions
as Assistant Manager did not require him to
scrupulously keep normal office hours as he was
required quite often to perform work outside the
office, visiting prospective buyers and contacting
and meeting with company clients. 30 These
meetings, clearly, were not strictly confined to
routine hours because, as a managerial employee
tasked with the job of representing his company
with its clients, meetings with clients were both
social as well as work-related functions. The
service car assigned to Li by Alexander
Commercial, Inc. therefore enabled both Li - as
well as the corporation - to put up the front of a

highly successful entity, increasing the latter's

goodwill before its clientele. It also facilitated
meeting between Li and its clients by providing the
former with a convenient mode of travel.
Moreover, Li's claim that he happened to be on the
road on the night of the accident because he was
coming from a social visit with an officemate in
Paranaque was a bare allegation which was never
corroborated in the court below. It was obviously
self-serving. Assuming he really came from his
officemate's place, the same could give rise to
speculation that he and his officemate had just
been from a work-related function, or they were
together to discuss sales and other work related
strategies.
In fine, Alexander Commercial, inc. has not
demonstrated, to our satisfaction, that it exercised
the care and diligence of a good father of the
family in entrusting its company car to Li. No
allegations were made as to whether or not the
company took the steps necessary to determine or
ascertain the driving proficiency and history of Li,
to whom it gave full and unlimited use of a
company car.31 Not having been able to overcome
the burden of demonstrating that it should be
absolved of liability for entrusting its company car
to Li, said company, based on the principle
of bonus pater familias, ought to be jointly and
severally liable with the former for the injuries
sustained by Ma. Lourdes Valenzuela during the
accident.

These adjustments entail costs, prosthetic

replacements and months of physical and
occupational rehabilitation and therapy. During her
lifetime, the prosthetic devise will have to be
replaced and re-adjusted to changes in the size of
her lower limb effected by the biological changes
of middle-age, menopause and aging. Assuming
she reaches menopause, for example, the
prosthetic will have to be adjusted to respond to
the changes in bone resulting from a precipitate
decrease in calcium levels observed in the bones
of all post-menopausal women. In other words, the
damage done to her would not only be permanent
and lasting, it would also be permanently changing
and adjusting to the physiologic changes which her
body would normally undergo through the years.
The replacements, changes, and adjustments will
require corresponding adjustive physical and
occupational therapy. All of these adjustments, it
has been documented, are painful.
The foregoing discussion does not even scratch
the surface of the nature of the resulting damage
because it would be highly speculative to estimate
the amount of psychological pain, damage and
injury which goes with the sudden severing of a
vital portion of the human body. A prosthetic
device, 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.

Finally, we find no reason to overturn the amount

of damages awarded by the respondent court,
except as to the amount of moral damages. In the
case of moral damages, while the said damages
are not intended to enrich the plaintiff at the
expense of a defendant, the award should
nonetheless be commensurate to the suffering
inflicted. In the instant case we are of the opinion
that the reduction in moral damages from an
amount of P1,000,000.00 to P800,000,00 by the
Court of Appeals was not justified considering the
nature of the resulting damage and the
predictable sequelae of the injury.

As the amount of moral damages are subject to

this Court's discretion, we are of the opinion that
the amount of P1,000,000.00 granted by the trial
court is in greater accord with the extent and
nature of the injury - physical and psychological suffered by Valenzuela as a result of Li's grossly
negligent driving of his Mitsubishi Lancer in the
early morning hours of the accident.

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.

SO ORDERED.

WHEREFORE, PREMISES CONSIDERED, the

decision of the Court of Appeals is modified with
the effect of REINSTATING the judgment of the
Regional Trial Court.

EN BANC
G.R. No. L-11037

December 29, 1960

EDGARDO CARIAGA, ET AL., plaintiffsappellants,

vs.
LAGUNA TAYABAS BUS COMPANY, defendantappellant.
MANILA RAILROAD COMPANY, defendantappellee.
DIZON, J.:
At about 1:00 p.m. on June 18, 1952, Bus No. 133
of
the
Laguna
Tayabas
Bus
Co. hereinafter referred to as the LTB driven
by Alfredo Moncada, left its station at Azcarraga
St., Manila, for Lilio, Laguna, with Edgardo
Cariaga, a fourth-year medical student of the
University of Santo Tomas, as one of its
passengers. At about 3:00 p.m., as the bus
reached that part of the poblacion of Bay, Laguna,
where the national highway crossed a railroad
track, it bumped against the engine of a train then
passing by with such terrific force that the first six
wheels of the latter were derailed, the engine and
the front part of the body of the bus was wrecked,
the driver of the bus died instantly, while many of
its passengers, Edgardo among them, were
severely injured. Edgardo was first confined at the
San Pablo City Hospital from 5:00 p.m., June 18,
1952, to 8:25 a.m., June 20 of the same year when
he was taken to the De los Santos Clinic, Quezon
City. He left that clinic on October 14 to be
transferred to the University of Santo Tomas
Hospital where he stayed up to November 15. On
this last date he was taken back to the De los
Santos Clinic where he stayed until January 15,
1953. He was unconscious during the first 35 days
after the accident; at the De los Santos Clinic Dr.
Gustilo removed the fractured bones which
lacerated the right frontal lobe of his brain and at
the University of Santo Tomas Hospital Dr. Gustilo
performed another operation to cover a big hole on
the right frontal part of the head with a tantalum
plate.
The LTB paid the sum of P16,964.45 for all the
hospital, medical and miscellaneous expenses
incurred from June 18, 1952 to April, 1953. From
January 15, 1953 up to April of the same year
Edgardo stayed in a private house in Quezon, City,
the LTB having agreed to give him a subsistence
allowance
of
P10.00
daily
during
his
convalescence, having spent in this connection the
total sum of P775.30 in addition to the amount
already referred to.
On April 24, 1953 the present action was filed to
recover for Edgardo Cariaga, from the LTB and the
MRR Co., and total sum of P312,000.00 as actual,
compensatory, moral and exemplary damages,
and for his parents, the sum of P18,00.00 in the

same concepts. The LTB disclaimed liability

claiming that the accident was due to the
negligence of its co-defendant, the Manila Railroad
Company, for not providing a crossing bar at the
point where the national highway crossed the
railway track, and for this reason filed the
corresponding cross-claim against the latter
company to recover the total sum of P18,194.75
representing the expenses paid to Edgardo
Cariaga. The Manila Railroad Company, in turn,
denied liability upon the complaint and cross-claim
alleging that it was the reckless negligence of the
bus driver that caused the accident.
The lower court held that it was the negligence of
the bus driver that caused the accident and, as a
result, rendered judgment sentencing the LTB to
pay Edgardo Cariaga the sum of P10,490.00 as
compensatory damages, with interest at the legal
rate from the filing of the complaint, and dismissing
the cross-claim against the Manila Railroad
Company. From this decision the Cariagas and the
LTB appealed.
The Cariagas claim that the trial court erred: in
awarding only P10,490.00 as compensatory
damages to Edgardo; in not awarding them actual
and moral damages, and in not sentencing
appellant LTB to pay attorney's fees.
On the other hand, the LTB's principal contention
in this appeal is that the trial court should have
held that the collision was due to the fault of both
the locomotive driver and the bus driver and erred,
as a consequence, in not holding the Manila
Railroad Company liable upon the cross-claim filed
against it.
We shall first dispose of the appeal of the bus
company. Its first contention is that the driver of
the train locomotive, like the bus driver, violated
the law, first, in sounding the whistle only when the
collision was about to take place instead of at a
distance at least 300 meters from the crossing,
and second, in not ringing the locomotive bell at
all. Both contentions are without merits.
After considering the evidence presented by both
parties the lower court expressly found:
. . . While the train was approximately 300
meters from the crossing, the engineer
sounded two long and two short whistles
and upon reaching a point about 100
meters from the highway, he sounded a
long whistle which lasted up to the time the
train was about to cross it. The bus
proceeded on its way without slackening its

speed and it bumped against the train

engine, causing the first six wheels of the
latter to be derailed.

violation of law is never presumed. The record

discloses that this burden has not been
satisfactorily discharged.

xxx

The Cariagas, as appellants, claim that the award

of P10,000.00 compensatory damages to Eduardo
is inadequate considering the nature and the after
effects of the physical injuries suffered by him.
After a careful consideration of the evidence on
this point we find their contentions to be wellfounded.

xxx

xxx

. . . that the train whistle had been sounded

several times before it reached the
crossing. All witnesses for the plaintiffs and
the defendants are uniform in stating that
they heard the train whistle sometime
before the impact and considering that
some of them were in the bus at the time,
the driver thereof must have heard it
because he was seated on the left front
part of the bus and it was his duty and
concern to observe such fact in connection
with the safe operation of the vehicle. The
other L.T.B. bus which arrived ahead at the
crossing, heeded the warning by stopping
and allowing the train to pass and so
nothing happened to said vehicle. On the
other hand, the driver of the bus No. 133
totally ignored the whistle and noise
produced by the approaching train and
instead he tried to make the bus pass the
crossing before the train by not stopping a
few meters from the railway track and in
proceeding ahead.
The above findings of the lower court are
predicated mainly upon the testimony of Gregorio
Ilusondo, a witness for the Manila Railroad
Company. Notwithstanding the efforts exerted by
the LTB to assail his credibility, we do not find in
the record any fact or circumstance sufficient to
discredit his testimony. We have, therefore, no
other alternative but to accept the findings of the
trial court to the effect, firstly, that the whistle of
locomotive was sounded four times two long
and two short "as the train was approximately
300 meters from the crossing"; secondly, that
another LTB bus which arrived at the crossing
ahead of the one where Edgardo Cariaga was a
passenger, paid heed to the warning and stopped
before the "crossing", while as the LTB itself
now admits (Brief p. 5) the driver of the bus in
question totally disregarded the warning.
But to charge the MRR Co. with contributory
negligence, the LTB claims that the engineer of the
locomotive failed to ring the bell altogether, in
violation of the section 91 of Article 1459,
incorporated in the charter of the said MRR Co.
This contention as is obvious is the very
foundation of the cross-claim interposed by the
LTB
against
its
co-defendant. The former, therefore, had the
burden of proving it affirmatively because a

From the deposition of Dr. Romeo Gustilo, a

neurosurgeon, it appears that, as a result of the
injuries suffered by Edgardo, his right forehead
was fractured necessitating the removal of
practically all of the right frontal lobe of his brain.
From the testimony of Dr. Jose A. Fernandez, a
psychiatrist, it may be gathered that, because of
the physical injuries suffered by Edgardo, his
mentality has been so reduced that he can no
longer finish his studies as a medical student; that
he has become completely misfit for any kind of
work; that he can hardly walk around without
someone helping him, and has to use a brace on
his left leg and feet.
Upon the whole evidence on the matter, the lower
court found that the removal of the right frontal
lobe of the brain of Edgardo reduced his
intelligence by about 50%; that due to the
replacement of the right frontal bone of his head
with a tantalum plate Edgardo has to lead a quite
and retired life because "if the tantalum plate is
pressed in or dented it would cause his death."
The impression one gathers from this evidence is
that, as a result of the physical injuries suffered by
Edgardo Cariaga, he is now in a helpless
condition, virtually an invalid, both physically and
mentally.
Appellant LTB admits that under Art. 2201 of the
Civil Code the damages for which the obligor,
guilty of a breach of contract but who acted in
good faith, is liable shall be those that are the
natural and probable consequences of the breach
and which the parties had forseen or could have
reasonably forseen at the time the obligation was
constituted, provided such damages, according to
Art. 2199 of the same Code, have been duly
proved. Upon this premise it claims that only the
actual damages suffered by Edgardo Cariaga
consisting of medical, hospital and other expenses
in the total sum of P17,719.75 are within this
category. We are of the opinion, however, that the
income which Edgardo Cariaga could earn if he
should finish the medical course and pass the

corresponding board examinations must be

deemed to be within the same category because
they could have reasonably been foreseen by the
parties at the time he boarded the bus No. 133
owned and operated by the LTB. At that time he
was already a fourth-year student in medicine in a
reputable university. While his scholastic may not
be first rate (Exhibits 4, 4-A to 4-C), it is,
nevertheless, sufficient to justify the assumption
that he could have passed the board test in due
time. As regards the income that he could possibly
earn as a medical practitioner, it appears that,
according to Dr. Amado Doria, a witness for the
LTB, the amount of P300.00 could easily be
expected as the minimum monthly income of
Edgardo had he finished his studies.

We agree with the trial court and, to the reason

given above, we add those given by this Court in
Cachero vs. Manila Yellow Taxicab Co., Inc.(101
Phil., 523, 530, 533):

Upon consideration of all the facts mentioned

heretofore this Court is of the opinion, and so
holds, that the compensatory damages awarded to
Edgardo Cariaga should be increased to
P25,000.00.

Considering, therefore, the nature of

plaintiff's action in this case, is he entitled
to compensation for moral damages?
Article 2219 of the Civil Code says the
following:

Edgardo Cariaga's claim for moral damages and

attorney's fees was denied by the trial court, the
pertinent portion of its decision reading as follows:

Art. 2219. Moral damages may be

recovered in the following and analogous
cases:

Plaintiffs' claim for moral damages cannot

also be granted. Article 2219 of the Civil
Code enumerates the instances when
moral damages may be covered and the
case under consideration does not fall
under any one of them. The present action
cannot come under paragraph 2 of said
article because it is not one of the quasidelict and cannot be considered as such
because of the pre-existing contractual
relation between the Laguna Tayabas Bus
Company and Edgardo Cariaga. Neither
could defendant Laguna Tayabas Bus
Company be held liable to pay moral
damages to Edgardo Cariaga under Article
2220 of the Civil Code on account of
breach of its contract of carriage because
said defendant did not act fraudulently or in
bad faith in connection therewith.
Defendant Laguna Tayabas Bus Company
had exercised due diligence in the
selection and supervision of its employees
like the drivers of its buses in connection
with the discharge of their duties and so it
must be considered an obligor in good
faith.

(1) A criminal offense resulting in physical

injuries;

The plaintiff Edgardo Cariaga is also not

entitled to recover for attorney's fees,
because this case does not fall under any
of the instances enumerated in Article
2208 of the Civil Code.

A mere perusal of plaintiff's complaint will

show that this action against the defendant
is predicated on an alleged breach of
contract of carriage, i.e., the failure of the
defendants to bring him "safely and without
mishaps" to his destination, and it is to be
noted that the chauffeur of defendant's
taxicab that plaintiff used when he received
the injuries involved herein, Gregorio Mira,
has not even made a party defendant to
this case.

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other
lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of
defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles
21, 26, 27, 28, 29, 30, 32, 34, and 35.
xxx

xxx

xxx

Of course enumerated in the just quoted

Article 2219 only the first two may have
any bearing on the case at bar. We find,
however, with regard to the first that the

defendant herein has not committed in

connection with this case any "criminal
offense resulting in physical injuries". The
one that committed the offense against the
plaintiff is Gregorio Mira, and that is why he
has been already prosecuted and punished
therefor. Altho (a) owners and managers of
an establishment and enterprise are
responsible for damages caused by their
employees in the service of the branches
in which the latter are employed or on the
occasion of their functions; (b) employers
are likewise liable for damages caused by
their employees and household helpers
acting within the scope of their assigned
task (Article 218 of the Civil Code); and (c)
employers and corporations engaged in
any kind of industry are subsidiary civilly
liable for felonies committed by their
employees in the discharge of their duties
(Art. 103, Revised Penal Code), plaintiff
herein does not maintain this action under
the provisions of any of the articles of the
codes just mentioned and against all the
persons who might be liable for the
damages caused, but as a result of an
admitted breach of contract of carriage and
against the defendant employer alone. We,
therefore, hold that the case at bar does
not come within the exception of paragraph
1, Article 2219 of the Civil Code.
The present complaint is not based either
on a "quasi-delict causing physical injuries"
(Art. 2219, par. 2 of the Civil Code). From
the report of the Code Commission on the
new Civil Code. We copy the following:
A question of nomenclature confronted the
Commission. After a careful deliberation, it
was agreed to use the term "quasi-delict"
for those obligations which do not arise
from law, contracts, quasi-contracts, or
criminal offenses. They are known in
Spanish legal treaties as "culpa aquiliana",
"culpa-extra-contractual" or "cuasi-delitos".
The phrase "culpa-extra-contractual" or its
translation "extra-contractual-fault" was
eliminated because it did not exclude
quasi-contractual or penal obligations.
"Aquilian fault" might have been selected,
but it was thought inadvisable to refer to so
ancient a law as the "Lex Aquilia". So
"quasi-delict" was chosen, which more
nearly corresponds to the Roman Law
classification of the obligations and is in
harmony with the nature of this kind of
liability.

The Commission also thought of the

possibility of adopting the word "tort" from
Anglo-American law. But "tort" under that
system is much broader than the SpanishPhilippine concept of obligations arising
from non-contractual negligence. "Tort" in
Anglo-American jurisprudence includes not
only negligence, but also intentional
criminal act, such as assault and battery,
false imprisonment and deceit. In the
general plan of the Philippine legal system,
intentional and malicious acts are
governed by the Penal Code, although
certain exceptions are made in the Project.
(Report of the Code Commission, pp. 161162).
In the case of Cangco, vs. Manila Railroad,
38 Phil. 768, We established the distinction
between
obligation
derived
from
negligence and obligation as a result of a
breach of contract. Thus, we said:
It is important to note that the foundation of
the legal liability of the defendant is the
contract of carriage, and that the obligation
to respond for the damage which plaintiff
has suffered arises, if at all, from the
breach of that contract by reason of the
failure of defendant to exercise due care in
its performance. That is to say, its liability
is
direct
and
immediate,
differing
essentially in the legal viewpoint from the
presumptive
responsibility
for
the
negligence of its servants, imposed by
Article 1903 of the Civil Code (Art. 2180 of
the new), which can be rebutted by proof of
the exercise of due care in their selection
of supervision. Article 1903 is not
applicable to obligations arising EX
CONTRACTU, but only to extra-contractual
obligations or to use the technical form
of expression, that article relates only to
CULPA AQUILIANA' and not to CULPA
CONTRACTUAL.lawphil.net
The decisions in the cases of Castro vs.
Acro Taxicab Co., (82 Phil., 359; 46 Off.
Gaz., No. 5, p. 2023); Lilius, et al. vs.
Manila Railroad, 59 Phil., 758) and others,
wherein moral damages were awarded to
the plaintiffs, are not applicable to the case
at bar because said decision were
rendered before the effectivity of the new
Civil Code (August 30, 1950) and for the
further reason that the complaints filed
therein were based on different causes of
action.

In view of the foregoing the sum of P2,000

was awarded as moral damages by the
trial court has to be eliminated, for under
the law it is not a compensation awardable
in a case like the one at bar.
What has been said heretofore relative to the
moral damages claimed by Edgardo Cariaga
obviously applies with greater force to a similar
claim (4th assignment of error) made by his
parents.
The claim made by said spouses for actual and
compensatory damages is likewise without merits.
As held by the trial court, in so far as the LTB is
concerned, the present action is based upon a
breach of contract of carriage to which said
spouses were not a party, and neither can they
premise their claim upon the negligence or quasidelict of the LTB for the simple reason that they
were not themselves injured as a result of the
collision between the LTB bus and train owned by
the Manila Railroad Company.
Wherefore, modified as above indicated, the
appealed judgement is hereby affirmed in all other
respects, with costs against appellant LTB.

FIRST DIVISION
G.R. No. 145804

February 6, 2003

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO

ROMAN, petitioners,
vs.
MARJORIE NAVIDAD, Heirs of the Late
NICANOR NAVIDAD & PRUDENT SECURITY
AGENCY, respondents.

On 14 October 1993, about half an hour past

seven oclock in the evening, Nicanor Navidad,
then drunk, entered the EDSA LRT station after
purchasing a "token" (representing payment of the
fare). While Navidad was standing on the platform
near the LRT tracks, Junelito Escartin, the security
guard assigned to the area approached Navidad.
A misunderstanding or an altercation between the
two apparently ensued that led to a fist fight. No
evidence, however, was adduced to indicate how
the fight started or who, between the two,
delivered the first blow or how Navidad later fell on
the LRT tracks. At the exact moment that Navidad
fell, an LRT train, operated by petitioner Rodolfo
Roman, was coming in. Navidad was struck by the
moving train, and he was killed instantaneously.
On 08 December 1994, the widow of Nicanor,
herein respondent Marjorie Navidad, along with
her children, filed a complaint for damages against
Junelito Escartin, Rodolfo Roman, the LRTA, the
Metro Transit Organization, Inc. (Metro Transit),
and Prudent for the death of her husband. LRTA
and Roman filed a counterclaim against Navidad
and a cross-claim against Escartin and Prudent.
Prudent, in its answer, denied liability and averred
that it had exercised due diligence in the selection
and supervision of its security guards.
The LRTA and Roman presented their evidence
while Prudent and Escartin, instead of presenting
evidence, filed a demurrer contending that
Navidad had failed to prove that Escartin was
negligent in his assigned task. On 11 August 1998,
the trial court rendered its decision; it adjudged:
"WHEREFORE, judgment is hereby rendered in
favor of the plaintiffs and against the defendants
Prudent Security and Junelito Escartin ordering the
latter to pay jointly and severally the plaintiffs the
following:

VITUG, J.:

"a) 1) Actual damages of P44,830.00;

The case before the Court is an appeal from the

decision and resolution of the Court of Appeals,
promulgated on 27 April 2000 and 10 October
2000, respectively, in CA-G.R. CV No. 60720,
entitled "Marjorie Navidad and Heirs of the Late
Nicanor Navidad vs. Rodolfo Roman, et. al.,"
which has modified the decision of 11 August 1998
of the Regional Trial Court, Branch 266, Pasig
City, exonerating Prudent Security Agency
(Prudent) from liability and finding Light Rail
Transit Authority (LRTA) and Rodolfo Roman liable
for damages on account of the death of Nicanor
Navidad.

2)
Compensatory
P443,520.00;

damages

of

3) Indemnity for the death of Nicanor

Navidad in the sum of P50,000.00;
"b) Moral damages of P50,000.00;
"c) Attorneys fees of P20,000;
"d) Costs of suit.
"The complaint against defendants LRTA and
Rodolfo Roman are dismissed for lack of merit.

