1
and excludes the notion of willfulness or intent. Quasi-delict, known in Spanish legal treatises
THIRD DIVISION
[G.R. No. 97336. February 19, 1993.]
GASHEM SHOOKAT BAKSH, petitioner, vs. HON. COURT OF
APPEALS and MARILOU T. GONZALES, respondents.
Public Attorney's Office for petitioner.
Corleto R. Castro for private respondent.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF THE TRIAL
COURT; RULE AND EXCEPTIONS. It is the rule in this jurisdiction that appellate courts will
not disturb the trial court's findings as to the credibility of witnesses, the latter court having
heard the witnesses and having had the opportunity to observe closely their deportment and
manner of testifying, unless the trial court had plainly overlooked facts of substance or value
which, if considered, might affect the result of the case. (People vs. Garcia, 89 SCRA 440
[1979]; People vs. Bautista, 92 SCRA 465 [1979]; People vs. Abejuela, 92 SCRA 503 [1979];
People vs. Arciaga, 98 SCRA 1 [1980]; People vs. Marzan, 128 SCRA 203 [1984]; People vs.,
Alcid, 135 SCRA 280 [1985]; People vs. Sanchez, 199 SCRA 414 [1991]; People vs. Atilano, 204
SCRA 278 [1991]). Equally settled is the rule that only questions of law may be raised in a
petition for review on certiorari under Rule 45 of the Rules of Court. It is not the function of this
Court to analyze or weigh all over again the evidence introduced by the parties before the lower
court. There are, however, recognized exceptions to this rule. Thus, in Medina vs. Asistio,
Jr., this Court took the time, again, to enumerate these exceptions: "(1) When the conclusion is
a finding grounded entirely on speculation, surmises or conjectures (Joaquin v. Navarro, 93
Phil. 257 [1953]); (2) When the inference made is manifestly mistaken, absurd or impossible
(Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of discretion (Buyco v.
People, 95 Phil. 453 [1955]); (4) When the judgment is based on a misapprehension of facts
(Cruz v. Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v.
Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings,
went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]); (7)
The findings of the Court of Appeals are contrary to those of the trial court (Garcia v. Court of
Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the
findings of fact are conclusions without citation of specific evidence on which they are based
(Ibid.,); (9) When the facts set forth in the petition as well as in the petitioners' main and reply
briefs are not disputed by the respondents (Ibid.,); and (10) The finding of fact of the Court of
Appeals is premised on the supposed absence of evidence and is contradicted by the evidence
on record (Salazar v. Gutierrez, 33 SCRA 242 [1970])." Petitioner has not endeavored to point
out to Us the existence of any of the above quoted exceptions in this case. Consequently, the
factual findings of the trial and appellate courts must be respected.
2. CIVIL LAW; QUASI-DELICT; TORTS; ART. 21 OF THE CIVIL CODE; CONSTRUED. Article
2176 of the Civil Code, which defines a quasi-delict is limited to negligent acts or omissions
as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law
concept. Torts is much broader than culpa aquiliana because it includes not only negligence,
but intentional criminal acts as well such as assault and battery, false imprisonment and deceit.
In the general scheme of the Philippine legal system envisioned by the Commission responsible
for drafting the New Civil Code, intentional and malicious acts. with certain exceptions, are to.
be governed by the Revised Penal Code while negligent acts or omissions are to be covered by
Article 2176 of the Civil Code. In between these opposite spectrums are injurious acts which, in
the absence of Article 21, would have been beyond redress. Thus, Article 21 fills that vacuum. It
is even postulated that together with Articles 19 and 20 of the Civil Code, Article 21 has greatly
broadened the scope of the law on civil wrongs; it has become much more supple and
adaptable than the Anglo-American law on torts. (TOLENTINO, A.M. Commentaries and
Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed., 72).
3. ID.; ID.; ID.; ID.; BREACH OF PROMISE TO MARRY; RULE; RATIONALE. The existing rule
is that a breach of promise to marry per se is not an actionable wrong (Hermosisima vs. Court
of Appeals, 109 Phil. 629 [1960]; Estopa vs. Piansay, 109 Phil. 640 [1960]) Congress
deliberately eliminated from the draft of the New Civil Code the provisions that would have
made it so. The reason therefor is set forth in the report of the Senate Committee on the
Proposed Civil Code, from which We quote: "The elimination of this chapter is proposed. That
breach of promise to marry is not actionable has been definitely decided in the case of De
Jesus vs. Syquia (58 Phil. 866 [1933]). The history of breach of promise suits in the United
States and in England has shown that no other action lends itself more readily to abuse by
designing women and unscrupulous men. It is this experience which has led to the abolition of
rights of action in the so-called Heart Balm suits in many of the American states . . ." This
notwithstanding, the said Code contains a provision, Article 21, which is designed to expand
the concept of torts or quasi-delict in this jurisdiction by granting adequate legal remedy for the
untold number of moral wrongs which is impossible for human foresight to specifically
enumerate and punish in the statute books (Philippine National Bank vs. Court of Appeals, 83
SCRA 237 [1978]).
4. ID.; ID.; ID.; ID.; ID.; AWARD OF DAMAGES, JUSTIFIED BECAUSE OF FRAUD AND DECEIT
BEHIND IT; CASE AT BAR. In the light of the above laudable purpose of Article 21, We are of
the opinion, and so hold, that where a man's promise to marry is in fact the proximate cause of
the acceptance of his love by a woman and his representation to fulfill that promise thereafter
becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that
he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or
deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual
act, could justify the award of damages pursuant to Article 21 not because of such promise to
marry but because of the fraud and deceit behind it and the willful injury to her honor and
reputation which followed thereafter. It is essential, however, that such injury should have been
committed in a manner contrary to morals, good customs or public policy. In the instant case,
respondent Court found that it was the petitioner's "fraudulent and deceptive protestations of
love for and promise to marry plaintiff that made her surrender her virtue and womanhood to
him and to live with him on the honest and sincere belief that he would keep said promise, and
it was likewise these fraud and deception on appellant's part that made plaintiff's parents agree
to their daughter's living-in with him preparatory to their supposed marriage." In short, the
private respondent surrendered her virginity, the cherished possession of every single Filipina,
not because of lust but because of moral seduction the kind illustrated by the Code
Commission in its example earlier adverted to. The petitioner could not be held liable for
criminal seduction punished under either Article 337 or Article 338 of the Revised Penal Code
because the private respondent was above eighteen (18) years of age at the time of the
seduction. Prior decisions of this Court clearly suggest that Article 21 may be applied-in a
breach of promise to marry where the woman is a victim of moral seduction.

5. ID.; PARI DELICTO RULE; DEFINED; NOT APPRECIATED IN CASE AT BAR. The pari
delicto rule does not apply in this case for while indeed, the private respondent may not have
been impelled by the purest of intentions, she eventually submitted to the petitioner in sexual
congress not out of lust, but because of moral seduction. In fact, it is apparent that she had
qualms of conscience about the entire episode for as soon as she found out that the petitioner
was not going to marry her after all, she left him. She is not, therefore, in pari delicto with the
petitioner. Pari delicto means "in equal fault; in a similar offense or crime; equal in guilt or in
legal fault." (Black's Laws Dictionary, Fifth ed., 1004). At most, it could be conceded that she is
merely in delicto. "Equity often interferes for the relief of the less guilty of the parties, where his
transgression has been brought about by the imposition or undue influence of the party on
whom the burden of the original wrong principally rests, or where his consent to the transaction
was itself procured by fraud." (37 AM Jur 2d. 401). In Mangayao vs. Lasud, (11 SCRA 158
[1964]) We declared: "Appellants likewise stress that both parties being at fault, there should be
no action by one against the other (Art. 1412, New Civil Code). This rule, however, has been
interpreted as applicable only where the fault on both sides is, more or less, equivalent. It does
not apply where one party is literate or intelligent and the other one is not (c.f. Bough vs.
Cantiveros, 40 Phil. 209)."
DECISION
DAVIDE, JR., J p:
This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set
aside the Decision 1 of the respondent Court of Appeals in CA-G.R. CV No. 24256 which
affirmed in toto the 16 October 1989 Decision or Branch 38 (Lingayen) of the Regional Trial
Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the issue of whether or not
damages may be recovered for a breach of promise to marry on the basis of Article 21 of the
Civil Code of the Philippines. cdphil
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the assistance of counsel, filed with the
aforesaid trial court a complaint 2 for damages against the petitioner for the alleged violation of
their agreement to get married. She alleges in said complaint that: she is twenty-two (22) years
old, single, Filipino and a pretty lass of good moral character and reputation duly respected in
her community; petitioner, on the other hand, is an Iranian citizen residing at the Lozano
Apartments, Guilig, Dagupan City, and is an exchange student taking a medical course at the
Lyceum Northwestern Colleges in Dagupan City; before 20 August 1987; the latter courted and
proposed to marry her; she accepted his love on the condition that they would get married;
they therefore agreed to get married after the end of the school semester, which was in
October of that year; petitioner then visited the private respondent's parents in Baaga,
Bugallon, Pangasinan to secure their approval to the marriage; sometime in 20 August 1987,
the petitioner forced her to live with him in the Lozano Apartments; she was a virgin before she
began living with him; a week before the filing of the complaint, petitioner's attitude towards her
started to change; he maltreated and threatened to kill her; as a result of such maltreatment,
she sustained injuries, during a confrontation with a representative of the barangay captain of
Guilig a day before the filing of the complaint, petitioner repudiated their marriage agreement
and asked her not to live with him anymore and; the petitioner is already married to someone
living in Bacolod City. Private respondent then prayed for judgment ordering the petitioner to
2
pay her damages in the amount of not less than P45,000.00, reimbursement for actual
expenses amounting to P600.00, attorney's fees and costs, and granting her such other relief
and remedies as may be just and equitable. The complaint was docketed as Civil Case No
16503.
In his Answer with Counterclaim, 3 petitioner admitted only the personal circumstances of the
parties as averred in the complaint and denied the rest of the allegations either for lack of
knowledge or information sufficient to form a belief as to the truth thereof or because the true
facts are those alleged as his Special and Affirmative Defenses. He thus claimed that he never
proposed marriage to or agreed to be married with the private respondent; he neither sought
the consent and approval of her parents nor forced her to live in his apartment; he did not
maltreat her, but only told her to stop coming to his place because he discovered that she had
deceived him by stealing his money and passport; and finally, no confrontation took place with
a representative of the barangay captain. Insisting, in his Counterclaim, that the complaint is
baseless and unfounded and that as a result thereof, he was unnecessarily dragged into court
and compelled to incur expenses, and has suffered mental anxiety and a besmirched
reputation, he prayed for an award of P5,000.00 for miscellaneous expenses and P25,000.00 as
moral damages.
After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial
Order 4 embodying the stipulated facts which the parties had agreed upon, to wit:
"1. That the plaintiff is single and resident (sic) of Baaga, Bugallon,
Pangasinan, while the defendant is single, Iranian, citizen and resident
(sic) of Lozano Apartment, Guilig, Dagupan City since September 1,
1987 up to the present;
2. That the defendant is presently studying at Lyceum-Northwestern,
Dagupan City, College of Medicine, second year medicine proper.
3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette,
Fernandez Avenue, Dagupan City since July, 1986 up to the present and
a (sic) high school graduate;
4. That the parties happened to know each other when the Manager of
the Mabuhay Luncheonette, Johnny Rabino introduced the defendant to
the plaintiff on August 3, 1986." cdll
After trial on the merits, the lower court, applying Article 21 of the Civil Code,
rendered on 16 October 1989 a decision 5 favoring the private respondent. The petitioner
was thus ordered to pay the latter damages and attorney's fees; the dispositive portion of
the decision reads:
"IN THE LIGHT of the foregoing consideration, judgment is hereby
rendered in favor of the plaintiff and against the defendant.
1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty
thousand (P20,000.00) pesos as moral damages.
2. Condemning further the defendant to pay the plaintiff the sum of three
thousand (P3,000.00) pesos as atty's fees and two thousand (P2,000.00)
pesos at (sic) litigation expenses and to pay the costs.
3. All other claims are denied." 6
The decision is anchored on the trial court's findings and conclusions that (a) petitioner and
private respondent were lovers, (b) private respondent is not a woman of loose morals or
questionable virtue who readily submits to sexual advances, (c) petitioner, through

machinations, deceit and false pretenses, promised to marry private respondent, (d) because of
his persuasive promise to marry her, she allowed herself to be deflowered by him, (e) by reason
of that deceitful promise, private respondent and her parents in accordance with Filipino
customs and traditions made some preparations for the wedding that was to be held at the
end of October 1987 by looking for pigs and chickens, inviting friends and relatives and
contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such acts of
the petitioner, who is a foreigner and who has abused Philippine hospitality, have offended our
sense of morality, good customs, culture and traditions. The trial court gave full credit to the
private respondent's testimony because, inter alia, she would not have had the temerity and
courage to come to court and expose her honor and reputation to public scrutiny and ridicule if
her claim was false. 7
The above findings and conclusions were culled from the detailed summary of the evidence for
the private respondent in the foregoing decision, digested by the respondent Court as follows:
"According to plaintiff, who claimed that she was a virgin at the time and
that she never had a boyfriend before, defendant started courting her
just a few days after they first met. He later proposed marriage to her
several times and she accepted his love as well as his proposal of
marriage on August 20, 1987, on which same day he went with her to her
hometown of Banaga, Bugallon, Pangasinan, as he wanted to meet her
parents and inform them of their relationship and their intention to get
married. The photographs Exhs. "A" to "E" (and their submarkings) of
defendant with members of plaintiff's family or with plaintiff, were taken
that day. Also on that occasion, defendant told plaintiff's parents and
brothers and sisters that he intended to marry her during the semestral
break in October, 1987, and because plaintiff's parents thought he was
good and trusted him, they agreed to his proposal for him to marry their
daughter, and they likewise allowed him to stay in their house and sleep
with plaintiff during the few days that they were in Bugallon. When
plaintiff and defendant later returned to Dagupan City, they continued to
live together in defendant's apartment. However, in the early days of
October, 1987, defendant would tie plaintiff's hands and feet while he
went to school, and he even gave her medicine at 4 o'clock in the
morning that made her sleep the whole day and night until the following
day. As a result of this live-in relationship, plaintiff became pregnant, but
defendant gave her some medicine to abort the foetus. Still plaintiff
continued to live with defendant and kept reminding him of his promise
to marry her until he told her that he could not do so because he was
already married to a girl in Bacolod City. That was the time plaintiff left
defendant, went home to her parents, and thereafter consulted a lawyer
who accompanied her to the barangay captain in Dagupan City. Plaintiff,
her lawyer, her godmother, and a barangay tanod send by the barangay
captain went to talk to defendant to still convince him to marry plaintiff,
but defendant insisted that he could not do so because he was already
married to a girl in Bacolod City, although the truth, as stipulated by the
parties at the pre-trial, is that defendant is still single.
Plaintiff's father, a tricycle driver, also claimed that after defendant had
informed them of his desire to marry Marilou, he already looked for
sponsors for the wedding, started preparing for the reception by looking
for pigs and chickens, and even already invited many relatives and
friends to the forthcoming wedding." 8
Petitioner appealed the trial court's decision to the respondent Court of Appeals which
docketed the case as CA-G R. CV No. 24256. In his Brief, 9 he contended that the trial court
3
erred (a) in not dismissing the case for lack of factual and legal basis and (b) in ordering him
to pay moral damages, attorney's fees, litigation expenses and costs. Cdpr
On 18 February 1991, respondent Court promulgated the challenged decision 10 affirming in
toto the trial court's ruling of 16 October 1989. In sustaining the trial court's findings of fact,
respondent Court made the following analysis:
"First of all, plaintiff, then only 21 years old when she met defendant who
was already 23 years old at the time, does not appear to be a girl of
loose morals. It is uncontradicted that she was a virgin prior to her
unfortunate experience with defendant and never had a boyfriend. She
is, as described by the lower court, a barrio lass 'not used and
accustomed to the trend of modern urban life', and certainly would (sic)
not have allowed 'herself to be deflowered by the defendant if there was
no persuasive promise made by the defendant to marry her.' In fact, we
agree with the lower court that plaintiff and defendant must have been
sweethearts or so the plaintiff must have thought because of the
deception of defendant, for otherwise, she would not have allowed
herself to be photographed with defendant in public in so (sic) loving and
tender poses as those depicted in the pictures Exhs. "D" and "E". We
cannot believe, therefore, defendant's pretense that plaintiff was a
nobody to him except a waitress at the restaurant where he usually ate.
Defendant in fact admitted that he went to plaintiff's hometown of
Banaga, Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on
February 27, 1987 (p. 54, tsn May 18, 1988), at (sic) a beach party
together with the manager and employees of the Mabuhay Luncheonette
on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when he allegedly
talked to plaintiff's mother who told him to marry her daughter (pp. 55-
56, tsn id.). Would defendant have left Dagupan City where he was
involved in the serious study of medicine to go to plaintiff's hometown in
Banaga, Bugallon, unless there was (sic) some kind of special
relationship between them? And this special relationship must indeed
have led to defendant's insincere proposal of marriage to plaintiff,
communicated not only to her but also to her parents, and (sic) Marites
Rabino, the owner of the restaurant where plaintiff was working and
where defendant first proposed marriage to her, also knew of this love
affair and defendant's proposal of marriage to plaintiff, which she
declared was the reason why plaintiff resigned from her job at the
restaurant after she had accepted defendant's proposal (pp. 6-7, tsn
March 7, 1988).
Upon the other hand, appellant does not appear to be a man of good
moral character and must think so low and have so little respect and
regard for Filipino women that he openly admitted that when he studied
in Bacolod City for several years where he finished his B.S. Biology
before he came to Dagupan City to study medicine, he had a common-
law wife in Bacolod City. In other words, he also lived with another
woman in Bacolod City but did not marry that woman, just like what he
did to plaintiff. It is not surprising, then, that he felt so little compunction
or remorse in pretending to love and promising to marry plaintiff, a
young, innocent, trustful country girl, in order to satisfy his lust on
her." 11
and then concluded:

"In sum, we are strongly convinced and so hold that it was defendant-
appellant's fraudulent and deceptive protestations of love for and
promise to marry plaintiff that made her surrender her virtue and
womanhood to him and to live with him on the honest and sincere belief
that he would keep said promise, and it was likewise these (sic) fraud
and deception on appellant's part that made plaintiff's parents agree to
their daughter's living-in with him preparatory to their supposed
marriage. And as these acts of appellant are palpably and undoubtedly
against morals, good customs, and public policy, and are even gravely
and deeply derogatory and insulting to our women, coming as they do
from a foreigner who has been enjoying the hospitality of our people and
taking advantage of the opportunity to study in one of our institutions of
learning, defendant-appellant should indeed be made, under Art. 21 of
the Civil Code of the Philippines, to compensate for the moral damages
and injury that he had caused plaintiff, as the lower court ordered him to
do in its decision in this case." 12
Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises
therein the single issue of whether or not Article 21 of the Civil Code applies to the case at
bar. 13
It is petitioner's thesis that said Article 21 is not applicable because he had not committed any
moral wrong or injury or violated any good custom or public policy; he has not professed love
or proposed marriage to the private respondent; and he has never maltreated her. He criticizes
the trial court for liberally invoking Filipino customs, traditions and culture, and ignoring the fact
that since he is a foreigner, he is not conversant with such Filipino customs, traditions and
culture. As an Iranian Moslem, he is not familiar with Catholic and Christian ways. He stresses
that even if he had made a promise to marry, the subsequent failure to fulfill the same is
excusable or tolerable because of his Moslem upbringing; he then alludes to the Muslim Code
which purportedly allows a Muslim to take four (4) wives and concludes that on the basis
thereof, the trial court erred in ruling that he does not possess good moral character. Moreover,
his controversial "common law wife" is now his legal wife as their marriage had been
solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful cohabitation with the
private respondent, petitioner claims that even if responsibility could be pinned on him for the
live-in relationship, the private respondent should also be faulted for consenting to an illicit
arrangement. Finally, petitioner asseverates that even if it was to be assumed arguendo that he
had professed his love to the private respondent and had also promised to marry her, such acts
would not be actionable in view of the special circumstances of the case. The mere breach of
promise is not actionable. 14
On 26 August 1991, after the private respondent had filed her Comment to the petition and the
petitioner had filed his Reply thereto, this Court gave due course to the petition and required
the parties to submit their respective Memoranda, which they subsequently complied with. prLL
As may be gleaned from the foregoing summation of the petitioner's arguments in support of
his thesis, it is clear that questions of fact, which boil down to the issue of the credibility of
witnesses, are also raised. It is the rule in this jurisdiction that appellate courts will not disturb
the trial court's findings as to the credibility of witnesses, the latter court having heard the
witnesses and having had the opportunity to observe closely their deportment and manner of
testifying, unless the trial court had plainly overlooked facts of substance or value which, if
considered, might affect the result of the case. 15
Petitioner has miserably failed to convince Us that both the appellate and trial courts had
overlooked any fact of substance or value which could alter the result of the case.
4
Equally settled is the rule that only questions of law may be raised in a petition for review on
certiorari under Rule 45 of the Rules of Court. It is not the function of this Court to analyze or
weigh all over again the evidence introduced by the parties before the lower court. There are,
however, recognized exceptions to this rule. Thus, in Medina vs. Asistio, Jr., 16this Court took
the time, again, to enumerate these exceptions:
xxx xxx xxx
"(1) When the conclusion is a finding grounded entirely on speculation,
surmises or conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2)
When the inference made is manifestly mistaken, absurd or impossible
(Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of
discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment
is based on a misapprehension of facts (Cruz v. Sosing, L-4875, Nov. 27,
1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-
9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee (Evangelista v. Alto Surety
and Insurance Co., 103 Phil. 401 [1958]); (7) The findings of the Court of
Appeals are contrary to those of the trial court (Garcia v. Court of
Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593
[1986]); (8) When the findings of fact are conclusions without citation of
specific evidence on which they are based (Ibid.,); (9) When the facts set
forth in the petition as well as in the petitioners' main and reply briefs are
not disputed by the respondents (Ibid.,); and (10) The finding of fact of
the Court of Appeals is premised on the supposed absence of evidence
and is contradicted by the evidence on record (Salazar v. Gutierrez, 33
SCRA 242 [1970])."
Petitioner has not endeavored to point out to Us the existence of any of the above quoted
exceptions in this case. Consequently, the factual findings of the trial and appellate courts must
be respected.
And now to the legal issue.
The existing rule is that a breach of promise to marry per se is not an actionable
wrong. 17 Congress deliberately eliminated from the draft of the New Civil Code the provisions
that would have made it so. The reason therefor is set forth in the report of the Senate
Committee on the Proposed Civil Code, from which We quote:
"The elimination of this chapter is proposed. That breach of promise to
marry is not actionable has been definitely decided in the case of De
Jesus vs. Syquia. 18 The history of breach of promise suits in the United
States and in England has shown that no other action lends itself more
readily to abuse by designing women and unscrupulous men. It is this
experience which has led to the abolition of rights of action in the so-
called Heart Balm suits in many of the American states .." 19
This notwithstanding, the said Code contains a provision, Article 21, which is designed to
expand the concept of torts or quasi-delict in this jurisdiction by granting adequate legal
remedy for the untold number of moral wrongs which is impossible for human foresight to
specifically enumerate and punish in the statute books. 20
As the Code Commission itself stated in its Report:
"'But the Code Commission has gone farther than the sphere of wrongs
defined or determined by positive law. Fully sensible that there are