"The compulsory counterclaim of LRTA and

Roman are likewise dismissed."1
Prudent appealed to the Court of Appeals. On 27
August 2000, the appellate court promulgated its
now assailed decision exonerating Prudent from
any liability for the death of Nicanor Navidad and,
instead, holding the LRTA and Roman jointly and
severally liable thusly:
"WHEREFORE, the assailed judgment is hereby
MODIFIED, by exonerating the appellants from
any liability for the death of Nicanor Navidad, Jr.
Instead, appellees Rodolfo Roman and the Light
Rail Transit Authority (LRTA) are held liable for his
death and are hereby directed to pay jointly and
severally to the plaintiffs-appellees, the following
amounts:
a) P44,830.00 as actual damages;
b)
P50,000.00
damages;

as

nominal

c) P50,000.00 as moral damages;

d) P50,000.00 as indemnity for the
death of the deceased; and
e) P20,000.00 as and for attorneys
fees."2
The appellate court ratiocinated that while the
deceased might not have then as yet boarded the
train, a contract of carriage theretofore had already
existed when the victim entered the place where
passengers were supposed to be after paying the
fare and getting the corresponding token therefor.
In exempting Prudent from liability, the court
stressed that there was nothing to link the security
agency to the death of Navidad. It said that
Navidad failed to show that Escartin inflicted fist
blows upon the victim and the evidence merely
established the fact of death of Navidad by reason
of his having been hit by the train owned and
managed by the LRTA and operated at the time by
Roman. The appellate court faulted petitioners for
their failure to present expert evidence to establish
the fact that the application of emergency brakes
could not have stopped the train.
The appellate court denied petitioners motion for
reconsideration in its resolution of 10 October
2000.
In their present recourse, petitioners recite alleged
errors on the part of the appellate court; viz:

"I.
THE HONORABLE COURT OF APPEALS
GRAVELY ERRED BY DISREGARDING THE
FINDINGS OF FACTS BY THE TRIAL COURT
"II.
THE HONORABLE COURT OF APPEALS
GRAVELY
ERRED
IN
FINDING
THAT
PETITIONERS ARE LIABLE FOR THE DEATH
OF NICANOR NAVIDAD, JR.
"III.
THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN FINDING THAT RODOLFO
ROMAN IS AN EMPLOYEE OF LRTA."3
Petitioners would contend that the appellate court
ignored the evidence and the factual findings of
the trial court by holding them liable on the basis of
a sweeping conclusion that the presumption of
negligence on the part of a common carrier was
not overcome. Petitioners would insist that
Escartins assault upon Navidad, which caused the
latter to fall on the tracks, was an act of a stranger
that could not have been foreseen or prevented.
The LRTA would add that the appellate courts
conclusion on the existence of an employeremployee relationship between Roman and LRTA
lacked basis because Roman himself had testified
being an employee of Metro Transit and not of the
LRTA.
Respondents, supporting the decision of the
appellate court, contended that a contract of
carriage was deemed created from the moment
Navidad paid the fare at the LRT station and
entered the premises of the latter, entitling
Navidad to all the rights and protection under a
contractual relation, and that the appellate court
had correctly held LRTA and Roman liable for the
death of Navidad in failing to exercise
extraordinary diligence imposed upon a common
carrier.
Law and jurisprudence dictate that a common
carrier, both from the nature of its business and for
reasons of public policy, is burdened with the duty
of exercising utmost diligence in ensuring the
safety of passengers.4 The Civil Code, governing
the liability of a common carrier for death of or
injury to its passengers, provides:
"Article 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 a due regard for all the

circumstances.
"Article 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 in articles 1733 and 1755."
"Article 1759. Common carriers are liable for the
death of or injuries to passengers through the
negligence or willful acts of the formers
employees, although such employees may have
acted beyond the scope of their authority or in
violation of the orders of the common carriers.
"This liability of the common carriers does not
cease upon proof that they exercised all the
diligence of a good father of a family in the
selection and supervision of their employees."
"Article 1763. A common carrier is responsible for
injuries suffered by a passenger on account of the
willful acts or negligence of other passengers or of
strangers, if the common carriers employees
through the exercise of the diligence of a good
father of a family could have prevented or stopped
the act or omission."
The law requires common carriers to carry
passengers safely using the utmost diligence of
very cautious persons with due regard for all
circumstances.5 Such duty of a common carrier to
provide safety to its passengers so obligates it not
only during the course of the trip but for so long as
the passengers are within its premises and where
they ought to be in pursuance to the contract of
carriage.6 The statutory provisions render a
common carrier liable for death of or injury to
passengers (a) through the negligence or wilful
acts of its employees or b) on account of wilful acts
or negligence of other passengers or of strangers
if the common carriers employees through the
exercise of due diligence could have prevented or
stopped the act or omission.7 In case of such
death or injury, a carrier is presumed to have been
at fault or been negligent, and8 by simple proof of
injury, the passenger is relieved of the duty to still
establish the fault or negligence of the carrier or of
its employees and the burden shifts upon the
carrier to prove that the injury is due to an
unforeseen event or to force majeure.9 In the
absence of satisfactory explanation by the carrier
on how the accident occurred, which petitioners,
according to the appellate court, have failed to
show, the presumption would be that it has been at
fault,10 an exception from the general rule that
negligence must be proved.11

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 217612 and related provisions,
in conjunction with Article 2180,13 of the Civil
Code. The premise, however, for the employers
liability is negligence or fault on the part of the
employee. Once such fault is established, the
employer can then be made liable on the basis of
the presumption juris tantum that the employer
failed to exercise diligentissimi patris families in the
selection and supervision of its employees. The
liability is primary and can only be negated by
showing due diligence in the selection and
supervision of the employee, a factual matter that
has not been shown. Absent such a showing, one
might ask further, how then must the liability of the
common carrier, on the 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 219414 of the Civil Code can well
apply.15 In fine, a liability for tort may arise even
under a contract, where tort is that which breaches
the contract.16 Stated differently, when an act
which constitutes a breach of contract would have
itself constituted the source of a quasi-delictual
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.17
Regrettably for LRT, as well as perhaps the
surviving spouse and heirs of the late Nicanor
Navidad, this Court is concluded by the factual
finding of the Court of Appeals that "there is
nothing to link (Prudent) to the death of Nicanor
(Navidad), for the reason that the negligence of its
employee, Escartin, has not been duly proven x x
x." This finding of the appellate court is not without
substantial justification in our own review of the
records of the case.
There being, similarly, no showing that petitioner
Rodolfo Roman himself is guilty of any culpable
act or omission, he must also be absolved from

liability. Needless to say, the contractual tie

between the LRT and Navidad is not itself a
juridical relation between the latter and Roman;
thus, Roman can be made liable only for his own
fault or negligence.
The award of nominal damages in addition to
actual damages is untenable. Nominal damages
are adjudicated in order that a right of the plaintiff,
which has been violated or invaded by the
defendant, may be vindicated or recognized, and
not for the purpose of indemnifying the plaintiff for
any loss suffered by him.18 It is an established rule
that nominal damages cannot co-exist with
compensatory damages.19
WHEREFORE, the assailed decision of the
appellate court is AFFIRMED with MODIFICATION
but only in that (a) the award of nominal damages
is DELETED and (b) petitioner Rodolfo Roman is
absolved from liability. No costs.
SO ORDERED.

FIRST DIVISION
G.R. No. 132266 December 21, 1999
CASTILEX INDUSTRIAL
CORPORATION, petitioner,
vs.
VICENTE VASQUEZ, JR. and LUISA SO
VASQUEZ, and CEBU DOCTORS' HOSPITAL,
INC., respondents.
DAVIDE, JR., C.J.:
The pivotal issue in this petition is whether an
employer may be held vicariously liable for the
death resulting from the negligent operation by a
managerial employee of a company-issued
vehicle.
The antecedents, as succinctly summarized by the
Court of Appeals, are as follows:
On 28 August 1988, at around 1:30
to 2:00 in the morning, Romeo So
Vasquez, was driving a Honda
motorcycle around Fuente Osmea
Rotunda. He was traveling counterclockwise, (the normal flow of
traffic in a rotunda) but without any
protective helmet or goggles. He
was also only carrying a Student's

Permit to Drive at the time. Upon

the other hand, Benjamin Abad
[was a] manager of Appellant
Castilex Industrial Corporation,
registered owner [of] a Toyota HiLux Pick-up with plate no. GBW794. On the same date and time,
Abad drove the said company car
out of a parking lot but instead of
going around the Osmea rotunda
he made a short cut against [the]
flow of the traffic in proceeding to
his route to General Maxilom St. or
to Belvic St.
In the process, the motorcycle of
Vasquez and the pick-up of Abad
collided with each other causing
severe injuries to the former. Abad
stopped his vehicle and brought
Vasquez to the Southern Islands
Hospital and later to the Cebu
Doctor's Hospital.
On September 5, 1988, Vasquez
died at the Cebu Doctor's Hospital.
It was there that Abad signed an
acknowledgment of Responsible
Party (Exhibit K) wherein he
agreed to pay whatever hospital
bills, professional fees and other
incidental charges Vasquez may
incur.
After the police authorities had
conducted the investigation of the
accident, a Criminal Case was filed
against Abad but which was
subsequently dismissed for failure
to prosecute. So, the present
action
for
damages
was
commenced by Vicente Vasquez,
Jr. and Luisa So Vasquez, parents
of the deceased Romeo So
Vasquez, against Jose Benjamin
Abad and Castilex Industrial
Corporation. In the same action,
Cebu Doctor's Hospital intervened
to collect unpaid balance for the
medical expense given to Romeo
So Vasquez. 1
The trial court ruled in favor of private respondents
Vicente and Luisa Vasquez and ordered Jose
Benjamin Abad (hereafter ABAD) and petitioner
Castilex
Industrial
Corporation
(hereafter
CASTILEX) to pay jointly and solidarily (1)
Spouses Vasquez, the amounts of P8,000.00 for
burial expenses; P50,000.00 as moral damages;

P10,000.00 as attorney's fees; and P778,752.00

for loss of earning capacity; and (2) Cebu Doctor's
Hospital, the sum of P50,927.83 for unpaid
medical and hospital bills at 3% monthly interest
from 27 July 1989 until fully paid, plus the costs of
litigation. 2
CASTILEX and ABAD separately appealed the
decision.
In its decision 3 of 21 May 1997, the Court of
Appeals affirmed the ruling of the trial court holding
ABAD and CASTILEX liable but held that the
liability of the latter is "only vicarious and not
solidary" with the former. It reduced the award of
damages representing loss of earning capacity
from P778,752.00 to P214,156.80; and the interest
on the hospital and medical bills, from 3% per
month to 12% per annum from 5 September 1988
until fully paid.
Upon CASTILEX's motion for reconsideration, the
Court of Appeals modified its decision by (1)
reducing the award of moral damages from
P50,000 to P30,000 in view of the deceased's
contributory negligence; (b) deleting the award of
attorney's fees for lack of evidence; and (c)
reducing the interest on hospital and medical bills
to 6% per annum from 5 September 1988 until fully
paid. 4
Hence, CASTILEX filed the instant petition
contending that the Court of Appeals erred in (1)
applying to the case the fifth paragraph of Article
2180 of the Civil Code, instead of the fourth
paragraph thereof; (2) that as a managerial
employee, ABAD was deemed to have been
always acting within the scope of his assigned task
even outside office hours because he was using a
vehicle issued to him by petitioner; and (3) ruling
that petitioner had the burden to prove that the
employee was not acting within the scope of his
assigned task.

petitioner cannot escape liability therefor. They

moreover argue that the Court of Appeals erred in
reducing the amount of compensatory damages
when the award made by the trial court was borne
both by evidence adduced during the trial
regarding deceased's wages and by jurisprudence
on life expectancy. Moreover, they point out that
the petition is procedurally not acceptable on the
following grounds: (1) lack of an explanation for
serving the petition upon the Court of Appeals by
registered mail, as required under Section 11, Rule
13 of the Rules of Civil Procedure; and (2) lack of
a statement of the dates of the expiration of the
original reglementary period and of the filing of the
motion for extension of time to file a petition for
review.
For its part, respondent Cebu Doctor's Hospital
maintains that petitioner CASTILEX is indeed
vicariously liable for the injuries and subsequent
death of Romeo Vasquez caused by ABAD, who
was on his way home from taking snacks after
doing overtime work for petitioner. Although the
incident occurred when ABAD was not working
anymore "the inescapable fact remains that said
employee would not have been situated at such
time and place had he not been required by
petitioner to do overtime work." Moreover, since
petitioner adopted the evidence adduced by
ABAD, it cannot, as the latter's employer, inveigle
itself from the ambit of liability, and is thus
estopped by the records of the case, which it failed
to refute.
We shall first address the issue raised by the
private respondents regarding some alleged
procedural lapses in the petition.
Private respondent's contention of petitioner's
violation of Section 11 of Rule 13 and Section 4 of
Rule 45 of the 1997 Rules of Civil Procedure holds
no water.
Sec. 11 of Rule 13 provides:

Jose Benjamin ABAD merely adopted the

statement of facts of petitioner which holds fast on
the theory of negligence on the part of the
deceased.
On the other hand, respondents Spouses Vasquez
argue that their son's death was caused by the
negligence of petitioner's employee who was
driving a vehicle issued by petitioner and who was
on his way home from overtime work for petitioner;
and that petitioner is thus liable for the resulting
injury and subsequent death of their son on the
basis of the fifth paragraph of Article 2180. Even if
the fourth paragraph of Article 2180 were applied,

Sec. 11. Priorities in modes of

services and filing. Whenever
practicable, the service and filing of
pleadings and other papers shall
be done personally. Except with
respect to papers emanating from
the court, a resort to other modes
must be accompanied by a written
explanation why the service or
filing was not done personally. A
violation of this Rule may be cause
to consider the paper as not filed.

The explanation why service of a copy of the

petition upon the Court of Appeals was done by
registered mail is found on Page 28 of the petition.
Thus, there has been compliance with the
aforequoted provision.
As regards the allegation of violation of the
material data rule under Section 4 of Rule 45, the
same is unfounded. The material dates required to
be stated in the petition are the following: (1) the
date of receipt of the judgment or final order or
resolution subject of the petition; (2) the date of
filing of a motion for new trial or reconsideration, if
any; and (3) the date of receipt of the notice of the
denial of the motion. Contrary to private
respondent's claim, the petition need not indicate
the dates of the expiration of the original
reglementary period and the filing of a motion for
extension of time to file the petition. At any rate,
aside from the material dates required under
Section 4 of Rule 45, petitioner CASTILEX also
stated in the first page of the petition the date it
filed the motion for extension of time to file the
petition.
Now on the merits of the case.
The negligence of ABAD is not an issue at this
instance. Petitioner CASTILEX presumes said
negligence but claims that it is not vicariously liable
for the injuries and subsequent death caused by
ABAD.
Petitioner contends that the fifth paragraph of
Article 2180 of the Civil Code should only apply to
instances where the employer is not engaged in
business or industry. Since it is engaged in the
business of manufacturing and selling furniture it is
therefore not covered by said provision. Instead,
the fourth paragraph should apply.
Petitioner's interpretation of the fifth paragraph is
not accurate. The phrase "even though the former
are not engaged in any business or industry" found
in the fifth paragraph should be interpreted to
mean that it is not necessary for the employer to
be engaged in any business or industry to be liable
for the negligence of his employee who is acting
within the scope of his assigned task. 5
A distinction must be made between the two
provisions to determine what is applicable. Both
provisions apply to employers: the fourth
paragraph, to owners and managers of an
establishment or enterprise; and the fifth
paragraph, to employers in general, whether or not
engaged in any business or industry. The fourth
paragraph covers negligent acts of employees

committed either in the service of the branches or

on the occasion of their functions, while the fifth
paragraph encompasses negligent acts of
employees acting within the scope of their
assigned task. The latter is an expansion of the
former in both employer coverage and acts
included. Negligent acts of employees, whether or
not the employer is engaged in a business or
industry, are covered so long as they were acting
within the scope of their assigned task, even
though committed neither in the service of the
branches nor on the occasion of their functions.
For, admittedly, employees oftentimes wear
different hats. They perform functions which are
beyond their office, title or designation but which,
nevertheless, are still within the call of duty.
This court has applied the fifth paragraph to cases
where the employer was engaged in a business or
industry such as truck operators 6 and banks. 7 The
Court of Appeals cannot, therefore, be faulted in
applying the said paragraph of Article 2180 of the
Civil Code to this case.
Under the fifth paragraph of Article 2180, whether
or not engaged in any business or industry, an
employer is liable for the torts committed by
employees within the scope of his assigned tasks.
But it is necessary to establish the employeremployee relationship; once this is done, the
plaintiff must show, to hold the employer liable,
that the employee was acting within the scope of
his assigned task when the tort complained of was
committed. It is only then that the employer may
find it necessary to interpose the defense of due
diligence in the selection and supervision of the
employee. 8
It is undisputed that ABAD was a Production
Manager of petitioner CASTILEX at the time of the
tort occurrence. As to whether he was acting within
the scope of his assigned task is a question of fact,
which the court a quo and the Court of Appeals
resolved in the affirmative.
Well-entrenched in our jurisprudence is the rule
that the factual findings of the Court of Appeals are
entitled to great respect, and even finality at times.
This rule is, however, subject to exceptions such
as when the conclusion is grounded on
speculations, surmises, or conjectures. 9 Such
exception obtain in the present case to warrant
review by this Court of the finding of the Court of
Appeals that since ABAD was driving petitioner's
vehicle he was acting within the scope of his duties
as a manager.

Before we pass upon the issue of whether ABAD

was performing acts within the range of his
employment, we shall first take up the other
reason invoked by the Court of Appeals in holding
petitioner CASTILEX vicariously liable for ABAD's
negligence, i.e., that the petitioner did not present
evidence that ABAD was not acting within the
scope of his assigned tasks at the time of the
motor vehicle mishap. Contrary to the ruling of the
Court of Appeals, it was not incumbent upon the
petitioner to prove the same. It was enough for
petitioner CASTILEX to deny that ABAD was
acting within the scope of his duties; petitioner was
not under obligation to prove this negative
averment. Ei incumbit probatio qui dicit, non qui
negat (He who asserts, not he who denies, must
prove). The Court has consistently applied the
ancient rule that if the plaintiff, upon whom rests
the burden of proving his cause of action, fails to
show in a satisfactory manner facts which he
bases his claim, the defendant is under no
obligation to prove his exception or defense. 10
Now on the issue of whether the private
respondents have sufficiently established that
ABAD was acting within the scope of his assigned
tasks.
ABAD, who was presented as a hostile witness,
testified that at the time of the incident, he was
driving a company-issued vehicle, registered under
the name of petitioner. He was then leaving the
restaurant where he had some snacks and had a
chat with his friends after having done overtime
work for the petitioner.
No absolutely hard and fast rule can be stated
which will furnish the complete answer to the
problem of whether at a given moment, an
employee is engaged in his employer's business in
the operation of a motor vehicle, so as to fix
liability upon the employer because of the
employee's action or inaction; but rather, the result
varies with each state of facts. 11
In Filamer Christian Institute v. Intermediate
Appellant Court, 12 this Court had the occasion to
hold that acts done within the scope of the
employee's assigned tasks includes "any act done
by an employee in furtherance of the interests of
the employer or for the account of the employer at
the time of the infliction of the injury or damages."
The court a quo and the Court of Appeals were
one in holding that the driving by a manager of a
company-issued vehicle is within the scope of his
assigned tasks regardless of the time and
circumstances.

We do not agree. The mere fact that ABAD was

using a service vehicle at the time of the injurious
incident is not of itself sufficient to charge
petitioner with liability for the negligent operation of
said vehicle unless it appears that he was
operating the vehicle within the course or scope of
his employment.
The following are principles in American
Jurisprudence on the employer's liability for the
injuries inflicted by the negligence of an employee
in the use of an employer's motor vehicle:
I. Operation of Employer's Motor Vehicle in
Going to
or from Meals
It has been held that an employee who uses his
employer's vehicle in going from his work to a
place where he intends to eat or in returning to
work from a meal is not ordinarily acting within the
scope of his employment in the absence of
evidence of some special business benefit to the
employer. Evidence that by using the employer's
vehicle to go to and from meals, an employee is
enabled to reduce his time-off and so devote more
time to the performance of his duties supports the
finding that an employee is acting within the scope
of his employment while so driving the vehicle. 13
II. Operation of Employer's Vehicle in
Going to
or from Work
In the same vein, traveling to and from the place of
work is ordinarily a personal problem or concern of
the employee, and not a part of his services to his
employer. Hence, in the absence of some special
benefit to the employer other than the mere
performance of the services available at the place
where he is needed, the employee is not acting
within the scope of his employment even though
he uses his employer's motor vehicle. 14
The employer may, however, be liable where he
derives some special benefit from having the
employee drive home in the employer's vehicle as
when the employer benefits from having the
employee at work earlier and, presumably,
spending more time at his actual duties. Where the
employee's duties require him to circulate in a
general area with no fixed place or hours of work,
or to go to and from his home to various outside
places of work, and his employer furnishes him
with a vehicle to use in his work, the courts have
frequently applied what has been called the

"special errand" or "roving commission" rule, under

which it can be found that the employee continues
in the service of his employer until he actually
reaches home. However, even if the employee be
deemed to be acting within the scope of his
employment in going to or from work in his
employer's vehicle, the employer is not liable for
his negligence where at the time of the accident,
the employee has left the direct route to his work
or back home and is pursuing a personal errand of
his own.
III. Use of Employer's Vehicle Outside
Regular Working Hours
An employer who loans his motor vehicle to an
employee for the latter's personal use outside of
regular working hours is generally not liable for the
employee's negligent operation of the vehicle
during the period of permissive use, even where
the employer contemplates that a regularly
assigned motor vehicle will be used by the
employee for personal as well as business
purposes and there is some incidental benefit to
the employer. Even where the employee's
personal purpose in using the vehicle has been
accomplished and he has started the return trip to
his house where the vehicle is normally kept, it has
been held that he has not resumed his
employment, and the employer is not liable for the
employee's negligent operation of the vehicle
during the return trip. 15
The foregoing principles and jurisprudence are
applicable in our jurisdiction albeit based on the
doctrine of respondent superior, not on the
principle of bonus pater familias as in ours.
Whether the fault or negligence of the employee is
conclusive on his employer as in American law or
jurisprudence, or merely gives rise to the
presumption juris tantum of negligence on the part
of the employer as in ours, it is indispensable that
the employee was acting in his employer's
business or within the scope of his assigned
task. 16
In the case at bar, it is undisputed that ABAD did
some overtime work at the petitioner's office, which
was located in Cabangcalan, Mandaue City.
Thereafter, he went to Goldie's Restaurant in
Fuente Osmea, Cebu City, which is about seven
kilometers away from petitioner's place of
business. 17 A witness for the private respondents,
a sidewalk vendor, testified that Fuente Osmea is
a "lively place" even at dawn because Goldie's
Restaurant and Back Street were still open and
people
were
drinking
thereat.
Moreover,
prostitutes, pimps, and drug addicts littered the
place. 18

At the Goldie's Restaurant, ABAD took some

snacks and had a chat with friends. It was when
ABAD was leaving the restaurant that the incident
in question occurred. That same witness for the
private respondents testified that at the time of the
vehicular accident, ABAD was with a woman in his
car, who then shouted: "Daddy, Daddy!" 19 This
woman could not have been ABAD's daughter, for
ABAD was only 29 years old at the time.
To the mind of this Court, ABAD was engaged in
affairs of his own or was carrying out a personal
purpose not in line with his duties at the time he
figured in a vehicular accident. It was then about
2:00 a.m. of 28 August 1988, way beyond the
normal working hours. ABAD's working day had
ended; his overtime work had already been
completed. His being at a place which, as
petitioner put it, was known as a "haven for
prostitutes, pimps, and drug pushers and addicts,"
had no connection to petitioner's business; neither
had it any relation to his duties as a manager.
Rather, using his service vehicle even for personal
purposes was a form of a fringe benefit or one of
the perks attached to his position.
Since there is paucity of evidence that ABAD was
acting within the scope of the functions entrusted
to him, petitioner CASTILEX had no duty to show
that it exercised the diligence of a good father of a
family in providing ABAD with a service vehicle.
Thus, justice and equity require that petitioner be
relieved of vicarious liability for the consequences
of the negligence of ABAD in driving its vehicle. 20
WHEREFORE, the petition is GRANTED, and the
appealed decision and resolution of the Court of
Appeals is AFFIRMED with the modification that
petitioner Castilex Industrial Corporation be
absolved of any liability for the damages caused
by its employee, Jose Benjamin Abad.
SO ORDERED.

EN BANC
G.R. No. L-11154

March 21, 1916

E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE
ISLANDS, defendant-appellant.
TRENT, J.:

This is an appeal by both parties from a judgment

of the Court of First Instance of the city of Manila in
favor of the plaintiff for the sum of P14,741,
together with the costs of the cause.

parietal region, a would in the same place

and in the back part of his head, while
blood issued from his nose and he was
entirely unconscious.

Counsel for the plaintiff insist that the trial court

erred (1) "in limiting the general damages which
the plaintiff suffered to P5,000, instead of P25,000
as claimed in the complaint," and (2) "in limiting the
time when plaintiff was entirely disabled to two
months and twenty-one days and fixing the
damage accordingly in the sum of P2,666, instead
of P6,000 as claimed by plaintiff in his complaint."

The marks revealed that he had one or

more fractures of the skull and that the
grey matter and brain was had suffered
material injury. At ten o'clock of the night in
question, which was the time set for
performing the operation, his pulse was so
weak and so irregular that, in his opinion,
there was little hope that he would live. His
right leg was broken in such a way that the
fracture extended to the outer skin in such
manner that it might be regarded as double
and the would be exposed to infection, for
which reason it was of the most serious
nature.