countless gaps in the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually suffered material and
moral injury, the Commission has deemed it necessary, in the interest of
justice, to incorporate in the proposed Civil Code the following rule: LLpr
'ARTICLE 23. Any person who wilfully causes loss or
injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the
damage.'
'An example will illustrate the purview of the foregoing norm: 'A' seduces
the nineteen-year old daughter of 'X.' A promise of marriage either has
not been made, or can not be proved. The girl becomes pregnant. Under
the present laws, there is no crime, as the girl is above eighteen years of
age. Neither can any civil action for breach of promise of marriage be
filed. Therefore, though the grievous moral wrong has been committed,
and though the girl and her family have suffered incalculable moral
damage, she and her parents cannot bring any action for damages. But
under the proposed article, she and her parents would have such a right
of action.
Thus at one stroke, the legislator, if the foregoing rule is approved, would
vouchsafe adequate legal remedy for that untold number of moral
wrongs which it is impossible for human foresight to provide for
specifically in the statutes." 21
Article 2176, of the Civil Code, which defines a quasi-delict thus:
"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."
is limited to negligent acts or omissions and excludes the notion of willfulness or
intent. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law
concept while torts is an Anglo-American or common law concept. Torts is much broader
than culpa aquiliana because it includes not only negligence, but intentional criminal acts
as well such as assault and battery, false imprisonment and deceit. In the general scheme
of the Philippine legal system envisioned by the Commission responsible for drafting the
New Civil Code, intentional and malicious acts. with certain exceptions, are to. be
governed by the Revised Penal Code while negligent acts or omissions are to be covered
by Article 2176 of the Civil Code. 22 In between these opposite spectrums are injurious
acts which, in the absence of Article 21, would have been beyond redress. Thus, Article 21
fills that vacuum. It is even postulated that together with Articles 19 and 20 of the Civil
Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has
become much more supple and adaptable than the Anglo-American law on torts. 23
In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that
where a man's promise to marry is in fact the proximate cause of the acceptance of his love by
a woman and his representation to fulfill that promise thereafter becomes the proximate cause
of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention
of marrying her and that the promise was only a subtle scheme or deceptive device to entice or
inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of
damages pursuant to Article 21 not because of such promise to marry but because of the fraud
5
and deceit behind it and the willful injury to her honor and reputation which followed
thereafter. It is essential, however, that such injury should have been committed in a manner
contrary to morals, good customs or public policy.
In the instant case, respondent Court found that it was the petitioner's "fraudulent and
deceptive protestations of love for and promise to marry plaintiff that made her surrender her
virtue and womanhood to him and to live with him on the honest and sincere belief that he
would keep said promise, and it was likewise these fraud and deception on appellant's part that
made plaintiff's parents agree to their daughter's living-in with him preparatory to their
supposed marriage." 24 In short, the private respondent surrendered her virginity, the cherished
possession of every single Filipina, not because of lust but because of moral seduction the
kind illustrated by the Code Commission in its example earlier adverted to. The petitioner could
not be held liable for criminal seduction punished under either Article 337 or Article 338 of the
Revised Penal Code because the private respondent was above eighteen (18) years of age at
the time of the seduction.
Prior decisions of this Court clearly suggest that Article 21 may be applied-in a breach of
promise to marry where the woman is a victim of moral seduction. Thus, in Hermosisima vs.
Court of Appeals, 25 this Court denied recovery of damages to the woman because: LibLex
" . . . we find ourselves unable to say that petitioner is morally guilty of
seduction, not only because he is approximately ten (10) years younger
than the complainant who was around thirty-six (36) years of age, and
as highly enlightened as a former high school teacher and a life
insurance agent are supposed to be when she became intimate with
petitioner, then a mere apprentice pilot, but, also, because the court of
first instance found that, complainant 'surrendered herself' to petitioner
because, 'overwhelmed by her love' for him, she 'wanted to
bind' him 'by having a fruit of their engagement even before they had the
benefit of clergy.'"
In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery if
there had been moral seduction, recovery was eventually denied because We were not
convinced that such seduction existed. The following enlightening disquisition and conclusion
were made in the said case:
"The Court of Appeals seems to have overlooked that the example set
forth in the Code Commission's memorandum refers to a tort upon a
minor who had been seduced. The essential feature is seduction, that in
law is more than mere sexual intercourse, or a breach of a promise of
marriage; it connotes essentially the idea of deceit, enticement, superior
power or abuse of confidence on the part of the seducer to which the
woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs.
Arlante, 9 Phil. 595).
It has been ruled in the Buenaventura case (supra) that
'To constitute seduction there must in all cases be
some sufficient promise or inducement and the woman must
yield because of the promise or other inducement. If she
consents merely from carnal lust and the intercourse is from
mutual desire, there is no seduction (43 Cent Dig. tit.
Seduction, par. 56). She must be induced to depart from the
path of virtue by the use of some species of arts, persuasions
and wiles, which are calculated to have and do have that

effect, and which result in her ultimately submitting her person
to the sexual embraces of her seducer' (27 Phil. 123).
And in American Jurisprudence we find:
'On the other hand, in an action by the woman, the
enticement, persuasion or deception is the essence of the
injury; and a mere proof of intercourse is insufficient to warrant
a recovery.
Accordingly it is not seduction where the willingness
arises out sexual desire or curiosity of the female, and the
defendant merely affords her the needed opportunity for the
commission of the act. It has been emphasized that to allow a
recovery in all such cases would tend to the demoralization of
the female sex, and would be a reward for unchastity by;
which a class of adventuresses would be swift to profit.' (47
Am. Jur. 662).
xxx xxx xxx
Over and above the partisan allegations, the facts stand out that for one
whole year, from 1958 to 1959, the plaintiff-appellee, a woman of adult
age, maintained intimate sexual relations with appellant, with repeated
acts of intercourse. Such conduct is incompatible with the idea of
seduction. Plainly there is here voluntariness and mutual passion; for had
the appellant been deceived, had she surrendered exclusively because
of the deceit, artful persuasions and wiles of the defendant, she would
not have again yielded to his embraces, much less for one year, without
exacting early fulfillment of the alleged promises of marriage, and would
have cut short all sexual relations upon finding that defendant did not
intend to fulfill his promise. Hence, we conclude that no case is made
under Article 21 of the Civil Code, and no other cause of action being
alleged, no error was committed by the Court of First Instance in
dismissing the complaint." 27
In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who recently
retired from this Court, opined that in a breach of promise to marry where there had been carnal
knowledge, moral damages may be recovered:
" . . . if there be criminal or moral seduction, but not if the intercourse
was due to mutual lust. (Hermosisima vs. Court of Appeals, L-14628,
Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra
vs. Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-
17248, Jan. 29, 1962). (In other words, if the CAUSE be the promise to
marry, and the EFFECT be the carnal knowledge, there is a chance that
there was criminal or moral seduction, hence recovery of moral damages
will prosper. If it be the other way around, there can be no recovery of
moral damages, because here mutual lust has intervened). . . . ."
together with "ACTUAL damages, should there be any, such as the expenses for the
wedding preparations (See Domalagon v. Bolifer, 33 Phil. 471)." LLpr
Senator Arturo M. Tolentino 29 is also of the same persuasion:
"It is submitted that the rule in Batarra vs. Marcos 30 still subsists,
notwithstanding the incorporation of the present article 31 in the Code.
6
The example given by the Code Commission is correct, if there was
seduction, not necessarily in the legal sense, but in the vulgar sense of
deception. But when the sexual act is accomplished without any deceit
or qualifying circumstance of abuse of authority or influence, but the
woman, already of age, has knowingly given herself to a man, it cannot
be said that there is an injury which can be the basis for indemnity.
But so long as there is fraud, which is characterized by wilfullness (sic),
the action lies. The court, however, must weigh the degree of fraud, if it
is sufficient to deceive the woman under the circumstances, because an
act which would deceive a girl sixteen years of age may not constitute
deceit as to an experienced woman thirty years of age. But so long as
there is a wrongful act and a resulting injury, there should be civil liability,
even if the act is not punishable under the criminal law and there should
have been an acquittal or dismissal of the criminal case for that reason."
We are unable to agree with the petitioner's alternative proposition to the effect that granting,
for argument's sake, that he did promise to marry the private respondent, the latter is
nevertheless also at fault. According to him, both parties are in pari delicto; hence, pursuant to
Article 1412(1) of the Civil Code and the doctrine laid down in Batarra vs. Marcos, 32the private
respondent cannot recover damages from the petitioner. The latter even goes as far as stating
that if the private respondent had "sustained any injury or damage in their relationship, it is
primarily because of her own doing," 33 for:
" . . . She is also interested in the petitioner as the latter will become a
doctor sooner or later. Take notice that she is a plain high school
graduate and a mere employee . . (Annex C ) or a waitress (TSN, p. 51,
January 25, 1988) in a luncheonette and without doubt, is in need of a
man who can give her economic security. Her family is in dire need of
financial assistance (TSN, pp. 51-53, May 18, 1988). And this
predicament prompted her to accept a proposition that may have been
offered by the petitioner." 34
These statements reveal the true character and motive of the petitioner. It is clear that he
harbors a condescending, if not sarcastic, regard for the private respondent on account of the
latter's ignoble birth, inferior educational background, poverty and, as perceived by him,
dishonorable employment. Obviously then, from the very beginning, he was not at all moved by
good faith and an honest motive. Marrying with a woman so circumstanced could not have
even remotely occurred to him. Thus, his profession of love and promise to marry were empty
words directly intended to fool, dupe, entice, beguile and deceive the poor woman into
believing that indeed, he loved her and would want her to be his life partner. His was nothing
but pure lust which he wanted satisfied by a Filipina who honestly believed that by accepting
his proffer of love and proposal of marriage, she would be able to enjoy a life of ease and
security. Petitioner clearly violated the Filipino's concept of morality and so brazenly defied the
traditional respect Filipinos have for their women. It can even be said that the petitioner
committed such deplorable acts in blatant disregard of Article 19 of the Civil Code which
directs every person to act with justice, give everyone his due and observe honesty and good
faith in the exercise of his rights and in the performance of his obligations.
No foreigner must be allowed to make a mockery of our laws, customs and traditions.
The pari delicto rule does not apply in this case for while indeed, the private respondent may
not have been impelled by the purest of intentions, she eventually submitted to the petitioner in
sexual congress not out of lust, but because of moral seduction. In fact, it is apparent that she

had qualms of conscience about the entire episode for as soon as she found out that the
petitioner was not going to marry her after all, she left him. She is not, therefore, in pari
delicto with the petitioner. Pari delicto means "in equal fault; in a similar offense or crime; equal
in guilt or in legal fault." 35 At most, it could be conceded that she is merely in delicto. cdphil
"Equity often interferes for the relief of the less guilty of the parties,
where his transgression has been brought about by the imposition or
undue influence of the party on whom the burden of the original wrong
principally rests, or where his consent to the transaction was itself
procured by fraud." 36
In Mangayao vs. Lasud, 37 We declared:
"Appellants likewise stress that both parties being at fault, there should
be no action by one against the other (Art. 1412, New Civil Code). This
rule, however, has been interpreted as applicable only where the fault on
both sides is, more or less, equivalent. It does not apply where one party
is literate or intelligent and the other one is not (c.f. Bough vs.
Cantiveros, 40 Phil. 209)."
We should stress, however, that while We find for the private respondent, let it not be said that
this Court condones the deplorable behavior of her parents in letting her and the petitioner stay
together in the same room in their house after giving approval to their marriage. It is the solemn
duty of parents to protect the honor of their daughters and infuse upon them the higher values
of morality and dignity.
WHEREFORE, finding no reversible error in the challenged decision, the instant petition is
hereby DENIED, with costs against the petitioner. cdll
SO ORDERED.
Feliciano, J ., Bidin, Romero and Melo, JJ ., concur.
THIRD DIVISION
[G.R. No. 74761. November 6, 1990.]
NATIVIDAD V. ANDAMO and EMMANUEL R.
ANDAMO, petitioners, vs. INTERMEDIATE APPELLATE COURT (First
Civil Cases Division) and MISSIONARIES OF OUR LADY OF LA
SALETTE, INC., respondents.
Lope E. Adriano for petitioners.
Padilla Law Office for private respondent.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; NATURE AND PURPOSE THEREOF DETERMINED BY THE
ALLEGATIONS IN THE COMPLAINT. It is axiomatic that the nature of an action filed in court
7
is determined by the facts alleged in the complaint as constituting the cause of action. The
purpose of an action or suit and the law to govern it, including the period of prescription, is to
be determined not by the claim of the party filing the action, made in his argument or brief, but
rather by the complaint itself, its allegations and prayer for relief. (De Tavera vs. Philippine
Tuberculosis Society, Inc., G.R. No. L-48928, February 25, 1982, 112 SCRA 243.) The nature of
an action is not necessarily determined or controlled by its title or heading but by the body of
the pleading or complaint itself. To avoid possible denial of substantial justice due to legal
technicalities, pleadings as well as remedial laws should be liberally construed so that the
litigants may have ample opportunity to prove their respective claims. (Dominguez vs. Lee, G.R.
No. 74960-61, November 27, 1987, 155 SCRA 703)
2. CIVIL LAW; QUASI-DELICTS; ELEMENTS THEREOF. A careful examination of the
aforequoted complaint shows that the civil action is one under Articles 2176 and 2177 of the
Civil Code on quasi-delicts. All the elements of a quasi-delict are present, to wit: (a) damages
suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person for
whose acts he must respond; and (c) the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the plaintiff. (Taylor vs. Manila
Electric Company, 16 Phil. 8; Vergara vs. Court of Appeals, G.R. No. 77679, September 30,
1987, 154 SCRA 564)
3. ID; ID; "FAULT OR NEGLIGENCE," CONSTRUED. Article 2176 of the Civil Code imposes
a civil liability on a person for damage caused by his act or omission constituting fault or
negligence, and whenever Article 2176 refers to "fault or negligence", it covers not only acts
"not punishable by law" but also acts criminal in character, whether intentional and voluntary or
negligent. Consequently, a separate civil action lies against the offender in a criminal act,
whether or not he is criminally prosecuted and found guilty or acquitted, provided that the
offended party is not allowed, (if the tortfeasor is actually charged also criminally), to recover
damages on both scores, and would be entitled in such eventuality only to the bigger award of
the two, assuming the awards made in the two cases vary. (Virata vs. Ochoa, G.R. No. L-46179,
January 31, 1978, 81 SCRA 472)
4. ID; ID; DISTINGUISHED FROM CRIMINAL NEGLIGENCE. According to the Report of the
Code Commission, Article 2177 of the Civil Code though at first sight startling, is not so novel
or extraordinary when we consider the exact nature of criminal and civil negligence. The former
is a violation of the criminal law, while the latter is a distinct and independent negligence, which
is a "culpa aquiliana" or quasi-delict, of ancient origin, having always had its own foundation
and individuality, separate from criminal negligence. Such distinction between criminal
negligence and "culpa extra-contractual" or "cuasi-delito" has been sustained by decisions of
the Supreme Court of Spain . . .
5. ID; ID; CIVIL ACTION, ENTIRELY INDEPENDENT OF THE CRIMINAL CASE. In Azucena
vs. Potenciano, (5 SCRA 468, 470-471), the Court declared that in quasi-delicts, "(t)he civil
action is entirely independent of the criminal case according to Articles 33 and 2177 of the Civil
Code. There can be no logical conclusion than this, for to subordinate the civil action
contemplated in the said articles to the result of the criminal prosecution whether it be
conviction or acquittal would render meaningless the independent character of the civil
action and the clear injunction in Article 31, that his action may proceed independently of the
criminal proceedings and regardless of the result of the latter."
6. ID; ID; EFFECT OF ACQUITTAL OR CONVICTION IN THE CRIMINAL CASE. In the case
of Castillo vs. Court of Appeals (176 SCRA 591), this Court held that a quasi-delict or culpa
aquiliana is a separate legal institution under the Civil Code with a substantivity all its own, and
individuality that is entirely apart and independent from a delict or crime a distinction exists
between the civil liability arising from a crime and the responsibility for quasi-delicts or culpa
extra-contractual. The same negligence causing damages may produce civil liability arising
from a crime under the Penal Code, or create an action for quasi-delicts or culpa extra-

contractual under the Civil Code. Therefore, the acquittal or conviction in the criminal case is
entirely irrelevant in the civil case, unless, of course, in the event of an acquittal where the court
has declared that the fact from which the civil action arose did not exist, in which case the
extinction of the criminal liability would carry with it the extinction of the civil liability.
7. ID; PROPERTY; USE THEREOF, NOT WITHOUT LIMITATIONS; RECIPROCAL DUTIES OF
ADJOINING LANDOWNERS. It must be stressed that the use of one's property is not
without limitations. Article 431 of the Civil Code provides that "the owner of a thing cannot
make use thereof in such a manner as to injure the rights of a third person." SIC UTERE TUO
UT ALIENUM NON LAEDAS. Moreover, adjoining landowners have mutual and reciprocal
duties which require that each must use his own land in a reasonable manner so as not to
infringe upon the rights and interests of others. Although we recognize the right of an owner to
build structures on his land, such structures must be so constructed and maintained using all
reasonable care so that they cannot be dangerous to adjoining landowners and can withstand
the usual and expected forces of nature. If the structures cause injury or damage to an
adjoining landowner or a third person, the latter can claim indemnification for the injury or
damage suffered.
DECISION
FERNAN, J p:
The pivotal issue in this petition for certiorari, prohibition and mandamus is whether a
corporation, which has built through its agents, waterpaths, water conductors and contrivances
within its land, thereby causing inundation and damage to an adjacent land, can be held civilly
liable for damages under Articles 2176 and 2177 of the Civil Code on quasi-delicts such that
the resulting civil case can proceed independently of the criminal case.
The antecedent facts are as follows:
Petitioner spouses Emmanuel and Natividad Andamo are the owners of a parcel of land
situated in Biga (Biluso) Silang, Cavite which is adjacent to that of private respondent,
Missionaries of Our Lady of La Salette, Inc., a religious corporation. LexLib
Within the land of respondent corporation, waterpaths and contrivances, including an artificial
lake, were constructed, which allegedly inundated and eroded petitioners' land, caused a
young man to drown, damaged petitioners' crops and plants, washed away costly fences,
endangered the lives of petitioners and their laborers during rainy and stormy seasons, and
exposed plants and other improvements to destruction.
In July 1982, petitioners instituted a criminal action, docketed as Criminal Case No. TG 907-82,
before the Regional Trial Court of Cavite, Branch 4 (Tagaytay City), against Efren Musngi,
Orlando Sapuay and Rutillo Mallillin, officers and directors of herein respondent corporation, for
destruction by means of injunction under Article 324 of the Revised Penal Code.
Subsequently, on February 22, 1983, petitioners filed another action against respondent
corporation, this time a civil case, docketed as Civil Case No. TG-748, for damages with prayer
for the issuance of a writ of preliminary injunction before the same court. 1
On March 11, 1983, respondent corporation filed its answer to the complaint and opposition to
the issuance of a writ of preliminary injunction. Hearings were conducted including ocular
inspections on the land. However, on April 26, 1984, the trial court, acting on respondent
8
corporation's motion to dismiss or suspend the civil action, issued an
order suspending further hearings in Civil Case No. TG-748 until after judgment in the related
Criminal Case No. TG-907-82.
Resolving respondent corporation's motion to dismiss filed on June 22, 1984, the trial court
issued on August 27,1984 the disputed order dismissing Civil Case No. TG-748 for lack of
jurisdiction, as the criminal case which was instituted ahead of the civil case was still
unresolved. Said order was anchored on the provision of Section 3 (a), Rule 111 of the Rules of
Court which provides that "criminal and civil actions arising from the same offense may be
instituted separately, but after the criminal action has been commenced the civil action cannot
be instituted until final judgment has been rendered in the criminal action." 2
Petitioners appealed from that order to the Intermediate Appellate Court. 3
On February 17, 1986, respondent Appellate Court, First Civil Cases Division, promulgated a
decision, 4 affirming the questioned order of the trial court. 5 A motion for reconsideration filed
by petitioners was denied by the Appellate Court in its resolution dated May 19, 1986. 6
Directly at issue is the propriety of the dismissal of Civil Case: No. TG-748 in accordance with
Section 3 (a) of Rule 111 of the Pules of Court. Petitioners contend that the trial court and the
Appellate Court erred in dismissing Civil Case No. TG-748 since it is predicated on a quasi-
delict. Petitioners have raised a valid point.
It is axiomatic that the nature of an action filed in court is determined by the facts alleged in the
complaint as constituting the cause of action. 7 The purpose of an action or suit and the law to
govern it, including the period of prescription, is to be determined not by the claim of the party
filing the action, made in his argument or brief, but rather by the complaint itself, its allegations
and prayer for relief. 8 The nature of an action is not necessarily determined or controlled by its
title or heading but by the body of the pleading or complaint itself. To avoid possible denial of
substantial justice due to legal technicalities, pleadings as well as remedial laws should be
liberally construed so that the litigants may have ample opportunity to prove their respective
claims. 9
Quoted hereunder are the pertinent portions of petitioners' complaint in Civil Case No. TG-
748:LibLex
4) That within defendant's land, likewise located at Biga (Biluso), Silang,
Cavite, adjacent on the right side of the aforesaid land of plaintiffs,
defendant constructed waterpaths starting from the middle-right portion
thereof leading to a big hole or opening, also constructed by defendant,
thru the lower portion of its concrete hollow-blocks fence situated on the
right side of its cemented gate fronting the provincial highway, and
connected by defendant to a man-height inter-connected cement
culverts which were also constructed and lain by defendant cross-wise
beneath the tip of the said cemented gate, the left-end of the said inter-
connected culverts again connected by defendant to a big hole or
opening thru the lower portion of the same concrete hollow-blocks fence
on the left side of the said cemented gate, which hole or opening is
likewise connected by defendant to the cemented mouth of a big canal,
also constructed by defendant, which runs northward towards a big hole
or opening which was also built by defendant thru the lower portion of its
concrete hollow-blocks fence which separates the land of plaintiffs from
that of defendant (and which serves as the exit-point of the floodwater
coming from the land of defendant, and at the same time, the entrance-