The Attorney-General on behalf of the defendant

urges that the trial court erred: (a) in finding that
the collision between the plaintiff's motorcycle and
the ambulance of the General Hospital was due to
the negligence of the chauffeur; (b) in holding that
the Government of the Philippine Islands is liable
for the damages sustained by the plaintiff as a
result of the collision, even if it be true that the
collision was due to the negligence of the
chauffeur; and (c) in rendering judgment against
the defendant for the sum of P14,741.
The trial court's findings of fact, which are fully
supported by the record, are as follows:
It is a fact not disputed by counsel for the
defendant that when the plaintiff, riding on
a motorcycle, was going toward the
western part of Calle Padre Faura, passing
along the west side thereof at a speed of
ten to twelve miles an hour, upon crossing
Taft Avenue and when he was ten feet
from the southwestern intersection of said
streets, the General Hospital ambulance,
upon reaching said avenue, instead of
turning toward the south, after passing the
center thereof, so that it would be on the
left side of said avenue, as is prescribed by
the ordinance and the Motor Vehicle Act,
turned suddenly and unexpectedly and
long before reaching the center of the
street, into the right side of Taft Avenue,
without having sounded any whistle or
horn, by which movement it struck the
plaintiff, who was already six feet from the
southwestern point or from the post place
there.
By reason of the resulting collision, the
plaintiff was so severely injured that,
according to Dr. Saleeby, who examined
him on the very same day that he was
taken to the General Hospital, he was
suffering from a depression in the left

At another examination six days before the

day of the trial, Dr. Saleeby noticed that the
plaintiff's leg showed a contraction of an
inch and a half and a curvature that made
his leg very weak and painful at the point of
the fracture. Examination of his head
revealed a notable readjustment of the
functions of the brain and nerves. The
patient apparently was slightly deaf, had a
light weakness in his eyes and in his
mental condition. This latter weakness was
always noticed when the plaintiff had to do
any difficult mental labor, especially when
he attempted to use his money for
mathematical calculations.
According to the various merchants who
testified as witnesses, the plaintiff's mental
and physical condition prior to the accident
was excellent, and that after having
received the injuries that have been
discussed, his physical condition had
undergone a noticeable depreciation, for
he had lost the agility, energy, and ability
that he had constantly displayed before the
accident as one of the best constructors of
wooden buildings and he could not now
earn even a half of the income that he had
secured for his work because he had lost
50 per cent of his efficiency. As a
contractor, he could no longer, as he had
before done, climb up ladders and
scaffoldings to reach the highest parts of
the building.
As a consequence of the loss the plaintiff
suffered in the efficiency of his work as a
contractor, he had to dissolved the
partnership he had formed with the

engineer. Wilson, because he was

incapacitated from making mathematical
calculations on account of the condition of
his leg and of his mental faculties, and he
had to give up a contract he had for the
construction of the Uy Chaco building."
We may say at the outset that we are in full accord
with the trial court to the effect that the collision
between the plaintiff's motorcycle and the
ambulance of the General Hospital was due solely
to the negligence of the chauffeur.
The two items which constitute a part of the
P14,741 and which are drawn in question by the
plaintiff are (a) P5,000, the award awarded for
permanent injuries, and (b) the P2,666, the
amount allowed for the loss of wages during the
time the plaintiff was incapacitated from pursuing
his occupation. We find nothing in the record which
would justify us in increasing the amount of the
first. As to the second, the record shows, and the
trial court so found, that the plaintiff's services as a
contractor were worth P1,000 per month. The
court, however, limited the time to two months and
twenty-one days, which the plaintiff was actually
confined in the hospital. In this we think there was
error, because it was clearly established that the
plaintiff was wholly incapacitated for a period of six
months. The mere fact that he remained in the
hospital only two months and twenty-one days
while the remainder of the six months was spent in
his home, would not prevent recovery for the
whole time. We, therefore, find that the amount of
damages sustained by the plaintiff, without any
fault on his part, is P18,075.
As the negligence which caused the collision is a
tort committed by an agent or employee of the
Government, the inquiry at once arises whether
the Government is legally-liable for the damages
resulting therefrom.
Act No. 2457, effective February 3, 1915, reads:
An Act authorizing E. Merritt to bring suit
against the Government of the Philippine
Islands and authorizing the AttorneyGeneral of said Islands to appear in said
suit.
Whereas a claim has been filed against the
Government of the Philippine Islands by
Mr. E. Merritt, of Manila, for damages
resulting from a collision between his
motorcycle and the ambulance of the
General Hospital on March twenty-fifth,
nineteen hundred and thirteen;

Whereas it is not known who is responsible

for the accident nor is it possible to
determine the amount of damages, if any,
to which the claimant is entitled; and
Whereas the Director of Public Works and
the Attorney-General recommended that
an Act be passed by the Legislature
authorizing Mr. E. Merritt to bring suit in the
courts against the Government, in order
that said questions may be decided: Now,
therefore,
By authority of the United States, be it
enacted by the Philippine Legislature, that:
SECTION 1. E. Merritt is hereby authorized
to bring suit in the Court of First Instance of
the city of Manila against the Government
of the Philippine Islands in order to fix the
responsibility for the collision between his
motorcycle and the ambulance of the
General Hospital, and to determine the
amount of the damages, if any, to which
Mr. E. Merritt is entitled on account of said
collision, and the Attorney-General of the
Philippine Islands is hereby authorized and
directed to appear at the trial on the behalf
of the Government of said Islands, to
defendant said Government at the same.
SEC. 2. This Act shall take effect on its
passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above quoted
Act, simply waive its immunity from suit or did it
also concede its liability to the plaintiff? If only the
former, then it cannot be held that the Act created
any new cause of action in favor of the plaintiff or
extended the defendant's liability to any case not
previously recognized.
All admit that the Insular Government (the
defendant) cannot be sued by an individual without
its consent. It is also admitted that the instant case
is one against the Government. As the consent of
the Government to be sued by the plaintiff was
entirely voluntary on its part, it is our duty to look
carefully into the terms of the consent, and render
judgment accordingly.
The plaintiff was authorized to bring this action
against the Government "in order to fix the
responsibility for the collision between his
motorcycle and the ambulance of the General
Hospital and to determine the amount of the

damages, if any, to which Mr. E. Merritt is entitled

on account of said collision, . . . ." These were the
two questions submitted to the court for
determination. The Act was passed "in order that
said questions may be decided." We have
"decided" that the accident was due solely to the
negligence of the chauffeur, who was at the time
an employee of the defendant, and we have also
fixed the amount of damages sustained by the
plaintiff as a result of the collision. Does the Act
authorize us to hold that the Government is legally
liable for that amount? If not, we must look
elsewhere for such authority, if it exists.
The Government of the Philippine Islands having
been "modeled after the Federal and State
Governments in the United States," we may look to
the decisions of the high courts of that country for
aid in determining the purpose and scope of Act
No. 2457.
In the United States the rule that the state is not
liable for the torts committed by its officers or
agents whom it employs, except when expressly
made so by legislative enactment, is well settled.
"The Government," says Justice Story, "does not
undertake to guarantee to any person the fidelity of
the officers or agents whom it employs, since that
would involve it in all its operations in endless
embarrassments, difficulties and losses, which
would be subversive of the public interest."
(Claussen vs. City of Luverne, 103 Minn., 491,
citing U. S. vs. Kirkpatrick, 9 Wheat, 720; 6 L. Ed.,
199; and Beers vs. States, 20 How., 527; 15 L.
Ed., 991.)
In the case of Melvin vs. State (121 Cal., 16), the
plaintiff sought to recover damages from the state
for personal injuries received on account of the
negligence of the state officers at the state fair, a
state institution created by the legislature for the
purpose of improving agricultural and kindred
industries; to disseminate information calculated to
educate and benefit the industrial classes; and to
advance by such means the material interests of
the state, being objects similar to those sought by
the public school system. In passing upon the
question of the state's liability for the negligent acts
of its officers or agents, the court said:
No claim arises against any government is
favor of an individual, by reason of the
misfeasance, laches, or unauthorized
exercise of powers by its officers or agents.
(Citing Gibbons vs. U. S., 8 Wall., 269;
Clodfelter vs. State, 86 N. C., 51, 53; 41
Am. Rep., 440; Chapman vs. State, 104
Cal., 690; 43 Am. St. Rep., 158; Green vs.
State, 73 Cal., 29; Bourn vs. Hart, 93 Cal.,

321; 27 Am. St. Rep., 203; Story on

Agency, sec. 319.)
As to the scope of legislative enactments
permitting individuals to sue the state where the
cause of action arises out of either fort or contract,
the rule is stated in 36 Cyc., 915, thus:
By consenting to be sued a state simply
waives its immunity from suit. It does not
thereby concede its liability to plaintiff, or
create any cause of action in his favor, or
extend its liability to any cause not
previously recognized. It merely gives a
remedy to enforce a preexisting liability
and submits itself to the jurisdiction of the
court, subject to its right to interpose any
lawful defense.
In Apfelbacher vs. State (152 N. W., 144,
advanced sheets), decided April 16, 1915, the Act
of 1913, which authorized the bringing of this suit,
read:
SECTION 1. Authority is hereby given to
George Apfelbacher, of the town of
Summit, Waukesha County, Wisconsin, to
bring suit in such court or courts and in
such form or forms as he may be advised
for the purpose of settling and determining
all controversies which he may now have
with the State of Wisconsin, or its duly
authorized officers and agents, relative to
the mill property of said George
Apfelbacher, the fish hatchery of the State
of Wisconsin on the Bark River, and the
mill property of Evan Humphrey at the
lower end of Nagawicka Lake, and relative
to the use of the waters of said Bark River
and Nagawicka Lake, all in the county of
Waukesha, Wisconsin.
In determining the scope of this act, the court said:
Plaintiff claims that by the enactment of
this law the legislature admitted liability on
the part of the state for the acts of its
officers, and that the suit now stands just
as it would stand between private parties. It
is difficult to see how the act does, or was
intended to do, more than remove the
state's immunity from suit. It simply gives
authority to commence suit for the purpose
of settling plaintiff's controversies with the
estate. Nowhere in the act is there a
whisper or suggestion that the court or
courts in the disposition of the suit shall
depart from well established principles of

law, or that the amount of damages is the

only question to be settled. The act opened
the door of the court to the plaintiff. It did
not pass upon the question of liability, but
left the suit just where it would be in the
absence of the state's immunity from suit.
If the Legislature had intended to change
the rule that obtained in this state so long
and to declare liability on the part of the
state, it would not have left so important a
matter to mere inference, but would have
done so in express terms. (Murdock Grate
Co. vs. Commonwealth, 152 Mass., 28; 24
N.E., 854; 8 L. R. A., 399.)
In Denning vs. State (123 Cal., 316), the
provisions of the Act of 1893, relied upon and
considered, are as follows:
All persons who have, or shall hereafter
have, claims on contract or for negligence
against the state not allowed by the state
board of examiners, are hereby authorized,
on the terms and conditions herein
contained, to bring suit thereon against the
state in any of the courts of this state of
competent jurisdiction, and prosecute the
same to final judgment. The rules of
practice in civil cases shall apply to such
suits, except as herein otherwise provided.
And the court said:
This statute has been considered by this
court in at least two cases, arising under
different facts, and in both it was held that
said statute did not create any liability or
cause of action against the state where
none existed before, but merely gave an
additional remedy to enforce such liability
as would have existed if the statute had not
been enacted. (Chapman vs. State, 104
Cal., 690; 43 Am. St. Rep., 158; Melvin vs.
State, 121 Cal., 16.)
A statute of Massachusetts enacted in 1887 gave
to the superior court "jurisdiction of all claims
against the commonwealth, whether at law or in
equity," with an exception not necessary to be here
mentioned. In construing this statute the court,
in Murdock Grate Co. vs. Commonwealth (152
Mass., 28), said:
The statute we are discussing disclose no
intention to create against the state a new
and heretofore unrecognized class of
liabilities, but only an intention to provide a

judicial tribunal where well recognized

existing liabilities can be adjudicated.
In Sipple vs. State (99 N. Y., 284), where the
board of the canal claims had, by the terms of the
statute of New York, jurisdiction of claims for
damages for injuries in the management of the
canals such as the plaintiff had sustained, Chief
Justice Ruger remarks: "It must be conceded that
the state can be made liable for injuries arising
from the negligence of its agents or servants, only
by force of some positive statute assuming such
liability."
It being quite clear that Act No. 2457 does not
operate to extend the Government's liability to any
cause not previously recognized, we will now
examine the substantive law touching the
defendant's liability for the negligent acts of its
officers, agents, and employees. Paragraph 5 of
article 1903 of the Civil Code reads:
The state is liable in this sense when it acts
through a special agent, but not when the
damage should have been caused by the
official to whom properly it pertained to do
the act performed, in which case the
provisions of the preceding article shall be
applicable.
The supreme court of Spain in defining the scope
of this paragraph said:
That the obligation to indemnify for
damages which a third person causes to
another by his fault or negligence is based,
as is evidenced by the same Law 3, Title
15, Partida 7, on that the person obligated,
by his own fault or negligence, takes part in
the act or omission of the third party who
caused the damage. It follows therefrom
that the state, by virtue of such provisions
of law, is not responsible for the damages
suffered
by
private
individuals
in
consequence of acts performed by its
employees in the discharge of the
functions pertaining to their office, because
neither fault nor even negligence can be
presumed on the part of the state in the
organization of branches of public service
and in the appointment of its agents; on the
contrary, we must presuppose all foresight
humanly possible on its part in order that
each branch of service serves the general
weal an that of private persons interested
in its operation. Between these latter and
the state, therefore, no relations of a
private nature governed by the civil law can

arise except in a case where the state acts

as a judicial person capable of acquiring
rights
and
contracting
obligations.
(Supreme Court of Spain, January 7, 1898;
83 Jur. Civ., 24.)
That the Civil Code in chapter 2, title 16,
book 4, regulates the obligations which
arise out of fault or negligence; and
whereas in the first article thereof. No.
1902, where the general principle is laid
down that where a person who by an act or
omission causes damage to another
through fault or negligence, shall be
obliged to repair the damage so done,
reference is made to acts or omissions of
the persons who directly or indirectly cause
the damage, the following articles refers to
this persons and imposes an identical
obligation upon those who maintain fixed
relations of authority and superiority over
the authors of the damage, because the
law presumes that in consequence of such
relations the evil caused by their own fault
or negligence is imputable to them. This
legal presumption gives way to proof,
however, because, as held in the last
paragraph of article 1903, responsibility for
acts of third persons ceases when the
persons mentioned in said article prove
that they employed all the diligence of a
good father of a family to avoid the
damage, and among these persons, called
upon to answer in a direct and not a
subsidiary manner, are found, in addition to
the mother or the father in a proper case,
guardians and owners or directors of an
establishment or enterprise, the state, but
not always, except when it acts through the
agency of a special agent, doubtless
because and only in this case, the fault or
negligence, which is the original basis of
this kind of objections, must be presumed
to lie with the state.
That although in some cases the state
might by virtue of the general principle set
forth in article 1902 respond for all the
damage that is occasioned to private
parties by orders or resolutions which by
fault or negligence are made by branches
of the central administration acting in the
name and representation of the state itself
and as an external expression of its
sovereignty in the exercise of its executive
powers, yet said article is not applicable in
the case of damages said to have been
occasioned to the petitioners by an
executive official, acting in the exercise of

his powers, in proceedings to enforce the

collections of certain property taxes owing
by the owner of the property which they
hold in sublease.
That the responsibility of the state is limited
by article 1903 to the case wherein it
acts through a special agent(and a special
agent, in the sense in which these words
are employed, is one who receives a
definite and fixed order or commission,
foreign to the exercise of the duties of his
office if he is a special official) so that in
representation of the state and being
bound to act as an agent thereof, he
executes the trust confided to him. This
concept does not apply to any executive
agent who is an employee of the acting
administration and who on his own
responsibility performs the functions which
are inherent in and naturally pertain to his
office and which are regulated by law and
the regulations." (Supreme Court of Spain,
May 18, 1904; 98 Jur. Civ., 389, 390.)
That according to paragraph 5 of article
1903 of the Civil Code and the principle
laid down in a decision, among others, of
the 18th of May, 1904, in a damage case,
the responsibility of the state is limited to
that which it contracts through a special
agent, duly empowered by a definite order
or commission to perform some act or
charged with some definite purpose which
gives rise to the claim, and not where the
claim is based on acts or omissions
imputable to a public official charged with
some administrative or technical office who
can be held to the proper responsibility in
the manner laid down by the law of civil
responsibility. Consequently, the trial court
in not so deciding and in sentencing the
said entity to the payment of damages,
caused by an official of the second class
referred to, has by erroneous interpretation
infringed the provisions of articles 1902
and 1903 of the Civil Code. (Supreme
Court of Spain, July 30, 1911; 122 Jur.
Civ., 146.)
It is, therefore, evidence that the State (the
Government of the Philippine Islands) is only
liable, according to the above quoted decisions of
the Supreme Court of Spain, for the acts of its
agents, officers and employees when they act as
special agents within the meaning of paragraph 5
of article 1903, supra, and that the chauffeur of the
ambulance of the General Hospital was not such
an agent.

For the foregoing reasons, the judgment appealed

from must be reversed, without costs in this
instance. Whether the Government intends to
make itself legally liable for the amount of
damages above set forth, which the plaintiff has
sustained by reason of the negligent acts of one of
its employees, by legislative enactment and by
appropriating sufficient funds therefor, we are not
called upon to determine. This matter rests solely
with the Legislature and not with the courts.

SECOND DIVISION
G.R. No. 126780

February 17, 2005

YHT REALTY
CORPORATION, ERLINDA
LAINEZ
and
ANICIA
PAYAM, petitioners,
vs.
THE COURT OF APPEALS and MAURICE
McLOUGHLIN, respondents.
TINGA, J.:
The primary question of interest before this Court
is the only legal issue in the case: It is whether a
hotel may evade liability for the loss of items left
with it for safekeeping by its guests, by having
these guests execute written waivers holding the
establishment or its employees free from blame for
such loss in light of Article 2003 of the Civil Code
which voids such waivers.
Before this Court is a Rule 45 petition for review of
the Decision1 dated 19 October 1995 of the Court
of Appeals which affirmed the Decision2 dated 16
December 1991 of the Regional Trial Court (RTC),
Branch 13, of Manila, finding YHT Realty
Corporation, Brunhilda Mata-Tan (Tan), Erlinda
Lainez (Lainez) and Anicia Payam (Payam) jointly
and solidarily liable for damages in an action filed
by Maurice McLoughlin (McLoughlin) for the loss
of his American and Australian dollars deposited in
the safety deposit box of Tropicana Copacabana
Apartment Hotel, owned and operated by YHT
Realty Corporation.
The factual backdrop of the case follow.
Private respondent McLoughlin, an Australian
businessman-philanthropist, used to stay at
Sheraton Hotel during his trips to the Philippines
prior to 1984 when he met Tan. Tan befriended
McLoughlin by showing him around, introducing
him to important people, accompanying him in
visiting impoverished street children and assisting

him in buying gifts for the children and in

distributing the same to charitable institutions for
poor children. Tan convinced McLoughlin to
transfer from Sheraton Hotel to Tropicana where
Lainez, Payam and Danilo Lopez were employed.
Lopez served as manager of the hotel while Lainez
and Payam had custody of the keys for the safety
deposit boxes of Tropicana. Tan took care of
McLoughlin's booking at the Tropicana where he
started staying during his trips to the Philippines
from December 1984 to September 1987.3
On 30 October 1987, McLoughlin arrived from
Australia and registered with Tropicana. He rented
a safety deposit box as it was his practice to rent a
safety deposit box every time he registered at
Tropicana in previous trips. As a tourist,
McLoughlin was aware of the procedure observed
by Tropicana relative to its safety deposit boxes.
The safety deposit box could only be opened
through the use of two keys, one of which is given
to the registered guest, and the other remaining in
the possession of the management of the hotel.
When a registered guest wished to open his safety
deposit box, he alone could personally request the
management who then would assign one of its
employees to accompany the guest and assist him
in opening the safety deposit box with the two
keys.4
McLoughlin allegedly placed the following in his
safety deposit box: Fifteen Thousand US Dollars
(US$15,000.00) which he placed in two envelopes,
one envelope containing Ten Thousand US
Dollars (US$10,000.00) and the other envelope
Five Thousand US Dollars (US$5,000.00); Ten
Thousand Australian Dollars (AUS$10,000.00)
which he also placed in another envelope; two (2)
other envelopes containing letters and credit
cards; two (2) bankbooks; and a checkbook,
arranged side by side inside the safety deposit
box.5
On 12 December 1987, before leaving for a brief
trip to Hongkong, McLoughlin opened his safety
deposit box with his key and with the key of the
management and took therefrom the envelope
containing
Five
Thousand
US
Dollars
(US$5,000.00), the envelope containing Ten
Thousand Australian Dollars (AUS$10,000.00), his
passports and his credit cards.6 McLoughlin left the
other items in the box as he did not check out of
his room at the Tropicana during his short visit to
Hongkong. When he arrived in Hongkong, he
opened the envelope which contained Five
Thousand US Dollars (US$5,000.00) and
discovered upon counting that only Three
Thousand US Dollars (US$3,000.00) were
enclosed therein.7 Since he had no idea whether

somebody else had tampered with his safety

deposit box, he thought that it was just a result of
bad accounting since he did not spend anything
from that envelope.8

I promise to pay Mr. Maurice McLoughlin the

amount of AUS$4,000.00 and US$2,000.00 or its
equivalent in Philippine currency on or before May
5, 1988.14

After returning to Manila, he checked out of

Tropicana on 18 December 1987 and left for
Australia. When he arrived in Australia, he
discovered that the envelope with Ten Thousand
US Dollars (US$10,000.00) was short of Five
Thousand US Dollars (US$5,000). He also noticed
that the jewelry which he bought in Hongkong and
stored in the safety deposit box upon his return to
Tropicana was likewise missing, except for a
diamond bracelet.9

Lopez requested Tan to sign the promissory note

which the latter did and Lopez also signed as a
witness. Despite the execution of promissory note
by Tan, McLoughlin insisted that it must be the
hotel who must assume responsibility for the loss
he suffered. However, Lopez refused to accept the
responsibility relying on the conditions for renting
the safety deposit box entitled "Undertaking For
the Use Of Safety Deposit Box,"15 specifically
paragraphs (2) and (4) thereof, to wit:

When McLoughlin came back to the Philippines on

4 April 1988, he asked Lainez if some money
and/or jewelry which he had lost were found and
returned to her or to the management. However,
Lainez told him that no one in the hotel found such
things and none were turned over to the
management. He again registered at Tropicana
and rented a safety deposit box. He placed therein
one (1) envelope containing Fifteen Thousand US
Dollars
(US$15,000.00),
another
envelope
containing Ten Thousand Australian Dollars
(AUS$10,000.00) and other envelopes containing
his traveling papers/documents. On 16 April 1988,
McLoughlin requested Lainez and Payam to open
his safety deposit box. He noticed that in the
envelope containing Fifteen Thousand US Dollars
(US$15,000.00), Two Thousand US Dollars
(US$2,000.00) were missing and in the envelope
previously containing Ten Thousand Australian
Dollars (AUS$10,000.00), Four Thousand Five
Hundred Australian Dollars (AUS$4,500.00) were
missing.10

2. To release and hold free and blameless

TROPICANA APARTMENT HOTEL from any
liability arising from any loss in the contents and/or
use of the said deposit box for any cause
whatsoever, including but not limited to the
presentation or use thereof by any other person
should the key be lost;

When McLoughlin discovered the loss, he

immediately confronted Lainez and Payam who
admitted that Tan opened the safety deposit box
with the key assigned to him.11 McLoughlin went
up to his room where Tan was staying and
confronted her. Tan admitted that she had stolen
McLoughlin's key and was able to open the safety
deposit box with the assistance of Lopez, Payam
and Lainez.12 Lopez also told McLoughlin that Tan
stole the key assigned to McLoughlin while the
latter was asleep.13
McLoughlin requested the management for an
investigation of the incident. Lopez got in touch
with Tan and arranged for a meeting with the
police and McLoughlin. When the police did not
arrive, Lopez and Tan went to the room of
McLoughlin at Tropicana and thereat, Lopez wrote
on a piece of paper a promissory note dated 21
April 1988. The promissory note reads as follows:

...
4. To return the key and execute the RELEASE in
favor of TROPICANA APARTMENT HOTEL upon
giving up the use of the box.16
On 17 May 1988, McLoughlin went back to
Australia and he consulted his lawyers as to the
validity of the abovementioned stipulations. They
opined that the stipulations are void for being
violative of universal hotel practices and customs.
His lawyers prepared a letter dated 30 May 1988
which was signed by McLoughlin and sent to
President Corazon Aquino.17 The Office of the
President referred the letter to the Department of
Justice (DOJ) which forwarded the same to the
Western Police District (WPD).18
After receiving a copy of the indorsement in
Australia, McLoughlin came to the Philippines and
registered again as a hotel guest of Tropicana.
McLoughlin went to Malacaang to follow up on
his letter but he was instructed to go to the DOJ.
The DOJ directed him to proceed to the WPD for
documentation. But McLoughlin went back to
Australia as he had an urgent business matter to
attend to.
For several times, McLoughlin left for Australia to
attend to his business and came back to the
Philippines to follow up on his letter to the
President but he failed to obtain any concrete
assistance.19

McLoughlin left again for Australia and upon his

return to the Philippines on 25 August 1989 to
pursue his claims against petitioners, the WPD
conducted an investigation which resulted in the
preparation of an affidavit which was forwarded to
the Manila City Fiscal's Office. Said affidavit
became the basis of preliminary investigation.
However, McLoughlin left again for Australia
without receiving the notice of the hearing on 24
November 1989. Thus, the case at the Fiscal's
Office was dismissed for failure to prosecute.
Mcloughlin requested the reinstatement of the
criminal charge for theft. In the meantime,
McLoughlin and his lawyers wrote letters of
demand to those having responsibility to pay the
damage. Then he left again for Australia.
Upon his return on 22 October 1990, he registered
at the Echelon Towers at Malate, Manila. Meetings
were held between McLoughlin and his lawyer
which resulted to the filing of a complaint for
damages on 3 December 1990 against YHT
Realty Corporation, Lopez, Lainez, Payam and
Tan (defendants) for the loss of McLoughlin's
money which was discovered on 16 April 1988.
After filing the complaint, McLoughlin left again for
Australia to attend to an urgent business matter.
Tan and Lopez, however, were not served with
summons, and trial proceeded with only Lainez,
Payam and YHT Realty Corporation as
defendants.
After defendants had filed their Pre-Trial Brief
admitting that they had previously allowed and
assisted Tan to open the safety deposit box,
McLoughlin
filed
an Amended/Supplemental
Complaint20 dated 10 June 1991 which included
another incident of loss of money and jewelry in
the safety deposit box rented by McLoughlin in the
same hotel which took place prior to 16 April
1988.21 The
trial
court
admitted
the Amended/Supplemental Complaint.
During the trial of the case, McLoughlin had been
in and out of the country to attend to urgent
business in Australia, and while staying in the
Philippines to attend the hearing, he incurred
expenses for hotel bills, airfare and other
transportation expenses, long distance calls to
Australia, Meralco power expenses, and expenses
for food and maintenance, among others.22
After trial, the RTC of Manila rendered judgment in
favor of McLoughlin, the dispositive portion of
which reads:

WHEREFORE, above premises considered,

judgment is hereby rendered by this Court in favor
of plaintiff and against the defendants, to wit:
1. Ordering defendants, jointly and
severally, to pay plaintiff the sum of
US$11,400.00 or its equivalent in
Philippine Currency of P342,000.00, more
or less, and the sum of AUS$4,500.00 or
its equivalent in Philippine Currency
of P99,000.00, or a total of P441,000.00,
more or less, with 12% interest from April
16 1988 until said amount has been paid to
plaintiff (Item 1, Exhibit CC);
2. Ordering defendants, jointly and
severally to pay plaintiff the sum
of P3,674,238.00
as
actual
and
consequential damages arising from the
loss of his Australian and American dollars
and jewelries complained against and in
prosecuting
his
claim
and
rights
administratively and judicially (Items II, III,
IV, V, VI, VII, VIII, and IX, Exh. "CC");
3. Ordering defendants, jointly and
severally, to pay plaintiff the sum
of P500,000.00 as moral damages (Item X,
Exh. "CC");
4. Ordering defendants, jointly and
severally, to pay plaintiff the sum
of P350,000.00 as exemplary damages
(Item XI, Exh. "CC");
5. And ordering defendants, jointly and
severally, to pay litigation expenses in the
sum of P200,000.00 (Item XII, Exh. "CC");
6. Ordering defendants, jointly and
severally, to pay plaintiff the sum
of P200,000.00 as attorney's fees, and a
fee of P3,000.00 for every appearance;
and
7. Plus costs of suit.
SO ORDERED.23
The trial court found that McLoughlin's allegations
as to the fact of loss and as to the amount of
money he lost were sufficiently shown by his direct
and straightforward manner of testifying in court
and found him to be credible and worthy of belief
as it was established that McLoughlin's money,
kept in Tropicana's safety deposit box, was taken
by Tan without McLoughlin's consent. The taking
was effected through the use of the master key

which was in the possession of the management.

Payam and Lainez allowed Tan to use the master
key without authority from McLoughlin. The trial
court added that if McLoughlin had not lost his
dollars, he would not have gone through the
trouble and personal inconvenience of seeking aid
and assistance from the Office of the President,
DOJ, police authorities and the City Fiscal's Office
in his desire to recover his losses from the hotel
management and Tan.24
As regards the loss of Seven Thousand US Dollars
(US$7,000.00) and jewelry worth approximately
One Thousand Two Hundred US Dollars
(US$1,200.00) which allegedly occurred during his
stay at Tropicana previous to 4 April 1988, no
claim was made by McLoughlin for such losses in
his complaint dated 21 November 1990 because
he was not sure how they were lost and who the
responsible persons were. But considering the
admission of the defendants in their pre-trial brief
that on three previous occasions they allowed Tan
to open the box, the trial court opined that it was
logical and reasonable to presume that his
personal assets consisting of Seven Thousand US
Dollars (US$7,000.00) and jewelry were taken by
Tan from the safety deposit box without
McLoughlin's consent through the cooperation of
Payam and Lainez.25
The trial court also found that defendants acted
with gross negligence in the performance and
exercise of their duties and obligations as
innkeepers and were therefore liable to answer for
the losses incurred by McLoughlin.26
Moreover, the trial court ruled that paragraphs (2)
and (4) of the "Undertaking For The Use Of Safety
Deposit Box" are not valid for being contrary to the
express mandate of Article 2003 of the New Civil
Code and against public policy.27 Thus, there
being fraud or wanton conduct on the part of
defendants, they should be responsible for all
damages which may be attributed to the nonperformance of their contractual obligations.28
The Court of Appeals affirmed the disquisitions
made by the lower court except as to the amount
of damages awarded. The decretal text of the
appellate court's decision reads:
THE FOREGOING CONSIDERED, the appealed
Decision is hereby AFFIRMED but modified as
follows:
The appellants are directed jointly and severally to
pay the plaintiff/appellee the following amounts:

1) P153,200.00 representing the

equivalent
of
US$2,000.00
AUS$4,500.00;

peso
and

2) P308,880.80, representing the peso

value for the air fares from Sidney [sic] to
Manila and back for a total of eleven (11)
trips;
3) One-half of P336,207.05 or P168,103.52
representing
payment
to
Tropicana
Apartment Hotel;
4) One-half of P152,683.57 or P76,341.785
representing payment to Echelon Tower;
5) One-half of P179,863.20 or P89,931.60
for the taxi xxx transportation from the
residence to Sidney [sic] Airport and from
MIA to the hotel here in Manila, for the
eleven (11) trips;
6) One-half of P7,801.94 or P3,900.97
representing Meralco power expenses;
7) One-half of P356,400.00 or P178,000.00
representing expenses for food and
maintenance;
8) P50,000.00 for moral damages;
9) P10,000.00 as exemplary damages; and
10) P200,000 representing attorney's fees.
With costs.
SO ORDERED.29
Unperturbed, YHT Realty Corporation, Lainez and
Payam went to this Court in this appeal
by certiorari.
Petitioners submit for resolution by this Court the
following issues: (a) whether the appellate court's
conclusion on the alleged prior existence and
subsequent loss of the subject money and jewelry
is supported by the evidence on record; (b)
whether the finding of gross negligence on the part
of petitioners in the performance of their duties as
innkeepers is supported by the evidence on
record; (c) whether the "Undertaking For The Use
of Safety Deposit Box" admittedly executed by
private respondent is null and void; and (d)
whether the damages awarded to private
respondent, as well as the amounts thereof, are
proper under the circumstances.30

The petition is devoid of merit.

It is worthy of note that the thrust of Rule 45 is the
resolution only of questions of law and any
peripheral factual question addressed to this Court
is beyond the bounds of this mode of review.
Petitioners point out that the evidence on record is
insufficient to prove the fact of prior existence of
the dollars and the jewelry which had been lost
while deposited in the safety deposit boxes of
Tropicana, the basis of the trial court and the
appellate court being the sole testimony of
McLoughlin as to the contents thereof. Likewise,
petitioners dispute the finding of gross negligence
on their part as not supported by the evidence on
record.
We are not persuaded.l^vvphi1.net We adhere to
the findings of the trial court as affirmed by the
appellate court that the fact of loss was
established by the credible testimony in open court
by McLoughlin. Such findings are factual and
therefore beyond the ambit of the present
petition.1awphi1.nt
The trial court had the occasion to observe the
demeanor of McLoughlin while testifying which
reflected the veracity of the facts testified to by
him. On this score, we give full credence to the
appreciation of testimonial evidence by the trial
court especially if what is at issue is the credibility
of the witness. The oft-repeated principle is that
where the credibility of a witness is an issue, the
established rule is that great respect is accorded to
the evaluation of the credibility of witnesses by the
trial court.31 The trial court is in the best position to
assess the credibility of witnesses and their
testimonies because of its unique opportunity to
observe the witnesses firsthand and note their
demeanor, conduct and attitude under grilling
examination.32
We are also not impressed by petitioners'
argument that the finding of gross negligence by
the lower court as affirmed by the appellate court
is not supported by evidence. The evidence
reveals that two keys are required to open the
safety deposit boxes of Tropicana. One key is
assigned to the guest while the other remains in
the possession of the management. If the guest
desires to open his safety deposit box, he must
request the management for the other key to open
the same. In other words, the guest alone cannot
open the safety deposit box without the assistance
of the management or its employees. With more
reason that access to the safety deposit box
should be denied if the one requesting for the

opening of the safety deposit box is a stranger.

Thus, in case of loss of any item deposited in the
safety deposit box, it is inevitable to conclude that
the management had at least a hand in the
consummation of the taking, unless the reason for
the loss is force majeure.
Noteworthy is the fact that Payam and Lainez, who
were employees of Tropicana, had custody of the
master key of the management when the loss took
place. In fact, they even admitted that they
assisted Tan on three separate occasions in
opening McLoughlin's safety deposit box.33 This
only proves that Tropicana had prior knowledge
that a person aside from the registered guest had
access to the safety deposit box. Yet the
management failed to notify McLoughlin of the
incident and waited for him to discover the taking
before it disclosed the matter to him. Therefore,
Tropicana should be held responsible for the
damage suffered by McLoughlin by reason of the
negligence of its employees.
The management should have guarded against
the occurrence of this incident considering that
Payam admitted in open court that she assisted
Tan three times in opening the safety deposit box
of McLoughlin at around 6:30 A.M. to 7:30 A.M.
while the latter was still asleep.34 In light of the
circumstances surrounding this case, it is
undeniable that without the acquiescence of the
employees of Tropicana to the opening of the
safety deposit box, the loss of McLoughlin's money
could and should have been avoided.
The management contends, however, that
McLoughlin, by his act, made its employees
believe that Tan was his spouse for she was
always with him most of the time. The evidence on
record, however, is bereft of any showing that
McLoughlin introduced Tan to the management as
his wife. Such an inference from the act of
McLoughlin will not exculpate the petitioners from
liability in the absence of any showing that he
made the management believe that Tan was his
wife or was duly authorized to have access to the
safety deposit box. Mere close companionship and
intimacy are not enough to warrant such
conclusion considering that what is involved in the
instant case is the very safety of McLoughlin's
deposit. If only petitioners exercised due diligence
in taking care of McLoughlin's safety deposit box,
they should have confronted him as to his
relationship with Tan considering that the latter
had been observed opening McLoughlin's safety
deposit box a number of times at the early hours of
the morning. Tan's acts should have prompted the
management to investigate her relationship with
McLoughlin. Then, petitioners would have

exercised due diligence required of them. Failure

to do so warrants the conclusion that the
management had been remiss in complying with
the obligations imposed upon hotel-keepers under
the law.
Under Article 1170 of the New Civil Code, those
who, in the performance of their obligations, are
guilty of negligence, are liable for damages. As to
who shall bear the burden of paying damages,
Article 2180, paragraph (4) of the same Code
provides that the owners and managers of an
establishment
or
enterprise
are
likewise
responsible for damages caused by their
employees in the service of the branches in which
the latter are employed or on the occasion of their
functions. Also, this Court has ruled that if an
employee is found negligent, it is presumed that
the employer was negligent in selecting and/or
supervising him for it is hard for the victim to prove
the negligence of such employer.35 Thus, given the
fact that the loss of McLoughlin's money was
consummated
through
the
negligence
of
Tropicana's employees in allowing Tan to open the
safety deposit box without the guest's consent,
both the assisting employees and YHT Realty
Corporation itself, as owner and operator of
Tropicana, should be held solidarily liable pursuant
to Article 2193.36
The issue of whether the "Undertaking For The
Use of Safety Deposit Box" executed by
McLoughlin is tainted with nullity presents a legal
question appropriate for resolution in this petition.
Notably, both the trial court and the appellate court
found the same to be null and void. We find no
reason to reverse their common conclusion. Article
2003 is controlling, thus:
Art. 2003. The hotel-keeper cannot free himself
from responsibility by posting notices to the effect
that he is not liable for the articles brought by the
guest. Any stipulation between the hotel-keeper
and the guest whereby the responsibility of the
former as set forth in Articles 1998 to 200137 is
suppressed or diminished shall be void.
Article 2003 was incorporated in the New Civil
Code as an expression of public policy precisely to
apply to situations such as that presented in this
case. The hotel business like the common carrier's
business is imbued with public interest. Catering to
the public, hotelkeepers are bound to provide not
only lodging for hotel guests and security to their
persons and belongings. The twin duty constitutes
the essence of the business. The law in turn does
not allow such duty to the public to be negated or
diluted by any contrary stipulation in so-called
"undertakings" that ordinarily appear in prepared

forms imposed by hotel keepers on guests for their

signature.
In an early case,38 the Court of Appeals through its
then Presiding Justice (later Associate Justice of
the Court) Jose P. Bengzon, ruled that to hold
hotelkeepers or innkeeper liable for the effects of
their guests, it is not necessary that they be
actually delivered to the innkeepers or their
employees. It is enough that such effects are
within the hotel or inn.39 With greater reason
should the liability of the hotelkeeper be enforced
when the missing items are taken without the
guest's knowledge and consent from a safety
deposit box provided by the hotel itself, as in this
case.
Paragraphs (2) and (4) of the "undertaking"
manifestly contravene Article 2003 of the New Civil
Code for they allow Tropicana to be released from
liability arising from any loss in the contents and/or
use of the safety deposit box forany cause
whatsoever.40 Evidently, the undertaking was
intended to bar any claim against Tropicana for
any loss of the contents of the safety deposit box
whether or not negligence was incurred by
Tropicana or its employees. The New Civil Code is
explicit that the responsibility of the hotel-keeper
shall extend to loss of, or injury to, the personal
property of the guests even if caused by servants
or employees of the keepers of hotels or inns as
well as by strangers, except as it may proceed
from any force majeure.41 It is the loss
through force majeure that may spare the hotelkeeper from liability. In the case at bar, there is no
showing that the act of the thief or robber was
done with the use of arms or through an irresistible
force to qualify the same as force majeure.42
Petitioners likewise anchor their defense on Article
200243 which exempts the hotel-keeper from
liability if the loss is due to the acts of his guest, his
family, or visitors. Even a cursory reading of the
provision would lead us to reject petitioners'
contention. The justification they raise would
render nugatory the public interest sought to be
protected by the provision. What if the negligence
of the employer or its employees facilitated the
consummation of a crime committed by the
registered guest's relatives or visitor? Should the
law exculpate the hotel from liability since the loss
was due to the act of the visitor of the registered
guest of the hotel? Hence, this provision
presupposes that the hotel-keeper is not guilty of
concurrent negligence or has not contributed in
any degree to the occurrence of the loss. A
depositary is not responsible for the loss of goods
by theft, unless his actionable negligence
contributes to the loss.44

In the case at bar, the responsibility of securing the

safety deposit box was shared not only by the
guest himself but also by the management since
two keys are necessary to open the safety deposit
box. Without the assistance of hotel employees,
the loss would not have occurred. Thus, Tropicana
was guilty of concurrent negligence in allowing
Tan, who was not the registered guest, to open the
safety deposit box of McLoughlin, even assuming
that the latter was also guilty of negligence in
allowing another person to use his key. To rule
otherwise would result in undermining the safety of
the safety deposit boxes in hotels for the
management will be given imprimatur to allow any
person, under the pretense of being a family
member or a visitor of the guest, to have access to
the safety deposit box without fear of any liability
that will attach thereafter in case such person turns
out to be a complete stranger. This will allow the
hotel to evade responsibility for any liability
incurred by its employees in conspiracy with the
guest's relatives and visitors.
Petitioners contend that McLoughlin's case was
mounted on the theory of contract, but the trial
court and the appellate court upheld the grant of
the claims of the latter on the basis of tort.45 There
is nothing anomalous in how the lower courts
decided the controversy for this Court has
pronounced a jurisprudential rule that tort liability
can exist even if there are already contractual
relations. The act that breaks the contract may
also be tort.46
As to damages awarded to McLoughlin, we see no
reason to modify the amounts awarded by the
appellate court for the same were based on facts
and law. It is within the province of lower courts to
settle factual issues such as the proper amount of
damages awarded and such finding is binding
upon this Court especially if sufficiently proven by
evidence and not unconscionable or excessive.
Thus, the appellate court correctly awarded
McLoughlin
Two
Thousand
US
Dollars
(US$2,000.00) and Four Thousand Five Hundred
Australian dollars (AUS$4,500.00) or their peso
equivalent at the time of payment,47 being the
amounts duly proven by evidence.48 The alleged
loss that took place prior to 16 April 1988 was not
considered since the amounts alleged to have
been taken were not sufficiently established by
evidence. The appellate court also correctly
awarded the sum of P308,880.80, representing the
peso value for the air fares from Sydney to Manila
and back for a total of eleven (11) trips;49 one-half
of P336,207.05
orP168,103.52
representing
payment to Tropicana;50 one-half of P152,683.57
or P76,341.785 representing payment to Echelon
Tower;51 one-half of P179,863.20 or P89,931.60

for the taxi or transportation expenses from

McLoughlin's residence to Sydney Airport and from
MIA to the hotel here in Manila, for the eleven (11)
trips;52 one-half
of P7,801.94
or P3,900.97
representing Meralco power expenses;53 one-half
of P356,400.00
or P178,000.00
representing
expenses for food and maintenance.54
The amount of P50,000.00 for moral damages is
reasonable. Although trial courts are given
discretion to determine the amount of moral
damages, the appellate court may modify or
change the amount awarded when it is palpably
and scandalously excessive.l^vvphi1.net Moral
damages are not intended to enrich a complainant
at the expense of a defendant.l^vvphi1.net They
are awarded only to enable the injured party to
obtain means, diversion or amusements that will
serve to alleviate the moral suffering he has
undergone, by reason of defendants' culpable
action.55
The awards of P10,000.00 as exemplary damages
and P200,000.00 representing attorney's fees are
likewise sustained.
WHEREFORE, foregoing premises considered,
the Decision of the Court of Appeals dated 19
October 1995 is hereby AFFIRMED. Petitioners
are directed, jointly and severally, to pay private
respondent the following amounts:
(1) US$2,000.00 and AUS$4,500.00 or
their peso equivalent at the time of
payment;
(2) P308,880.80, representing the peso
value for the air fares from Sydney to
Manila and back for a total of eleven (11)
trips;
(3)
One-half
of P336,207.05
or P168,103.52 representing payment to
Tropicana Copacabana Apartment Hotel;
(4)
One-half
of P152,683.57
or P76,341.785 representing payment to
Echelon Tower;
(5) One-half of P179,863.20 or P89,931.60
for the taxi or transportation expense from
McLoughlin's residence to Sydney Airport
and from MIA to the hotel here in Manila,
for the eleven (11) trips;
(6) One-half of P7,801.94 or P3,900.97
representing Meralco power expenses;

(7)
One-half
of P356,400.00
or P178,200.00 representing expenses for
food and maintenance;
(8) P50,000.00 for moral damages;
(9) P10,000.00 as exemplary damages;
and
(10) P200,000
fees.

representing

attorney's

With costs.
SO ORDERED.
THIRD DIVISION
G.R. No. 120553 June 17, 1997
PHILTRANCO SERVICE ENTERPRISES, INC.
and
ROGACIONES
MANILHIG, petitioner,
vs.
COURT OF APPEALS and HEIRS OF THE LATE
RAMON ACUESTA, respondents.
DAVIDE, JR., J.:
The petitioners interposed this appeal by way of a
petition for review under Rule 45 of the Rules of
Court from the 31 January 1995 Decision of the
Court of Appeals in CA-G.R. CV No.
41140 1 affirming the 22 January 1993 2Decision of
Branch 31 of the Regional Trial Court, Calbayog
City, in Civil Case No. 373, which ordered the
petitioners to pay the private respondents
damages as a result of a vehicular accident.
Civil Case No. 373 was an action against herein
petitioners for damages instituted by the heirs of
Ramon A. Acuesta, namely, Gregorio O. Acuesta;
Julio O. Acuesta; Ramon O. Acuesta, Jr.; Baltazar
O. Acuesta; Rufino O. Acuesta; Maximo O.
Acuesta; Neri O. Acuesta; Iluminada O. Acuesta;
Rosario Acuesta-Sanz; and Pamfilo O. Acuesta.
Atty. Julio O. Acuesta also appeared as counsel
for the plaintiffs (herein private respondents). 3 The
private respondents alleged that the petitioners
were guilty of gross negligence, recklessness,
violation of traffic rules and regulations,
abandonment of victim, and attempt to escape
from a crime.
To support their allegations, the private
respondents presented eight witnesses. On 10
February 1992, after the cross-examination of the
last witness, the private respondents' counsel

made a reservation to present a ninth witness. The

case was then set for continuation of the trial on 30
and 31 March 1992. Because of the nonappearance of the petitioners' counsel, the 30
March 1992 hearing was cancelled. The next day,
private respondents' counsel manifested that he
would no longer present the ninth witness. He
thereafter made an oral offer of evidence and
rested the case. The trial court summarized private
respondents' evidence in this wise:
[I]n the early morning of March 24,
1990, about 6:00 o'clock, the victim
Ramon A. Acuesta was riding in his
easy rider bicycle (Exhibit "O"),
along the Gomez Street of
Calbayog City. The Gomez Street
is along the side of Nijaga Park. On
the Magsaysay Blvd., also in
Calbayog
City,
defendant
Philtranco Service Enterprises, Inc.
(Philtranco for brevity) Bus No.
4025 with plate No. EVA-725
driven by defendant Rogasiones
Manilhig y Dolira was being pushed
by some persons in order to start
its engine. The Magsaysay Blvd.
runs perpendicular to Gomez St.
and the said Philtranco bus 4025
was heading in the general
direction of the said Gomez Street.
Some of the persons who were
pushing the bus were on its back,
while the others were on the sides.
As the bus was pushed, its engine
started thereby the bus continued
on its running motion and it
occurred at the time when Ramon
A. Acuesta who was still riding on
his bicycle was directly in front of
the said bus. As the engine of the
Philtranco bus started abruptly and
suddenly, its running motion was
also enhanced by the said
functioning engine, thereby the
subject bus bumped on the victim
Ramon A. Acuesta who, as a result
thereof fell and, thereafter, was run
over by the said bus. The bus did
not stop although it had already
bumped and ran [sic] over the
victim; instead, it proceeded
running towards the direction of the
Rosales Bridge which is located at
one side of the Nijaga Park and
towards one end of the Gomez St.,
to which direction the victim was
then heading when he was riding
on his bicycle. P/Sgt. Yabao who

was then jogging thru the Gomez

Street and was heading and
meeting the victim Ramon A.
Acuesta as the latter was riding on
his bicycle, saw when the
Philtranco bus was being pushed
by some passengers, when its
engine abruptly started and when
the said bus bumped and ran over
the victim. He approached the bus
driver defendant Manilhig herein
and signalled to him to stop, but
the latter did not listen. So the
police officer jumped into the bus
and introducing himself to the
driver defendant as policeman,
ordered the latter to stop. The said
defendant driver stopped the
Philtranco bus near the Nijaga Park
and Sgt. Yabao thereafter, told the
driver to proceed to the Police
Headquarter which was only 100
meters away from Nijaga Park
because he was apprehensive that
the said driver might be harmed by
the relatives of the victim who
might come to the scene of the
accident.
Then
Sgt.
Yabao
cordoned the scene where the
vehicular accident occurred and
had P/Cpl. Bartolome Bagot, the
Traffic Investigator, conduct an
investigation and make a sketch of
the crime scene. Sgt. Yambao
Yabao was only about 20 meters
away when he saw the bus of
defendant Philtranco bumped [sic]
and [sic] ran over the victim. From
the place where the victim was
actually bumped by the bus, the
said vehicle still had run to a
distance of about 15 meters
away. 4
For their part, the petitioners filed an
Answer 5 wherein they alleged that petitioner
Philtranco exercised the diligence of a good father
of a family in the selection and supervision of its
employees, including petitioner Manilhig who had
excellent record as a driver and had undergone
months of rigid training before he was hired.
Petitioner Manilhig had always been a prudent
professional driver, religiously observing traffic
rules and regulations. In driving Philtranco's buses,
he exercised the diligence of a very cautious
person.
As might be expected, the petitioners had a
different version of the incident. They alleged that

in the morning of 24 March 1990, Manilhig, in

preparation for his trip back to Pasay City, warmed
up the engine of the bus and made a few rounds
within the city proper of Calbayog. While the bus
was slowly and moderately cruising along Gomez
Street, the victim, who was biking towards the
same direction as the bus, suddenly overtook two
tricycles and swerved left to the center of the road.
The swerving was abrupt and so sudden that even
as Manilhig applied the brakes and blew the bus
horn, the victim was bumped from behind and run
over by the bus. It was neither willful nor deliberate
on Manilhig's part to proceed with the trip after his
bus bumped the victim, the truth being that when
he looked at his rear-view window, he saw people
crowding around the victim, with others running
after his bus. Fearing that he might be mobbed, he
moved away from the scene of the accident and
intended to report the incident to the police. After a
man boarded his bus and introduced himself as a
policeman, Manilhig gave himself up to the
custody of the police and reported the accident in
question.
The petitioners further claimed that it was the
negligence of the victim in overtaking two tricycles,
without taking precautions such as seeing first that
the road was clear, which caused the death of the
victim. The latter did not even give any signal of
his intention to overtake. The petitioners then
counterclaimed for P50,000 as and for attorney's
fees; P1 million as moral damages; and P50,000
for litigation expenses.
However, the petitioners were not able to present
their evidence, as they were deemed to have
waived that right by the failure of their counsel to
appear at the scheduled hearings on 30 and 31
March 1992. The trial court then issued an
Order 6 declaring the case submitted for decision.
Motions for the reconsideration of the said Order
were both denied.
On 22 January 1992, the trial court handed down a
decision ordering the petitioners to jointly and
severally pay the private respondents the following
amounts:
1) P55, 615.72 as actual damages;
2) P200,000 as death indemnity for
the death of the victim Ramon A.
Acuesta;
3) P1 million as moral damages;
4) P500,000 by way of exemplary
damages;

5) P50,000 as attorney's fees; and

6) the costs of suit. 7
Unsatisfied with the judgment, the petitioners
appealed to the Court of Appeals imputing upon
the trial court the following errors:
(1) in preventing or barring them from presenting
their evidence;
(2) in finding that petitioner Manilhig was at fault;
(3) in not finding that Ramon was the one at fault
and his own fault caused, or at least contributed to,
his unfortunate accident;
(4) in awarding
respondents; and

damages

to

the

private

(5) in finding that petitioner Philtranco was

solidarily liable with Manilhig for damages. 8
In its decision of 31 January 1995, the Court of
Appeals affirmed the decision of the trial court. It
held that the petitioners were not denied due
process, as they were given an opportunity to
present their defense. The records show that they
were notified of the assignment of the case for 30
and 31 March 1992. Yet, their counsel did not
appear on the said dates. Neither did he file a
motion for postponement of the hearings, nor did
he appeal from the denial of the motions for
reconsideration of the 31 March 1992 Order of the
trial court. The petitioners have thereby waived
their right to present evidence. Their expectation
that they would have to object yet to a formal offer
of evidence by the private respondents was
"misplaced," for it was within the sound discretion
of the court to allow oral offer of evidence.
As to the second and third assigned errors, the
respondent court disposed as follows:
. . . We cannot help but accord with
the lower court's finding on
appellant Manilhig's fault. First, it is
not disputed that the bus driven by
appellant Manilhig was being
pushed at the time of the
unfortunate happening. It is of
common
knowledge
and
experience that when a vehicle is
pushed to a jump-start, its initial
movement is far from slow. Rather,
its movement is abrupt and jerky
and it takes a while before the
vehicle attains normal speed. The

lower court had thus enough basis

to conclude, as it did, that the
bumping of the victim was due to
appellant Manilhig's actionable
negligence
and
inattention.
Prudence should have dictated
against jump-starting the bus in a
busy section of the city. Militating
further against appellants' posture
was the fact that the precarious
pushing of subject bus to a
jumpstart was done where the bus
had to take a left turn, thereby
making the move too risky to take.
The possibility that pedestrians on
Gomez Street, where the bus
turned left and the victim was
biking, would be unaware of a
vehicle being pushed to a
jumpstart, was too obvious to be
overlooked. Verily, contrary to their
bare arguments, there was gross
negligence
on
the
part of
appellants.
The doctrine of last clear chance
theorized upon by appellants, is
inapplicable under the premises
because the victim, who was
bumped from behind, obviously,
did not of course anticipate a
Philtranco bus being pushed from a
perpendicular street.
The respondent court sustained the awards of
moral and exemplary damages and of attorney's
fees, for they are warranted under Articles 2206,
2231, and 2208(1), respectively, of the Civil Code.
Anent the solidary liability of petitioner Philtranco,
the same finds support in Articles 2180 and 2194
of the said Code. The defense that Philtranco
exercised the diligence of a good father of a family
in the selection and supervision of its employees
crumbles in the face of the gross negligence of its
driver, which caused the untimely death of the
victim.
Their motion for reconsideration having been
denied, the petitioners came to us claiming that the
Court of Appeals gravely erred
I
. . . IN HOLDING THAT
PETITIONERS WAIVED THEIR
RIGHT TO PRESENT THEIR
EVIDENCE,
AND
THAT

PETITIONERS
WERE
DENIED DUE PROCESS.