point of the same floodwater to the land of plaintiffs, year after year,
during rainy or stormy seasons.
"5) That moreover, on the middle-left portion of its land just beside the
land of plaintiffs, defendant also constructed an artificial lake, the base of
which is soil, which utilizes the water being channeled thereto from its
water system thru inter-connected galvanized iron pipes (No. 2) and
complimented by rain water during rainy or stormy seasons, so much so
that the water below it seeps into, and the excess water above it
inundates, portions of the adjoining land of plaintiffs.
"6) That as a result of the inundation brought about by defendant's
aforementioned water conductors, contrivances and manipulators, a
young man was drowned to death, while herein plaintiffs suffered and
will continue to suffer, as follows:
"a) Portions of the land of plaintiffs were eroded and converted to deep,
wide and long canals, such that the same can no longer be planted to
any crop or plant.
"b) Costly fences constructed by plaintiffs were, on several occasions,
washed away.
"c) during rainy and stormy seasons the lives of plaintiffs and their
laborers are always in danger.
"d) Plants and other improvements on other portions of the land of
plaintiffs are exposed to destruction. . . ." 10
A careful examination of the aforequoted complaint shows that the civil action is one under
Articles 2176 and 2177 of the Civil Code on quasi-delicts. All the elements of a quasi-delict are
present, to wit: (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or
some other person for whose acts he must respond; and (c) the connection of cause and effect
between the fault or negligence of the defendant and the damages incurred by the plaintiff. 11
Clearly, from petitioners' complaint, the waterpaths and contrivances built by respondent
corporation are alleged to have inundated the land of petitioners. There is therefore, an
assertion of a causal connection between the act of building these waterpaths and the damage
sustained by petitioners. Such action if proven constitutes fault or negligence which may be the
basis for the recovery of damages.
In the case of Samson vs. Dionisio, 12 the Court applied Article 1902, now Article 2176 of the
Civil Code and held that "any person who without due authority constructs a bank or dike,
stopping the flow or communication between a creek or a lake and a river, thereby causing loss
and damages to a third party who, like the rest of the residents, is entitled to the use and
enjoyment of the stream or lake, shall be liable to the payment of an indemnity for loss and
damages to the injured party."
While the property involved in the cited case belonged to the public domain and the property
subject of the instant case is privately owned, the fact remains that petitioners' complaint
sufficiently alleges that petitioners have sustained and will continue to sustain damage due to
the waterpaths and contrivances built by respondent corporation. Indeed, the recitals of the
complaint, the alleged presence of damage to the petitioners, the act or omission of respondent
corporation supposedly constituting fault or negligence, and the causal connection between the
act and the damage, with no pre-existing contractual obligation between the parties make a
clear case of a quasi-delict or culpa aquiliana. llcd
9
It must be stressed that the use of one's property is not without limitations. Article 431 of the
Civil Code provides that "the owner of a thing cannot make use thereof in such a manner as to
injure the rights of a third person." SIC UTERE TUO UT ALIENUM NON LAEDAS. Moreover,
adjoining landowners have mutual and reciprocal duties which require that each must use his
own land in a reasonable manner so as not to infringe upon the rights and interests of others.
Although we recognize the right of an owner to build structures on his land, such structures
must be so constructed and maintained using all reasonable care so that they cannot be
dangerous to adjoining landowners and can withstand the usual and expected forces of nature.
If the structures cause injury or damage to an adjoining landowner or a third person, the latter
can claim indemnification for the injury or damage suffered.
Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by his act
or omission constituting fault or negligence, thus:
"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 is governed by the
provisions of this chapter."
Article 2176, whenever it refers to "fault or negligence", covers not only acts "not punishable by
law" but also acts criminal in character, whether intentional and voluntary or negligent.
Consequently, a separate civil action lies against the offender in a criminal act, whether or not
he is criminally prosecuted and found guilty or acquitted, provided that the offended party is
not allowed, (if the tortfeasor is actually charged also criminally), to recover damages on both
scores, and would be entitled in such eventuality only to the bigger award of the two, assuming
the awards made in the two cases vary. 13
The distinctness of quasi-delicts is shown in Article 2177 of the Civil Code, which states:
"Article 2177. Responsibility for fault or negligence under the preceding
article is entirely separate and distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the defendant."
According to the Report of the Code Commission "the foregoing provision though at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a distinct and
independent negligence, which is a "culpa aquiliana" or quasi-delict, of ancient origin, having
always had its own foundation and individuality, separate from criminal negligence. Such
distinction between criminal negligence and "culpa extra-contractual" or "cuasi-delito" has
been sustained by decisions of the Supreme Court of Spain . . ." 14
In the case of Castillo vs. Court of Appeals, 15 this Court held that a quasi-delict or culpa
aquiliana is a separate legal institution under the Civil Code with a substantivity all its own, and
individuality that is entirely apart and independent from a delict or crime a distinction exists
between the civil liability arising from a crime and the responsibility for quasi-delicts or culpa
extra-contractual. The same negligence causing damages may produce civil liability arising
from a crime under the Penal Code, or create an action for quasi-delicts or culpa extra-
contractual under the Civil Code. Therefore, the acquittal or conviction in the criminal case is
entirely irrelevant in the civil case, unless, of course, in the event of an acquittal where the court
has declared that the fact from which the civil action arose did not exist, in which case the
extinction of the criminal liability would carry with it the extinction of the civil liability. prLL
In Azucena vs. Potenciano, 16 the Court declared that in quasi-delicts, "(t)he civil action is
entirely independent of the criminal case according to Articles 33 and 2177 of the Civil Code.
There can be no logical conclusion than this, for to subordinate the civil action contemplated in

the said articles to the result of the criminal prosecution whether it be conviction or acquittal
would render meaningless the independent character of the civil action and the clear
injunction in Article 31, that his action may proceed independently of the criminal proceedings
and regardless of the result of the latter."
WHEREFORE, the assailed decision dated February 17, 1986 of the then Intermediate Appellate
Court affirming the order of dismissal of the Regional Trial Court of Cavite, Branch 18 (Tagaytay
City) dated August 17, 1984 is hereby REVERSED and SET ASIDE. The trial court is ordered to
reinstate Civil Case No. TG-748 entitled "Natividad V. Andamo and Emmanuel R. Andamo vs.
Missionaries of Our Lady of La Salette, Inc." and to proceed with the hearing of the case with
dispatch. This decision is immediately executory. Costs against respondent corporation.
SO ORDERED.
Gutierrez, Jr. and Bidin, JJ., concur.
Feliciano, J., is on leave.
||| (Andamo v. Intermediate Appellate Court, G.R. No. 74761, [November 6, 1990], 269 PHIL
200-210)
FIRST DIVISION
[G.R. No. 150920. November 25, 2005.]
CHILD LEARNING CENTER, INC. and SPOUSES EDGARDO L.
LIMON and SYLVIA S. LIMON, petitioners, vs. TIMOTHY TAGARIO,
assisted by his parents BASILIO TAGORIO and HERMINIA
TAGORIO, respondents.
Tomas Z. Roxas, Jr. for petitioners.
Lopez & Rempillo for respondents.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FACTUAL FINDINGS OF THE TRIAL COURT,
AFFIRMED BY THE COURT OF APPEALS, ARE FINAL AND CONCLUSIVE AND MAY NOT BE
REVIEWED ON APPEAL; EXCEPTIONS. Generally, factual findings of the trial court, affirmed
by the Court of Appeals, are final and conclusive and may not be reviewed on appeal. The
established exceptions are: (1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is grave abuse of discretion; (3) when the findings are grounded
entirely on speculations, surmises or conjectures: (4) when the judgment of the Court of
Appeals is based on misapprehension of facts; (5) when the findings of fact are conflicting; (6)
when the Court of Appeals, in making its findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant and appellee; (7) when the findings of fact
are conclusions without citation of specific evidence on which they are based; (8) when the
Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and
10
which, if properly considered, would justify a different conclusion; and (9) when the findings
of fact of the Court of Appeals are premised on the absence of evidence and are contradicted
by the evidence on record.
2. CIVIL LAW; OBLIGATIONS AND CONTRACTS; EXTRA-CONTRACTUAL OBLIGATIONS;
QUASI-DELICTS; ELEMENTS; MUST BE PROVED BY A PREPONDERANCE OF EVIDENCE BY
PLAINTIFF. In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove
by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or
negligence of the defendant or some other person for whose act he must respond; and (3) the
connection of cause and effect between the fault or negligence and the damages incurred.
3. ID.; ID.; ID.; ID.; FAULT AND NEGLIGENCE, DISTINGUISHED. Fault, in general, signifies a
voluntary act or omission which causes damage to the right of another giving rise to an
obligation on the part of the actor to repair such damage. Negligence is the failure to observe
for the protection of the interest of another person that degree of care, precaution and vigilance
which the circumstances justly demand. Fault requires the execution of a positive act which
causes damage to another while negligence consists of the omission to do acts which result in
damage to another.
4. ID.; ID.; ID.; ID.; DOCTRINE OF RES IPSA LOQUITOR; WHEN APPLICABLE; CASE AT BAR.
The fact, however, that Timothy fell out through the window shows that the door could not
be opened from the inside. That sufficiently points to the fact that something was wrong with
the door, if not the door knob, under the principle of res ipsa loquitor. The doctrine of res ipsa
loquitor applies where (1) the accident was of such character as to warrant an inference that it
would not have happened except for the defendant's negligence; (2) the accident must have
been caused by an agency or instrumentality within the exclusive management or control of the
person charged with the negligence complained of; and (3) the accident must not have been
due to any voluntary action or contribution on the part of the person injured. Petitioners are
clearly answerable for failure to see to it that the doors of their school toilets are at all times in
working condition. The fact that a student had to go through the window, instead of the door,
shows that something was wrong with the door.
5. ID.; ID.; ID.; ID.; DEFENSE OF DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF
EMPLOYEES; APPLICABLE WHERE THE EMPLOYER IS BEING HELD RESPONSIBLE FOR
THE ACTS OR OMISSIONS OF OTHERS UNDER ARTICLE 2180 OF THE CIVIL CODE. Due
diligence in the selection and supervision of employees is applicable where the employer is
being held responsible for the acts or omissions of others under Article 2180 of the Civil Code.
In this case, CLC's liability is under Article 2176 of the Civil Code, premised on the fact of its
own negligence in not ensuring that all its doors are properly maintained.
6. COMMERCIAL LAW; CORPORATION LAW; CORPORATION CODE; PIERCING THE
CORPORATE VEIL; ELEMENTS. To disregard the corporate existence, the plaintiff must
prove: (1) Control by the individual owners, not mere majority or complete stock ownership,
resulting in complete domination not only of finances but of policy and business practice in
respect to a transaction so that the corporate entity as to this transaction had at the time no
separate mind, will or existence of its own; (2) such control must have been used by the
defendant to commit fraud or wrong, to perpetuate the violation of a statutory or other positive
legal duty, or a dishonest and unjust act in contravention of the plaintiff's legal right; and (3) the
control and breach of duty must proximately cause the injury or unjust loss complained of. The
absence of these elements prevents piercing the corporate veil. The evidence on record fails to
show that these elements are present, especially given the fact that plaintiffs' complaint had
pleaded that CLC is a corporation duly organized and existing under the laws of the Philippines.
DECISION

AZCUNA, J p:
This petition started with a tort case filed with the Regional Trial Court of Makati by Timothy
Tagorio and his parents, Basilio R. Tagorio and Herminia Tagorio, docketed as Civil Case No.
91-1389. The complaint 1 alleged that during the school year 1990-1991, Timothy was a Grade
IV student at Marymount School, an academic institution operated and maintained by Child
Learning Center, Inc. (CLC). In the afternoon of March 5, 1991, between 1 and 2 p.m., Timothy
entered the boy's comfort room at the third floor of the Marymount building to answer the call
of nature. He, however, found himself locked inside and unable to get out. Timothy started to
panic and so he banged and kicked the door and yelled several times for help. When no help
arrived he decided to open the window to call for help. In the process of opening the window,
Timothy went right through and fell down three stories. Timothy was hospitalized and given
medical treatment for serious multiple physical injuries.
An action under Article 2176 of the Civil Code was filed by respondents against the CLC, the
members of its Board of Directors, namely Spouses Edgardo and Sylvia Limon, Alfonso Cruz,
Carmelo Narciso and Luningning Salvador, and the Administrative Officer of Marymount
School, Ricardo Pilao. In its defense, 2 CLC maintained that there was nothing defective about
the locking mechanism of the door and that the fall of Timothy was not due to its fault or
negligence. CLC further maintained that it had exercised the due care and diligence of a good
father of a family to ensure the safety, well-being and convenience of its students.
After trial, the court a quo found in favor of respondents and ordered petitioners CLC and
Spouses Limon to pay respondents, jointly and severally, P200,253.12 as actual and
compensatory damages, P200,000 as moral damages, P50,000 as exemplary damages,
P100,000 as attorney's fees and the costs of the suit. The trial court disregarded the corporate
fiction of CLC and held the Spouses Limon personally liable because they were the ones who
actually managed the affairs of the CLC.
Petitioners CLC and the Spouses Limon appealed the decision to the Court of Appeals.
On September 28, 2001, the Court of Appeals 3 affirmed the decision in toto. Petitioners
elevated the case to this Court under Rule 45 of the Rules of Court, after their motion for
reconsideration was denied by Resolution of November 23, 2001. 4
Petitioners question several factual findings of the trial court, which were affirmed by the Court
of Appeals, namely: 5
1. That respondent was allegedly trapped inside the boy's comfort room
located at the third floor of the school building on March 5, 1991;
2. That respondent allegedly banged and kicked the door of said comfort
room several times to attract attention and that he allegedly yelled
thereat for help which never came;
3. That respondent was allegedly forced to open the window of said
comfort room to seek help;
4. That the lock set installed at the boy's comfort room located in the
third floor of the school building on March 5, 1991 was allegedly
defective and that the same lock set was involved in previous incidents
of alleged malfunctioning;
5. That petitioner Child Learning Center, Inc. allegedly failed to install
iron grills in the window of the boy's comfort room at the third floor of
the school building;
11
6. That petitioner Child Learning Center, Inc. allegedly failed to exercise
the due care of a good father of a family in the selection and supervision
of its employees;
7. That the proximate cause of respondent's accident was allegedly not
due to his own contributory negligence;
8. That there was an alleged basis to apply the legal principle of
"piercing the veil of corporate entity" in resolving the issue of alleged
liability of petitioners Edgardo L. Limon and Sylvia S. Limon;
9. That there was alleged basis for petitioners to pay respondent actual,
moral and exemplary damages, plus attorney's fees;
10. That there was an alleged basis in not awarding petitioners' prayer
for moral and exemplary damages, including attorney's fees.
Generally, factual findings of the trial court, affirmed by the Court of Appeals, are final and
conclusive and may not be reviewed on appeal. The established exceptions are: (1) when the
inference made is manifestly mistaken, absurd or impossible; (2) when there is grave abuse of
discretion; (3) when the findings are grounded entirely on speculations, surmises or
conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of
facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of
both appellant and appellee; (7) when the findings of fact are conclusions without citation of
specific evidence on which they are based; (8) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties and which, if properly considered,
would justify a different conclusion; and (9) when the findings of fact of the Court of Appeals are
premised on the absence of evidence and are contradicted by the evidence on record. 6
On the basis of the records of this case, this Court finds no justification to reverse the factual
findings and consider this case as an exception to the general rule. ASTcEa
In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a
preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence
of the defendant or some other person for whose act he must respond; and (3) the connection
of cause and effect between the fault or negligence and the damages incurred. 7
Fault, in general, signifies a voluntary act or omission which causes damage to the right of
another giving rise to an obligation on the part of the actor to repair such damage. Negligence
is the failure to observe for the protection of the interest of another person that degree of care,
precaution and vigilance which the circumstances justly demand. Fault requires the execution
of a positive act which causes damage to another while negligence consists of the omission to
do acts which result in damage to another. 8
In this tort case, respondents contend that CLC failed to provide precautionary measures to
avoid harm and injury to its students in two instances: (1) failure to fix a defective door knob
despite having been notified of the problem; and (2) failure to install safety grills on the window
where Timothy fell from.
The trial court found that the lock was defective on March 5, 1991: 9
The door knob was defective. After the incident of March 5, 1991, said
door knob was taken off the door of the toilet where Timothy was in. The
architect who testified during the trial declared that although there were
standard specifications for door knobs for comfort room[s], and he
designed them according to that requirement, he did not investigate

whether the door knob specified in his plans during the construction
[was] actually put in place. This is so because he did not verify whether
the door knob he specified w[as] actually put in place at the particular
comfort room where Timothy was barred from getting outside. (TSN, pp.
19-20, December 8, 1994).
The Court of Appeals held that there was no reason to disturb the factual assessment: 10
After having perused the records, We fail to see any indication of whim
or arbitrariness on the part of the trial magistrate in his assessment of the
facts of the case. That said, We deem it not to be within Our business to
recast the factual conclusions reached by the court below.
Petitioners would make much of the point that no direct evidence was presented to prove that
the door knob was indeed defective on the date in question.
The fact, however, that Timothy fell out through the window shows that the door could not be
opened from the inside. That sufficiently points to the fact that something was wrong with the
door, if not the door knob, under the principle of res ipsa loquitor. The doctrine of res ipsa
loquitor applies where (1) the accident was of such character as to warrant an inference that it
would not have happened except for the defendant's negligence; (2) the accident must have
been caused by an agency or instrumentality within the exclusive management or control of the
person charged with the negligence complained of; and (3) the accident must not have been
due to any voluntary action or contribution on the part of the person injured. 11 Petitioners are
clearly answerable for failure to see to it that the doors of their school toilets are at all times in
working condition. The fact that a student had to go through the window, instead of the door,
shows that something was wrong with the door. HEDSIc
As to the absence of grills on the window, petitioners contend that there was no such
requirement under the Building Code. Nevertheless, the fact is that such window, as petitioners
themselves point out, was approximately 1.5 meters from the floor, so that it was within reach
of a student who finds the regular exit, the door, not functioning. Petitioners, with the due
diligence of a good father of the family, should have anticipated that a student, locked in the
toilet by a non-working door, would attempt to use the window to call for help or even to get
out. Considering all the circumstances, therefore, there is sufficient basis to sustain a finding of
liability on petitioners' part.
Petitioners' argument that CLC exercised the due diligence of a good father of a family in the
selection and supervision of its employees is not decisive. Due diligence in the selection and
supervision of employees is applicable where the employer is being held responsible for the
acts or omissions of others under Article 2180 of the Civil Code. 12 In this case, CLC's liability
is under Article 2176 of the Civil Code, premised on the fact of its own negligence in not
ensuring that all its doors are properly maintained.
Our pronouncement that Timothy climbed out of the window because he could not get out
using the door, negates petitioners' other contention that the proximate cause of the accident
was Timothy's own negligence. The injuries he sustained from the fall were the product of a
natural and continuous sequence, unbroken by any intervening cause, that originated from
CLC's own negligence.
We, however, agree with petitioners that there was no basis to pierce CLC's separate corporate
personality. To disregard the corporate existence, the plaintiff must prove: (1) Control by the
individual owners, not mere majority or complete stock ownership, resulting in complete
domination not only of finances but of policy and business practice in respect to a transaction
so that the corporate entity as to this transaction had at the time no separate mind, will or
12
existence of its own; (2) such control must have been used by the defendant to commit
fraud or wrong, to perpetuate the violation of a statutory or other positive legal duty, or a
dishonest and unjust act in contravention of the plaintiff's legal right; and (3) the control and
breach of duty must proximately cause the injury or unjust loss complained of. The absence of
these elements prevents piercing the corporate veil. 13 The evidence on record fails to show
that these elements are present, especially given the fact that plaintiffs' complaint had pleaded
that CLC is a corporation duly organized and existing under the laws of the Philippines.
On 9th and 10th points raised concerning the award of damages, the resolution would rest on
factual determinations by the trial court, affirmed by the Court of Appeals, and no legal issue
warrants our intervention.
WHEREFORE, the petition is partly granted and the Decision and Resolution of the Court of
Appeals in CA-G.R. CV No. 50961 dated September 28, 2001 and November 23, 2001,
respectively, are MODIFIED in that petitioners Spouses Edgardo and Sylvia Limon are absolved
from personal liability. The Decision and Resolution are AFFIRMED in all other respects. No
pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago and Carpio, JJ., concur.
||| (Child Learning Center Inc. v. Tagario, G.R. No. 150920, [November 25, 2005], 512 PHIL 618-
627)
SECOND DIVISION
[G.R. No. 180440. December 5, 2012.]
DR. GENEVIEVE L. HUANG, petitioner, vs. PHILIPPINE HOTELIERS,
INC., DUSIT THANI PUBLIC CO., LTD. and FIRST LEPANTO TAISHO
INSURANCE CORPORATION,respondents.
DECISION
PEREZ, J p:
For this Court's resolution is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, assailing the Decision 1 of the Court of Appeals in CA-G.R. CV No. 87065 dated 9
August 2007, affirming the Decision 2 of Branch 56 of the Regional Trial Court (RTC) of Makati
City in Civil Case No. 96-1367 dated 21 February 2006, dismissing for lack of merit herein
petitioner Dr. Genevieve L. Huang's Complaint for Damages. Assailed as well is the Court of
Appeals' Resolution 3 dated 5 November 2007 denying for lack of merit petitioner's Motion for
Reconsideration. prcd
This case stemmed from a Complaint for Damages filed on 28 August 1996 by petitioner Dr.
Genevieve L. Huang 4 against herein respondents Philippine Hoteliers, Inc. (PHI) 5 and Dusit
 13
Thani Public Co., Ltd. (DTPCI), 6 as owners of Dusit Thani Hotel Manila (Dusit Hotel); 7 and co- middle and posterior temporal and slightly the right anterior
respondent First Lepanto Taisho Insurance Corporation (First Lepanto), 8 as insurer of the temporal lobe.
aforesaid hotel. The said Complaint was premised on the alleged negligence of respondents
PHI and DTPCI's staff, in the untimely putting off all the lights within the hotel's swimming pool Other small areas of contusions with suggestive pertechiae are
area, as well as the locking of the main entrance door of the area, prompting petitioner to grope seen in the left fronto-parietal, left parieto-occipital and with
for a way out. While doing so, a folding wooden counter top fell on her head causing her deep frontal periventricular subcortical and cortical regions.
serious brain injury. The negligence was allegedly compounded by respondents PHI and There is no mass effect nor signs of localized hemorrhagic
DTPCI's failure to render prompt and adequate medical assistance. extravasation.

Petitioner's version of the antecedents of this case is as follows: The ventricles are not enlarged, quite symmetrical without
shifts or deformities; the peripheral sulci are within normal
On 11 June 1995, Delia Goldberg (Delia), a registered guest of Dusit Hotel, invited her friend, limits.
petitioner Dr. Genevieve L. Huang, for a swim at the hotel's swimming pool facility. They started
bathing at around 5:00 p.m. At around 7:00 p.m., the hotel's swimming pool attendant informed The C-P angles, petromastoids, sella, extrasellar and retro
them that the swimming pool area was about to be closed. The two subsequently proceeded to orbital areas appear normal.
the shower room adjacent to the swimming pool to take a shower and dress up. However,
The brainstem is unremarkable.
when they came out of the bathroom, the entire swimming pool area was already pitch black
and there was no longer any person around but the two of them. They carefully walked towards IMPRESSION:Scattered small intraparenchymal contusions
the main door leading to the hotel but, to their surprise, the door was locked. 9 mainly involving the left middle-posterior
temporal lobe and also right medial anterior
Petitioner and Delia waited for 10 more minutes near the door hoping someone would come to
temporal, both deep frontal subcortical, left
their rescue but they waited in vain. Delia became anxious about their situation so petitioner
parieto-occipital subcortical and cortical
began to walk around to look for a house phone. Delia followed petitioner. After some time,
regions.
petitioner saw a phone behind the lifeguard's counter. While slowly walking towards the phone,
a hard and heavy object, which later turned out to be the folding wooden counter top, fell on Ischemic etiology not ruled out.
petitioner's head that knocked her down almost unconscious. 10
No localized intra or extracerebral
Delia immediately got hold of the house phone and notified the hotel telephone operator of the hemorrhage. 16
incident. Not long after, the hotel staff arrived at the main entrance door of the swimming pool
area but it took them at least 20 to 30 minutes to get inside. When the door was finally opened, Petitioner claimed that the aforesaid MRI result clearly showed that her head was bruised.
three hotel chambermaids assisted petitioner by placing an ice pack and applying some Based also on the same MRI result, Dr. Noble told her that she has a very serious brain injury.
ointment on her head. After petitioner had slightly recovered, she requested to be assisted to In view thereof, Dr. Noble prescribed the necessary medicine for her condition. 17
the hotel's coffee shop to have some rest. Petitioner demanded the services of the hotel Petitioner likewise consulted a certain Dr. Ofelia Adapon, also a neurologist from Makati
physician. 11 Medical Center, who required her to undergo an Electroencephalogram examination (EEG) to
Dr. Violeta Dalumpines (Dr. Dalumpines) arrived. She approached petitioner and introduced measure the electrostatic in her brain. 18 Based on its result, 19 Dr. Ofelia Adapon informed her
herself as the hotel physician. However, instead of immediately providing the needed medical that she has a serious condition a permanent one. Dr. Ofelia Adapon similarly prescribed
assistance, Dr. Dalumpines presented a "Waiver" and demanded that it be signed by petitioner, medicines for her brain injury. 20
otherwise, the hotel management will not render her any assistance. Petitioner refused to do
Petitioner's condition did not get better. Hence, sometime in September 1995, she consulted
so. 12 TCASIH
another neuro-surgeon by the name of Dr. Renato Sibayan (Dr. Sibayan), who required her to
After eating her dinner and having rested for a while, petitioner left the hotel's coffee shop and have an X-ray test. 21 According to petitioner, Dr. Sibayan's finding was the same as those of
went home. Thereupon, petitioner started to feel extraordinary dizziness accompanied by an the previous doctors that she had consulted she has a serious brain injury. 22
uncomfortable feeling in her stomach, which lasted until the following day. Petitioner was
By reason of the unfortunate 11 June 1995 incident inside the hotel's swimming pool area,
constrained to stay at home, thus, missing all her important appointments with her patients.
petitioner also started to feel losing her memory, which greatly affected and disrupted the
She also began experiencing "on" and "off" severe headaches that caused her three (3)
practice of her chosen profession. 23 Thus, on 25 October 1995, petitioner, through counsel,
sleepless nights. 13
sent a demand letter 24 to respondents PHI and DTPCI seeking payment of an amount not less
Petitioner, thus, decided to consult a certain Dr. Perry Noble (Dr. Noble), a neurologist from than P100,000,000.00 representing loss of earnings on her remaining life span. But, petitioner's
Makati Medical Center, who required her to have an X-ray and a Magnetic Resonance Imaging demand was unheeded.
(MRI) tests. 14 The MRI Report 15 dated 23 August 1995 revealed the following findings:
In November 1995, petitioner went to the United States of America (USA) for further medical
CONSULTATION REPORT: treatment. She consulted a certain Dr. Gerald Steinberg and a certain Dr. Joel Dokson 25from
Mount Sinai Hospital who both found that she has "post traumatic-post concussion/contusion
MRI examination of the brain shows scattered areas of cephalgias-vascular and neuralgia." 26 She was then prescribed to take some medications for
intraparenchymal contusions and involving mainly the left severe pain and to undergo physical therapy. Her condition did not improve so she returned to
the Philippines. 27

Petitioner, once again, consulted Dr. Sibayan, who simply told her to just relax and to continue
taking her medicines. Petitioner also consulted other neurologists, who all advised her to just
continue her medications and to undergo physical therapy for her neck pain. 28
Sometime in 1996, petitioner consulted as well a certain Dr. Victor Lopez (Dr. Lopez), an
ophthalmologist from the Makati Medical Center, because of her poor vision, which she has
experienced for several months. 29 Petitioner's Eye Report dated 5 March 1996 30 issued by
Dr. Lopez stated: "IMPRESSION: Posterior vitreous detachment, right eye of floaters." Dr.
Lopez told petitioner that her detached eye is permanent and very serious. Dr. Lopez then
prescribed an eye drop to petitioner. 31
For petitioner's frustration to dissipate and to regain her former strength and physical well-
being, she consulted another neuro-surgeon from Makati Medical Center by the name of Dr.
Leopoldo P. Pardo, Jr. (Dr. Pardo, Jr.). 32 She disclosed to Dr. Pardo, Jr. that at the age of 18
she suffered a stroke due to mitral valve disease and that she was given treatments, which also
resulted in thrombocytopenia. In Dr. Pardo, Jr.'s medical evaluation of petitioner dated 15 May
1996, 33 he made the following diagnosis and opinion: SAHaTc
DIAGNOSIS AND OPINION:
This patient sustained a severe head injury in (sic) [11 June 1995] and
as a result of which she developed the following injuries:
1. Cerebral Concussion and Contusion
2. Post-traumatic Epilepsy
3. Post-concussional Syndrome
4. Minimal Brain Dysfunction
5. Cervical Sprain, chronic recurrent
It is my opinion that the symptoms she complained of in the foregoing
history are all related to and a result of the injury sustained on [11
June 1995].
It is further my opinion that the above diagnosis and complaints do
materially affect her duties and functions as a practi[c]ing physician
and dermatologist, and that she will require treatment for an
undetermined period of time.
The percentage of disability is not calculated at this time and will
require further evaluation and observation. 34
Dr. Pardo, Jr. then advised petitioner to continue her medications. 35
Petitioner likewise consulted a certain Dr. Tenchavez 36 for her follow-up EEG. 37 He similarly
prescribed medicine for petitioner's deep brain injury. He also gave her pain killer for her
headache and advised her to undergo physical therapy. Her symptoms, however, persisted all
the more. 38
In 1999, petitioner consulted another neurologist at the Makati Medical Center by the name of
Dr. Martesio Perez (Dr. Perez) because of severe fleeting pains in her head, arms and legs;
difficulty in concentration; and warm sensation of the legs, which symptoms also occurred after
the 11 June 1995 incident. Upon examination, Dr. Perez observed that petitioner has been
experiencing severe pains and she has a slight difficulty in concentration. He likewise noted
14
that there was a slight spasm of petitioner's neck muscle but, otherwise, there was no
objective neurologic finding. The rest of petitioner's neurologic examination was essentially
normal. 39
Dr. Perez's neurologic evaluation 40 of petitioner reflected, among others: (1) petitioner's past
medical history, which includes, among others, mitral valve stenosis; (2) an interpretation of
petitioner's EEG results in October 1995 and in January 1999, i.e., the first EEG showed sharp
waves seen bilaterally more on the left while the second one was normal; and (3) interpretation
of petitioner's second MRI result, i.e., petitioner has a permanent damage in the brain, which
can happen either after a head injury or after a stroke. Dr. Perez concluded that petitioner has
post-traumatic or post concussion syndrome. 41 HTDCAS
Respondents, on the other hand, denied all the material allegations of petitioner and, in turn,
countered the latter's statement of facts, thus:
According to respondents PHI and DTPCI, a sufficient notice had been posted on the glass
door of the hotel leading to the swimming pool area to apprise the people, especially the hotel
guests, that the swimming pool area is open only from 7:00 a.m. to 7:00 p.m. 42 Though the
hotel's swimming pool area is open only between the aforestated time, the lights thereon are
kept on until 10:00 p.m. for, (1) security reasons; (2) housekeeping personnel to do the cleaning
of the swimming pool surroundings; and (3) people doing their exercise routine at the Slimmer's
World Gym adjacent to the swimming pool area, which was then open until 10:00 p.m., to have
a good view of the hotel's swimming pool. Even granting that the lights in the hotel's swimming
pool area were turned off, it would not render the area completely dark as the Slimmer's World
Gym near it was well-illuminated. 43
Further, on 11 June 1995, at around 7:00 p.m., the hotel's swimming pool attendant advised
petitioner and Delia to take their showers as it was already closing time. Afterwards, at around
7:40 p.m., Pearlie Benedicto-Lipana (Ms. Pearlie), the hotel staff nurse, who was at the hotel
clinic located at the mezzanine floor, received a call from the hotel telephone operator informing
her that there was a guest requiring medical assistance at the hotel's swimming pool area
located one floor above the clinic. 44
Immediately, Ms. Pearlie got hold of her medical kit and hurriedly went to the hotel's swimming
pool area. There she saw Delia and petitioner, who told her that she was hit on the head by a
folding wooden counter top. Although petitioner looked normal as there was no indication of
any blood or bruise on her head, Ms. Pearlie still asked her if she needed any medical attention
to which petitioner replied that she is a doctor, she was fine and she did not need any medical
attention. Petitioner, instead, requested for a hirudoid cream to which Ms. Pearlie acceded. 45
At about 8:00 p.m., after attending to petitioner, Ms. Pearlie went back to the
hotel clinic to inform Dr. Dalumpines of the incident at the hotel's swimming pool area. But
before she could do that, Dr. Dalumpines had already chanced upon Delia and petitioner
at the hotel's coffee shop and the latter reported to Dr. Dalumpines that her head was hit
by a folding wooden counter top while she was inside the hotel's swimming pool area.
When asked by Dr. Dalumpines how she was, petitioner responded she is a doctor, she
was fine and she was already attended to by the hotel nurse, who went at the hotel's
swimming pool area right after the accident. Dr. Dalumpines then called Ms. Pearlie to
verify the same, which the latter confirmed. 46
Afterwards, Dr. Dalumpines went back to petitioner and checked the latter's condition.
Petitioner insisted that she was fine and that the hirudoid cream was enough. Having been
assured that everything was fine, Dr. Dalumpines requested petitioner to execute a handwritten
certification 47 regarding the incident that occurred that night. Dr. Dalumpines then suggested
to petitioner to have an X-ray test. Petitioner replied that it was not necessary. Petitioner also
refused further medical attention. 48

On 13 June 1995, petitioner called up Dr. Dalumpines. The call, however, had nothing to do
with the 11 June 1995 incident. Instead, petitioner merely engaged in small talk with Dr.
Dalumpines while having her daily massage. The two talked about petitioner's personal
matters, i.e., past medical history, differences with siblings and family over inheritance and
difficulty in practice. Petitioner even disclosed to Dr. Dalumpines that she once fell from a
horse; that she had a stroke; had hysterectomy and is incapable of having children for her
uterus had already been removed; that she had blood disorder, particularly lack of platelets,
that can cause bleeding; and she had an "on" and "off" headaches. Petitioner oftentimes called
Dr. Dalumpines at the hotel clinic to discuss topics similar to those discussed during their 13
June 1995 conversation. 49
Also, during one of their telephone conversations, petitioner requested for a certification
regarding the 11 June 1995 incident inside the hotel's swimming pool area. Dr. Dalumpines
accordingly issued Certification dated 7 September 1995, which states that: 50 ICAcaH
CERTIFICATION
This is to certify that as per Clinic records, duty nurse [Pearlie] was called
to attend to an accident at the poolside at 7:45PM on [11 June 1995].
Same records show that there, she saw [petitioner] who claimed the
folding countertop fell on her head when she lifted it to enter the
lifeguard's counter to use the phone. She asked for Hirudoid.
The same evening [petitioner] met [Dr. Dalumpines] at the Coffee Shop.
After narrating the poolside incident and declining [Dr. Dalumpines']
offer of assistance, she reiterated that the Hirudoid cream was
enough and that [petitioner] being a doctor herself, knew her
condition and she was all right.
This certification is given upon the request of [petitioner] for whatever
purpose it may serve, [7 September 1995] at Makati City. 51 (Emphasis
supplied).
Petitioner personally picked up the afore-quoted Certification at the hotel clinic without any
objection as to its contents. 52
From 11 June 1995 until 7 September 1995, the hotel clinic never received any complaint from
petitioner regarding the latter's condition. The hotel itself neither received any written complaint
from petitioner. 53
After trial, the court a quo in its Decision dated 21 February 2006 dismissed petitioner's
Complaint for lack of merit.
The trial court found petitioner's testimony self-serving, thus, devoid of credibility. Petitioner
failed to present any evidence to substantiate her allegation that the lights in the hotel's
swimming pool area were shut off at the time of the incident. She did not even present her
friend, Delia, to corroborate her testimony. More so, petitioner's testimony was contradicted by
one of the witnesses presented by the respondents who positively declared that it has been a
normal practice of the hotel management not to put off the lights until 10:00 p.m. to allow the
housekeepers to do the cleaning of the swimming pool surroundings, including the toilets and
counters. Also, the lights were kept on for security reasons and for the people in the nearby
gym to have a good view of the swimming pool while doing their exercise routine. Besides,
there was a remote possibility that the hotel's swimming pool area was in complete darkness
as the aforesaid gym was then open until 10:00 p.m., and the lights radiate to the hotel's
swimming pool area. As such, petitioner would not have met the accident had she only
acted with care and caution. 54
15
The trial court further struck down petitioner's contention that the hotel management did
not extend medical assistance to her in the aftermath of the accident. Records showed that the
hotel management immediately responded after being notified of the accident. The hotel nurse
and the two chambermaids placed an ice pack on petitioner's head. They were willing to
extend further emergency assistance but petitioner refused and merely asked for a hirudoid
cream. Petitioner even told them she is a doctor and she was fine. Even the medical services
offered by the hotel physician were turned down by petitioner. Emphatically, petitioner cannot
fault the hotel for the injury she sustained as she herself did not heed the warning that the
swimming pool area is open only from 7:00 a.m. to 7:00 p.m. As such, since petitioner's own
negligence was the immediate and proximate cause of her injury, she cannot recovered
damages. 55
The trial court similarly observed that the records revealed no indication that the head injury
complained of by petitioner was the result of the alleged 11 June 1995
accident. Firstly,petitioner had a past medical history which might have been the cause of her
recurring brain injury. Secondly, the findings of Dr. Perez did not prove a causal relation
between the 11 June 1995 accident and the brain damage suffered by petitioner. Even Dr.
Perez himself testified that the symptoms being experienced by petitioner might have been due
to factors other than the head trauma she allegedly suffered. It bears stressing that petitioner
had been suffering from different kinds of brain problems since she was 18 years old, which
may have been the cause of the recurring symptoms of head injury she is experiencing at
present. Absent, therefore, of any proof establishing the causal relation between the injury she
allegedly suffered on 11 June 1995 and the head pains she now suffers, her claim must
fail. Thirdly, Dr. Teresita Sanchez's (Dr. Sanchez) testimony cannot be relied upon since she
testified on the findings and conclusions of persons who were never presented in court. Ergo,
her testimony thereon was hearsay. Fourthly, the medical reports/evaluations/certifications
issued by myriads of doctors whom petitioner sought for examination or treatment were neither
identified nor testified to by those who issued them. Being deemed as hearsay, they cannot be
given probative value. Even assuming that petitioner suffered head injury as a
consequence of the 11 June 1995 accident, she cannot blame anyone but herself for
staying at the hotel's swimming pool area beyond its closing hours and for lifting the
folding wooden counter top that eventually hit her head. 56
For petitioner's failure to prove that her serious and permanent injury was the result of the 11
June 1995 accident, thus, her claim for actual or compensatory damages, loss of income, moral
damages, exemplary damages and attorney's fees, must all fail. 57 DcIHSa
With regard to respondent First Lepanto's liability, the trial court ruled that under the contract of
insurance, suffice it to state that absent any cause for any liability against respondents PHI and
DTPCI, respondent First Lepanto cannot be made liable thereon.
Dissatisfied, petitioner elevated the matter to the Court of Appeals with the following
assignment of errors: (1) the trial court erred in finding that the testimony of [petitioner] is self-
serving and thus void of credibility; (2) the trial court erred in applying the doctrine of proximate
cause in cases of breach of contract [and even] assuming arguendo that the doctrine is
applicable, [petitioner] was able to prove by sufficient evidence the causal connection between
her injuries and [respondents PHI and DTPCI's] negligent act; and (3) the trial court erred in
holding that [petitioner] is not entitled to damages. 58
On 9 August 2007, the Court of Appeals rendered a Decision affirming the findings and
conclusions of the trial court.
The Court of Appeals ratiocinated in this wise:

At the outset, it is necessary for our purpose to determine whether to
decide this case on the theory that [herein respondents PHI and DTPCI]
are liable for breach of contract or on the theory of quasi-delict.
xxx xxx xxx
It cannot be gainsaid that [herein petitioner's] use of the hotel's pool was
only upon the invitation of [Delia], the hotel's registered guest. As such,
she cannot claim contractual relationship between her and the
hotel. Since the circumstances of the present case do not evince a
contractual relation between [petitioner] and [respondents], the
rules on quasi-delict, thus, govern.
The pertinent provision of Art. 2176 of the Civil Code which states:
"Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the
parties, is called quasi-delict."
A perusal of Article 2176 shows that obligations arising from quasi-
delict or tort, also known as extra-contractual obligations, arise only
between parties not otherwise bound by contract, whether express or
implied. Thus, to sustain a claim liability under quasi-delict, the following
requisites must concur: (a) damages suffered by the plaintiff; (b) fault or
negligence of the defendant, or some other person for whose acts he
must respond; and (c) the connection of cause and effect between the
fault or negligence of the defendant and the damages incurred by the
plaintiff. cSCADE
Viewed from the foregoing, the question now is whether [respondents
PHI and DTPCI] and its employees were negligent? We do not think so.
Several factors militate against [petitioner's] contention.
One. [Petitioner] recognized the fact that the pool area's closing time is
[7:00 p.m.]. She, herself, admitted during her testimony that she was well
aware of the sign when she and [Delia] entered the pool area. Hence,
upon knowing, at the outset, of the pool's closing time, she took the risk
of overstaying when she decided to take shower and leave the area
beyond the closing hour. In fact, it was only upon the advise of the pool
attendants that she thereafter took her shower.
Two. She admitted, through her certification that she lifted the wooden
bar countertop, which then fell onto her head. The admission in her
certificate proves the circumstances surrounding the occurrence that
transpired on the night of [11 June 1995]. This is contrary to her
assertion in the complaint and testimony that, while she was passing
through the counter door, she was suddenly knocked out by a hard and
heavy object. In view of the fact that she admitted having lifted the
counter top, it was her own doing, therefore, that made the counter top
fell on to her head.
Three. We cannot likewise subscribe to [petitioner's] assertion that the
pool area was totally dark in that she herself admitted that she saw a
telephone at the counter after searching for one. It must be noted that
[petitioner] and [Delia] had walked around the pool area with ease since
they were able to proceed to the glass entrance door from shower room,
and back to the counter area where the telephone was located without
16
encountering any untoward incident. Otherwise, she could have easily
stumbled over, or slid, or bumped into something while searching for the
telephone. This negates her assertion that the pool area was completely
dark, thereby, totally impairing her vision.
xxx xxx xxx
The aforementioned circumstances lead us to no other conclusion than
that the proximate and immediate cause of the injury of [petitioner]
was due to her own negligence.
Moreover, [petitioner] failed to sufficiently substantiate that the medical
symptoms she is currently experiencing are the direct result of the head
injury she sustained on [11 June 1995] as was aptly discussed in the
lower court's findings.
xxx xxx xxx
It bears stressing that in civil cases, the law requires that the party who
alleges a fact and substantially asserts the affirmative of the issue has
the burden of proving it. Hence, for [petitioner] to be entitled to damages,
she must show that she had suffered an actionable injury. Regrettably,
[petitioner] failed in this regard. 59 (Emphasis supplied).
Petitioner's Motion for Reconsideration was denied for lack of merit in a Resolution dated 5
November 2007.
Hence, this Petition raising the following issues:
(1) Whether or not the findings of fact of the trial court and of the Court
of Appeals are conclusive in this case.
(2) Whether or not [herein respondents PHI and DTPCI are] responsible
by implied contract to exercise due care for the safety and welfare of the
petitioner.
(3) Whether or not the cause of action of the petitioner can be based on
both breach of contract and tort.
(4) Whether or not it is [respondents PHI and DTPCI] and its employees
who are liable to the petitioner for negligence, applying the well-
established doctrines of res ipsa loquitur and respondeat superior.
(5) Whether the petitioner's debilitating and permanent injuries were a
result of the accident she suffered at the hotel on [11 June 1995].
(6) Whether or not the petitioner is entitled to the payment of damages,
attorney's fees, interest, and the costs of suit.
(7) Whether or not the respondent insurance company is liable, even
directly, to the petitioner.
(8) Whether or not petitioner's motion for reconsideration of the decision
of the Court of Appeals is pro forma. 60
Petitioner argues that the rule that "findings of fact of the lower courts are conclusive and must
be respected on appeal" finds no application herein because this case falls under the
jurisprudentially established exceptions. Moreover, since the rationale behind the afore-