NOT

said formal offer, but counsel did

not receive any copy as counsel for
plaintiffs opted to formally offer
their exhibits orally in open court;

. . . IN APPLYING ART. 2194,

INSTEAD OF ART. 2180, OF THE
CIVIL CODE, AND IN HOLDING
THAT PETITIONER PHILTRANCO
CAN
NOT
INVOKE
THE
DEFENSE OF DILIGENCE OF A
GOOD FATHER OF A FAMILY.

2. That counsel for defendants, in

good faith believed that he would
be given reasonable time within
which to comment on the formal
offer in writing, only to know that
counsel for plaintiffs orally offered
their exhibits in open court and that
the same were admitted by the
Honorable Court; and that when
this case was called on March 30
and 31, 1992, the undersigned
counsel honestly believed that said
schedule would be cancelled,
pending on the submission of the
comments made by the defendants
on the formal offer; but it was not
so, as the exhibits were admitted in
open court. 11

II

III
. . . IN AWARDING DAMAGES TO
RESPONDENTS AND/OR IN NOT
FINDING THE TRIAL COURT'S
AWARD
OF
DAMAGES
EXCESSIVE.
We resolved to give due course to the petition and
required the parties to submit their respective
memoranda after due consideration of the
allegations, issues, and arguments adduced in the
petition, the comment thereon by the private
respondents, and the reply to the comment filed by
the petitioners. The petitioners filed their
memorandum in due time; while the private
respondents filed theirs only on 3 January 1997,
after their counsel was fined in the amount of
P1,000 for failure to submit the required
memorandum.
The first imputed error is without merit. The
petitioners and their counsel, Atty. Jose Buban,
were duly notified in open court of the order of the
trial court of 10 February 1992 setting the case for
hearing on 30 and 31 March 1992.9 On both dates
neither the petitioners nor their counsel appeared.
In his motion for reconsideration, 10 Atty. Buban
gave the following reasons for his failure to appear
on the said hearings:
1. That when this case was called
on March 27, 1992, counsel was
very much indisposed due to the
rigors of a very hectic campaign as
he is a candidate for City Councilor
of Tacloban; he wanted to leave for
Calbayog City, but he was seized
with slight fever on the morning of
said date; but then, during the last
hearing, counsel was made to
understand that plaintiffs would
formally offer their exhibits in
writing, for which reason, counsel
for defendants waited for a copy of

In its order of 26 May 1992, the trial court denied

the motion, finding it to be "devoid of meritorious
basis," as Atty. Buban could have filed a motion for
postponement. 12 Atty. Buban then filed a motion
to reconsider 13 the order of denial, which was
likewise denied by the trial court in its order of 12
August 1992. 14 Nothing more was done by the
petitioners after receipt of the order of 12 August
1992. A perusal of the first and second motions for
reconsideration discloses absence of any claim
that the petitioners have meritorious defenses.
Clearly, therefore, the trial court committed no
error in declaring the case submitted for decision
on the basis of private respondent's evidence.
The second imputed error is without merit either.
Civil Case No. 373 is an action for damages based
on quasi-delict 15 under Article 2176 and 2180 of
the Civil Code against petitioner Manilhig and his
employer, petitioner Philtranco, respectively.
These articles pertinently 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 preexisting
contractual
relation
between the parties, is called a
quasi-delict and is governed by the
provisions of this Chapter.

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
The owners and managers of an
establishment or enterprise are
likewise responsible for damages
caused by their employees in the
service of the branches in which
the latter are employed or on the
occasion of their functions.
Employers shall be liable for the
damages
caused
by
their
employees and household helpers
acting within the scope of their
assigned tasks even though the
former are not engaged in any
business or industry.
xxx xxx xxx
The responsibility treated of in this
article shall cease when the
persons herein mentioned prove
that they observed all the diligence
of a good father of a family to
prevent damage.
We have consistently held that the liability of the
registered owner of a public service vehicle, like
petitioner Philtranco, 16 for damages arising from
the tortious acts of the driver is primary, direct, and
joint and several or solidary with the driver. 17 As to
solidarity, Article 2194 expressly provides:
Art. 2194. The responsibility of two
or more persons who are liable for
a quasi-delict is solidary.
Since the employer's liability is primary,
direct and solidary, its only recourse if the
judgment for damages is satisfied by it is to
recover what it has paid from its employee
who committed the fault or negligence
which gave rise to the action based on
quasi-delict. Article 2181 of the Civil Code
provides:
Art. 2181. Whoever pays for the
damage caused by his dependents
or employees may recover from the

latter what he has paid or delivered

in satisfaction of the claim.
There is, however, merit in the third imputed error.
The trial court erroneously fixed the "death
indemnity" at P200,000. The private respondents
defended the award in their Opposition to the
Motion for Reconsideration by saying that "[i]n the
case of Philippine Airlines, Inc. vs. Court of
Appeals, 185 SCRA 110, our Supreme Court held
that the award of damages for death is computed
on the basis of the life expectancy of the
deceased." In that case, the "death indemnity" was
computed by multiplying the victim's gross annual
income by his life expectancy, less his yearly living
expenses. Clearly then, the "death indemnity"
referred to was the additional indemnity for the
loss of earning capacity mentioned in Article
2206(1) of the Civil Code, and not the basic
indemnity for death mentioned in the first
paragraph thereof. This article provides as follows:
Art. 2206. The amount of damages
for death caused by a crime or
quasi-delict shall be at least three
thousand pesos, even though there
may
have
been
mitigating
circumstances. In addition:
(1) The defendant shall be liable for
the loss of the earning capacity of
the deceased, and the indemnity
shall be paid to the heirs of the
latter; such indemnity shall in every
case be assessed and awarded by
the court, unless the deceased on
account of permanent physical
disability not caused by the
defendant, had no earning capacity
at the time of his death;
(2) If the deceased was obliged to
give support according to the
provisions of article 291, the
recipient who is not an heir called
to the decedent's inheritance by
the law of testate or intestate
succession, may demand support
from the person causing the death,
for a period of not exceeding five
years, the exact duration to be
fixed by the court;
(3) The spouse, legitimate and
illegitimate
descendants
and
ascendants of the deceased may
demand moral damages for mental

anguish by reason of the death of

the deceased.
We concur with petitioners' view that the trial court
intended the award of "P200,000.00 as death
indemnity" not as compensation for loss of earning
capacity. Even if the trial court intended the award
as indemnity for loss of earning capacity, the same
must be struck out for lack of basis. There is no
evidence on the victim's earning capacity and life
expectancy.
Only indemnity for death under the opening
paragraph of Article 2206 is due, the amount of
which has been fixed by current jurisprudence at
P50,000. 18
The award of P1 million for moral damages to the
heirs of Ramon Acuesta has no sufficient basis
and is excessive and unreasonable. This was
based solely on the testimony of one of the heirs,
Atty. Julio Acuesta, contained in his "Direct
Testimony . . . As Plaintiff, conducted by
Himself," 19 to wit:
Q. What was your
feeling or reaction
as a result of the
death of your father
Ramon A. Acuesta?
A. We, the family
members,
have
suffered much from
wounded feelings,
moral
shock,
mental
anguish,
sleepless nights, to
which
we
are
entitled to moral
damages at the
reasonable amount
of ONE MILLION
(P1,000,000.00)
PESOS or at the
sound discretion of
this Hon. Court.
Since the other heirs of the deceased did not take
the witness stand, the trial court had no basis for
its award of moral damages to those who did not
testify thereon.
Moral damages are emphatically not intended to
enrich a plaintiff at the expense of the defendant.
They are awarded only to allow the former to
obtain means, diversion, or amusements that will
serve to alleviate the moral suffering he has

undergone due to the defendant's culpable action

and must, perforce, be proportional to the suffering
inflicted. 20 In light of the circumstances in this
case, an award of P50,000 for moral damages is in
order.
The award of P500,000 for exemplary damages is
also excessive. In quasi-delicts, exemplary
damages may be awarded if the party at fault
acted with gross negligence. 21 The Court of
Appeals found that there was gross negligence on
the part of petitioner Manilhig. 22 Under Article
2229 of the Civil Code, exemplary damages are
imposed by way of example or correction for the
public good, in addition to the moral, temperate,
liquidated, or compensatory damages. Considering
its purpose, it must be fair and reasonable in every
case and should not be awarded to unjustly enrich
a prevailing party. In the instant case, an award of
P50,000 for the purpose would be adequate, fair,
and reasonable.
Finally, the award of P50,000 for attorney's fees
must be reduced. The general rule is that
attorney's fees cannot be recovered as part of
damages because of the policy that no premium
should
be
placed
on
the
right
to
litigate. 23 Stated otherwise, the grant of attorney's
fees as part of damages is the exception rather
than the rule, as counsel's fees are not awarded
every time a party prevails in a suit. 24 Such
attorney's fees can be awarded in the cases
enumerated in Article 2208 of the Civil Code, and
in all cases it must be reasonable. In the instant
case, the counsel for the plaintiffs is himself a coplaintiff; it is then unlikely that he demanded from
his brothers and sisters P100,000 as attorney's
fees as alleged in the complaint and testified to by
him. 25 He did not present any written contract for
his fees. He is, however, entitled to a reasonable
amount for attorney's fees, considering that
exemplary damages are awarded. Among the
instances mentioned in Article 2208 of the Civil
Code when attorney's fees may be recovered is
"(1) when exemplary damages are awarded."
Under the circumstances in this case, an award of
P25,000 for attorney's fees is reasonable.
The petitioners did not contest the award for actual
damages fixed by the trial court. Hence, such
award shall stand.
IN VIEW OF THE FOREGOING, the petition is
hereby partly granted and the challenged decision
of CA-G.R. CV No. 41140 is AFFIRMED, subject
to modifications as to the damages awarded,
which are reduced as follows:

(a)
Death
indemnity,
P200,000 to P50,000;

from

(b) Moral damages, from P1 million

to P50,000;
(c) Exemplary damages,
P500,000 to P50,000; and

from

writers (redactores), editors (editores) and

administrators of a certain daily newspaper
known as "El Renacimiento" and "Muling
Pagsilang," which newspaper during all the
time mentioned in this complaint was
published and circulated daily in the
Spanish and Tagalog languages in the city
of Manila, having a large circulation
throughout the Philippine Islands.

(d) Attorney's fees, from P50,000 to

P25,000.
No pronouncements as to costs in this instance.
SO ORDERED.

EN BANC
G.R. No. L-5932

February 27, 1912

DEAN C. WORCESTER, plaintiff-appellee,

vs.
MARTIN OCAMPO, TEODORO M. KALAW,
LOPE K. SANTOS, FIDEL A. REYES, FAUSTINO
AGUILAR, ET AL.,defendants-appellants.
JOHNSON, J.:
On the 23rd day of January, 1909, the plaintiff
commenced an action against the defendants in
the Court of First Instance of the city of Manila, for
the purpose of recovering damages resulting from
an alleged libelous publication. The complaint was
in the following language:
COMPLAINT.
I.
That the plaintiff as well as the defendants
are residents of the city of Manila,
Philippine Islands.
II.
That for a long time before the 30th of
October, 1908, the defendants, Martin
Ocampo, Teodoro M. Kalaw, Lope K.
Santos, Fidel A. Reyes, Faustino Aguilar,
Leoncio G. Liquete , Manuel Palma,
Arcadio Arellano, Angel Jose, Galo
Lichauco, Felipe Barretto, and Gregorio M.
Cansipit, were the owners, directors,

III.
That for a long time the defendants have
been maliciously persecuting and attacking
the plaintiff in said newspaper, until at last
on the 30th of October, 1908, with the
malicious intention of injuring the plaintiff,
who on said date was, and still is a
member of the Civil Commission of the
Philippines and Secretary of the Interior in
the Government of the Philippines, they
attacked the honesty and reviled the fame
of the plaintiff, not only as a private person
but also as an official of the Government of
the Philippine Islands, and with the object
of exposing him to the odium, contempt,
and ridicule of the public, printed, wrote
(redactaron), and published in said
newspaper in its ordinary number of the
30th of October, 1908, a malicious
defamation and false libel which was
injurious (injurioso) to the plaintiff, said libel
reading as follows:
"EDITORIAL.
"BIRDS OF PREY.
"On the surface of the globe some
were born to eat and devour,
others to be eaten and devoured.
"Now and then the latter have
bestirred themselves, endeavoring
to rebel against an order of things
which makes them the prey and
food of the insatiable voracity of the
former. At times they have been
fortunate, putting to flight the eaters
and devourers, but in the majority
of cases they did not obtain but a
change of name or plumage.
"The situation is the same in all the
spheres of creation: the relation
between the ones and the others is
that dictated by the appetite and

the power to satisfy it at the fellowcreatures' expense.

"Among men it is very easy to
observe the development of this
daily phenomenon. And for some
psychological reason the nations
who believe themselves powerful
have taken the fiercest and most
harmful creatures as emblems; it is
either the lion, or the eagle, or the
serpent. Some have done so by a
secret impulse of affinity and others
in the nature of simulation, of
infatuated
vanity,
making
themselves appear that which they
are not nor ever can be.
"The eagle, symbolizing liberty and
strength, is the bird that has found
the most adepts. And men,
collectively and individually, have
desired to copy and imitate the
most rapacious bird in order to
triumph in the plundering of their
fellow-men.
"There are men who, besides being
eagles, have the characteristics of
the vulture, the owl and the
vampire.
"Ascending the mountains of
Benguet to classify and measure
the skulls of the Igorots and study
and civilize them and to espy in his
flight, with the eye of the bird of
prey, where are the large deposits
of gold, the prey concealed amidst
the
lonely
mountains,
to
appropriate
them
to
himself
afterwards, thanks to legal facilities
made and unmade at will, but
always for his own benefit.
"Authorizing, despite laws and
ordinances, an illegal slaughtering
of diseased cattle in order to derive
benefit from the infected and putrid
meat which he himself was obliged
to condemn by virtue of his official
position.
"Presenting
himself
on
all
occasions with the wrinkled brow of
the scientist who consumes his life
in the mysteries of the laboratory of
science, when his whole scientific

labor is confined o dissecting

insects and importing fish eggs, as
if the fish eggs of this country were
less nourishing and less savory, so
as to make it worth the while
replacing them with species
coming from other climes.
"Giving an admirable impulse to the
discovery of wealthy lodes in
Mindoro, in Mindanao, and in other
virgin regions of the Archipelago,
with the money of the people, and
under the pretext of the public
good, when, as a strict matter of
truth, the object is to possess all
the data and the key to the national
wealth for his essentially personal
benefit, as is shown by the
acquisition of immense properties
registered under he names of
others.
"Promoting, through secret agents
and partners, the sale to the city of
worthless land at fabulous prices
which the city fathers dare not
refuse, from fear of displeasing the
one who is behind the motion, and
which they do not refuse for their
own good.
"Patronizing concessions for hotels
on filled-in-land, with the prospects
of enormous profits, at the expense
of the blood of the people.
"Such are the characteristics of the
man who is at the same time an
eagle who surprises and devours,
a vulture who gorges himself on
the dead and putrid meats, an owl
who affects a petulent omniscience
and a vampire who silently sucks
the blood of the victim until he
leaves it bloodless.
"It is these birds of prey who
triumph. Their flight and their aim
are never thwarted.
"Who will detain them?
"Some share in the booty and the
plunder. Others are too weak to
raise a voice of protest. And others
die
in
the
disconsolating

destruction of their own energies

and interests.
"And then there appears, terrifying,
the immortal legend:
"MANE, TECEL, PHARES."
IV.
That the plaintiff was, on the date of said
publication, and still is, well known to the
officials of the Government of the
Philippine Islands, and to the inhabitants of
the Philippine Islands, and to public in
general, personally as well as a member of
the Civil Commission of the Philippines and
as Secretary of the Interior, and the
defamation and libel, and the words, terms
and language used in said defamation and
libel were employed by the said defendants
with the intention of indicating the said
plaintiff, and that should be understood, as
in effect they were understood, by the
public officials of the Government and the
inhabitants of the Philippine Islands in
general, as referring to the plaintiff, by
reason of the publicly known fact that said
plaintiff in compliance with his duties in his
position as such member of the Civil
Commission of the Philippines and as such
Secretary of the Interior of the Philippine
Islands, ascended on a previous occasion
the mountains of the Province of Benguet
to study the native tribe known as Igorot,
residing in said region; by reason of the
publicly known fact that in the said
mountains of Benguet there exist large
deposits of gold, and for the reason that,
as member of the Civil Commission of the
Philippines, which is the legislative body of
the Philippine Islands, the plaintiff takes
part in the enactment and repealing of laws
in said Islands; by reason furthermore of
the fact, publicly known, that the plaintiff,
as such Secretary of the Interior of the
Philippine Islands, has had under his
direction and control the enforcement of
the laws of the Philippine Islands and the
ordinances of the city of Manila relating to
the slaughtering of cattle; by reason
furthermore of the fact, publicly known that
said plaintiff, as such Secretary of the
Interior of the Philippine Islands, had under
his direction and control the Bureau of
Science of the Government of the
Philippine Islands, and he is generally
known as a man devoted to the study of
science; by reason furthermore of the

publicly known fact that the said plaintiff, as

such Secretary of the Interior of the
Philippine Islands, at a previous time,
caused the importation into the Philippine
Islands of fish eggs for the purpose of
supplying the mountain streams of the
Philippine Islands with fish-hatcheries; by
reason furthermore of the publicly known
fact that said plaintiff, as such Secretary of
the Interior of the Philippine Islands, has
journeyed to and explored the Islands of
Mindoro, Mindanao, and other regions of
the Philippine Archipelago; by reason
furthermore of the publicly known fact that
said plaintiff, as such Secretary of the
Interior of the Philippine Islands, at one
time investigated and prepared a report for
the Civil Commission of the Philippines in
regard to a certain proposition for the
purchase of a parcel of land for the city of
Manila; by reason furthermore of the
publicly known fact that said plaintiff, as
member of said Civil Commission of the
Philippines together with the other
members of said legislative body, once
opened negotiations with a certain firm
engaged in the hotel business in regard to
the location of a prospective hotel on one
of the filled-in lands of the city of Manila.
That said defendants charged said plaintiff
with the prostitution of his office as
member of the Civil Commission of the
Philippines and as Secretary of the Interior
of said Islands, for personal ends; with
wasting public funds for the purpose of
promoting his personal welfare; with the
violation of the laws of the Philippine
Islands and the ordinances of the city of
Manila; with taking part in illegal
combinations for the purpose of robbing
the people; with the object of gain for
himself and for others; and lastly with being
"a bird of prey;" and that said defamation
should be understood, as in effect it was
understood, by the public officials of the
Government and the people of the
Philippine Islands in general, as charging
the said plaintiff with the conduct, actions
and things above specified; all of which
allegations relating to the character and
conduct of the said plaintiff, as above
stated, were and are false and without any
foundation whatsoever.
That said defamation and libel were
published by the defendants under a
heading in large and showy type, and
every effort made by said defendants to

see that said defamation and libel should

attract the attention of the public and be
read by all the subscribers to said
newspaper and the readers of the same.
V.
Besides assailing the integrity and reviling
the reputation of the plaintiff, said
defendants, in publishing the said libel, did
so with the malicious intention of inciting
the Filipino people to believe that the
plaintiff was a vile despot and a corrupt
person, unworthy of the position which he
held, and for this reason to oppose his
administration of the office in his charge as
Secretary of the Interior, and in this way
they endeavored to create enormous
difficulties for him in the performance of his
official duties, and to make him so
unpopular that he would have to resign his
office as member of the Civil Commission
of the Philippines and Secretary of the
Interior.
In fact said defendants, by means of said
libel and other false statements in said
mentioned
newspaper,
have
been
deliberately
trying
to
destroy
the
confidence of the public in the plaintiff and
to incite the people to place obstacles in
his way in the performance of his official
duties, in consequence of which the
plaintiff has met with a great many
difficulties which have increased to a great
extent his labors as a public official in
every one of the Departments.
VI.
And for all these reasons the plaintiff
alleges: That he has been damaged and is
entitled to an indemnity for the additional
work to which he has been put, by the said
defendants, in the compliance of his duties,
both in the past and the future, as well as
for the injuries to his reputation and
feelings, in the sum of fifty thousand pesos
(P50,000) Philippine currency, and besides
this said amount he is entitled to collect
from the defendants the additional sum of
fifty thousand pesos (P50,000) Philippine
currency, in the way of punitive damages,
as a warning to the defendants.
Wherefore the plaintiff files this complaint,
praying the court:

(1) That the defendants be summoned

according to law.
(2) That judgment be rendered ordering the
defendants to pay the damages as above
stated, and the costs of the action.
On the 23d of February, 1909, the defendants
presented the following demurrer to the said
complaint:
DEMURRER.
Now come the defendants, through their
undersigned attorney, and demur to the
complaint filed herein, upon the following
grounds:
First, That the complaint is vague and
unintelligible.
Second. That the facts alleged in the
complaint do not constitute a cause or right
of action.
Third. That there is another action pending
between the plaintiff and several of the
defendants for the same cause; and
Fourth. That some of the defendants have
been erroneously included therein.
Therefore, they respectfully ask the court
to dismiss the complaint, with costs against
the plaintiff.
On the 27th of February, 1909, the Honorable
Charles S. Lobingier, judge, overruled said
demurrer in the following decision, to which the
defendants duly excepted:
ORDER.
The defendant
grounds:

demur

upon

several

(1) The first ground is that the complaint is

vague and unintelligible and this is directed
principally to paragraph 2, in which it is
alleged that the defendants were "dueos,
directores, redactores", etc., but it is not
alleged
that
they
were
such
simultaneously. If this were the sole
averment of the defendants' connection
with the alleged libel, the objection might
be well taken, but paragraph 3 of the
complaint alleges that the defendants

"imprimieron, redactaron y publicaron",

etc., the article complained of. Under
section 2 of Act 277 "every person" who
"publishes or procures to be published any
belief
is
made
responsible.
(Cf.
U.S. vs. Ortiz, 8 Phil. Rep., 752.) We think,
therefore, that the connection of the
defendants with the publication complained
of is sufficiently charged.

The defendants in the above-entitled

cause, through their undersigned attorney,
by their answer to the complaint, state:

(2) It is also claimed that the facts alleged

are not sufficient to state a cause of action
and it is urged in support of this that the
article complained of and which is copied
in the complaint, fails to mention the
plaintiff or to show on its face that it refers
to him. It is, however, specifically alleged in
paragraph 4 that the article was intended
to refer to the plaintiff and was so
understood by the public, and this
allegation is admitted by the demurrer.
Under the rule announced in Causin vs.
Jakosalem (5 Phil. Rep., 155), where the
words complained of do refer to the plaintiff
"an action for libel may be maintained even
though the defamatory publication does not
refer to the plaintiff by name."

First. That the plaintiff has no legal

capacity to institute this action, as it clearly
appears from the allegations of the
complaint and which the defendants
hereby deny.

(3) It is further argued that there is another

action pending between the parties for the
same cause. This, it is true, is made a
ground for demurrer by the Code of Civil
Procedure, sec. 91 (3), but like all grounds
therein mentioned, it must "appear upon
the face" of the pleading objected to, and
where it does not so appear "the objection
can only be taken by answer." (Code C. P.,
sec. 92.) There is no averment in the
complaint which indicates that there is no
another action pending.
The fourth ground of the demurrer is not
one recognized by law (Code C. P., sec.
91) nor do we find anything in Sanidad vs.
Cabotaje (5 Phil. Rep., 204) which would
necessitate any change in the views
already expressed.
The demurrer is, therefore, overruled and
defendants are given the usual five days to
answer.
On the 15th day of November, 1909, the
defendants presented their amended answer,
which was as follows:
ANSWER.

That the defendants deny generally the

allegation of the complaint.
As a special defense, the defendants
allege:

Second. That the facts are set out as

constituting cause of action in the
complaint, are insufficient to constitute
such cause of action in favor of the plaintiff
and against the defendants.
Third. That the said complaint is manifestly
improper, for the reason that there is now
pending in the Court of First Instance of
this city a criminal cause, No. 4295, for the
crime of libel against the defendants
herein, Martin Ocampo, Teodoro M. Kalaw,
and Fidel A. Reyes, both actions, criminal
and civil, being based upon the same facts
which the plaintiffs herein, who is also a
party to the said criminal action, now
alleges as the basis of his action.
Fourth. That the civil action in the aboveentitled cause has been extinguished for
the reason that plaintiff did not expressly
reserve the right to enforce the same in the
aforesaid cause 4295, for the crime of libel,
after the said criminal cause had been
finally disposed of.
Fifth. That the defendants, Lope K. Santos,
Faustino Aguilar, Leoncio G. Liquete,
Manuel Palma, Arcadio Arellano, Angel
Jose, Galo Lichauco, Felipe Barretto, and
Gregorio M. Cansipit, were erroneously
included in the complaint for the simple
reason that the first two were acquitted in
said criminal cause No. 4295, for libel, the
third was used as a witness for the
prosecution in the said criminal cause, and
the others have no interest, either directly
or indirectly, in the newspaper "El
Renacimiento" in which it is alleged by the
plaintiff the editorial, which is the basis of
the complaint, and which it is claimed to be
libelous, was published.