mentioned rule is that "the trial judge is in a vantage point to appreciate the conduct and
behavior of the witnesses and has the unexcelled opportunity to evaluate their testimony," one
logical exception to the rule that can be deduced therefrom is when the judge who decided the
case is not the same judge who heard and tried the case.
Petitioner further faults the Court of Appeals in ruling that no contractual relationship existed
between her and respondents PHI and DTPCI since her use of the hotel's swimming pool
facility was only upon the invitation of the hotel's registered guest. On the contrary, petitioner
maintains that an implied contract existed between them in view of the fact that the hotel guest
status extends to all those who avail of its services its patrons and invitees. It follows then
that all those who patronize the hotel and its facilities, including those who are invited to
partake of those facilities, like petitioner, are generally regarded as guests of the hotel. As such,
respondents PHI and DTPCI are responsible by implied contract for the safety and welfare of
petitioner while the latter was inside their premises by exercising due care, which they failed to
do.
Petitioner even asserts that the existence of a contract between the parties does not bar any
liability for tort since the act that breaks a contract may also be a tort. Hence, the concept of
change of theory of cause of action pointed to by respondents is irrelevant. HCTEDa
Petitioner similarly avows that the doctrines of res ipsa loquitur and respondeat superior are
applicable in this case. She argues that a person who goes in a hotel without a "bukol"or
hematoma and comes out of it with a "bukol" or hematoma is a clear case of res ipsa loquitur. It
was an accident caused by the fact that the hotel staff was not present to lift the heavy counter
top for petitioner as is normally expected of them because they negligently locked the main
entrance door of the hotel's swimming pool area. Following the doctrine of res ipsa
loquitur, respondents PHI and DTPCI's negligence is presumed and it is incumbent upon them
to prove otherwise but they failed to do so. Further, respondents PHI and DTPCI failed to
observe all the diligence of a good father of a family in the selection and supervision of their
employees, hence, following the doctrine of respondeat superior, they were liable for the
negligent acts of their staff in not verifying if there were still people inside the swimming pool
area before turning off the lights and locking the door. Had respondents PHI and DTPCI's
employees done so, petitioner would not have been injured. Since respondents PHI and
DTPCI's negligence need not be proved, the lower courts erred in shifting the burden to
petitioner and, thereafter, holding the hotel and its employees not negligent for petitioner's
failure to prove their negligence. Moreover, petitioner alleges that there was no contributory
negligence on her part for she did not do anything that could have contributed to her injury.
And, even if there was, the same does not bar recovery.
Petitioner equally declares that the evidence on record, including the objective medical
findings, had firmly established that her permanent debilitating injuries were the direct result of
the 11 June 1995 accident inside the hotel's swimming pool area. This fact has not been totally
disputed by the respondents. Further, the medical experts who had been consulted by
petitioner were in unison in their diagnoses of her condition. Petitioner was also able to prove
that the falling of the folding wooden counter top on her head while she was at the hotel's
swimming pool area was the cause of her head, eye and neck injuries.
Petitioner reiterates her claim for an award of damages, to wit: actual, including loss of income;
moral, exemplary; as well as attorney's fees, interest and costs of suit. She states that
respondents PHI and DTPCI are liable for quasi-delict under Articles 19, 2176 and 2180 of
the New Civil Code. At the same time, they are liable under an implied contract for they have a
public duty to give due courtesy, to exercise reasonable care and to provide safety to hotel
guests, patrons and invitees. Respondent First Lepanto, on the other hand, is directly liable
under the express contract of insurance.
17
Lastly, petitioner contends that her Motion for Reconsideration before the Court of Appeals
was not pro forma for it specifically pointed out the alleged errors in the Court of Appeals
Decision.
The instant Petition is devoid of merit.
Primarily, only errors of law and not of facts are reviewable by this Court in a Petition for Review
on Certiorari under Rule 45 of the Rules of Court. 61 This Court is not a trier of facts and it is
beyond its function to re-examine and weigh anew the respective evidence of the
parties. 62 Besides, this Court adheres to the long standing doctrine that the factual findings of
the trial court, especially when affirmed by the Court of Appeals, are conclusive on the parties
and this Court. 63 Nonetheless, this Court has, at times, allowed exceptions thereto, to
wit: EcAISC
(a) When the findings are grounded entirely on speculation, surmises, or
conjectures;
(b) When the inference made is manifestly mistaken, absurd, or
impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the [Court of Appeals] went beyond the
issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee;
(g) When the [Court of Appeals'] findings are contrary to those by the trial
court;
(h) When the findings are conclusions without citation of specific
evidence on which they are based;
(i) When the facts set forth in the petition as well as in the petitioner's
main and reply briefs are not disputed by the respondent;
(j) When the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record; or
(k) When the [Court of Appeals] manifestly overlooked certain relevant
facts not disputed by the parties, which, if properly
considered, would justify a different conclusion. 64
Upon meticulous perusal of the records, however, this Court finds that none of these
exceptions is obtaining in this case. No such justifiable or compelling reasons exist for this
Court to depart from the general rule. This Court will not disturb the factual findings of the trial
court as affirmed by the Court of Appeals and adequately supported by the evidence on record.
Also, this Court will not review the factual findings of the trial court simply because the judge
who heard and tried the case was not the same judge who penned the decision. This fact alone
does not diminish the veracity and correctness of the factual findings of the trial
court. 65 Indeed, "the efficacy of a decision is not necessarily impaired by the fact that its writer
only took over from a colleague who had earlier presided at the trial, unless there is showing of
grave abuse of discretion in the factual findings reached by him." 66 In this case, there was
none.

It bears stressing that in this jurisdiction there is a disputable presumption that the trial court's
decision is rendered by the judge in the regular performance of his official duties. While the said
presumption is only disputable, it is satisfactory unless contradicted or overcame by other
evidence. Encompassed in this presumption of regularity is the presumption that the trial court
judge, in resolving the case and drafting the decision, reviewed, evaluated, and weighed all the
evidence on record. That the said trial court judge is not the same judge who heard the case
and received the evidence is of little consequence when the records and transcripts of
stenographic notes (TSNs) are complete and available for consideration by the former, 67 just
like in the present case.
Irrefragably, by reason alone that the judge who penned the trial court's decision was not the
same judge who heard the case and received the evidence therein would not render the
findings in the said decision erroneous and unreliable. While the conduct and demeanor of
witnesses may sway a trial court judge in deciding a case, it is not, and should not be, his only
consideration. Even more vital for the trial court judge's decision are the contents and
substance of the witnesses' testimonies, as borne out by the TSNs, as well as the object and
documentary evidence submitted and made part of the records of the case. 68 SIcCTD
This Court examined the records, including the TSNs, and found no reason to disturb the
factual findings of both lower courts. This Court, thus, upholds their conclusiveness.
In resolving the second and third issues, a determination of the cause of action on which
petitioner's Complaint for Damages was anchored upon is called for.
Initially, petitioner was suing respondents PHI and DTPCI mainly on account of their negligence
but not on any breach of contract. Surprisingly, when the case was elevated on appeal to the
Court of Appeals, petitioner had a change of heart and later claimed that an implied contract
existed between her and respondents PHI and DTPCI and that the latter were liable for breach
of their obligation to keep her safe and out of harm. This allegation was never an issue before
the trial court. It was not the cause of action relied upon by the petitioner not until the case was
before the Court of Appeals. Presently, petitioner claims that her cause of action can be based
both on quasi-delict and breach of contract.
A perusal of petitioner's Complaint evidently shows that her cause of action was based solely
on quasi-delict. Telling are the following allegations in petitioner's Complaint:
6. THAT, in the evening of [11 June 1995], between the hours from
7:00 to 8:00 o'clock, after [herein petitioner] and her friend from New
York, [Delia], the latter being then a Hotel guest, were taking their
shower after having a dip in the hotel's swimming pool, without any
notice or warning, the Hotel's staff put off all the lights within the
pool area including the lights on the hallway and also locked the
main entrance door of the pool area, . . .;
7. THAT, Hotel guest [Delia] started to panic while [petitioner] pacified
her by telling her not to worry as they would both find their way out.
[Petitioner] knowing that within the area there is a house phone,
started to look around while [Delia] was following her, eventually
[petitioner] saw a phone behind the counter . . ., that while slowly
moving on towards the phone on a stooping manner due to the
darkness CAUSED BY UNTIMELY AND NEGLIGENTLY PUTTING
OFF WITH THE LIGHTS BY THE [HEREIN RESPONDENTS PHI AND
DTPCI'S] EMPLOYEE while passing through the open counter door
with its Folding Counter Top also opened, . . ., a hard and heavy
object fell onto the head of the [petitioner] that knocked her down
18
almost unconscious which hard and heavy object turned out to be the
Folding Counter Top;
8. THAT, [Delia] immediately got hold of the house phone and notified
the Hotel Telephone Operator about the incident, immediately the
hotel staffs (sic) arrived but they were stranded behind the main
door of the pool entrance and it too (sic) them more than twenty
(20) minutes to locate the hotel maintenance employee who holds
the key of the said main entrance door;
9. THAT, when the door was opened, two Hotel Chamber Maids
assisted the [petitioner] to get out of the counter door. [Petitioner]
being a Physician tried to control her feelings although groggy and
requested for a HURIDOID, a medicine for HEMATOMA, as a huge
lump developed on her head while the two Chamber Maids
assisted [petitioner] by holding the bag of ice on her head and
applying the medicine on the huge lump;
10. THAT, [petitioner] after having recovered slightly from her
nightmare, though still feeling weak, asked to be assisted to the Hotel
Coffee Shop to take a rest but requested for the hotel's
Physician. Despite her insistent requests, the [Dusit Hotel] refused
to lift a finger to assists [petitioner] who was then in distress until
a lady approached and introduced herself as the Hotel's house
Doctor. Instead however of assisting [petitioner] by asking her
what kind of assistance the Hotel could render, in a DISCOURTEOUS
MANNER presented instead a paper and demanding [petitioner] to
affix her signature telling her that the Hotel Management would
only assists and answer for all expenses incurred if [petitioner]
signs the paper presented, but she refused and [petitioner]
instead wrote a marginal note on the said paper stating her
reason therefore, said paper later on turned out to be a WAIVER
OF RIGHT or QUIT CLAIM;
xxx xxx xxx
14. THAT, due to the unfortunate incident caused by [respondents
PHI and DTPCI's] gross negligence despite medical assistance,
[petitioner] started to feel losing her memory that greatly affected
and disrupted the practice of her chosen profession . . . .
xxx xxx xxx
19. THAT, due to [respondents PHI and DTPCI's] gross negligence as
being narrated which caused [petitioner] to suffer sleepless nights,
depression, mental anguish, serious anxiety, wounded feelings, and
embarrassment with her Diplomate friends in the profession and
industry, her social standing in the community was greatly affected
and hence, [respondents PHI and DTPCI] must be imposed the
hereunder damages, prayed for . . . and Artile (sic) 2176 and 2199 of
the New Civil Code of the Philippines . . . .
xxx xxx xxx

22. THAT, as to Moral, Exemplary and Actual Damages, as well as
[petitioner's] Loss of Income, the amounts are stated in its prayer
hereunder. 69
It is clear from petitioner's allegations that her Complaint for Damages was predicated on the
alleged negligence of respondents PHI and DTPCI's staff in the untimely putting off of all the
lights within the hotel's swimming pool area, as well as the locking of its main door, prompting
her to look for a way out leading to the fall of the folding wooden counter top on her head
causing her serious brain injury. The said negligence was allegedly compounded by
respondents PHI and DTPCI's failure to render prompt and adequate medical assistance. These
allegations in petitioner's Complaint constitute a cause of action for quasi-delict, which under
the New Civil Code is defined as an act, or omission which causes damage to another, there
being fault or negligence. 70
It is evident from petitioner's Complaint and from her open court testimony that the reliance
was on the alleged tortious acts committed against her by respondents PHI and DTPCI,
through their management and staff. It is now too late in the day to raise the said argument for
the first time before this Court. 71 DcCEHI
Petitioner's belated reliance on breach of contract as her cause of action cannot be sanctioned
by this Court. Well-settled is the rule that a party is not allowed to change the theory of the case
or the cause of action on appeal. Matters, theories or arguments not submitted before the
trial court cannot be considered for the first time on appeal or certiorari. 72 When a party
adopts a certain theory in the court below, he will not be permitted to change his theory on
appeal for to permit him to do so would not only be unfair to the other party but it would also be
offensive to the basic rules of fair play, justice and due process. 73 Hence, a party is bound by
the theory he adopts and by the cause of action he stands on and cannot be permitted after
having lost thereon to repudiate his theory and cause of action and adopt another and seek to
re-litigate the matter a new either in the same forum or on appeal. 74
In that regard, this Court finds it significant to take note of the following differences
between quasi-delict (culpa aquilina) and breach of contract (culpa contractual). In quasi-
delict,negligence is direct, substantive and independent, while in breach of contract, negligence
is merely incidental to the performance of the contractual obligation; there is a pre-existing
contract or obligation. 75 In quasi-delict, the defense of "good father of a family" is a complete
and proper defense insofar as parents, guardians and employers are concerned, while in
breach of contract, such is not a complete and proper defense in the selection and supervision
of employees. 76 In quasi-delict, there is no presumption of negligence and it is incumbent
upon the injured party to prove the negligence of the defendant, otherwise, the former's
complaint will be dismissed, while in breach of contract, negligence is presumed so long as
it can be proved that there was breach of the contract and the burden is on the defendant
to prove that there was no negligence in the carrying out of the terms of the contract; the rule
of respondeat superior is followed. 77
Viewed from the foregoing, petitioner's change of theory or cause of action from quasi-delict to
breach of contract only on appeal would necessarily cause injustice to respondents PHI and
DTPCI. First, the latter will have no more opportunity to present evidence to contradict
petitioner's new argument. Second, the burden of proof will be shifted from petitioner to
respondents PHI and DTPCI. Petitioner's change of theory from quasi-delict to breach of
contract must be repudiated.
As petitioner's cause of action is based on quasi-delict, it is incumbent upon her to prove the
presence of the following requisites before respondents PHI and DTPCI can be held liable, to
wit: (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some
other person for whose acts he must respond; and (c) the connection of cause and effect
between the fault or negligence of the defendant and the damages incurred by the
19
plaintiff. 78 Further, since petitioner's case is for quasi-delict, the negligence or fault
should be clearly established as it is the basis of her action. 79 The burden of proof is upon
petitioner. Section 1, Rule 131 of the Rules of Court provides that "burden of proof is the duty
of a party to present evidence on the facts in issue necessary to establish his claim or defense
by the amount of evidence required by law." It is then up for the plaintiff to establish his cause
of action or the defendant to establish his defense. Therefore, if the plaintiff alleged in his
complaint that he was damaged because of the negligent acts of the defendant, he has
the burden of proving such negligence. It is even presumed that a person takes ordinary care
of his concerns. The quantum of proof required is preponderance of evidence. 80
In this case, as found by the trial court and affirmed by the Court of Appeals, petitioner utterly
failed to prove the alleged negligence of respondents PHI and DTPCI. Other than petitioner's
self-serving testimony that all the lights in the hotel's swimming pool area were shut off and the
door was locked, which allegedly prompted her to find a way out and in doing so a folding
wooden counter top fell on her head causing her injury, no other evidence was presented to
substantiate the same. Even her own companion during the night of the accident inside the
hotel's swimming pool area was never presented to corroborate her allegations. Moreover,
petitioner's aforesaid allegations were successfully rebutted by respondents PHI and DTPCI.
Here, we quote with conformity the observation of the trial court, thus:
. . . Besides not being backed up by other supporting evidence, said
statement is being contradicted by the testimony of Engineer Dante L.
Costas, 81 who positively declared that it has been a normal practice of
the Hotel management not to put off the lights until 10:00P.M. in order to
allow the housekeepers to do the cleaning of the pool's surrounding, the
toilets and the counters. It was also confirmed that the lights were kept
on for security reasons and so that the people exercising in the nearby
gym may be able to have a good view of the swimming pool. This Court
also takes note that the nearby gymnasium was normally open until
10:00 P.M. so that there was a remote possibility the pool area was in
complete darkness as was alleged by [herein petitioner], considering that
the illumination which reflected from the gym. Ergo, considering that the
area were sufficient (sic) illuminated when the alleged incident occurred,
there could have been no reason for the [petitioner] to have met said
accident, much less to have been injured as a consequence thereof, if
she only acted with care and caution, which every ordinary person is
expected to do. 82
More telling is the ratiocination of the Court of Appeals, to wit:
Viewed from the foregoing, the question now is whether [respondents
PHI and DTPCI] and its employees were negligent? We do not think so.
Several factors militate against [petitioner's] contention.
One. [Petitioner] recognized the fact that the pool area's closing time is
[7:00 p.m.]. She, herself, admitted during her testimony that she was well
aware of the sign when she and [Delia] entered the pool area. Hence,
upon knowing, at the outset, of the pool's closing time, she took the risk
of overstaying when she decided to take shower and leave the area
beyond the closing hour. In fact, it was only upon the advise of the pool
attendants that she thereafter took her shower.
Two. She admitted, through her certification, that she lifted the wooden
bar countertop, which then fell on to her head. The admission in her
certificate proves the circumstances surrounding the occurrence that
transpired on the night of [11 June 1995]. This is contrary to her

assertion in the complaint and testimony that, while she was passing
through the counter door, she was suddenly knocked out by a hard and
heavy object. In view of the fact that she admitted having lifted the
countertop, it was her own doing, therefore, that made the counter top
fell on to her head.
Three. We cannot likewise subscribe to [petitioner's] assertion that the
pool area was totally dark in that she herself admitted that she saw a
telephone at the counter after searching for one. It must be noted that
[petitioner] and [Delia] had walked around the pool area with ease since
they were able to proceed to the glass entrance door from the shower
room, and back to the counter area where the telephone was located
without encountering any untoward incident. Otherwise, she could have
easily stumbled over, or slid, or bumped into something while searching
for the telephone. This negates her assertion that the pool area was
completely dark, thereby, totally impairing her vision.
xxx xxx xxx
The aforementioned circumstances lead us to no other conclusion than
that the proximate and immediate cause of the injury of [petitioner]
was due to her own negligence. 83 (Emphasis supplied).
Even petitioner's assertion of negligence on the part of respondents PHI and DTPCI in not
rendering medical assistance to her is preposterous. Her own Complaint affirmed that
respondents PHI and DTPCI afforded medical assistance to her after she met the unfortunate
accident inside the hotel's swimming pool facility. Below is the portion of petitioner's Complaint
that would contradict her very own statement, thus:
14. THAT, due to the unfortunate incident caused by [respondents PHI
and DTPCI's] gross negligence despite medical assistance,
[petitioner] started to feel losing her memory that greatly affected and
disrupted the practice of her chosen profession. . . . . 84 (Emphasis
supplied).
Also, as observed by the trial court, respondents PHI and DTPCI, indeed, extended medical
assistance to petitioner but it was petitioner who refused the same. The trial court stated, thus:
Further, [herein petitioner's] asseverations that the Hotel Management
did not extend medical assistance to her in the aftermath of the alleged
accident is not true. Again, this statement was not supported by any
evidence other that the sole and self-serving testimony of [petitioner].
Thus, this Court cannot take [petitioner's] statement as a gospel truth. It
bears stressing that the Hotel Management immediately responded after
it received notice of the incident. As a matter of fact, [Ms. Pearlie], the
Hotel nurse, with two chambermaids holding an ice bag placed on
[petitioner's] head came to the [petitioner] to extend emergency
assistance when she was notified of the incident, but [petitioner] merely
asked for Hirudoid, saying she was fine, and that she was a doctor and
know how to take care of herself. Also, the Hotel, through its in-house
physician, [Dr. Dalumpines] offered its medical services to [petitioner]
when they met at the Hotel's coffee shop, but again [petitioner] declined
the offer. Moreover, the Hotel as a show of concern for the [petitioner's]
welfare, shouldered the expenses for the MRI services performed on
[petitioner] at the Makati Medical Center. Emphatically, [petitioner]
herself cannot fault the Hotel for the injury she allegedly suffered
20
because she herself did not heed the warning at the pool to the effect
that it was only open from 7:00 to 7:00 P.M. Thus, when the [petitioner's]
own negligence was the immediate and proximate cause of his injury,
[she] cannot recover damages . . . . 85 DSIaAE
With the foregoing, the following were clearly established, to wit: (1) petitioner stayed in the
hotel's swimming pool facility beyond its closing hours; (2) she lifted the folding wooden
counter top that eventually hit her head; and (3) respondents PHI and DTPCI extended medical
assistance to her. As such, no negligence can be attributed either to respondents PHI and
DTPCI or to their staff and/or management. Since the question of negligence is one of fact, this
Court is bound by the said factual findings made by the lower courts. It has been repeatedly
held that the trial court's factual findings, when affirmed by the Court of Appeals, are conclusive
and binding upon this Court, if they are not tainted with arbitrariness or oversight of some fact
or circumstance of significance and influence. Petitioner has not presented sufficient ground to
warrant a deviation from this rule. 86
With regard to petitioner's contention that the principles of res ipsa loquitur and respondeat
superior are applicable in this case, this Court holds otherwise.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for
itself." It relates to the fact of an injury that sets out an inference to the cause thereof or
establishes the plaintiff's prima facie case. The doctrine rests on inference and not on
presumption. The facts of the occurrence warrant the supposition of negligence and they
furnish circumstantial evidence of negligence when direct evidence is lacking. 87 Simply stated,
this doctrine finds no application if there is direct proof of absence or presence of negligence. If
there is sufficient proof showing the conditions and circumstances under which the injury
occurred, then the creative reason for the said doctrine disappears. 88
Further, the doctrine of res ipsa loquitur applies where, (1) the accident was of such character
as to warrant an inference that it would not have happened except for the defendant's
negligence; (2) the accident must have been caused by an agency or instrumentality within the
exclusive management or control of the person charged with the negligence complained of;
and (3) the accident must not have been due to any voluntary action or contribution on the part
of the person injured. 89
In the case at bench, even granting that respondents PHI and DTPCI's staff negligently turned
off the lights and locked the door, the folding wooden counter top would still not fall on
petitioner's head had she not lifted the same. Although the folding wooden counter top is within
the exclusive management or control of respondents PHI and DTPCI, the falling of the same
and hitting the head of petitioner was not due to the negligence of the former. As found by both
lower courts, the folding wooden counter top did not fall on petitioner's head without any
human intervention. Records showed that petitioner lifted the said folding wooden counter
top that eventually fell and hit her head. The same was evidenced by the, (1) 11 June 1995
handwritten certification of petitioner herself; (2) her Letter dated 30 August 1995 addressed to
Mr. Yoshikazu Masuda (Mr. Masuda), General Manager of Dusit Hotel; and, (3) Certification
dated 7 September 1995 issued to her by Dr. Dalumpines upon her request, which contents
she never questioned.
Here, we, respectively, quote the 11 June 1995 handwritten certification of petitioner; her letter
to Mr. Masuda dated 30 August 1995; and Dr. Dalumpines' Certification dated 7 September
1995, to wit:
Petitioner's 11 June 1995 Handwritten Certification:
I was requested by [Dr.] Dalumpines to write that I was assured of
assistance should it be necessary with regard an accident at the pool. . .