Wherefore the defendants pray that they

be acquitted of the complaint, with the
costs against the plaintiff.
After hearing the evidence adduced during the trial
of the cause, the arguments if the respective
attorneys, the Honorable James C. Jenkins, judge,
on the 14th of January, 1910, rendered the
following decision:

and published in said newspaper in its

ordinary number of the said 30th of
October, 1908, a malicious defamation and
false libel, which was injurious to the
plaintiff, said libel, as translated from the
Spanish, reading as follows:
"EDITORIAL.
"BIRDS OF PREY.

DECISION.
This is a civil action sounding in damages
to the amount of P100,000 for an alleged
libel of the plaintiff by the defendants.
The plaintiff is the Honorable Dean C.
Worcester, a member of the Civil
Commission of the Philippine Islands, and
Secretary of the Interior of Insular
Government. The defendants are twelve
persons designated by name in the
complaint and alleged therein to be the
owners, directors, writers (redactores),
editors (editores), and administrators of a
certain daily newspaper known as "El
Renacimiento" and "Muling Pagsilang,"
which defendants, as well as the plaintiff,
are residents of the city of Manila,
Philippine Islands.
It is further alleged in the complaint that for
a long time prior to the 30th of October,
1908, the defendants were the owners,
directors,
writers,
editors,
and
administrators of said daily newspaper,
and that said newspaper, during all the
time mentioned in the complaint, was
published and circulated daily in the
Spanish and Tagalog languages in the city
of Manila, having a large circulation
throughout the Philippine Islands.
It is also alleged that for a long time the
defendants
had
been
maliciously
persecuting and attacking the plaintiff in
said newspaper, until at last, on said date,
with the malicious intention of injuring the
plaintiff who then was still is a member of
the Civil Commission of the Philippines and
Secretary of the Interior in the Government
of the Philippines, they attacked the
integrity and reviled the reputation of the
plaintiff, not only as a private citizen, but
also as an official of the Government of the
Philippine Islands; and with the object of
exposing him to the odium, contempt, and
ridicule of the public, they wrote, printed,

"On the surface of the globe some

were born to eat and devour,
others to be eaten and devoured.
"Now and then the latter have
bestirred themselves, endeavoring
to rebel against an order of things
which makes them the prey and
food of the insatiable voracity of the
former. At times they have been
fortunate, putting to flight the eaters
and devourers, but in a majority of
cases they do not obtain anything
but a change of name or plumage.
"The situation is the same in all
spheres of creation; the relation
between the ones and the others is
that dictated by the appetite and
the power to satisfy it at the fellowcreature's expense.
"Among men it is easy to observe
the development of this daily
phenomenon. And for some
psychological reason the nations
who believe themselves powerful
have taken the fiercest and most
harmful creatures as emblems; it is
either the lion, or the eagle, or the
serpent. Some have done so by a
secret impulse of affinity and others
in the nature of simulation, of
infatuated
vanity,
making
themselves appear that which they
are not nor ever will be.
"The eagle, symbolizing liberty and
strength, is the bird that has found
the most adepts. And men,
collectively and individually, have
desired to copy and imitate the
most rapacious bird in order to
triumph in the plundering if their
fellow-men.

"There are men who, besides being

eagles, have the characteristics of
the vulture, the owl and the
vampire.

refuse from fear of displeasing the

one who is behind the motion, and
which they do not refuse to their
own good.

"Ascending the mountains of

Benguet to classify and measure
the skulls of the Igorots and study
and civilize them, and to espy in his
flight with the eye of the bird of
prey, where are the large deposits
of gold, the prey concealed
amongst the lonely mountains, to
appropriate
them
to
himself
afterwards, thanks to legal facilities
made and unmade at will, but
always for his own benefit.

"Patronizing concessions for hotels

on filled-in lands, with the
prospects of enormous profits, at
the expense of the blood of the
people.

"Authorizing, despite laws and

ordinances an illegal slaughtering
of diseased cattle in order to derive
benefit from the infected and putrid
meat which he himself was obliged
to condemn by virtue of his official
position.
"Presenting
himself
on
all
occasions with the wrinkled brow of
the scientist who consumes his life
in the mysteries of the laboratory of
science, when his whole scientific
labor is confined to dissecting
insects and importing fish eggs, as
if the fish eggs of this country were
less nourishing and savory, so as
to make it worth the while replacing
them with species coming from
other climes.
"Giving an admirable impulse to the
discovery of wealthy lodes in
Mindanao, in Mindoro, and in other
virgin regions of the archipelago,
with the money of the people, and
under the pretext of the public
good, when, as a strict matter of
truth, the object is to possess all
the data and the key to the national
wealth for his essentially personal
benefit, as is shown by the
acquisition of immense properties
registered under the names of
others.
"Promoting through secret agents
and partners, the sale of the city
worthless land at fabulous prices
which the city fathers dare not

"Such are the characteristics of the

man who is at the same time an
eagle who surprises and devours,
a vulture who gorges himself on
the dead and putrid meats, an owl
who affects a petulant omniscience
and a vampire who silently sucks
the blood of the victim until he
leaves it bloodless.
"It is these birds of prey who
triumph. Their flight and aim are
never thwarted.
"Who will detain them?
"Some share in the body and
plunder, Others are too weak to
raise a voice to protest. And others
die
in
the
disconsolating
destruction of their own energies
and interests.
"And then there appears, terrifying,
the immortal legend:
"MANE, TECEL, PHARES."
It is alleged, among other things, in
paragraph four of the complaint, that the
plaintiff was on the date of said publication,
and still is, well known to the officials of the
Government of the Philippine Islands, and
to the inhabitants of the Philippine Islands,
and to the public generally, personally as
well as a member of the Civil Commission
of the Philippines and as a Secretary of the
Interior; and the defamation and libel, and
the words, terms, and language used in
said defamation and libel were employed
by the said defendants with the intention of
indicating the said plaintiff, and that they
should be understood, as in fact they were
understood, by the public officials of the
Government and the inhabitants of the
Philippine Islands in general, as referring to
the plaintiff. (Here follow the reasons for

saying the editorial referred to plaintiff and

why the public understood it as referring to
him.)
The said defendants charged plaintiff with
the prostitution of his office as a member of
the Civil Commission of the Philippines and
as Secretary of the Interior of said Islands,
for personal ends; with wasting public
funds for the purpose of promoting his
personal welfare; and with the violation of
the laws of the Philippine Islands and the
ordinances of the city of Manila; with taking
part in illegal combination of the purpose of
robbing the people, with the object of gain
for himself and for others; and lastly, with
being a bird of prey, and that said
defamation should be understood, as in
effect it was understood by the public
officials of the Government and the people
of the Philippine Islands in general, as
charging the said plaintiff with the conduct,
actions and things above specified; all of
which allegations relating to the character
and conduct of the said plaintiff, as above
stated, were and are false and without any
foundation whatever. That said defamation
and libel were published by the defendants
under a heading in large and showy type,
and every effort was made by said
defendant to see that said defamation and
libel should attract the attention of the
public and be read by all the subscribers to
said newspaper and the readers of the
same.
In paragraph five of the complaint it is
further alleged that, besides assailing the
integrity and reviling the reputation of the
plaintiff, said defendants, in publishing said
libel, did so with the malicious intention of
inciting the Filipino to believe that the
plaintiff was a vile despot and a corrupt
person, unworthy of the position which he
held, and for this reason to oppose of his
administration of the office in his charge as
Secretary of the Interior, and in this way
they endeavored to create enormous
difficulties for him in the performance of his
official duties, and to make him so
unpopular that he would have to resign his
office as a member of the Civil
Commission of the Philippines and
Secretary of the Interior. In fact, said
defendants, by means of said libel and
other false statements in said mentioned
newspaper, have been deliberately trying
to destroy the confidence of the public in
the plaintiff, and to in incite the people to

place obstacles in his way in the

performance of his official duties, in
consequence of which said plaintiff has
met with a great many difficulties which
have increased to a great extent his labors
as a public official in every one of the
Departments.
And the allegations end with paragraph six,
in which the plaintiff states that for all these
reasons has been damaged and is entitled
to an indemnity for the additional work to
which he has been put by said defendants
in compliance with his duties, both in the
past and in the future, as well as for the
injuries to his reputation and feelings, in
the sum, of P50,000, and that besides this
said amount he is entitled to collect from
the defendants the additional sum of fifty
thousand pesos in the way of punitive
damages, as a warning to the defendants.
The complaint concludes with a prayer,
among other things, that judgment be
rendered ordering the defendants to pay
the damages as above stated and the
costs of the action; and is dated and
signed, Manila, P.I., January 23, 1909,
Hartigan and Rohde, Kincaid and Hurd,
attorneys for plaintiff.
A demurrer to this complaint was filed by
the defendants, through their attorney, Sr.
Felipe Agoncillo, which demurrer was
heretofore heard and overruled by the
Court, and the defendants required to
answer. Accordingly, the defendants within
the prescribed time, filed their answer; and
on November 16, 1909, through their
attorney, filed and amended answer, which
is as follows (after stating the case):
The defendants in the aboveentitled action, through their
undersigned attorney, answering
the complaint, state: That they
make a general denial of the
allegations in the complaint, and as
a special defense allege:
"(1) That the plaintiff lacks the necessary
personality to institute the complaint in
question, as evidently appears from the
allegations in the same, and which the
defendants deny;
"(2) That the facts set forth as a cause of
action in the complaint are insufficient to

constitute a cause of action in favor of the

plaintiff and against the defendants;
"(3) That the said complaint is in every
sense contrary to law, criminal case No.
4295, for libel, against the defendants
Martin Ocampo, Teodoro M. Kalaw, and
Fidel A. Reyes, in the Court of First
Instance of this city, being still pending,
inasmuch as both causes, criminal and
civil, are based upon the same facts which
the plaintiff, who is also interested in said
criminal cause, considers a cause of
action;
"(4) That the civil action in the aboveentitled cause has been destroyed as a
consequence of the fact that the plaintiff
did not expressly reserve his right to the
same in the said mentioned cause No.
4295 for libel, in order to exercise it after
the termination of said criminal cause:
"(5) That the defendants Lope K. Santos,
Faustino Aguilar, Leoncio G. Liquete,
Manuel Palma, Arcadio Arellano, Angel
Jose, Galo Lichauco, Felipe Barretto, and
Gregorio
M.
Cansipit
have
been
erroneously included in the complaint, for
the simple reason that the first two were
acquitted in said cause No. 4295 for libel,
the third was used as a witness by the
prosecution in the same cause, and the
latter ones have no interest, directly or
indirectly,
in
the
newspaper
"El
Renacimiento," in which the plaintiff
presumes, was published the editorial
which forms the basis of the complaint, and
which is said to be libelous; and concluding
with a prayer to the court to dismiss the
case, with cost against the plaintiff."
The second paragraph of this "special
defense" is nothing other than a general
demurrer to the complaint, which has been
overruled, as already stated.
The first paragraph is not clearly stated,
but the court construes it as meaning a
simple denial that the plaintiff is the person
referred to in the alleged libelous article
"Birds of Prey," which issue is sufficiently
raised by the general denial of the
allegations in the complaint.
The third paragraph is not a valid defense
in law, for the simple reason that section
11 of Act 277 of the Philippine

Commission, under which this suit is

brought, especially provides for a separate
civil action for damages, as well as for a
criminal prosecution. (See Mr. Justice
Johnson's recent decision.) This third
paragraph is therefore without merit; and
the same may be said of the fourth
paragraph thereof. As to paragraph five, it
contains no material averment which could
not have been set up and insisted upon
under the general issue.
One part if this so-called special defense is
therefore a demurrer already and
adjudicated, another part is covered by the
general issue, and the residue is without
merit as a legal defense, and might have
been stricken out. The defense is therefore
tantamount to the general issue only, there
being no special plea that these charges
are true, nor any plea of justification.
The trial of this case on its merits began
November 16, and ended December 10,
1909, and the proceedings and evidence
introduced are to be found in the exhibits
and stenographic notes taken by the
court's official reporter. At the trial Judge
Kincaid said Major Hartigan appeared for
the plaintiff and Seores Agoncillo, Cruz
Herrera, and Ferrer for the defendants.
After hearing the testimony and arguments
of counsel and a due consideration of the
case, the court finds the following facts
established by the admissions and a
decided preponderance of the evidence:
That the defendants Martin Ocampo,
Manuel Palma, Arcadio Arellano, Angel
Jose, Galo Lichauco, Felipe Barretto, and
Gregorio M. Cansipit, seven in number, are
the proprietors and owners of the said daily
newspaper known as "El Renacimiento"
and "Muling Pagsilang," and that "El
Renacimiento" and "Muling Pagsilang," are
one and the same newspaper, owned,
managed, printed and published by the
same persons; that Teodoro M. Kalaw and
Lope K. Santos were the editors in chief of
directors of this paper on the 30th of
October, 1908, and that said nine
defendants named were the owners,
editors,
proprietors,
managers
and
publishers of said newspaper on said 30th
of October, 1908, for a long time prior
thereto, and during all the time mentioned
in the complaint.

As to the defendants, Reyes, Aguilar, and

Liquete, they appear from the evidence to
have been editors of said paper, but in
subordinate position to the chief editors or
directors, Kalaw and Santos, and to have
acted under the direction of their latter two
defendants.
The court further finds that every essential
or material allegation of the complaint is
true substantially as therein stated, with the
exception noted to Fidel A. Reyes,
Faustino Aguilar, and Leoncio G. Liquete,
and as may be hereinafter indicated. The
case is therefore dismissed as to these
three defendants.
The only serious contention of the defense
is (1) that the editorial "Birds of Prey" does
not refer to a determinate person; and (2)
that, conceding that it does refer to the
plaintiff, none of the defendants, except
Teodoro M. Kalaw, is responsible for the
writing, printing, or publication of the
alleged libelous article of the damages to
the plaintiff resulting therefrom.
In the opinion of the court this article so
indubitably refers to the plaintiff, and was
so easily and well understood by the
readers of said paper as indicating the
plaintiff, that it would be an act of
superrogation to elaborately discuss the
evidence adduced in support of or against
the proposition. It is as clear to the court
from the evidence adduced as the noonday
sun, that the plaintiff is the identical and
only person meant and referred to in said
article "Birds and Prey;" and it requires no
argument to prove that it does mean and
refer to him and was so intended by the
writer, and therefore by said nine
defendants, and could not have been
otherwise understood by any intelligent
reader or subscriber of said paper, in view
of the reasons assigned in the complaint,
which reasons are clearly disclosed and
fully established by the evidence. And it
may be added that much valuable time
was needlessly consumed by the defense
at trial in an effort to establish the contrary.
It seems to the court a reflection upon the
intelligence of the subscribers and readers
of "El Renacimiento" to contend that this
editorial was not well understood by them
as referring to the plaintiff, and as fully as if
his name had been mentioned in every
paragraph thereof. And assuredly the

omission of his name from the editorial has

made the libel less hurtful and disastrous in
its results to the reputation and feelings of
the plaintiff.
Much time was consumed also in adducing
evidence to show that none of the twelve
defendants were the owners of "El
Renacimiento" and "Muling Pagsilang," but
that six of them had originally contributed
their money as a partriotic donation to the
Filipino people, and that Martin Ocampo
simply held the money and property of the
paper as trustees for this people, and that
the paper was being devoted exclusively to
philanthropic and patriotic ends, and that
Galo and Lichauco had agreed to
contribute to the same ends, but had not
done so.
This proposition in the light of evidence is
so preposterous as to entitle it to little, if
any, serious consideration. To ask the
court to believe it is tantamount to asking
the court to stultify reason and common
sense. That those seven defendants
named contributed their respective sums of
money, as shown by the evidence, to the
foundation of said newspaper in 1901 for
their own personal benefit and profit is fully
and unmistakably established. It is equally
well established that Martin Ocampo is and
was, not only a part owner, but that he has
been and is still the administrator or
business manager of said newspaper, and
that the other six persons named are
shareholders, part owners and proprietors
thereof, and were such on said 30th of
October, 1908.
Arcadio Arellano testified positively that
Galo Lichauco was one of the seven
founders, and that Lichauco contributed
P1,000. Martin Ocampo testified that Galo
Lichauco promised to contribute an amount
which he (the witness) did not remember
but that Lichauco did not keep his promise.
(See pp. 107, 108, and 231 of the
evidence.)
The other evidence and circumstances
strongly corroborate Arcadio Arellano, and
the court is constrained to believe that
Arellano told the truth and Ocampo did not.
See Exhibit B-J, a copy of "El
Renacimiento" containing the article
"Infamy Among Comrades," page 87 of the
evidence, in which there was published

that these seven persons named are the

shareholders of the paper.

injurious to the plaintiff and from which the

plaintiff has sustained serious damage.

Furthermore, Galo Lichauco failed to

appear and testify, so as to enlighten the
court as to which witness, Arellano or
Ocampo, told the truth, or whether chief
editor Kalaw had his authority to publish in
said paper, as he did in November 22,
1907, that he, Galo Lichauco, was one of
the shareholders. The presumptions are
therefore against Galo Lichauco. See S.S.
Co. vs. Brancroft-Whitney Co. (36 C. C. A.,
136 and 153).

This editorial, when properly interpreted

and read between the lines, means,
besides other things, and was intended by
the writer to mean and be understood by
the
readers
thereof
as
meaning
substantially the following:

It also appears from the evidence that

Teodoro M. Kalaw was the chief editor or
director of the Spanish section of said
paper, and that Lope K. Santos was the
chief editor or director of the Tagalog
section on said 30th of October, 1908, and
that the Spanish and Tagalog sections are,
and then were, one and the same
newspaper, but printed and published in
different languages.
It is alleged that said newspaper has a
large circulation throughout the Philippine
Islands, and was published and circulated
daily in the Spanish and Tagalog
languages in the city of Manila. Not only
are these allegations true, but it is also true
that said newspaper has a daily circulation
and subscribers in other parts of the world,
notably in the United States and Spain;
and it has subscribers numbering in
toto not less than 5,200, and a daily issue
of 6,000 copies.
It is also true as alleged, and the court so
finds that since the year 1906 to said 30th
of October, 1908, these nine defendants
had been maliciously persecuting and
attacking the plaintiff in their said
newspapers, until at last, on said 30th of
October, 1908 with the malicious intention
of injuring the plaintiff, who on said date
was and still is a member of the Civil
Commission and Secretary of the Interior
in the Government of the Philippine
Islands; and with the object of exposing
him to the odium, contempt, and ridicule of
the public, they wrote, printed, and
published in their said newspaper, in its
ordinary number of said 30th of October,
1908, the malicious defamation and false
libel of and concerning the plaintiff, entitled
and herein alluded to as the editorial "Birds
of Prey," which libel was and is highly

That the plaintiff, Dean C. Worcester, was

born on the surface of the globe to eat and
devour, like a bird of prey, and that others,
born to be eaten and devoured, are the
prey and the food of the insatiable voracity
of the plaintiff; that the plaintiff had a desire
to copy and imitate the most rapacious
bird, the eagle, in order to triumph in
plundering his fellowman; that the plaintiff
besides being an eagle, has the
characteristics of thevulture, the owl, and
the vampire.
That the plaintiff ascended the mountains
of Benguet to classify and measure the
skulls of the Igorots, and study and civilize
them and to espy in his flight with the eye
of the bird of prey the large deposits of
gold-the prey concealed amidst the
mountains-and to appropriate them to
himself afterwards, and that to this end the
plaintiff had the legal facilities, made and
unmade at his own will, and that this is
always done for his own benefit.
That the plaintiff authorized, inspite of laws
and ordinances, the illegal slaughtering is
diseased cattle in order to derive benefit
from the infected and putrid meant which
he himself was obliged to condemn by
virtue of his official position; that while the
plaintiff presents himself on all occasions
with the wrinkled brow of the scientist who
consumes his life in the mysteries of the
laboratory of science, his whole scientific
labor is confined to dissecting insects and
importing fish eggs.
That although the plaintiff gave an
admirable impulse to the discovery of
wealthy lodes in Mindanao and Mindoro,
and in other virgin regions of the
Archipelago, with the money of the people,
under the pretext of the public good, as a
strict matter of truth his object was to
possess all the data and the key to the
national wealth for his essentially personal
benefit, and that this is shown by his

acquisition
of
immense
properties
registered under the names of others.
That the plaintiff promoted, through secret
agents and partners, the sale to the city of
Manila of worthless land at fabulous prices,
which the city fathers dared not refuse from
fear of displeasing the plaintiff, who was
behind the project, and which they did not
refuse for their own good; that the plaintiff
favored concessions for hotels in Manila on
filled-in land; with the prospect of
enormous profits, at the expense of the
blood of the people.
That such are the characteristics of the
plaintiff, who is at the same time an eagle
that surprises and devours, a vulture that
gorges his self on deed and rotten meats,
an owl that affects a petulant omniscience,
and a vampire that sucks the blood of the
victim until he leaves it bloodless. And this
libelous article concludes with the
asseveration in substance that the plaintiff
has been "weighed in the balance and
found wanting" "Mane, Tecel, Phares."
That this editorial is malicious and injurious
goes without saying. Almost every line
thereof teems with malevolence, ill will, and
wanton and reckless disregard of the rights
and feelings of the plaintiff; and from the
very nature and the number of the charges
therein
contained
the
editorial
is
necessarily very damaging to the plaintiff.
That this editorial, published as it was by
the nine defendants, tends to impeach the
honesty and reputation of the plaintiff and
publishes his alleged defects, and thereby
exposes him to public hatred, contempt,
and ridicule is clearly seen by a bare
reading of the editorial.
It suffices to say that not a line is to be
found in all the evidence in support of
these malicious, defamatory and injurious
charges against the plaintiff; and there was
at the trial no pretense whatever by the
defendants that any of them are true, nor
the slightest evidence introduced to show
the truth of a solitary charge; nor is there
any plea of justification or that the charges
are true, much less evidence to sustain a
plea.
In the opinion of the court "Birds of Prey,"
when read and considered in its relation to

and connection with the other articles

libelous and defamatory in nature,
published of and concerning the plaintiff by
these nine defendants anterior and
subsequent to the publication of this article,
and having reference to the same subject
matter as shown by the evidence, is one of
the worst libels of record. It is safe to say
that in all the court reports to the Philippine
Islands, or of Spain, or the United States,
there is not to be found a libel case in
which
there
is
a
more
striking
exemplification of the spirit of hatred, bad
faith, evil motive, mischievous intent, actual
malice, nefarious purpose, base malignity,
or gross malevolence.
It is proper to observe also that since the
beginning of this attack on the plaintiff in
the year 1906 down almost to the present
time, so far from there being any apology,
retraction, or effort to repair the injury
already done as far as lay in the power of
the defendants, the persecution, wrong,
and tortious injury to the plaintiff had been
steadily kept up and persisted in, without
the slightest abatement of the malevolent
spirit.
There has been neither retraction, apology,
nor reparation; per contra, the libel has
been
repeated,
reiterated,
and
accentuated, and widely and extensively
propagated by these nine defendants
through the columns of their said paper
and otherwise; and it appears from the
evidence that especial effort has been
made by these same defendants to give as
much publicity as possible to the libelous
and defamatory words used of and
concerning the plaintiff in said editorial.
Through
their
instrumentality
and
persistency in asserting and reasserting its
truth, this diabolical libel has been spread
broadcast over the Philippine Islands and
to other parts of the world. In said criminal
case No. 4295 some of these nine
defendants pleaded the truth of the
charges; and in Exhibit A-Q is to be found
this language: "The defense will adduce its
evidence demonstrating the truth of every
one of the facts published."
In their said paper of the 11th of January,
1909, there is published statement:

"The brief period of time allowed us

by the court, at the request of the
counsel, to gather evidence which
we are to adduce in our effort to
demonstrate the truth of the
accusation that we have formulated
in the article which is the subject of
the agitation against us, having
expired, the trial of the case
against our director had been
resumed." (See pp. 63 and 67 of
the evidence.)
And about the same time they also
declared in their said paper that "there is
more graft than fish in the rivers of
Benguet." And this in the year of our Lord
1909! the persecution having begun in
1905; thus indicating that there is to be no
"let-up" or cessation of the hostile attitude
toward the plaintiff or the vilification of his
name and assaults upon his character,
much less a retraction or an apology,
unless drastic means and measures are
made use of to the end that there may be
no further propagation of the libel, or
asseveration, or reiteration of its truth.
This article "Birds of Prey" charges the
plaintiff with malfeasance in office and
criminal acts, and is therefore libelous per
se. It in substance charges the plaintiff with
the prostitution of his office as a member of
the Civil Commission of the Philippine
Islands and Secretary of the Interior of said
Islands for personal ends. It is charged
also substantially that plaintiff in his official
capacity wasted the public funds for the
purpose of promoting his own personal
welfare, and that he violated the laws of
the Philippine Islands and the ordinances
of the city of Manila.
In its essence he is charged with taking
part in illegal combinations for the purpose
of robbing the people with the object of
gain for himself and for others; with being a
bird of prey, a vulture (buzzard), an owl,
and a vampire that sucks the blood of the
victim (meaning the people) until he leaves
it bloodless, that is to say, robs the people,
until he leaves them wretched and povertystricken,
deprived
of
all
worldly
possessions; and lastly, that he, the
plaintiff, like Belshazzar, has been weighed
in the balance and found wanting as a high
Government functionary; all of which
charges are false and malicious and

without and foundation whatever in fact, as

the evidence fully demonstrates.
It is also a matter of fact, and the court so
finds, that said defamation was written and
published that it might be understood, and
it was understood, by the public officials of
the Government and the people of the
Philippine Islands in general, and wherever
else said newspaper may have circulated
and been read, as charging the plaintiff
with the tortious and criminal acts and
conduct charged in said editorial as
hereinbefore specified and interpreted.
The court finds it also true that, besides
assailing the integrity and reviling the
reputation of the plaintiff, said nine
defendants, in publishing said libel, did so
with the malicious intention of inciting the
Filipino people to believe that the plaintiff
was despotic and corrupt and unworthy of
the position which he held, and for this
reason to oppose his administration of the
office in his charge as Secretary of the
Interior, and in this way they endeavored to
create enormous difficulties for him in the
performance of his official duties, and to
make him so unpopular that he would have
to resign his office as a member of the Civil
Commission of the Philippines and
Secretary of the Interior.
It is also true that the said nine defendants,
by means of said libel, and other like false
statements in their said newspaper, have
been deliberately trying to destroy the
confidence of the public in the plaintiff and
to incite the people to place obstacles in
his way in the performance of his official
duties, in consequence of which the
plaintiff has met with many difficulties
which have greatly increased his labors as
a public official.
It further appears from the evidence that
not only has an effort been made by these
nine defendants to give as much publicity
as possible to the charges, but in order that
said defamation should attract the attention
of the public, they published the same
under a heading in large, bold and showy
type, so that it might be easily seen and
read by all the subscribers and readers of
said paper.
In full view of all the evidence, therefore, it
is clearly seen that every essential

allegation of the complaint is true

substantially as therein claimed, and that
the whole of the said editorial relating to
the misconduct and bad character of the
plaintiff is false and without the slightest
foundation in fact. Not a scintilla of
evidence was introduced in support of any
injurious charge made therein against the
plaintiff, to say nothing of the plaintiff's
evidence that each and every charge of
malfeasance therein contained is false,
and without reference to whether a failure
to plead the truth admits the falsity of the
charge.
The evidence shows no "special" or "actual
pecuniary damage," and none is alleged in
the complaint. Two other kinds of
damages, however are claimed, to wit,
general damages for injuries to the feelings
and reputation of the plaintiff and additional
work to which he has been put by the
conduct of the defendants, which are laid
in the sum of P50,000, and "punitive,"
exemplary, or vindictive damages, "as a
warning to the defendants," or as
expressed in Act 277 of the Philippine
Commission, as a just punishment to the
libelers and an example to others," which
are laid in the same sum of P50,000.
The nine defendants being liable to the
plaintiff for damages, the next question to
be decided is what amount of damages
should be awarded the plaintiff for the
injury to his reputation and feelings and his
being a proper case for punitive damages,
the further question is, what sum shall be
awarded as a just punishment to these
nine libelers and as an example to others.
In neither of these cases is there any
precise measure of damages.
In determining the amount to be awarded
in the first instance it is proper to consider
the
previous
character,
influence,
reputation, standing, official position, hope
of advancement, prospect of promotion,
and social status of the plaintiff and his
family, and all the circumstances
connected with the case.
The plaintiff is a man in the prime of life,
holding, as he has held for the last ten
years an important, responsible, lucrative,
high and exalted position of trust and honor
in the service of the Government of the
United States, in the Philippine Islands,
without a blotch on his family escutcheon,

so far as the evidence shows, and with an

untarnished reputation as a man, as a
citizen, and as a Government official.
He is a man of honesty, integrity, and high
social position; a man of learning, famous
as a scientist, and scientific achievements
and scholarly attainments, a man of
industrious habits, genuine worth, and
intellectual force. He has read, studied,
traveled and learned much, and is an
author of merit and distinction. He was for
a long while a professor in one of the
largest and most renowned institutions of
learning in the world; he is a man of vast
experience, broad and liberal views, and
an extensive acquaintanceship, not only in
the Philippine Islands, but in the United
States and other countries of the world. He
was well and favorably received by the
people wherever he journeyed previous to
this atrocious libel upon his integrity and
reputation.
He has discharged the duties of his lofty
official position in a manner that reflects
credit upon himself as well as the
Government which he represents, and
apparently with entire satisfaction to all of
his superiors in office and the people
generally; and but for this pernicious,
outrageous, and highly reprehensible
assault upon his good name, fame and
reputation, there were prospects of
promotion to higher honors. And so far as
his personal and private record is
concerned it was without a blemish anterior
to the time when these unfounded and
dastardly aspersions were cast upon it by
these nine defendants.
Indeed, it is only necessary to advert to the
testimony of the defense itself to ascertain
that the plaintiff is an honorable man, and
without a stain upon his character, officially
or otherwise. It would be interesting to note
here in parallel columns and compare the
charges made in "Birds of Prey" and the
testimony of one of the witnesses for the
defendants.
Felipe Buencamino, an intelligent witness
for the defense, in his testimony (p. 240)
when asked the question, Do you know Mr.
Worcester?" he answers, "Yes, sir: I know
him as an honorable man. I also know him
as anhonest, honorable public official." In
answer to another question he says, "As I
have said, I know Mr. Worcester as a

private citizen and as a public official, and

my opinion of him is that of honorable man
and an upright official." And no other
witness testified anything to the contrary.
"A good name is rather to be
chosen than great riches and
loving favor rather than silver of
gold."
"Who steals my
purse steals trash;
xxx

xxx

xxx
But he that filches
from me my good
name,
Robs me of that
which not enriches
him
And makes me
poor indeed."

The enjoyment of a private reputation is as

much a constitutional right as the
possession of life, liberty or property. It is
one of those rights necessary to human
society that underlie the whole scheme of
human civilization.
"The respect and esteem of his
fellows are among the highest
rewards of a well-spent life
vouchsafed to man in this
existence. The hope of it is the
inspiration of youth, and their
possession the solace of later
years. A man of affairs, a business
man, who has been seen and
known of his fellowmen in the
active pursuits of life for many
years, and who has developed a
great
character
and
an
unblemished
reputation,
has
secured a possession more useful,
and more valuable than lands, or
houses, or silver, or gold . . .
"The law recognizes the value of
such a reputation, and constantly
strives to give redress for its injury.
It imposes upon him who attacks it
by slanderous words, or libelous
publication, a liability to make full
compensation for the damage to
the reputation, for the shame and
obloquy, and for the injury to the

feelings of the owner, which are

caused by the publication of the
slander or the libel.
"It goes further. If the words are
spoken, or the publication is made,
with the intent to injure the victim,
or with the criminal indifference to
civil obligation, it imposes such
damages as a jury (in this case the
judge), in view of all the
circumstances of the particular
case adjudge that the wrongdoer
ought to pay as an example to the
public, to deter others from
committing like offenses, and as a
punishment for the infliction of the
injury.
"In the ordinary acceptance of the
term, malice signifies ill will, evil
intent, or hatred, while it is legal
signification is defined to be "a
wrongful act done intentionally,
without legal justification." (36 C. C.
A., 475.)
Surely in the case at bar there was a
wrongful or tortious act done intentionally
and without the semblance of justification
or excuse, or proof that the libelous
charges against the plaintiff were
"published and good motives and
justifiable ends."
But the Legislature and the highest judicial
authority of these Islands have spoken in
no uncertain words with regard to the rights
of the plaintiff in this case; and we need not
necessarily turn to the law of libel
elsewhere, or the decision of the courts in
other jurisdictions to ascertain or determine
his rights.
In sections 1, 2, 3, 4, 6, and 11 of the Libel
Law (Act 277, Philippine Commission) is to
be found the law of these Islands
especially applicable to this case. Section
1 thereof defines libel. Section 2 provides
that every person who willfully and with a
malicious intent to injure another publishes,
or procures to be published, any libel shall
be punished as therein provided. Section 3
provides that an injurious publication is
presumed to have been malicious if no
justifiable motive for making it is shown.
Section 4 provides, among other things,
that in all criminal prosecutions the truth

may be given in evidence; but to establish

this defense, not only must the truth of the
matter charged as libelous be proven, but
also that it was published with good
motives and for justifiable ends; and the
presumptions, rules of evidence, and
special defenses are equally applicable in
civil and criminal actions, according to
section 11 of said Act.
Section 6 is as follows:
"Every author, editor, or proprietor
of any book, newspaper, or serial
publication is chargeable with the
publication of any words contained
in any part of such book or number
of each newspaper or serial as fully
as if he were the author of the
same."
And section 11 provides as follows:
"In addition to such criminal action,
any person libeled as hereinbefore
set forth shall have a right to a civil
action against the person libeling
him for damages sustained by
reason of such libel, and the
person so libeled shall be entitled
to recover in such civil action not
only the actual pecuniary damages
sustained by him, but also
damages for injury to his feelings
and reputation, and in addition
such punitive damages as the court
may think will be a just punishment
to the libeler and an example to
others. Suit may be brought in any
Court of First Instance having
jurisdiction of the parties. The
presumptions, rules or evidence
and special defenses provided for
in this chapter for criminal
prosecutions shall be equally
applicable in civil actions under this
section."
"The proprietor of a printing plant is
responsible for publishing a libel.
According to the legal doctrines
and jurisprudence of the United
States, the printer of a publication
containing libelous matter is liable
for the same." (Mr. Justice Torres,
in U.S. vs. Ortiz, 8 Phil. Rep., 757.)
But said section 6 plainly fixes the
liability of editors and proprietors of

newspapers, and is clear enough

for all the purposes of this case.
Mr. Justice Carson (5 Phil. Rep. 1551),
speaking for our Supreme Court, says:
"When there is an averment in the
complaint that the defamatory
words used refer to the plaintiff,
and it is proven that the words do
in fact refer to him and are capable
of bearing such special application,
an action for libel may be
maintained even though the
defamatory publication does not
refer to the plaintiff by name."
And Mr. Justice Willard (12 Phil. Rep.,
4282), for the same high authority, says:
"In an action for libel damages for
injury to feelings and reputation
may be recovered though no actual
pecuniary damages are proven.
"Punitive damages cannot be
recovered unless the tort is
aggravated by evil motive, actual
malice, deliberate violence or
oppression."
That is to say, if there is evil motive, or
actual malice or deliberate violence, or
oppression then punitive damages, or
"smart money," may be recovered.
And Justice Carson (U.S. vs. Sedano, 14
Phil., Rep., 338), also says:
"Actual or express malice of an
alleged libelous publication may be
inferred from the style and tone of
the publication.
"The publication of falsehood and
calumny against public officers and
candidates for public office is
specially reprehensible and is an
offense most dangerous to the
people and to the public welfare.
"The interest of society require that
immunity should be granted to the
discussion of public affairs, and
that all acts and matters of a public
nature may be freely published with
fitting comments and strictures; but
they do not require that the right to

criticise
public
officers
shall
embrace the right to base such
criticism under false statements of
fact, or attack the private character
of the officer, or to falsely impute to
him malfeasance or misconduct in
office."
And there are almost numberless English
and American authorities in perfect
harmony with these decisions of our
Supreme Court too numerous indeed to be
cited here; and it is not necessary.
Among the leading cases, however, in the
United States, is that of Scott vs.
Donald (165 U.S., 58) and cases therein
cited. In this case the court says:
"Damages have been defined to be the
compensation which law will allow for an
injury done, and are said to be exemplary
and allowable in excess of the actual loss
when the tort is aggravated by evil motive,
actual malice, deliberate violence or
oppression," which is in entire harmony
with Justice Willard's decision hereinbefore
cited.
And quoting from the decision in Day vs.
Woodworth (13 Howard, 371) the same
high court says:
"In actions of trespass, where the
injury has been wanton and
malicious, or gross or outrageous,
courts permit juries (here the court)
to
add
to
the
measured
compensation of the plaintiff which
he would have been entitled to
recover, had the injury been
inflicted without design or intention,
something further by way of
punishment or example, which has
sometimes been called "smart
money." "
It thus clearly appears that the facts
established in the case at bar are more
than sufficient to bring it within the rule of
law here laid down by the highest judicial
authority.
Section 11 of the Libel Law expressly
allows general damages; and Mr. Justice
Willard,
in Macleod
vs.
Philippine
Publishing Company,3 says:

"The general damages which are

allowed in actions of libel are not
for mental suffering alone, but they
are
allowed
for
injury
to
the standing and reputation of the
person libeled, and the common
law of England and America
presumed that such damages
existed without proof thereof from
the mere fact of publication of the
libel."
In Day vs. Woodworth, the Supreme Court
of the United States recognized the power
of a jury in certain actions in tort to assess
against the tort feasor punitive damages.
Where the injury has been inflicted
maliciously or wantonly, and with
circumstances of contumely, or indignity,
the judge or jury, as the case may be, is
not limited to the ascertainment of a simple
compensation for the wrong committed
against the aggrieved person.
"The public position of the plaintiff,
as an officer of the Government,
and the evil example of libels, are
considerations with the jury (here
the judge) for increasing damages."
(Tillotson vs. Cheetham, 3 Johns,
56.)
"The character, condition and
influence of the plaintiff are
relevant on the matter of the extent
of damages." (Littlejohn vs. Greely,
22 How. Prac., 345; 13 Abb. Prac.,
41, 311.)
"Where the publication is libelous,
the law presumes that it was made
with malice technical, legal
malice, but not malice in fact
and the amount of damages
depends in a large degree upon
the motives which actuated the
defendants in its publication; and in
such cases the law leaves it to the
jury (here the judge) to find a return
such damages as they think right
and just, by a sound, temperate,
deliberate,
and
reasonable
exercise of their functions as
jurymen." (Erber vs. Dun. (C. C.)
12 Fed., 526.)
"Actions of libel, so far as they
involve questions of exemplary

damages, and the law of principal

and agent, are controlled by the
same rules as are other actions of
tort. The right of a plaintiff to
recover exemplary damages exists
wherever a tortious injury has been
inflicted recklessly or wantonly, and
it is not limited to cases where the
injury resulted from personal
malice or recklessness of the
defendant. It follows that the owner
of a newspaper is as responsible
for all the acts of omission and
commission of those he employs to
edit it and manage its affairs, as he
would be if personally managing
the same.' (Malloy vs. Bennett, (C.
C.) 15 Fed., 371.)
"The fact that a publication,
libelous per se, was made without
any attempt to ascertain its
correctness is sufficient to justify a
finding that defendant committed
libel
client
with
a
wanton
indifference, and with actual malice
sufficient to sustain exemplary
damages." (Van Ingen vs. Star Co.,
1 App. Div., 429, 37 N.Y., 114.)
"The court is not authorized to set
aside a verdict for $45,000 in an
action for libel, where it appears
that plaintiff was persistently
persecuted in the columns of
defendant's newspaper, and that
he and his family were held up to
public contempt and ridicule, and
defendants withdraw from the case
after failing to establish a plea of
justification." (Smith vs. Times Co.,
(Com. p. 1) 4 Pa. Dist. Rep., 399.)
"In considering the amount with the
defendant shall pay, on this
account (exemplary damages) the
turpitude of his conduct and his
financial
ability
are
only
considered; and such consideration
is not in view of the injury or
distress of the plaintiff, but in behalf
of the public; the wrongful act is
regarded as an indication of the
actor's vicious mind an overt
deed of vindictive or wanton wrong,
offensive and dangerous to the
public good. This is the view of
those damages which generally
prevails." (Sutherland on Damages,

vol. 2, p. 1092. title Exemplary

Damages.)
"Punitive damages are recoverable
not to compensate the plaintiff, but
solely to punish the defendant. This
legal motive would suffer defeat if
punitive damages could not be
given for a malicious attack on a
reputation too well established to
receive substantial injury at the
hands of a libeler." (Judge Bond in
Ferguson vs. Pub. Co., 72 Mo.
App., 462.)
It may be suggested that the reputation of
the plaintiff in this case is too well
established to be seriously affected by the
defamatory words used of and concerning
him in "Birds of Prey," but it would not be
proper to gravely consider this suggestion.
The conditions in these Islands are
peculiar. The minds, thoughts, and
opinions of the people are easily molded,
and the public is credulous and perhaps
frequently too ready to believe anything
that may be said in derogation of an
American official, especially when it is
published and vouched for by the editorial
and business management and proprietors
if a newspaper of the prominence,
pretensions, circulation and influence if "El
Renacimiento,"
which
paper
is
everlastingly proclaiming in its columns
that it is being conducted and published
solely in the interests of the Filipino people
pro bono publico. There is stronger
disposition to give credence to what is said
in a newspaper here in the Islands the
elsewhere, and when abuse, vilification,
and defamation are persistently practiced
for a period of several years, without
modification or retraction, but with renewed
emphasis, the people naturally come to
believe in its verity and authenticity.
It is apparent from the evidence that as an
effect of the persecution of the plaintiff by
"El Renacimiento" and the libel published
in its columns, the minds of the major part
of the Filipino people have been poisoned
and prejudiced against the plaintiff to such
an extent that he is regarded by these
people as odious, dishonest, unscrupulous
and tyrannical.

It may be that his reputation has not

suffered so severely with those of his own
race, but when it is considered that his
vocation has tenfold more to do with the
Filipinos than with his own people, that his
official duties place him in constant contact
with them, and that his success in his
chosen career is largely dependent upon
their good will and support, it is manifest
that the damage to his reputation has been
very great and that a large sum of money
should be awarded to indemnify him, as far
as money can indemnify, for the loss of his
good name with the Filipino people.
The plaintiff came to the Philippine Islands
when a young man, full of hope and
ambition. Since his arrival he has devoted
himself incessantly and indefatigably to the
uplifting of the inhabitants of the
Archipelago
and
to
the
faithful
performance, as far as he was able, of the
pledges and promises of the Government
to the Filipino people. The duties of his
particular office were such as brought him
in more immediate and constant contract
with the people than any other official of
the same category in these Islands.
It is clearly shown that the plaintiff faithfully
endeavored to perform, and did efficiently
perform, all of these duties, doing
everything that he could in an unselfish
and disinterested manner of the welfare
and development of the country and its
people, knowing full well that his career, as
well as his advancement, depended largely
upon the good will of these people, and
that by incurring their censure or
displeasure he would have little hope of
success in his chosen work.
Imagine,
therefore,
the
chagrin,
disappointment,
mortification,
mental
suffering, and distress, and perturbation of
spirit that would necessarily be occasioned
him when he discovered that through the
nefarious,
studied,
and
practiced
persecution of the paper in question, these
high hopes were blasted, and that, instead
of having gained the respect and gratitude
of the people for the assiduous labors
devoted to their uplifting, they had been
made to believe that, instead of being a
benefactor, he was a vampire that was
sucking their life blood, a corrupt politician
who was squandering the money wrung
from the people by means of taxation, in

schemes
for
his
own
personal
aggrandizement and enrichment.
That instead of developing the mineral
wealth of the Islands he was taking up all
the rich veins and appropriating them in the
names of subservient tools, to his own
personal use, benefit and profit. That
instead of protecting the people from
disease, he was, by means of infected
meat and for his own personal gain,
spreading contagion among them.
That he united in his person all the bad
qualities of the vulture, the eagle, and the
vampire; that, in short, he was a "bird of
prey," with all that is implied in that term in
its worst acceptation; that he was a corrupt
tyrant, who never lost an opportunity to do
the people hurt; that instead of wishing
them well and seeking their advancement,
he was their enemy, who never lost an
opportunity to degrade and humiliate them;
that instead of preferring them for office
and positions of official trust, he treated
them with all sorts of contempt and
indifference.
It is difficult to appreciate the feelings of a
refined soul in its contemplation of a result
so disastrous, so unjust, and so unmerited.
It is furthermore shown that when the
plaintiff came to these Islands a young
scientist he had already won fame in his
own country; that he is a fellow of the
important scientific associations in the
world. His election as a fellow or member
of these scientific bodies shows that his
labors in the Philippines were the object of
solicitude by the prominent scientific and
learned men not only of his own race, but
in many other civilized countries of the
world. Important results were evidently
expected of him by them, and it can not be
doubted that they expected of him of life
honestly devoted to the conscientious
discharge of his duties as a trusted public
functionary of the American Government in
the Philippine Islands.
And yet he is falsely denounced in the
columns of said newspaper to his fellows
of these societies as a man who is so
absolutely corrupt, so inordinately selfish
and avaricious that he has not considered
for a moment the duties incumbent upon
him; that he has been oblivious to every

obligation of trust and confidence, and that

he is unworthy of the respect of honest
men.

From said decision the defendants appealed and

made the following assignments of error in this
court:

One witness testified that he read this libel

in the public library of the city of Boston. It
is furthermore shown that copies of this
paper went to Spain, England, and to
different parts of the United States; and
inasmuch as the plaintiff is a man of
prominence in the scientific world, it is to
be inferred that his fellows became more or
less aware of these heinous charges.

I.

Thus we find that the plaintiff is here

confronted with disappointed ambition and
frustrated hopes, and placed in the
humiliating attitude of having to explain to
his fellows that the charges are untrue, of
adducing evidence to clear himself,
perhaps never with complete success, of
the stain that has been cast upon his
reputation by the libelous and defamatory
declarations contained in "Birds of Prey."

The court erred in overruling our motions

for suspension of this case, in its present
state, until final judgment should be
rendered in criminal case No. 4295 of the
Court of First Instance of Manila, pending
appeal in the Honorable Supreme Court,
for libel based also on the editorial, "Birds
of Prey."
II.
The court erred in admitting as evidence
mere opinion adduced by counsel for the
plaintiff with the intention of demonstrating
to whom the editorial, alleged to the
libelous, refers.
III.

In view of the foregoing findings of fact and

circumstances of the case and the law
applicable thereto,
It is the opinion of the court, and the court
so finds, that the plaintiff has sustained
damages on account of wounded feelings
and mental suffering and injuries to his
standing and reputation in the sum of
thirty-five thousand (P35,000) pesos, and
that he is entitled to recover this sum of the
nine defendants named, as being
responsible for having written, printed, and
published said libel; and that the plaintiff is
entitled to recover of them the further sum
of twenty-five thousand (P25,000) pesos,
as punitive damages, which the court
thinks will be a just punishment to these
nine libelers and an example to others.
Wherefore, it is so ordered and adjudged
that the plaintiff, Dean C. Worcester, have
and recover of the defendants, Martin
Ocampo, Teodoro M. Kalaw, Lope K.
Santos, Manuel Palma, Arcadio Arellano,
Angel Jose, Galo Lichauco, Felipe
Barretto, and Gregorio M. Cansipit, jointly
and severally, the sum of sixty thousand
(P60,000) pesos, and the costs of suit, for
which execution may issue.
It is ordered. At Manila, P.I., this 14th day
of January , 1910.

The court erred in giving greater

preponderance to the opinions of the
witnesses for the plaintiff than to the expert
testimony of the defense.
IV.
The court erred in declaring the editorial on
which the complaint is based to be libelous
per se and to refer necessarily to the
plaintiff, Dean C. Worcester.
V.
The court erred in declaring the defendants
Martin Ocampo, Manuel Palma, Arcadio
Arellano, Angel Jose, Felipe Barretto,
Gregorio M. Cansipit, and Galo Lichauco to
be owners of "El Renacimiento."
VI.
The court erred in not admitting Exhibits 1
and 3 presented by counsel for the
defendants.
VII.
The court erred in rendering judgment
against the defendants.
VIII.

The court erred in sentencing the

defendants jointly "and severally" to pay to
the plaintiff, Dean C. Worcester, the sum of
P60,000.
IX.
The court erred in not ordering that
execution of the judgment to be confined to
the business known as "El Renacimiento"
and to the defendant Teodoro M. Kalaw,
without extending to property of the alleged
owners of said newspaper which was not
invested therein by them at its
establishment.
X.
The court erred in granting damages to the
plaintiff by virtue of the judgment rendered
against the defendants.
XI.
The court, finally, erred in granting to the
plaintiff punitive damages against the
alleged owners of "El Renacimiento,"
admitting the hypothesis that said editorial
is libelous per se and refers to the
Honorable Dean C. Worcester.
The theory of the defendants, under the first
assignment of error, is that the civil action could
not proceed until the termination of the criminal
action, relying upon the provisions of the Penal
Code in support of such theory. This court,
however, has decided in the case of Ocampo et
al. vs. Jenkins (14 Phil. Rep., 681) that a judgment
in a criminal prosecution for libel, under the
provisions of Act 277 of the Civil commission,
constitutes no bar or estoppel in a civil action
based upon the same acts or transactions. The
reason most often given for this doctrine is that the
two proceedings are not between the same
parties. Different rule as to the competency of
witnesses and the weight of evidence necessary to
the findings in the two proceedings always exist.
As between civil and criminal actions under said
Act (No. 277) a judgment in one is no bar or
estoppel to the prosecution of the other. A
judgment in a criminal cause, under said Act, can
not be pleaded as res adjudicata in a civil action.
(Stone vs. U.S., 167 U.S., 178; Boyd vs. U.S., 616
U. S., 616, 634; Lee vs. U.S., 150 U.S., 476, 480;
U.S. vs. Jaedicke,
73
Fed.
Rep.,
100;
U.S. vs.Schneider,
35
Fed.
Rep.,
107;
Chamberlain vs. Pierson, 87 Fed. Rep., 420;
Steel vs. Cazeaux, 8 Martin (La.), 318, 13

American Decisions, 288; Betts vs. New Hartford,

25 Conn., 185.)
In a criminal action for libel the State must prove
its case by evidence which shows the guilt of the
defendant, beyond a reasonable doubt, while in a
civil action it is sufficient for the plaintiff to sustain
his cause by a preponderance of evidence only.
(Ocampo vs. Jenkins (supra); Reilly vs. Norton, 65
Iowa, 306; Sloane vs. Gilbert, 27 American
decisions, 708; Cooley on Torts, sec. 208;
Greenleaf on Evidence, 426; Wigmore on
Evidence, secs. 2497, 2498.)
With reference to the second assignment of error
above noted, we find that this court has already
decided the question raised thereby, in the case of
U. S. vs. Ocampo et al. (18 Phil. Rep., 1).
During the trial of the cause the plaintiff called
several witnesses for the purpose of showing that
the statements made in said alleged libelous
editorial were intended to apply to the Honorable
Dean C. Worcester, Secretary of the Interior. The
defendants duly objected to these questions and
excepted to the ruling of the court admitting them.
In the case of Russell vs. Kelley (44 Cal., 641,
642) the same question was raised and the court,
in its decision, said:
The rule laid down in 2 Stockey on Slander
(p. 51) is that the application of the
slanderous words to the plaintiff and the
extrinsic matters alleged in the declaration
may be shown by the testimony of
witnesses who knew the parties and
circumstances and who can state their
judgment and opinion upon the application
and meaning of the terms used by the
defendant. It is said that where the words
are ambiguous on the face of the libel, to
whom it was intended to be applied, the
judgment and opinion of witnesses, who
from their knowledge of the parties and
circumstances are able to form a
conclusion as to the defendant's intention
and application of the libel is evidence for
the information of the jury.
Mr. Odgers, in his work on Libel and Slander (p.
567), says:
The plaintiff may also call at the trial his
friends or others acquainted with the
circumstances, to state that, in reading the
libel, they at once concluded it was aimed
at the plaintiff. It is not necessary that all

the world should understand the libel. It is

sufficient if those who know the plaintiff can
make out that he is the person meant. (See
also Falkard's Stockey on Libel and
Slander, 4th English edition, 589.)

show of proving the truthfulness of the statements

made in said editorial, which in any way reflects
upon the character and high ideals of Mr. Dean C.
Worcester, in the administration of his department
of the Government.