. The phone was in an enclosed area on a chair I lifted the wooden
bar counter top which then fell on my head producing a large
hematoma . . . . 90 SaICcT
Petitioner's Letter addressed to Mr. Masuda dated 30 August 1995:
Dear Mr. Masuda,
xxx xxx xxx
. . . We searched and saw a phone on a chair behind a towel counter.
However[,] in order to get behind the counter I had to lift a hinged
massive wooden section of the counter which subsequently fell and
knocked me on my head . . . . 91
Dr. Dalumpines' Certification dated 7 September 1995:
CERTIFICATION
This is to certify that as per Clinic records, duty nurse [Pearlie] was called
to attend to an accident at the poolside at 7:45PM on [11 June 1995].
Same records show that there, she saw [petitioner] who claimed the
folding counter top fell on her head when she lifted it to enter the
lifeguard's counter to use the phone. She asked for Hirudoid.
The same evening [petitioner] met [Dr. Dalumpines] at the Coffee Shop.
After narrating the poolside incident and declining [Dr. Dalumpines']
offer of assistance, she reiterated that the Hirudoid cream was
enough and that [petitioner] being a doctor herself, knew her
condition and she was all right.
This certification is given upon the request of [petitioner] for whatever
purpose it may serve, [7 September 1995] at Makati City. 92 (Emphasis
supplied).
This Court is not unaware that in petitioner's Complaint and in her open court testimony, her
assertion was, "while she was passing through the counter door, she was suddenly knocked
out by a hard and heavy object, which turned out to be the folding wooden counter top."
However, in her open court testimony, particularly during cross-examination, petitioner
confirmed that she made such statement that "she lifted the hinge massive wooden section of
the counter near the swimming pool." 93 In view thereof, this Court cannot acquiesce
petitioner's theory that her case is one of res ipsa loquitur as it was sufficiently established how
petitioner obtained that "bukol" or "hematoma."
The doctrine of respondeat superior finds no application in the absence of any showing that the
employees of respondents PHI and DTPCI were negligent. Since in this case, the trial court and
the appellate court found no negligence on the part of the employees of respondents PHI and
DTPCI, thus, the latter cannot also be held liable for negligence and be made to pay the millions
of pesos damages prayed for by petitioner. TcHCDI
The issue on whether petitioner's debilitating and permanent injuries were the result of the
accident she suffered at the hotel's swimming pool area on 11 June 1995 is another question of
fact, which is beyond the function of this Court to resolve. More so, this issue has already been
properly passed upon by the trial court and the Court of Appeals. To repeat, this Court is bound
by the factual findings of the lower courts and there is no cogent reason to depart from the said
rule.
21
The following observations of the trial court are controlling on this matter:
Firstly, petitioner had a past medical history which might have been the cause of her recurring
brain injury.
Secondly, the findings of Dr. Perez did not prove a causal relation between the 11 June 1995
accident and the brain damage suffered by petitioner. Dr. Perez himself testified that the
symptoms being experienced by petitioner might have been due to factors other than the
head trauma she allegedly suffered. Emphasis must be given to the fact that petitioner had
been suffering from different kinds of brain problems since she was 18 years old, which may
have been the cause of the recurring symptoms of head injury she is experiencing at present.
Thirdly, Dr. Sanchez's testimony cannot be relied upon since she testified on the findings and
conclusions of persons who were never presented in court. Ergo, her testimony thereon was
hearsay. A witness can testify only with regard to facts of which they have personal knowledge.
Testimonial or documentary evidence is hearsay if it is based, not on the personal knowledge of
the witness, but on the knowledge of some other person not on the witness stand.
Consequently, hearsay evidence whether objected to or not has no probative value. 94
Fourthly, the medical reports/evaluations/certifications issued by myriads of doctors whom
petitioner sought for examination or treatment were neither identified nor testified to by those
who issued them. Being deemed as hearsay, they cannot be given probative value.
The aforesaid medical reports/evaluations/certifications of different doctors in favor of petitioner
cannot be given probative value and their contents cannot be deemed to constitute proof of the
facts stated therein. It must be stressed that a document or writing which is admitted not as
independent evidence but merely as part of the testimony of a witness does not constitute
proof of the facts related therein. 95 In the same vein, the medical certificate which was
identified and interpreted in court by another doctor was not accorded probative value because
the doctor who prepared it was not presented for its identification. Similarly, in this case, since
the doctors who examined petitioner were not presented to testify on their findings, the medical
certificates issued on their behalf and identified by another doctor cannot be admitted as
evidence. Since a medical certificate involves an opinion of one who must first be established
as an expert witness, it cannot be given weight or credit unless the doctor who issued it is
presented in court to show his qualifications. 96 Thus, an unverified and unidentified private
document cannot be accorded probative value. It is precluded because the party against whom
it is presented is deprived of the right and opportunity to cross-examine the person to whom
the statements or writings are attributed. Its executor or author should be presented as a
witness to provide the other party to the litigation the opportunity to question its contents.
Being mere hearsay evidence, failure to present the author of the letter renders its contents
suspect and of no probative value. 97
All told, in the absence of negligence on the part of respondents PHI and DTPCI, as well as
their management and staff, they cannot be made liable to pay for the millions of damages
prayed for by the petitioner. Since respondents PHI and DTPCI are not liable, it necessarily
follows that respondent First Lepanto cannot also be made liable under the contract of
insurance.
WHEREFORE, premises considered, the Decision and Resolution of the Court of Appeals in
CA-G.R. CV No. 87065 dated 9 August 2007 and 5 November 2007, respectively, are
hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
Brion, Velasco, Jr., * Villarama, Jr. ** and Perlas-Bernabe, JJ., concur.
||| (Huang v. Philippine Hoteliers, Inc., G.R. No. 180440, [December 5, 2012], 700 PHIL 327-367)

THIRD DIVISION
[G.R. No. 178763. April 21, 2009.]
PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS,
ABBEYGAIL LUCAS AND GILLIAN LUCAS, petitioners, vs. DR.
PROSPERO MA. C. TUAO, respondent.
DECISION
CHICO-NAZARIO, J p:
In this petition for review on certiorari 1 under Rule 45 of the Revised Rules of
Court, petitioners Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and
Gillian Lucas seek the reversal of the 27 September 2006 Decision 2 and 3 July
2007 Resolution, 3 both of the Court of Appeals in CA-G.R. CV No. 68666, entitled "Peter
Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero
Ma. C. Tuao".
In the questioned decision and resolution, the Court of Appeals affirmed the 14
July 2000 Decision of the Regional Trial Court (RTC), Branch 150, Makati City, dismissing
the complaint filed by petitioners in a civil case entitled, "Peter Paul Patrick Lucas, Fatima
Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao", docketed as
Civil Case No. 92-2482.
From the record of the case, the established factual antecedents of the present
petition are:
Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted
"sore eyes" in his right eye.
On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter
made use of his health care insurance issued by Philamcare Health Systems, Inc.
(Philamcare), for a possible consult. The Philamcare Coordinator, Dr. Edwin Oca, M.D.,
referred Peter to respondent, Dr. Prospero Ma. C. Tuao, M.D. (Dr. Tuao), an
ophthalmologist at St. Luke's Medical Center, for an eye consult.
Upon consultation with Dr. Tuao, Peter narrated that it had been nine (9) days
since the problem with his right eye began; and that he was already taking Maxitrol to
address the problem in his eye. According to Dr. Tuao, he performed "ocular routine
examination" on Peter's eyes, wherein: (1) a gross examination of Peter's eyes and their
surrounding area was made; (2) Peter's visual acuity were taken; (3) Peter's eyes were
palpated to check the intraocular pressure of each; (4) the motility of Peter's eyes was
observed; and (5) the ophthalmoscopy 4 on Peter's eyes was used. On that particular
consultation, Dr. Tuao diagnosed that Peter was suffering from conjunctivitis 5 or "sore
22
eyes". Dr. Tuao then prescribed Spersacet-C 6 eye drops for Peter and told the latter to
return for follow-up after one week.
As instructed, Peter went back to Dr. Tuao on 9 September 1988. Upon
examination, Dr. Tuao told Peter that the "sore eyes" in the latter's right eye had already
cleared up and he could discontinue the Spersacet-C. However, the same eye
developed Epidemic Kerato Conjunctivitis (EKC), 7 a viral infection. To address the new
problem with Peter's right eye, Dr. Tuao prescribed to the former a steroid-based eye
drop called Maxitrol, 8 a dosage of six (6) drops per day. 9 To recall, Peter had already
been using Maxitrol prior to his consult with Dr. Tuao. TDAHCS
On 21 September 1988, Peter saw Dr. Tuao for a follow-up consultation. After
examining both of Peter's eyes, Dr. Tuao instructed the former to taper down 10 the
dosage of Maxitrol, because the EKC in his right eye had already resolved. Dr. Tuao
specifically cautioned Peter that, being a steroid, Maxitrol had to be withdrawn gradually;
otherwise, the EKC might recur. 11
Complaining of feeling as if there was something in his eyes, Peter returned to
Dr. Tuao for another check-up on 6 October 1988. Dr. Tuao examined Peter's eyes and
found that the right eye had once more developed EKC. So, Dr. Tuao instructed Peter to
resume the use of Maxitrol at six (6) drops per day.
On his way home, Peter was unable to get a hold of Maxitrol, as it was out of
stock. Consequently, Peter was told by Dr. Tuano to take, instead, Blephamide 12 another
steroid-based medication, but with a lower concentration, as substitute for the
unavailable Maxitrol, to be used three (3) times a day for five (5) days; two (2) times a day
for five (5) days; and then just once a day. 13
Several days later, on 18 October 1988, Peter went to see Dr. Tuao at his
clinic, alleging severe eye pain, feeling as if his eyes were about to "pop-out", a headache
and blurred vision. Dr. Tuao examined Peter's eyes and discovered that the EKC was
again present in his right eye. As a result, Dr. Tuao told Peter to resume the maximum
dosage of Blephamide.
Dr. Tuao saw Peter once more at the former's clinic on 4 November 1988. Dr.
Tuao's examination showed that only the periphery of Peter's right eye was positive for
EKC; hence, Dr. Tuao prescribed a lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas (Fatima), Peter's spouse,
read the accompanying literature of Maxitrol and found therein the following warning
against the prolonged use of such steroids:
WARNING:
Prolonged use may result in glaucoma, with damage to the optic nerve,
defects in visual acuity and fields of vision, and posterior, subcapsular
cataract formation. Prolonged use may suppress the host response and
thus increase the hazard of secondary ocular infractions, in those
diseases causing thinning of the cornea or sclera, perforations have
been known to occur with the use of topical steroids. In acute purulent
conditions of the eye, steroids may mask infection or enhance existing
infection. If these products are used for 10 days or longer, intraocular
pressure should be routinely monitored even though it may be difficult in
children and uncooperative patients.
Employment of steroid medication in the treatment of herpes simplex
requires great caution.

xxx xxx xxx
ADVERSE REACTIONS:
Adverse reactions have occurred with steroid/anti-infective combination
drugs which can be attributed to the steroid component, the anti-
infective component, or the combination. Exact incidence figures are not
available since no denominator of treated patients is available.
Reactions occurring most often from the presence of the anti-infective
ingredients are allergic sensitizations. The reactions due to the steroid
component in decreasing order to frequency are elevation of intra-ocular
pressure (IOP) with possible development of glaucoma, infrequent optic
nerve damage; posterior subcapsular cataract formation; and delayed
wound healing.
Secondary infection: The development of secondary has occurred after
use of combination containing steroids and antimicrobials. Fungal
infections of the correa are particularly prone to develop coincidentally
with long-term applications of steroid. The possibility of fungal invasion
must be considered in any persistent corneal ulceration where steroid
treatment has been used.
Secondary bacterial ocular infection following suppression of host
responses also occurs.
On 26 November 1988, Peter returned to Dr. Tuao's clinic, complaining of
"feeling worse". 14 It appeared that the EKC had spread to the whole of Peter's right eye
yet again. Thus, Dr. Tuao instructed Peter to resume the use of Maxitrol. Petitioners
averred that Peter already made mention to Dr. Tuao during said visit of the above-
quoted warning against the prolonged use of steroids, but Dr. Tuao supposedly brushed
aside Peter's concern as mere paranoia, even assuring him that the former was taking
care of him (Peter).
Petitioners further alleged that after Peter's 26 November 1988 visit to Dr.
Tuao, Peter continued to suffer pain in his right eye, which seemed to "progress", with
the ache intensifying and becoming more frequent.
Upon waking in the morning of 13 December 1988, Peter had no vision in his
right eye. Fatima observed that Peter's right eye appeared to be bloody and
swollen. 15 Thus, spouses Peter and Fatima rushed to the clinic of Dr. Tuao. Peter
reported to Dr. Tuao that he had been suffering from constant headache in the afternoon
and blurring of vision.
Upon examination, Dr. Tuao noted the hardness of Peter's right eye. With the
use of a tonometer 16 to verify the exact intraocular pressure 17 (IOP) of Peter's eyes, Dr.
Tuao discovered that the tension in Peter's right eye was 39.0 Hg, while that of his left
was 17.0 Hg. 18 Since the tension in Peter's right eye was way over the normal IOP,
which merely ranged from 10.0 Hg to 21.0 Hg, 19 Dr. Tuao ordered 20 him to
immediately discontinue the use of Maxitrol and prescribed to the
latter Diamox 21 and Normoglaucon, instead. 22 Dr. Tuao also required Peter to go for
daily check-up in order for the former to closely monitor the pressure of the latter's
eyes. TAHcCI
On 15 December 1988, the tonometer reading of Peter's right eye yielded a high
normal level, i.e., 21.0 Hg. Hence, Dr. Tuao told Peter to continue
using Diamox andNormoglaucon. But upon Peter's complaint of "stomach pains and
tingling sensation in his fingers", 23 Dr. Tuao discontinued Peter's use of Diamox. 24
23
Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr.
Batungbacal), on 21 December 1988, who allegedly conducted a complete
ophthalmological examination of Peter's eyes. Dr. Batungbacal's diagnosis
was Glaucoma 25 O.D. 26 He recommended Laser Trabeculoplasty 27 for Peter's right
eye.
When Peter returned to Dr. Tuao on 23 December 1988, 28 the tonometer
measured the IOP of Peter's right eye to be 41.0 Hg, 29 again, way above normal. Dr.
Tuao addressed the problem by advising Peter to resume taking Diamox along
with Normoglaucon.
During the Christmas holidays, Peter supposedly stayed in bed most of the time
and was not able to celebrate the season with his family because of the debilitating effects
of Diamox. 30
On 28 December 1988, during one of Peter's regular follow-ups with Dr. Tuao,
the doctor conducted another ocular routine examination of Peter's eyes. Dr. Tuao noted
the recurrence of EKC in Peter's right eye. Considering, however, that the IOP of Peter's
right eye was still quite high at 41.0 Hg, Dr. Tuao was at a loss as to how to balance the
treatment of Peter's EKC vis--vis the presence of glaucoma in the same eye. Dr. Tuao,
thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another ophthalmologist
specializing in the treatment of glaucoma. 31 Dr. Tuao's letter of referral to Dr. Agulto
stated that:
Referring to you Mr. Peter Lucas for evaluation & possible management.
I initially saw him Sept. 2, 1988 because of conjunctivitis. The latter
resolved and he developed EKC for which I gave Maxitrol. The EKC was
recurrent after stopping steroid drops. Around 1 month of steroid
treatment, he noted blurring of vision & pain on the R. however, I
continued the steroids for the sake of the EKC. A month ago, I noted iris
atrophy, so I took the IOP and it was definitely elevated. I stopped the
steroids immediately and has (sic) been treating him medically.
It seems that the IOP can be controlled only with oral Diamox, and at the
moment, the EKC has recurred and I'm in a fix whether to resume the
steroid or not considering that the IOP is still uncontrolled. 32
On 29 December 1988, Peter went to see Dr. Agulto at the latter's clinic. Several
tests were conducted thereat to evaluate the extent of Peter's condition. Dr. Agulto wrote
Dr. Tuao a letter containing the following findings and recommendations:
Thanks for sending Peter Lucas. On examination conducted vision was
20/25 R and 20/20L. Tension curve 19 R and 15 L at 1210 H while on
Normoglaucon BID OD & Diamox 1/2 tab every 6h po.
Slit lamp evaluation 33 disclosed subepithelial corneal defect outer OD.
There was circumferential peripheral iris atrophy, OD. The lenses were
clear.
Funduscopy 34 showed vertical cup disc of 0.85 R and 0.6 L with
temporal slope R>L.
Zeiss gonioscopy 35 revealed basically open angles both eyes with
occasional PAS, 36 OD.
Rolly, I feel that Peter Lucas has really sustained significant glaucoma
damage. I suggest that we do a baseline visual fields and push
medication to lowest possible levels. If I may suggest further, I think we

should prescribe Timolol 37 BID 38 OD in lieu of Normoglaucon. If the
IOP is still inadequate, we may try D'epifrin 39 BID OD (despite low PAS).
I'm in favor of retaining Diamox or similar CAI. 40
If fields show further loss in say 3 mos. then we should consider
trabeculoplasty.
I trust that this approach will prove reasonable for you and Peter. 41
Peter went to see Dr. Tuao on 31 December 1988, bearing Dr. Agulto's
aforementioned letter. Though Peter's right and left eyes then had normal IOP of 21.0
Hg and 17.0 Hg, respectively, Dr. Tuao still gave him a prescription for Timolol B.I.D. so
Peter could immediately start using said medication. Regrettably, Timolol B.I.D. was out of
stock, so Dr. Tuao instructed Peter to just continue using Diamox and Normoglaucon in
the meantime.
Just two days later, on 2 January 1989, the IOP of Peter's right eye remained
elevated at 21.0 Hg, 42 as he had been without Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuao conducted a visual field study 43 of Peter's eyes,
which revealed that the latter had tubular vision 44 in his right eye, while that of his left eye
remained normal. Dr. Tuao directed Peter to religiously
the Diamox and Normoglaucon, as the tension of the latter's right eye went up even further
to 41.0 Hg in just a matter of two (2) days, in the meantime that Timolol B.I.D.
and D'epifrin were still not available in the market. Again, Dr. Tuao advised Peter to come
for regular check-up so his IOP could be monitored.
Obediently, Peter went to see Dr. Tuao on the 7th, 13th, 16th and 20th of
January 1989 for check-up and IOP monitoring.
In the interregnum, however, Peter was prodded by his friends to seek a second
medical opinion. On 13 January 1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz),
an ophthalmologist, who, in turn, referred Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino),
another ophthalmologist who specializes in the treatment of glaucoma and who could
undertake the long term care of Peter's eyes.
According to petitioners, after Dr. Aquino conducted an extensive evaluation of
Peter's eyes, the said doctor informed Peter that his eyes were relatively normal, though
the right one sometimes manifested maximum borderline tension. Dr. Aquino also
confirmed Dr. Tuao's diagnosis of tubular vision in Peter's right eye. Petitioners claimed
that Dr. Aquino essentially told Peter that the latter's condition would require lifetime
medication and follow-ups. EHSTcC
In May 1990 and June 1991, Peter underwent two (2) procedures of laser
trabeculoplasty to attempt to control the high IOP of his right eye.
Claiming to have steroid-induced glaucoma 45 and blaming Dr. Tuao for the
same, Peter, joined by: (1) Fatima, his spouse; 46 (2) Abbeygail, his natural child; 47 and
(3) Gillian, his legitimate child 48 with Fatima, instituted on 1 September 1992, a civil
complaint for damages against Dr. Tuao, before the RTC, Branch 150, Quezon City. The
case was docketed as Civil Case No. 92-2482.
In their Complaint, petitioners specifically averred that as the "direct
consequence of [Peter's] prolonged use of Maxitrol, [he] suffered from steroid induced
glaucoma which caused the elevation of his intra-ocular pressure. The elevation of the
intra-ocular pressure of [Peter's right eye] caused the impairment of his vision which
impairment is not curable and may even lead to total blindness". 49
24
Petitioners additionally alleged that the visual impairment of Peter's right eye
caused him and his family so much grief. Because of his present condition, Peter now
needed close medical supervision forever; he had already undergone two (2) laser
surgeries, with the possibility that more surgeries were still needed in the future; his career
in sports casting had suffered and was continuing to suffer; 50 his anticipated income had
been greatly reduced as a result of his "limited" capacity; he continually suffered from
"headaches, nausea, dizziness, heart palpitations, rashes, chronic rhinitis,
sinusitis," 51 etc.; Peter's relationships with his spouse and children continued to be
strained, as his condition made him highly irritable and sensitive; his mobility and social life
had suffered; his spouse, Fatima, became the breadwinner in the family; 52 and his two
children had been deprived of the opportunity for a better life and educational prospects.
Collectively, petitioners lived in constant fear of Peter becoming completely blind. 53
In the end, petitioners sought pecuniary award for their supposed pain and
suffering, which were ultimately brought about by Dr. Tuao's grossly negligent conduct in
prescribing to Peter the medicine Maxitrol for a period of three (3) months, without
monitoring Peter's IOP, as required in cases of prolonged use of said medicine, and
notwithstanding Peter's constant complaint of intense eye pain while using the same.
Petitioners particularly prayed that Dr. Tuao be adjudged liable for the following amounts:
1. The amount of P2,000,000.00 to plaintiff Peter Lucas as and by way of
use
compensation for his impaired vision.
2. The amount of P300,000.00 to spouses Lucas as and by way of actual
damages plus such additional amounts that may be proven
during trial.
3. The amount of P1,000,000.00 as and by way of moral damages.
4. The amount of P500,000.00 as and by way of exemplary damages.
5. The amount of P200,000.00 as and by way of attorney's fees plus
costs of suit. 54 TAIEcS
In rebutting petitioners' complaint, Dr. Tuao asserted that the "treatment made
by [him] more than three years ago has no causal connection to [Peter's] present
glaucoma or condition". 55 Dr. Tuao explained that "[d]rug-induced glaucoma is
temporary and curable, steroids have the side effect of increasing intraocular pressure.
Steroids are prescribed to treat Epidemic Kerato Conjunctivitis or EKC which is an
infiltration of the cornea as a result of conjunctivitis or sore eyes". 56 Dr. Tuao also
clarified that (1) "[c]ontrary to [petitioners'] fallacious claim, [he] did NOT continually
prescribe the drug Maxitrol which contained steroids for any prolonged period" 57 and
"[t]he truth was the Maxitrol was discontinued . . . as soon as EKC disappeared and was
resumed only when EKC reappeared;" 58 (2) the entire time he was treating Peter, he
"continually monitored the intraocular pressure of [Peter's eyes] by palpating the eyes and
by putting pressure on the eyeballs", and no hardening of the same could be detected,
which meant that there was no increase in the tension or IOP, a possible side reaction to
the use of steroid medications; and (3) it was only on 13 December 1988 that Peter
complained of a headache and blurred vision in his right eye, and upon measuring the IOP
of said eye, it was determined for the first time that the IOP of the right eye had an
elevated value.
But granting for the sake of argument that the "steroid treatment of [Peter's]
EKC caused the steroid induced glaucoma", 59 Dr. Tuao argued that:
[S]uch condition, i.e., elevated intraocular pressure, is temporary. As
soon as the intake of steroids is discontinued, the intraocular pressure