The correctness of this rule is not only established

by the weight of authority but is supported by every
consideration of justice and sound policy. The
lower court committed no error in admitting the
opinion of witnesses offered during the trial of the
cause. One's reputation is the sum or composite of
the impressions spontaneously made by him from
time to time, and in one way or another, upon his
neighbors and acquaintances. The effect of a
libelous publication upon the understanding of
such persons, involving necessarily the identity of
the person libeled is of the very essence of the
wrong. The issue in a libel case concerns not only
the sense of the publication, but, in a measure its
effect upon a reader acquainted with the person
referred to. The correctness of the opinion of the
witnesses as to the identity of the person meant in
the libelous publication may always be tested by
cross-examination. (Enquirer Co. vs. Johnston, 72
Fed. Rep., 443; 2nd Greenleaf on Evidence, 417;
Nelson vs. Barchenius, 52 Ill., 236; Smith vs.Miles,
15 Vt., 245; Miller vs. Butler, 6 Cushing (Mass.),
71.)

With reference to the fifth assignment of error, to

wit: That the court erred in holding that the
defendants, Martin Ocampo, Manuel Palma,
Arcadio Arellano, Angel Jose, Felipe Barretto,
Gregorio M. Cansipit, and Galo Lichauco, were the
proprietors of "El Renacimiento," the lower court
said:

It is true that some of the courts have established

a different rule. We think, however, that a large
preponderance of the decisions of the supreme
courts of the different States is in favor of the
doctrine which we have announced here.
We are of the opinion that assignments of error
Nos. 3, 4, and 7 may fairly be considered together,
the question being whether or not the evidence
adduced during the trial of the cause in the lower
court shows, by a preponderance of the evidence,
that the said editorial was libelous in its character.
Here again we find that this question has been
passed upon by this court in the case of U.
S. vs. Ocampo et al. (18 Phil. Rep., 1), and we
deem it unnecessary to discuss this question
again, for the reason that the evidence adduced in
the present cause was practically the same, or at
least to the same effect, as the evidence adduced
in the cause of U.S. vs. Ocampo et al.It is sufficient
here to say that the evidence adduced during the
trial of the present cause shows, by a large
preponderance of the evidence, that said editorial
was one of the most pernicious and malicious
libels upon a just, upright and honorable official,
which the courts have ever been called upon to
consider. There is not a scintilla of evidence in the
entire record, notwithstanding the fact that the
defendants from time to time attempted to make a

Much time was consumed also in adducing

evidence to show that none of the twelve
defendants were the owners of "El
Renacimiento" and "Muling Pagsilang," but
that six of them had originally contributed
their money as a patriotic donation to the
Filipino people, and that Martin Ocampo
simply held the money and property of the
paper as trustee for this people, and that
the paper was being devoted exclusively to
philanthropic and patriotic ends, and that
Galo Lichauco had agreed to contribute to
the same ends but had not done so.
"This proposition," said the lower court, "in the light
of the evidence, is so preposterous as to entitle it
to little, if any, serious consideration. To ask the
court to believe it is tantamount to asking the court
to stultify reason and common sense. That those
seven defendants named contributed their
respective sums of money, as shown by the
evidence, to the foundation of said newspaper in
1901, for their own personal benefit and profit, is
fully and unmistakably established. It is equally
well established that Martin Ocampo is and was,
not only a part owner, but that he has been and is
still the administrator or business manager of said
newspaper, and that the other six persons named
are shareholders, part owners and proprietors
thereof and were such on the said 30th of October,
1908."
Examining the evidence adduced during the cause
in the lower court, we find, sometime before the
commencement of the present action and before
any question was raised with reference to who
were the owners of the said newspaper, that the
defendant, Arcadio Arellano, in the case of United
States vs. Jose Sedano (14 Phil. Rep., 338),
testified upon that question as follows:
Q.
Who are the proprietors of "El
Renacimiento"?

A.
I, Martin Ocampo, Gregorio Mariano
(Cansipit), Mr. Barretto, and Galo
Lichauco.
Q.

Who else?

A.

No one else.

Q.

And Rafael Palma is not so?

A.
No, sir; Manuel Palma, the brother
of Rafael Palma.
During the trial of the present cause, Arcadio
Arellano testified that his declarations in other
cause were true.
It also appears from the record (Exhibit B-J) that in
the month of November, 1907, long before the
commencement of the present action, "El
Renacimiento," in reply to an article which was
published in "El Comercio," published the following
statement:
They (it) say (s) that this enterprise"
(evidently meaning the publication of "El
Renacimiento") "is sustained by Federal
money; that we are inspired by Federal
personages. We declare that this, besides
being
false,
is
calumnious. The
shareholders of this company are persons
well known by the public, and never at any
moment of their lives have they acted with
masks on--those masks for which "El
Comercio" seems to have so great an
affection. They are, as the public knows:
Seores Martin Ocampo, Manuel Palma,
Arcadio Arellano, Angel Jose, Galo
Lichauco, Felipe Barretto, and Gregorio
Cansipit.
Arcadio Arellano also testified during the trial of the
present cause that he contributed P750 to the
establishment of "El Renacimiento;" that Martin
Ocampo contributed the sum of P500; that
Mariano Cansipit, Felipe Barretto and Angel Jose
contributed the sum of P250 or P500 each; that
Galo Lichauco contributed the sum of P1,000 and
that Manuel Palma contributed P3,000.
During the trial of the present cause Arcadio
Arellano, Martin Ocampo, and Angel Jose testified
as witnesses, relating to the ownership of the
newspaper called "El Renacimiento." They testified
that whatever money they gave for the purpose of
establishing said newspaper, was given as a
donation, and that they were neither the owners
nor coowners of said periodical. The defendants,

Manuel Palma, Galo Lichauco, Felipe Barretto,

and Gregorio Cansipit, did not testify as witnesses
during the trial of the cause in the lower court. No
reason is given for their failure to appear and give
testimony in their own behalf. The record does not
disclose whether or not the declarations of Arcadio
Arellano, in the case of U. S. vs. Sedano (14 Phil.
Rep., 338) at the time they were made, were
called to the attention of Manuel Palma, Galo
Lichauco, Felipe Barretto, and Gregorio Cansipit,
as well as the reply to "El Comercio," above noted.
Proof of said declarations and publication was
adduced during the trial of the cause in the present
case, and the attorney of these particular
defendants well knew the purpose and effect of
such
evidence,
if
not
disputed;
but,
notwithstanding the fact that said declarations and
publication were presented in evidence, and
notwithstanding the fact that the attorney for the
defendants knew of the purpose of such proof, the
defendants, Palma, Lichauco, Barretto, and
Cansipit, were not called as witnesses for the
purpose of rebutting the same. It is a well settled
rule of evidence, that when the circumstances in
proof tend to fix the liability on a party who has it in
his power to offer evidence of all the facts as they
existed and rebut the inferences which the
circumstances in proof tend to establish, and he
fails to offer such proof, the natural conclusion is
that the proof, if produced, instead of rebutting
would support the inferences against him, and the
court is justified in acting upon that conclusion.
(Railway Company vs. Ellis, C. C. A. Reports, vol.
4, p. 454; Commonwealth vs. Webster, 5 Cush.
(Mass.), 295; People vs.McWhorter 4 Barb. (N.
Y.), 438.)
Lord Mansfield, in the case
Archer (Cowper, 63, 65) said:

of Blatch

vs.

It is certainly a maxim that all the evidence

is to be weighed according to the proof
which it was in the power of one side to
have produced, and in the power of the
other side to have contradicted.
Mr. Starkey, in his valuable work on evidence (vol.
1, p. 64), lays down the rule that:
The conduct of a party in omitting to
produce evidence in elucidation of the
subject matter in dispute, which is within
his power and which rests peculiarly within
his own knowledge, frequently offers
occasion for presumptions against him,
since it raises the strong suspicion that
such evidence, if adduced, would operate
to his prejudice. (Pacific Coast et al.

Co. vs. Bancroft-Whitney Co., 36 C. C. A.

Reports, 136, 153.)
At the time of the said declarations of Arcadio
Arellano in the case of Sedano and at the time of
the said publication in reply to "El Comercio," there
was no reason for stating anything except the
truth: neither does there seem to have been any
reason for publishing the fact that the defendants
were the owners of "El Renacimiento" unless it
was true.
At the time there seemed to be no reason to have
it appear that they were donors and public
benefactors only. They seemed to be proud of the
fact that they were the owners. The editors,
publishers, and managers of "El Renacimiento," at
the time the reply to "El Comercio" was published,
seemed to be anxious to announce to the public
who its owners were. It ("El Renacimiento") had
not then realized that it belonged to no one; that it
had been born into the community without
percentage; that it had been created a terrible
machine for the purpose of destroying the good
character and reputation of men without having
any one to respond for its malicious damage
occasioned to honorable men; that it was a castoff, without a past or the hope of a future; that it
was liable to be kicked and buffetted about the
persecuted and destroyed without any one to
protect it; that its former friends and creators had
scattered hither and thither and had disappeared
like feathers before a cyclone, declaring, under
oath, that they did not know their offspring and
were not willing to recognize it in public. It seems
to have been a Moses found in the bulrushes,
destined by its creators to be a great good among
the Filipino people, in teaching them to respect the
rights of persons and property; but, unlike its
Biblical prototype, it became, by reason of its lack
of parentage, an engine of destruction let loose in
the State, to enter the private abode of lawabiding
citizens and to take from them their honor and
reputation, which neither it nor the State could
restore. To rob a man of his wealth is to rob him of
trash, but to take from him his good name and
reputation is to rob him of that which does not
make the robber richer and leaves the person
robbed poor indeed.
The appellants tried to make it appear that the
money which they gave for the establishment of
"El Renacimiento" was a pure donation. They
claim that it was a donation to the Filipino people.
They do not state, however, or attempt to show
what particular persons were to manage, control,
and direct the enterprise for which the donation
was made. A donation must be made to definite
persons or associations. A donation to an

indefinite person or association is an anomaly in

law, and we do not believe, in view of all of the
facts, that it was in fact made. A donation must be
made to some definite person or association and
the donee must be some ascertained or
ascertainable person or association.
A donation may be made for the benefit of the
public, but it must be made, in the very nature of
things, to some definite person or association. A
donation made to no person or association could
not be regarded as a donation in law. It could not
be more than an abandonment of property. Of
course where a donation is in fact made, without
reservation to a particular person or association,
the donor is no longer the owner of the thing
donated nor responsible, in any way, for its use,
provided that the object, for which the donation
was made, was legal. A person does not become
an owner or part owner of a church, for example,
to the construction of which he has made a
donation; neither is he responsible for the use to
which said edifice may be applied. No one
disputes the fact that donations may be made for
the public use, but they must be made to definite
persons or associations, to be administered in
accordance with the purpose of the gift.
We can not believe, in the light of the whole
record, that the defendants and appellants, at the
time they presented the defense that they were
donors simply and not owners, had a reasonable
hope that their declarations as to said donation,
given in the manner alleged, would be believed by
the court.
After a careful examination of the evidence
brought to this court and taking into consideration
the failure of the other defendants to testify, we are
of the opinion that a preponderance of such
evidence shows that the defendants, Martin
Ocampo, Manuel Palma, Arcadio Arellano, Angel
Jose, Galo Lichauco, Felipe Barretto, and Gregorio
M. Cansipit, were the coowners of the newspaper
known as "El Renacimiento," at the time of the
publication of the said alleged libel.
With reference to the sixth assignment of error
above noted, to wit: That the lower court
committed an error in not admitting in evidence the
judgment of acquittal of the defendant, Lope K.
Santos, rendered in the criminal cause, we are of
the opinion that the refusal to admit said evidence
in the civil cause was not an error. The fact that
the evidence in the criminal cause was insufficient
to show that Lope K. Santos was guilty of the
crime charged, in no way barred the right of the
person injured by said alleged libel to maintain the
present
civil
action
against
him.

(Ocampo vs. Jenkins, 14 Phil. Rep., 681.) The

criminal action had to be sustained by evidence
showing the culpability of the defendant beyond a
reasonable doubt, while in the civil action it is
sufficient to show that the defendants injured the
plaintiff by the alleged libelous publication, by a
preponderance of the evidence only. (Greenleaf on
Evidence, sec. 426; Cooley on Torts, 208;
Reilley vs. Norton,
65
Iowa,
306;
Sloane vs. Gilbert, 23 Am. Dec., 708.)
In the case of Steel vs. Cazeaux (8 Martin, La.,
318; 13 American Decisions, 288), the supreme
court of Louisiana said:
A judgment of conviction in a criminal
prosecution can not be given in evidence in
a civil action.
In the case of Betts et al. vs. New Hartford (25
Conn., 180) Mr. Justice Ellsworth said (in a case
where a judgment in a criminal case was offered in
evidence):
A conviction in a criminal case is not
evidence of facts upon which the judgment
was rendered, when those facts come up
in a civil case, for this evidence would not
be material; and so the law is perfectly well
settled. (1 Greenleaf on Evidence, secs.
536, 524; 1 Phillips on Evidence, 231;
Hutchinson vs. Bank of Wheeling, 41 Pa.
St., 42; Beausoleil vs. Brown, 12 La. Ann.,
543; McDonald vs. Stark, 176 Ill., 456,
468.)
While we believe that the lower court committed no
error in refusing to admit the sentence acquitting
Lope K. Santos in the criminal case, we are of the
opinion, after a careful examination of the record
brought to this court, that it is insufficient to show
that Lope K. Santos was responsible, in any way,
for the publication of the alleged libel, and without
discussing the question whether or not the socalled Tagalog edition of "El Renacimiento" and "El
Renacimiento" constituted one and the same
newspaper, we find that the evidence is insufficient
to show that Lope K. Santos is responsible in
damages, in any way, for the publication of the
said alleged libel.
The appellants discussed the eight and ninth
assignments of error together, and claim that the
lower court committed an error in rendering a
judgment jointly
and
severally against
the
defendants and in allowing an execution against
the individual property of said owners, and cite
provisions of the Civil and Commercial Codes in

support of their contention. The difficulty in the

contention of the appellants is that they fail to
recognize that the basis of the present action is a
tort. They fail to recognize the universal doctrine
that each joint tort feasor is not only individually
liable for the tort in which he participates, but is
also jointly liable with his tort feasors. The
defendants might have been sued separately for
the commission of the tort. They might have been
sued jointly and severally, as they were.
(Nicoll vs. Glennie, 1 M. & S. (English Common
Law Reports), 558.) If several persons jointly
commit a tort, the plaintiff or person injured, has
his election to sue all or some of the parties jointly,
or one of them separately, because the tort is in its
nature a separate act of each individual. (1
Chiddey, Common Law Pleadings, 86.) It is not
necessary that the cooperation should be a direct,
corporeal act, for, to give an example, in a case of
assault and battery committed by various persons,
under the common law all are principals. So also is
the person who counsels, aids or assists in any
way he commission of a wrong. Under the
common law, he who aided or assisted or
counseled, in any way, the commission of a crime,
was as much a principal as he who inflicted or
committed the actual tort. (Page vs. Freeman, 19
Mo., 421.)
It may be stated as a general rule, that the joint tort
feasors are all the persons who command,
instigate,
promote,
encourage,
advise,
countenance, cooperate in, aid or abet the
commission of a tort, or who approve of it after it is
done, if done for their benefit. They are each liable
as principals, to the same extent and in the same
manner as if they had performed the wrongful act
themselves.
(Cooley
on
Torts,
133;
Moir vs. Hopkins, 16 Ill., 313 (63 Am. Dec., 312
and note); Berry vs. Fletch, 1st Dill., 67;
Smithwick vs. Ward, 7 Jones L. 64; Smith vs. Felt,
50 Barb. (N. Y.), 612; Shepard vs. McQuilkin, 2 W.
Va., 90; Lewis vs. Johns, 34 Cal., 269.)
Joint tort feasors are jointly and severally liable for
the tort which they commit. The person injured
may sue all of them, or any number less than all.
Each is liable for the whole damage caused by all,
and all together are jointly liable for the whole
damage. It is no defense for one sued alone, that
the others who participated in the wrongful act are
not joined with him as defendants; nor is it any
excuse for him that his participation in the tort was
insignificant as compared with that of the others.
(Forebrother vs. Ansley, 1 Campbell (English
Reports), 343; Pitcher vs. Bailey, 8 East, 171;
Booth vs. Hodgson, 6 Term Reports, 405;
Vose vs. Grant, 15 Mass., 505; Acheson vs. Miller,
18 Ohio, 1; Wallace vs. Miller, 15 La. Ann., 449;

Murphy vs. Wilson, 44 Mo., 313; Bishop vs. Ealey,

9 Johnson (N. Y.), 294.)
Joint tort feasors are not liable pro rata. The
damages can not be apportioned among them,
except among themselves. They can no insist
upon an apportionment, for the purpose of each
paying an aliquot part. They are jointly and
severally
liable
for
the
full
amount.
(Pardrige vs. Brady,
7
Ill.
App.,
639;
Carney vs. Read, 11 Ind., 417; Lee vs. Black, 27
Ark., 337; Bevins vs. McElroy, 52 Am. Dec., 258.)
A payment in full of the damage done, by one of
the joint tort feasors, of course satisfies any claim
which might exist against the others. There can be
but one satisfaction. The release of one of the joint
tort feasors by agreement, generally operates to
discharge all. (Wright vs. Lathrop, 2 Ohio, 33;
Livingston vs. Bishop, 1 Johnson (N.Y.), 290;
Brown vs. Marsh, 7 Vt., 327; Ayer vs. Ashmead,
31 Conn., 447; Eastman vs. Grant, 34 Vt., 387;
Turner vs.Hitchcock, 20 Iowa, 310; Ellis vs. Esson,
50 Wis., 149.)
Of course the courts during the trial may find that
some of the alleged joint tort feasors are liable and
that others are not liable. The courts may release
some for lack of evidence while condemning
others of the alleged tort feasors. And this is true
even though they are charged jointly and severally.
(Lansing vs. Montgomery, 2 Johnson (N. Y.), 382;
Drake vs. Barrymore,
14
Johnson,
166;
Owens vs. Derby, 3 Ill., 126.)
This same principle is recognized by Act 277 of the
Philippine Commission. Section 6 provides that:
Every author, editor or proprietor . . . is
chargeable with the publication of any
words in any part . . . or number of each
newspaper, as fully as if he were the
author of the same.
In our opinion the lower court committed no error
in rendering a joint and several judgment against
the defendants and allowing an execution against
their individual property. The provisions of the Civil
and Commercial Codes cited by the defendants
and appellants have no application whatever to the
question presented in the present case.
The tenth assignment of error above noted relates
solely to the amount of damages suffered on
account of wounded feelings, mental suffering and
injury to the good name and reputation of Mr.
Worcester, by reason of the alleged libelous
publication. The lower court found that the

damages thus suffered by Mr. Worcester

amounted to P35,000. This assignment of error
presents a most difficult question. The amount of
damages resulting from a libelous publication to a
man's good name and reputation is difficult of
ascertainment. It is nor difficult to realize that the
damage thus done is great and almost
immeasurable. The specific amount the damages
to be awarded must depend upon the facts in each
case and the sound discretion of the court. No
fixed or precise rules can be laid down governing
the amount of damages in cases of libel. It is
difficult to include all of the facts and conditions
which enter into the measure of such damages. A
man's good name and reputation are worth more
to him than all the wealth which he can accumulate
during a lifetime of industrious labor. To have them
destroyed may be eminently of more damage to
him personally than the destruction of his physical
wealth. The loss is immeasurable. No amount of
money can compensate him for his loss.
Notwithstanding the great loss which he, from his
standpoint, sustains, the courts must have some
tangible basis upon which to estimate such
damages.
In discussing the elements of damages in a case
of libel, the Honorable James C. Jenkins, who tried
the present case in the court below, correctly said
that, "The enjoyment of a private reputation is as
much a constitutional right as the possession of
life, liberty or property. It is one of those rights
necessary to human society, that underlie the
whole scheme of human civilization. The respect
and esteem of his fellows are among the highest
rewards of a wellspent life vouchsafed to man in
this existence. The hope of it is the inspiration of
youth and its possession is a solace in later years.
A man of affairs, a business man, who has been
seen known by his fellowmen in the active pursuits
of life for many years, and who has developed a
great character and an unblemished reputation,
has secured a possession more useful and more
valuable than lands or houses or silver or gold.
The law recognizes the value of such a reputation
and constantly strives to give redress for its injury.
It imposes upon him who attacks it by slanderous
words or libelous publications, the liability to make
full compensation for the damage to the reputation,
for the shame, obloquy and for the injury to the
feelings of its owner, which are caused by the
publication of the slander or libel. The law goes
further. If the words are spoken or the publication
is made with the intent to injure the victim or with
criminal indifference to civil obligation, it imposes
such damages as the jury, in view of all the
circumstances of the particular case, adjudge that
the wrongdoer ought to pay as an example to the

public and to deter others from doing likewise, and

for punishment for the infliction of the injury."
As was said above, the damages suffered by Mr.
Worcester to his good name and reputation are
most difficult of ascertainment. The attorney for the
appellants, in his brief, lends the court but little
assistance in reaching a conclusion upon this
question. The appellants leaves the whole
question to the discretion of the court, without any
argument whatever.
After a careful examination, we are of the opinion
that part of the judgment of the lower court relating
to the damages suffered by the Honorable Dean
C. Worcester, should be modified, and that a
judgment should be rendered in favor of Mr. Dean
C. Worcester and against the defendants, jointly
and severally, for the sum of P15,000, with interest
at 6 per cent from the 23d of January, 1909.
With reference to the eleventh assignment of error
above noted, to wit: That the court erred in
imposing punitive damages upon the defendants,
we are of the opinion, after a careful examination
of the evidence, and in view of all of the facts and
circumstances and the malice connected with the
publication of said editorial and the subsequent
publications with relation to said editorial, that the
lower court, by virtue of the provisions of Act No.
277 of the Philippine Commission, was justified in
imposing punitive damages upon the defendants.
Section 11 of Act No. 277 allows the court, in an
action for libel, to render a judgment for punitive
damages, in an amount which the court may think
will be a just punishment to the libeler and an
example to others.
Exemplary damages in civil actions for libel may
always be recovered if the defendant or
defendants are actuated by malice. In the present
case there was not the slightest effort on the part
of the defendants to show the existence of
probable cause or foundation whatever for the
facts contained in said editorial. Malice, hatred,
and ill will against the plaintiff are seen throughout
the record. The said editorial not only attempted to
paint the plaintiff as a villain, but upon every
occasion, the defendants resorted to ridicule of the
severest kind.
Here again we find difficulty in arriving at a
conclusion relating to the damages which should
be imposed upon the defendants for the purpose
of punishment. Upon this question the courts must
be governed in each case by the evidence, the
circumstances and their sound discretion. Taking

into consideration the fact that some of the

defendants have been prosecuted criminally and
have been sentenced, and considering that fact as
a part of the punitive damages, we have arrived at
the conclusion that the judgment of the lower court
should be modified, and that a judgment should be
rendered against the defendants, jointly and
severally, and in favor of the plaintiff, the
Honorable Dean C. Worcester, in the sum of
P10,000, as punitive damages, with interest at 6
per cent from the 23d day of January, 1909.
Therefore, after a full consideration of all the facts
contained in the record and the errors assigned by
the appellants in this court, we are of the opinion
that the judgment of the lower court should be
modified and that a judgment should be rendered
in favor of Dean C. Worcester and against the
defendants Martin Ocampo, Teodoro M. Kalaw,
Manuel Palma, Arcadio Arellano, Angel Jose, Galo
Lichauco, Felipe Barretto, and Gregorio M.
Cansipit, jointly and severally, for the sum of
P25,000 with interest at 6 per cent from the 23d of
January, 1909, with costs, and that a judgment
should be entered absolving Lope K. Santos from
any liability under said complaint. So ordered.