automatically is reduced. Thus, [Peter's] glaucoma can only be due to
other causes not attributable to steroids, certainly not attributable to [his]
treatment of more than three years ago . . . .
From a medical point of view, as revealed by more current examination
of [Peter], the latter's glaucoma can only be long standing glaucoma,
open angle glaucoma, because of the large C:D ratio. The steroids
provoked the latest glaucoma to be revealed earlier as [Peter] remained
asymptomatic prior to steroid application. Hence, the steroid treatment
was in fact beneficial to [Peter] as it revealed the incipient open angle
glaucoma of [Peter] to allow earlier treatment of the same. 60
In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482
"for insufficiency of evidence". 61 The decretal part of said Decision reads:
Wherefore, premises considered, the instant complaint is dismissed for
insufficiency of evidence. The counter claim (sic) is likewise dismissed in
the absence of bad faith or malice on the part of plaintiff in filing the
suit. 62
The RTC opined that petitioners failed to prove by preponderance of evidence
that Dr. Tuao was negligent in his treatment of Peter's condition. In particular, the record
of the case was bereft of any evidence to establish that the steroid medication and its
dosage, as prescribed by Dr. Tuao, caused Peter's glaucoma. The trial court reasoned
that the "recognized standards of the medical community has not been established in this
case, much less has causation been established to render [Tuao] liable". 63 According to
the RTC:
[Petitioners] failed to establish the duty required of a medical practitioner
against which Peter Paul's treatment by defendant can be compared
with. They did not present any medical expert or even a medical doctor
to convince and expertly explain to the court the established norm or
duty required of a physician treating a patient, or whether the non
taking (sic) by Dr. Tuao of Peter Paul's pressure a deviation from the
norm or his non-discovery of the glaucoma in the course of treatment
constitutes negligence. It is important and indispensable to establish
such a standard because once it is established, a medical practitioner
who departed thereof breaches his duty and commits negligence
rendering him liable. Without such testimony or enlightenment from an
expert, the court is at a loss as to what is then the established norm of
duty of a physician against which defendant's conduct can be compared
with to determine negligence. 64
The RTC added that in the absence of "any medical evidence to the contrary,
this court cannot accept [petitioners'] claim that the use of steroid is the proximate cause
of the damage sustained by [Peter's] eye". 65
Correspondingly, the RTC accepted Dr. Tuao's medical opinion that "Peter
Paul must have been suffering from normal tension glaucoma, meaning, optic nerve
damage was happening but no elevation of the eye pressure is manifested, that the steroid
treatment actually unmasked the condition that resulted in the earlier treatment of the
glaucoma. There is nothing in the record to contradict such testimony. In fact, plaintiff's
Exhibit 'S' even tends to support them".
Undaunted, petitioners appealed the foregoing RTC decision to the Court of
Appeals. Their appeal was docketed as CA-G.R. CV No. 68666. CcSEIH
25
On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R.
CV No. 68666 denying petitioners' recourse and affirming the appealed RTC Decision.
The fallo of the judgment of the appellate court states:
WHEREFORE, the Decision appealed from is AFFIRMED. 66
The Court of Appeals faulted petitioners because they
[D]id not present any medical expert to testify that Dr. Tuano's
prescription of Maxitrol and Blephamide for the treatment of EKC on
Peter's right eye was not proper and that his palpation of Peter's right
eye was not enough to detect adverse reaction to steroid. Peter testified
that Dr. Manuel Agulto told him that he should not have used steroid for
the treatment of EKC or that he should have used it only for two (2)
weeks, as EKC is only a viral infection which will cure by itself. However,
Dr. Agulto was not presented by [petitioners] as a witness to confirm
what he allegedly told Peter and, therefore, the latter's testimony is
hearsay. Under Rule 130, Section 36 of the Rules of Court, a witness can
testify only to those facts which he knows of his own personal
knowledge, . . . . Familiar and fundamental is the rule that hearsay
testimony is inadmissible as evidence. 67
Like the RTC, the Court of Appeals gave great weight to Dr. Tuao's medical
judgment, specifically the latter's explanation that:
[W]hen a doctor sees a patient, he cannot determine whether or not the
latter would react adversely to the use of steroids, that it was only on
December 13, 1989, when Peter complained for the first time of
headache and blurred vision that he observed that the pressure of the
eye of Peter was elevated, and it was only then that he suspected that
Peter belongs to the 5% of the population who reacts adversely to
steroids. 68
Petitioners' Motion for Reconsideration was denied by the Court of Appeals in a
Resolution dated 3 July 2007.
Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules
of Court premised on the following assignment of errors:
I.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR
IN AFFIRMING THE DECISION OF THE TRIAL COURT DISMISSING THE
PETITIONERS' COMPLAINT FOR DAMAGES AGAINST THE
RESPONDENT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE;
II.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR
IN DISMISSING THE PETITIONERS' COMPLAINT FOR DAMAGES
AGAINST THE RESPONDENT ON THE GROUND THAT NO MEDICAL
EXPERT WAS PRESENTED BY THE PETITIONERS TO PROVE THEIR
CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE RESPONDENT;
AND
III.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR
IN NOT FINDING THE RESPONDENT LIABLE TO THE PETITIONERS'

FOR ACTUAL, MORAL AND EXEMPLARY DAMAGES, ASIDE FROM
ATTORNEY'S FEES, COSTS OF SUIT, AS A RESULT OF HIS GROSS
NEGLIGENCE. 69
A reading of the afore-quoted reversible errors supposedly committed by the
Court of Appeals in its Decision and Resolution would reveal that petitioners are
fundamentally assailing the finding of the Court of Appeals that the evidence on record is
insufficient to establish petitioners' entitlement to any kind of damage. Therefore, it could
be said that the sole issue for our resolution in the Petition at bar is whether the Court of
Appeals committed reversible error in affirming the judgment of the RTC that petitioners
failed to prove, by preponderance of evidence, their claim for damages against Dr. Tuao.
Evidently, said issue constitutes a question of fact, as we are asked to revisit
anew the factual findings of the Court of Appeals, as well as of the RTC. In effect,
petitioners would have us sift through the evidence on record and pass upon whether
there is sufficient basis to establish Dr. Tuao's negligence in his treatment of Peter's eye
condition. This question clearly involves a factual inquiry, the determination of which is not
within the ambit of this Court's power of review under Rule 45 of the 1997 Rules Civil
Procedure, as amended. 70
Elementary is the principle that this Court is not a trier of facts; only errors of law
are generally reviewed in petitions for review on certiorari criticizing decisions of the Court
of Appeals. Questions of fact are not entertained. 71 CcAESI
Nonetheless, the general rule that only questions of law may be raised on appeal
in a petition for review under Rule 45 of the Rules of Court admits of certain exceptions,
including the circumstance when the finding of fact of the Court of Appeals is premised on
the supposed absence of evidence, but is contradicted by the evidence on record.
Although petitioners may not explicitly invoke said exception, it may be gleaned from their
allegations and arguments in the instant Petition.
Petitioners contend, that "[c]ontrary to the findings of the Honorable Court of
Appeals, [they] were more than able to establish that: Dr. Tuao ignored the standard
medical procedure for ophthalmologists, administered medication with recklessness, and
exhibited an absence of competence and skills expected from him". 72 Petitioners reject
the necessity of presenting expert and/or medical testimony to establish (1) the standard
of care respecting the treatment of the disorder affecting Peter's eye; and (2) whether or
not negligence attended Dr. Tuao's treatment of Peter, because, in their words
That Dr. Tuao was grossly negligent in the treatment of Peter's simple
eye ailment is a simple case of cause and effect. With mere documentary
evidence and based on the facts presented by the petitioners,
respondent can readily be held liable for damages even without any
expert testimony. In any case, however, and contrary to the finding of the
trial court and the Court of Appeals, there was a medical expert
presented by the petitioner showing the recklessness committed by [Dr.
Tuao] Dr. Tuao himself. [Emphasis supplied.]
They insist that Dr. Tuao himself gave sufficient evidence to establish his gross
negligence that ultimately caused the impairment of the vision of Peter's right eye, 73 i.e.,
that "[d]espite [Dr. Tuao's] knowledge that 5% of the population reacts adversely
to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to Peter without first
determining whether or not the (sic) Peter belongs to the 5%". 74
We are not convinced. The judgments of both the Court of Appeals and the RTC
are in accord with the evidence on record, and we are accordingly bound by the findings
of fact made therein.
26
Petitioners' position, in sum, is that Peter's glaucoma is the direct result of Dr.
Tuao's negligence in his improper administration of the drug Maxitrol; "thus, [the latter]
should be liable for all the damages suffered and to be suffered by
[petitioners]". 75 Clearly, the present controversy is a classic illustration of a medical
negligence case against a physician based on the latter's professional negligence. In this
type of suit, the patient or his heirs, in order to prevail, is required to prove by
preponderance of evidence that the physician failed to exercise that degree of skill, care,
and learning possessed by other persons in the same profession; and that as a proximate
result of such failure, the patient or his heirs suffered damages.
For lack of a specific law geared towards the type of negligence committed by
members of the medical profession, such claim for damages is almost always anchored
on the alleged violation of Article 2176 of the Civil Code, which states that:
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.
In medical negligence cases, also called medical malpractice suits, there exist a
physician-patient relationship between the doctor and the victim. But just like any other
proceeding for damages, four essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and
(4) proximate causation, 76 must be established by the plaintiff/s. All the four (4) elements
must co-exist in order to find the physician negligent and, thus, liable for damages.
When a patient engages the services of a physician, a physician-patient
relationship is generated. And in accepting a case, the physician, for all intents and
purposes, represents that he has the needed training and skill possessed by physicians
and surgeons practicing in the same field; and that he will employ such training, care, and
skill in the treatment of the patient. 77 Thus, in treating his patient, a physician is under
a duty to [the former] to exercise that degree of care, skill and diligence which physicians
in the same general neighborhood and in the same general line of practice ordinarily
possess and exercise in like cases. 78 Stated otherwise, the physician has the duty to use
at least the same level of care that any other reasonably competent physician would use
to treat the condition under similar circumstances.
This standard level of care, skill and diligence is a matter best addressed by
expert medical testimony, because the standard of care in a medical malpractice case is a
matter peculiarly within the knowledge of experts in the field. 79
There is breach of duty of care, skill and diligence, or the improper performance
of such duty, by the attending physician when the patient is injured in body or in health
[and this] constitutes the actionable malpractice. 80 Proof of such breach must likewise
rest upon the testimony of an expert witness that the treatment accorded to the patient
failed to meet the standard level of care, skill and diligence which physicians in the same
general neighborhood and in the same general line of practice ordinarily possess and
exercise in like cases. DaIACS
Even so, proof of breach of duty on the part of the attending physician is
insufficient, for there must be a causal connection between said breach and the resulting
injury sustained by the patient. Put in another way, in order that there may be a recovery
for an injury, it must be shown that the "injury for which recovery is sought must be the
legitimate consequence of the wrong done; the connection between the negligence and
the injury must be a direct and natural sequence of events, unbroken by intervening
efficient causes"; 81 that is, the negligence must be the proximate cause of the injury.
And the proximate cause of an injury is that cause, which, in the natural and continuous

sequence, unbroken by any efficient intervening cause, produces the injury, and without
which the result would not have occurred. 82
Just as with the elements of duty and breach of the same, in order to establish
the proximate cause [of the injury] by a preponderance of the evidence in a medical
malpractice action, [the patient] must similarly use expert testimony, because the question
of whether the alleged professional negligence caused [the patient's] injury is generally
one for specialized expert knowledge beyond the ken of the average layperson; using the
specialized knowledge and training of his field, the expert's role is to present to the [court]
a realistic assessment of the likelihood that [the physician's] alleged negligence caused
[the patient's] injury. 83
From the foregoing, it is apparent that medical negligence cases are best proved
by opinions of expert witnesses belonging in the same general neighborhood and in the
same general line of practice as defendant physician or surgeon. The deference of courts
to the expert opinion of qualified physicians [or surgeons] stems from the former's
realization that the latter possess unusual technical skills which laymen in most instances
are incapable of intelligently evaluating; 84 hence, the indispensability of expert
testimonies.
In the case at bar, there is no question that a physician-patient relationship
developed between Dr. Tuao and Peter when Peter went to see the doctor on 2
September 1988, seeking a consult for the treatment of his sore eyes. Admittedly, Dr.
Tuao, an ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent
EKC. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a
multiple-dose anti-infective steroid combination in sterile form for topical application. 85 It
is the drug which petitioners claim to have caused Peter's glaucoma.
However, as correctly pointed out by the Court of Appeals, "[t]he onus
probandi was on the patient to establish before the trial court that the physicians ignored
standard medical procedure, prescribed and administered medication with recklessness
and exhibited an absence of the competence and skills expected of general practitioners
similarly situated". 86 Unfortunately, in this case, there was absolute failure on the part of
petitioners to present any expert testimony to establish: (1) the standard of care to be
implemented by competent physicians in treating the same condition as Peter's under
similar circumstances; (2) that, in his treatment of Peter, Dr. Tuao failed in his duty to
exercise said standard of care that any other competent physician would use in treating
the same condition as Peter's under similar circumstances; and (3) that the injury or
damage to Peter's right eye, i.e., his glaucoma, was the result of his use of Maxitrol, as
prescribed by Dr. Tuao. Petitioners' failure to prove the first element alone is already fatal
to their cause. HScaCT
Petitioners maintain that Dr. Tuao failed to follow in Peter's case the required
procedure for the prolonged use of Maxitrol. But what is actually the required procedure in
situations such as in the case at bar? To be precise, what is the standard operating
procedure when ophthalmologists prescribe steroid medications which, admittedly, carry
some modicum of risk?
Absent a definitive standard of care or diligence required of Dr. Tuao under the
circumstances, we have no means to determine whether he was able to comply with the
same in his diagnosis and treatment of Peter. This Court has no yardstick upon which to
evaluate or weigh the attendant facts of this case to be able to state with confidence that
the acts complained of, indeed, constituted negligence and, thus, should be the subject of
pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao should have
determined first whether Peter was a "steroid responder". 87 Yet again, petitioners did not
27
present any convincing proof that such determination is actually part of the standard
operating procedure which ophthalmologists should unerringly follow prior to prescribing
steroid medications.
In contrast, Dr. Tuao was able to clearly explain that what is only required of
ophthalmologists, in cases such as Peter's, is the conduct of standard tests/procedures
known as "ocular routine examination", 88 composed of five (5) tests/procedures
specifically, gross examination of the eyes and the surrounding area; taking of the visual
acuity of the patient; checking the intraocular pressure of the patient; checking the motility
of the eyes; and using ophthalmoscopy on the patient's eye and he did all those
tests/procedures every time Peter went to see him for follow-up consultation and/or
check-up.
We cannot but agree with Dr. Tuao's assertion that when a doctor sees a
patient, he cannot determine immediately whether the latter would react adversely to the
use of steroids; all the doctor can do is map out a course of treatment recognized as
correct by the standards of the medical profession. It must be remembered that a
physician is not an insurer of the good result of treatment. The mere fact that the patient
does not get well or that a bad result occurs does not in itself indicate failure to exercise
due care. 89 The result is not determinative of the performance [of the physician] and he is
not required to be infallible. 90
Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter was justified by
the fact that the latter was already using the same medication when he first came to see
Dr. Tuao on 2 September 1988 and had exhibited no previous untoward reaction to that
particular drug. 91
Also, Dr. Tuao categorically denied petitioners' claim that he never monitored
the tension of Peter's eyes while the latter was on Maxitrol. Dr. Tuao testified that he
palpated Peter's eyes every time the latter came for a check-up as part of the doctor's
ocular routine examination, a fact which petitioners failed to rebut. Dr. Tuao's regular
conduct of examinations and tests to ascertain the state of Peter's eyes negate the very
basis of petitioners' complaint for damages. As to whether Dr. Tuao's actuations
conformed to the standard of care and diligence required in like circumstances, it is
presumed to have so conformed in the absence of evidence to the contrary. HSCATc
Even if we are to assume that Dr. Tuao committed negligent acts in his
treatment of Peter's condition, the causal connection between Dr. Tuao's supposed
negligence and Peter's injury still needed to be established. The critical and clinching
factor in a medical negligence case is proof of the causal connection between the
negligence which the evidence established and the plaintiff's injuries. 92 The plaintiff must
plead and prove not only that he has been injured and defendant has been at fault, but
also that the defendant's fault caused the injury. A verdict in a malpractice action cannot
be based on speculation or conjecture. Causation must be proven within a reasonable
medical probability based upon competent expert testimony. 93
The causation between the physician's negligence and the patient's injury may
only be established by the presentation of proof that Peter's glaucoma would not have
occurred but for Dr. Tuao's supposed negligent conduct. Once more, petitioners failed in
this regard.
Dr. Tuao does not deny that the use of Maxitrol involves the risk of increasing a
patient's IOP. In fact, this was the reason why he made it a point to palpate Peter's eyes
every time the latter went to see him so he could monitor the tension of Peter's eyes.
But to say that said medication conclusively caused Peter's glaucoma is purely
speculative. Peter was diagnosed with open-angle glaucoma. This kind of glaucoma is
characterized by an almost complete absence of symptoms and a chronic, insidious

course. 94 In open-angle glaucoma, halos around lights and blurring of vision do not occur
unless there has been a sudden increase in the intraocular vision. 95 Visual acuity remains
good until late in the course of the disease. 96 Hence, Dr. Tuao claims that Peter's
glaucoma "can only be long standing . . . because of the large C:D 97 ratio", and that
"[t]he steroids provoked the latest glaucoma to be revealed earlier" was a blessing in
disguise "as [Peter] remained asymptomatic prior to steroid application".
Who between petitioners and Dr. Tuao is in a better position to determine and
evaluate the necessity of using Maxitrol to cure Peter's EKC vis--vis the attendant risks of
using the same?
That Dr. Tuao has the necessary training and skill to practice his chosen field is
beyond cavil. Petitioners do not dispute Dr. Tuao's qualifications that he has been a
physician for close to a decade and a half at the time Peter first came to see him; that he
has had various medical training; that he has authored numerous papers in the field of
ophthalmology, here and abroad; that he is a Diplomate of the Philippine Board of
Ophthalmology; that he occupies various teaching posts (at the time of the filing of the
present complaint, he was the Chair of the Department of Ophthalmology and an
Associate Professor at the University of the Philippines-Philippine General Hospital and St.
Luke's Medical Center, respectively); and that he held an assortment of positions in
numerous medical organizations like the Philippine Medical Association, Philippine
Academy of Ophthalmology, Philippine Board of Ophthalmology, Philippine Society of
Ophthalmic Plastic and Reconstructive Surgery, Philippine Journal of Ophthalmology,
Association of Philippine Ophthalmology Professors, et al.
It must be remembered that when the qualifications of a physician are admitted,
as in the instant case, there is an inevitable presumption that in proper cases, he takes the
necessary precaution and employs the best of his knowledge and skill in attending to his
clients, unless the contrary is sufficiently established. 98 In making the judgment call of
treating Peter's EKC with Maxitrol, Dr. Tuao took the necessary precaution by palpating
Peter's eyes to monitor their IOP every time the latter went for a check-up, and he
employed the best of his knowledge and skill earned from years of training and practice.
In contrast, without supporting expert medical opinions, petitioners' bare
assertions of negligence on Dr. Tuao's part, which resulted in Peter's glaucoma, deserve
scant credit.
Our disposition of the present controversy might have been vastly different had
petitioners presented a medical expert to establish their theory respecting Dr. Tuao's so-
called negligence. In fact, the record of the case reveals that petitioners' counsel
recognized the necessity of presenting such evidence. Petitioners even gave an
undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no
follow-through on said undertaking was made. DCaEAS
The plaintiff in a civil case has the burden of proof as he alleges the affirmative
of the issue. However, in the course of trial in a civil case, once plaintiff makes out a prima
facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert
plaintiff's prima facie case; otherwise, a verdict must be returned in favor of plaintiff. 99The
party having the burden of proof must establish his case by a preponderance of
evidence. 100 The concept of "preponderance of evidence" refers to evidence which is of
greater weight or more convincing than that which is offered in opposition to it; 101 in the
last analysis, it means probability of truth. It is evidence which is more convincing to the
court as worthy of belief than that which is offered in opposition thereto. 102 Rule 133,
Section 1 of the Revised Rules of Court provides the guidelines for determining
preponderance of evidence, thus:
28
In civil cases, the party having the burden of proof must establish his
case by a preponderance of evidence. In determining where the
preponderance or superior weight of evidence on the issues involved lies
the court may consider all the facts and circumstances of the case, the
witnesses' manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature
of the facts to which they testify, the probability or improbability of their
testimony, their interest or want of interest, and also their personal
credibility so far as the same legitimately appear upon the trial. The court
may also consider the number of witnesses, though the preponderance
is not necessarily with the greater number.
Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower
court, to establish their case by a preponderance of evidence showing a reasonable
connection between Dr. Tuao's alleged breach of duty and the damage sustained by
Peter's right eye. This, they did not do. In reality, petitioners' complaint for damages is
merely anchored on a statement in the literature of Maxitrol identifying the risks of its use,
and the purported comment of Dr. Agulto another doctor not presented as witness
before the RTC concerning the prolonged use of Maxitrol for the treatment of EKC.
It seems basic that what constitutes proper medical treatment is a medical
question that should have been presented to experts. If no standard is established through
expert medical witnesses, then courts have no standard by which to gauge the basic issue
of breach thereof by the physician or surgeon. The RTC and Court of Appeals, and even
this Court, could not be expected to determine on its own what medical technique should
have been utilized for a certain disease or injury. Absent expert medical opinion, the courts
would be dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuao liable for any medical negligence
or malpractice where there is no evidence, in the nature of expert testimony, to establish
that in treating Peter, Dr. Tuao failed to exercise reasonable care, diligence and skill
generally required in medical practice. Dr. Tuao's testimony, that his treatment of Peter
conformed in all respects to standard medical practice in this locality, stands unrefuted.
Consequently, the RTC and the Court of Appeals correctly held that they had no basis at
all to rule that petitioners were deserving of the various damages prayed for in
their Complaint.
WHEREFORE, premises considered, the instant petition is DENIED for lack of
merit. The assailed Decision dated 27 September 2006 and Resolution dated 3 July 2007,
both of the Court of Appeals in CA-G.R. CV No. 68666, are hereby AFFIRMED. No cost.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Nachura and Peralta, JJ., concur.
||| (Lucas v. Tuao, G.R. No. 178763, [April 21, 2009], 604 PHIL 98-130)
EN BANC
[G.R. No. L-21438. September 28, 1966.]
AIR FRANCE, petitioner, vs. RAFAEL CARRASCOSO and THE
HONORABLE COURT OF APPEALS, respondents.

Lichauco, Picazo & Agcaoili for petitioner.
Bengzon, Villegas & Zarraga for respondent R. Carrascoso.
SYLLABUS
1. JUDGMENT; FINDINGS OF FACT; REQUIREMENT OF LAW. Courts of justice are not
burdened with the obligation to specify in the sentence every bit and piece of evidence
presented by the parties upon the issues raised. The law solely insists that a decision state the
"essential ultimate facts" upon which the court's conclusion is drawn.
2. ID.; ID.; ID.; APPEAL AND ERROR; FAILURE TO MAKE FINDINGS ON EVIDENCE AND
CONTENTIONS OF ONE PARTY, EFFECT OF; DECISION NOT TO BE CLOGGED WITH
DETAILS. The mere failure to make specific findings of fact on the evidence presented for
the defense or to specify in the decision the contentions of the appellant and the reasons for
refusing to believe them is not sufficient to hold the same contrary to the requirement of the law
and the Constitution. There is no law that so requires. A decision is not to be clogged with
details such that prolixity, if not confusion, may result.
3. ID.; ID.; ID.; FINDINGS OF FACT BY COURTS DEFINED. Findings of fact may be defined
as the written statement of the ultimate facts as found by the court and essential to support the
decision and judgment rendered thereon; they consist of the court's "conclusions with respect
to the determinative facts on issue."
4. ID.; ID.; ID.; QUESTION OF LAW EXPLAINED. A question of law is "one which does not
call for an examination of the probative value of the evidence presented by the parties."
5. PLEADING AND PRACTICE; APPEAL; WHAT MAY BE RAISED ON APPEAL FROM COURT
OF APPEALS. It is not appropriately the business of the Supreme Court to alter the facts or
to review the questions of fact because, by statute, only questions of law may be raised in an
appeal by certiorari from a judgment of the Court of Appeals, which judgment is conclusive as
to the facts.
6. ID.; ID.; EFFECT OF AFFIRMANCE BY COURT OF APPEALS OF TRIAL COURT'S DECISION.
When the Court of Appeals affirms a judgment of the trial court, and the findings of fact of
said appellate court are not in any way at war with those of the trial court, nor is said affirmance
upon a ground or grounds different from those which were made the basis of the trial court's
conclusions, such judgment of affirmance is (1) a determination by the Court of Appeals that
the proceeding in the lower court was free from prejudicial error; (7) that all questions raised by
the assignments of error and all questions that might have been so raised have been finally
adjudicated as free from all error.
7. ID.; COMPLAINT; SPECIFIC MENTION OF THE TERM "BAD FAITH" IN THE COMPLAINT
NOT REQUIRED. Although there is no specific mention of the term bad faith in the
complaint, the inference of bad faith may be drawn from the facts and circumstances set forth
therein. 8. EVIDENCE; FINDING OF COURT OF APPEALS THAT RESPONDENT WAS
ENTITLED TO A FIRST CLASS SEAT. The Court of Appeals properly found that a first class-
ticket holder is entitled to first class seat, given the fact that seat availability in specific flights is
therein confirmed; otherwise, an air passenger will be placed in the hollow of the hands of an
airline, because it will always be easy for an airline to strike out the very stipulations in the ticket
and say that there was verbal agreement to the contrary. If only to achieve stability in the
relations between passenger and air carrier, adherence to the ticket so issued is desirable.
29
9. ID.; LACK OF SPECIFIC AVERMENT OF BAD FAITH CURED BY NOTICE TO
DEFENDANT OF WHAT PLAINTIFF INTENDS TO PROVE AND BY EVIDENCE PRESENTED
WITHOUT OBJECTION; AMENDMENT OF COMPLAINT TO CONFORM TO EVIDENCE
UNNECESSARY. If there was lack of specific averment of bad faith in the complaint, such
deficiency was cured by notice, right at the start of the trial, by plaintiff's counsel to defendant
as to what plaintiff intended to prove: while in the plane in Bangkok, plaintiff was ousted by
defendant's manager who gave his seat to a white man; and by evidence of bad faith in the
fulfillment of the contract presented without objection on the part of the defendant. An
amendment of the complaint to conform to the evidence is not even required.
10. ID.; ADMISSIBILITY OF TESTIMONY ON AN ENTRY IN A NOTEBOOK; TESTIMONY NOT
COVERED BY BEST EVIDENCE RULE. The testimony of a witness that the purser made an
entry in his notebook reading "First Class passenger was forced to go to the tourist class
against his will and that the captain refused to intervene," is competent and admissible because
the subject of the inquiry is not the entry but the ouster incident. It does not come within the
prescription of the best evidence rule.
11. CONTRACT OF CARRIAGE; QUASI-DELICT; LIABILITY OF COMMON CARRIERS; CASE
AT BAR. Neglect or malfeasance of the carrier's employees could give ground for an action
for damages. Damages here are proper because the stress of respondent's action is placed
upon his wrongful expulsion, which is a violation of a public duty by petitioner-aircarrier a
case of quasi-delict.
12. ID.; ID.; ID.; AWARD OF MORAL DAMAGES FOR BREACH OF CONTRACT. Award of
moral damages is proper, despite petitioner's argument that respondent's action is planted
upon breach of contract, where the stress of the action is put on wrongful expulsion, the
contract having been averred only to establish the relation between the parties.
13. ID.; ID.; ID.; EMPLOYER IS RESPONSIBLE FOR TORTIOUS ACTS OF HIS EMPLOYEE;
CASE AT BAR. The responsibility of an employer for the tortious act of his employees is well
settled in law. (Art. 2130, Civil Code). Petitioner-aircarrier must answer for the willful, malevolent
act of its manager.
14. ID.; ID.; ID.; LIABILITY FOR EXEMPLARY DAMAGES; POWER OF COURTS TO GRANT;
CASE AT BAR. The Civil Code gives the court ample power to grant exemplary damages,
the only condition being that defendant should have "acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner." As the manner of ejectment of plaintiff from his first class
seat fits into this legal precept, exemplary damages are well awarded, in addition to moral
damages.
15. ID.; ID.; LIABILITY FOR ATTORNEY'S FEES; COURT DISCRETION WELL EXERCISED
SHOULD NOT BE DISTURBED. The grant of exemplary damages justifies a similar judgment
for attorney's fees. The court below felt that it is but just and equitable that attorney's fees be
given and the Supreme Court does not intend to break faith with the tradition that discretion
well-exercised as it is here should not be disturbed.
16. ID.; RIGHTS OF PASSENGERS. Passengers do not contract merely for transportation.
They have a right to be treated by the carrier's employees with kindness, respect, courtesy and
due consideration. They are entitled to be protected against personal misconduct, injurious
language, indignities and abuses from such employees. So, any rude or discourteous conduct
on the part of employees towards a passenger gives the latter an action for damages against
the carrier. (4 R. C. L-1174-1175).
17. ID.; BREACH OF CONTRACT MAY BE A TORT. Although the relation of passenger and
carrier is contractual both in origin and nature, nevertheless, the act that breaks the contract
may also be a tort.

18. WORDS AND PHRASES; BAD FAITH DEFINED. "Bad faith", as understood in law,
contemplates a state of mind affirmatively operating with furtive design or with some motive of
self-interest or ill will or for ulterior purpose
DECISION
SANCHEZ, J p:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael
Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages;
P393.20 representing the difference in fare between first class and tourist class for the portion
of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date
of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal, 2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane
ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other
respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as "fully supported by the evidence of record", are:
"Plaintiff, a civil engineer, was a member of a group of 48 Filipino
pilgrims that left Manila for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized
agent, Philippine Air Lines, Inc., issued to plaintiff a 'first class' round trip
airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff
traveled in 'first class', but at Bangkok, the Manager of the defendant
airline forced plaintiff to vacate the 'first class' seat that he was
occupying because, in the words of the witness Ernesto G. Cuento,
there was a 'white man', who, the Manager alleged, had a 'better right to
the seat. When asked to vacate his 'first class' seat, the plaintiff, as was
to be expected, refused, and told defendant's Manager that his seat
would be taken over his dead body; a commotion ensued, and,
according to said Ernesto G. Cuento, many of the Filipino passengers
got nervous in the tourist class; when they found out that Mr. Carrascoso
was having a hot discussion with the white man [manager], they came all
across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to
the 'white man' (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff
reluctantly gave his 'first class' seat in the plane." 3
1. The thrust of the relief petitioner now seeks is that we review "all the findings" 4 of
respondent Court of Appeals. Petitioner charges that respondent court failed to make complete
findings of fact on all the issues properly laid before it. We are asked to consider facts favorable
to petitioner, and then, to overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any
court of record without expressing therein clearly and distinctly the facts and the law on which
it is based". 5 This is echoed in the statutory demand that a judgment determining the merits of
the case shall state "clearly and distinctly the facts and the law on which it is based", 6 and that
30
"Every decision of the Court of Appeals shall contain complete findings of fact on all issues
properly raised before it." 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law,
however, solely insists that a decision state the "essential ultimate facts" upon which the
court's conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every
bit and piece of evidence 10 presented by one party and the other upon the issues raised.
Neither is it to be burdened with the obligation "to specify in the sentence the facts" which a
party "considered as proved". 11 This is but a part of the mental process from which the Court
draws the essential ultimate facts. A decision is not to be so clogged with details such that
prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains
the necessary facts to warrant its conclusions, it is no error for said court to withhold therefrom
"any specific finding of facts with respect to the evidence for the defense". Because, as this
Court well observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify
(in the decision) the contentions of the appellant and the reasons for refusing to believe them is
not sufficient to hold the same contrary to the requirements of the provisions of law and the
Constitution". It is in this setting that in Manigque, it was held that the mere fact that the
findings "were based entirely on the evidence for the prosecution without taking into
consideration or even mentioning the appellant's side in the controversy as shown by his own
testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the
testimony of each witness for, or each item of evidence presented by, the defeated party, it
does not mean that the court has overlooked such testimony or such item of evidence. 14 At
any rate, the legal presumptions are that official duty has been regularly performed, and that all
the matters within an issue in a case were laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, may be defined as "the written
statement of the ultimate facts as found by the court . . . and essential to support the decision
and judgment rendered thereon". 16 They consist of the court's "conclusions with respect to
the determinative facts in issue" 17 A question of law, upon the other hand, has been declared
as "one which does not call for an examination of the probative value of the evidence presented
by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment
of the Court of Appeals 19 That judgment is conclusive as to the facts. It is not appropriately
the business of this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of
Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a
first class ticket. But petitioner asserts that said ticket did not represent the true and complete
intent and agreement of the parties; that said respondent knew that he did not have confirmed
reservations for first class on any specific flight, although he had tourist class protection; that,
accordingly, the issuance of a first class ticket was no guarantee that he would have a first
class ride, but that such would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before
the Court of Appeals under its third assignment of error, which reads: "The trial court erred in
finding that plaintiff had confirmed reservations for, and a right to, first class seats on the
'definite' segments of his journey, particularly that from Saigon to Beirut." 21
And, the Court of Appeals disposed of this contention thus:
"Defendant seems to capitalize on the argument that the issuance of a
first-class ticket was no guarantee that the passenger to whom the same

had been issued, would be accommodated in the first-class
compartment, for as in the case of plaintiff he had yet to make
arrangements upon arrival at every station for the necessary first class
reservation. We are not impressed by such a reasoning. We cannot
understand how a reputable firm like defendant airplane company could
have the indiscretion to give out ticket it never meant to honor at all. It
received the corresponding amount in payment of first-class tickets end
yet it allowed the passenger to be at the mercy of its employees. It is
more in keeping with the ordinary course of business that the company
should know whether or not the tickets it issues are to be honored or
not." 22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's
contention, thus:
"On the fact that plaintiff paid for, and was issued a 'First class ticket,
there can be no question. Apart from his testimony, see plaintiffs Exhibits
'A', 'A-1' 'B', 'B-1', 'B-2', 'C' and 'C-1', and defendant's own witness,
Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks 'O.K.' From what
you know, what does this O.K. mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, 'first class'. (Transcript, p. 169)
xxx xxx xxx
"Defendant tried to prove by the testimony of its witnesses Luis
Zaldariaga and Rafael Altonaga that although plaintiff paid for, and was
issued a 'first class' airplane ticket, the ticket was subject to confirmation
in Hongkong. The court cannot give credit to the testimony of said
witnesses. Oral evidence cannot prevail over written evidence, and
plaintiff's Exhibits 'A', 'A1', 'B', 'B-1', 'C' and 'C- 1' belie the testimony of
said witnesses, and clearly show that the plaintiff was issued, and paid
for, a first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael
Altonaga testified that the reservation for a 'first class' accommodation
for the plaintiff was confirmed. The court cannot believe that after such
confirmation ,defendant had a verbal understanding with plaintiff that the
'first class' ticket issued to him by defendant would be subject to
confirmation in Hongkong." 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the
amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was
affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment of
affirmance has merged the judgment of the lower court. 24 Implicit in that affirmance is a
determination by the Court of Appeals that the proceeding in the Court of First Instance was
free from prejudicial error and that 'all questions raised by the assignments of error and all
questions that might have been so raised are to be regarded as finally adjudicated against the
appellant". So also, the judgment affirmed "must be regarded as free from all error" 25 We
reached this policy construction because nothing in the decision of the Court of Appeals on this
point would suggest that its findings of fact are in any way at war with those of the trial court.
31
Nor was said affirmance by the Court of Appeals upon a ground or grounds different from
those which were made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger
have? It will always be an easy matter for an airline aided by its employees, to strike out the
very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if
the passenger had a schedule to fulfill? We have long learned that, as a rule, a written
document speaks a uniform language; that spoken word could be notoriously unreliable. If only
to achieve stability in the relations between passenger and air carrier, adherence to the ticket
so issued is desirable. Such is the case here. The lower courts refused to believe the oral
evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon
which the Court of Appeals predicated the finding that respondent Carrascoso had a first class
ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to
Beirut leg of the flight, 27 We perceive no "welter of distortions by the Court of Appeals of
petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to
petitioners accusation that respondent Carrascoso "surreptitiously took a first class seat to
provoke an issue". 29 And this because, as petitioner states, Carrascoso went to see the
Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again
to see the Manager. 30 Why, then, was he allowed to take a first class seat in the plane at
Bangkok, if he had no seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is
that Carrascoso's action is planted upon breach of contract; that to authorize an award for
moral damages there must be an averment of fraud or bad faith; 31 and that the decision of the
Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint
bearing on this issue are:
"3. That . . . plaintiff entered into a contract of air carriage with the
Philippine Air Lines for a valuable consideration, the latter acting as
general agents for and in behalf of the defendant, under which aid
contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff,
First Class passage on defendant's plane during the entire duration of
plaintiff's tour of Europe with Hongkong as starting point up to and until
plaintiff's return trip to Manila, . . .
4. That during the first two legs of the trip from Hongkong to Saigon and
from Saigon to Bangkok, defendant furnished to the plaintiff First Class
accommodation but only after protestations, arguments and/or
insistence were made by the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but
instead furnished plaintiff only Tourist Class accommodations from
Bangkok to Teheran and/or Casablanca, . . . the plaintiff has
been compelled by defendant's employees to leave the First Class
accommodation berths at Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the
inconvenience and embarrassments brought by defendant's breach of
contract was forced to take a Pan American World Airways plane on his
return trip from Madrid to Manila. 32
xxx xxx xxx

2. That likewise, as a result of defendant's failure to furnish First Class
accommodations aforesaid, plaintiff suffered inconveniences,
embarrassments, and humiliations, thereby causing plaintiff mental
anguish, serious anxiety, wounded feelings, social humiliation, and the
like injury, resulting in moral damages in the amount of P30,000.00." 33
xxx xxx xxx
The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish
plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That
said contract was breached when petitioner failed to furnish first class transportation at
Bangkok; and Third, That there was bad faith when petitioner's employee compelled
Carrascoso to leave his first class accommodation berth "after he was already seated" and to
take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments
and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and
social humiliation, resulting in moral damages. It is true that there is no specific mention of the
term bad faith in the complaint. But, the inference of bad faith is there; it may be drawn from the
facts and circumstances set forth therein. 34 The contract was averred to establish the relation
between the parties. But the stress of the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right at the start of the trial, respondent's counsel
placed petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane
in Bangkok, Carrascoso was ousted by petitioner's manager who gave his seat to a white
man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without
objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or
not there is sufficient averment in the complaint to justify an award for moral damages.
Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to
conform to the evidence is not even required. 36 On the question of bad faith, the Court of
Appeals declared:
"That the plaintiff was forced out of his seat in the first class
compartment of the plane belonging to the defendant Air France while at
Bangkok, and was transferred to the tourist class not only without his
consent but against his will, has been sufficiently established by plaintiff
in his testimony before the court, corroborated by the corresponding
entry made by the purser of the plane in his notebook which notation
reads as follows:
'First-class passenger was forced to go to the
tourist class against his will and that the captain refused
to intervene',
and by the testimony of an eye-witness Ernesto G. Cuento, who
was a co-passenger. The captain of the plane who was asked by
the manager of defendant company at Bangkok to intervene
even refused to do so. It is noteworthy that no one on behalf of
defendant ever contradicted or denied this evidence for the
plaintiff. It could have been easy for defendant to present its
manager at Bangkok to testify at the trial of the case, or yet to
secure his deposition; but defendant did neither. 37
The Court of Appeals further stated
"Neither is there evidence as to whether or ,not a prior reservation was
made by the white man. Hence, if the employees of the defendant at
Bangkok sold a first-class ticket to him when all the seats had already
been taken, surely the plaintiff should not have been picked out as the
32
one to suffer the consequences and to be subjected to the humiliation
and indignity of being ejected from his seat in the presence of others.
Instead of explaining to the white man the improvidence committed by
defendant's employees, the manager adopted the more drastic step of
ousting the plaintiff who was then safely ensconced in his rightful seat.
We are strengthened in our belief that this probably was what happened
there, by the testimony of defendant's witness Rafael Altonaga who,
when asked to explain the meaning of the letters 'O.K., appearing on the
tickets of plaintiff, said that 'the space is confirmed' for first class.
Likewise, Zenaida Faustino, another witness for defendant, who was the
chief of the Reservation Office of defendant, testified as follows:
'Q. How does the person in the ticket-issuing office
know what reservation the passenger has
arranged with you?
A. They call us up by phone and ask for the
confirmation.' (t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has said on this point:
'Why did the, using the words of witness Ernesto G. Cuento, 'white man'
have a 'better right' to the seat occupied by Mr. Carrascoso? The record
is silent. The defendant airline did not prove 'any better', nay, any right
on the part of the 'white man' to the 'First class' seat that the plaintiff
was occupying and for which he paid and was issued a corresponding
'first class' ticket.
'If there was a justified reason for the action of the defendant's Manager
in Bangkok, the defendant could have easily proven it by having taken
the testimony of the said Manager by deposition, but defendant did not
do so; the presumption is that evidence willfully suppressed would be
adverse if produced [Sec. 69, par. (e) Rules of Court]; and, under the
circumstances, the Court is constrained to find, as it does find, that the
Manager of the defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane if he did not give up
his 'first class' seat because the said Manager wanted to accommodate
using the words of the witness Ernesto G. Cuento, the 'white man'." 38
It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not
use the term "bad faith". But can it be doubted that the recital of facts therein points to bad
faith? The manager not only prevented Carrascoso from enjoying his right to a first class seat;
worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him suffer the
humiliation of having to go to the tourist class compartment just to give way to another
passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of
course, bad faith has assumed a meaning different from what is understood in law. For, "bad
faith" contemplates a "state of mind affirmatively operating with furtive design or with some
motive of self-interest or ill will or for ulterior purposes." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in the
judgment of the Court of First Instance, thus:
"The evidence shows that defendant violated its contract of
transportation with plaintiff in bad faith, with the aggravating
circumstances that defendant's Manager in Bangkok went to the extent
of threatening the plaintiff in the presence of many passengers to have
him thrown out of the airplane to give the 'first class' seat that he was
 33
occupying to, again using the words of witness Ernesto G. Cuento, a she said, 'We will note that you were
'white man' whom he (defendant's Manager) wished to accommodate, transferred to the tourist class'. I said,
and the defendant has not proven that this 'white man' had any 'better 'Nothing of that kind. That is tantamount to
right' to occupy the 'first class' seat that the plaintiff was occupying, duly accepting my transfer.' And I also said, You
paid for, and for which the corresponding 'first class' ticket was issued are not going to note anything there because
by the defendant to him." 40 I am protesting to this transfer.

5. The responsibility of an employer for the tortuous act of its employees-need not be essayed. Q. Was she able to note it?
It is well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner's his
employer, must answer. Article 21 of the Civil Code says: A. No, because I did not give my ticket.

"Art. 21. Any person who willfully causes loss or injury to another in a Q. About that purser?
manner that is contrary to morals, good customs or public policy shall
A. Well, the seats there are so close that you feel
compensate the latter for the damage."
uncomfortable and you don't have enough
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the leg room, I stood up and I went to the pantry
provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42 that was next to me and the purser was
there. He told me, 'I have recorded the
6. A contract to transport passengers is quite different in kind and degree from any other incident in my notebook.' He read it and
contractual relation. 43 And this, because of the relation which an air-carrier sustains with the translated it to me because it was
public. Its business is mainly with the travelling public. It invites people to avail of the comforts recorded in French 'First class passenger
and advantages it offers. The contract of air carriage, therefore, generates a relation attended was forced to go to the tourist class against
with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give his will, and that the captain refused to
ground for an action for damages. intervene.'

Passengers do not contract merely for transportation. They have a light to be treated by the MR. VALTE
carrier's employees with kindness, respect, courtesy and due consideration. They are entitled
to be protected against personal misconduct, injurious language, indignities and abuses from I move to strike out the last part of the testimony of
such employees. So it is, that any rude or discourteous conduct on the part of employees the witness because the best evidence
towards a passenger gives the latter an action for damages against the carrier. 44 would be the notes. Your Honor.

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of
contract and a tort, giving a right of action for its agent in the presence of third persons to
falsely notify her that the check was worthless and demand payment under threat of ejection,
though the language used was not insulting and she was not ejected. 46 And this, because,
altho the relation of passenger and carrier is "contractual both in origin and nature"
nevertheless "the act that breaks the contract may be also a tort". 47 And in another case,
"Where a passenger on a railroad train, when the conductor came to collect his fare, tendered
him the cash fare to a point where the train was scheduled not to stop, and told him that as
soon as the train reached such point he would pay the cash fare from that point to destination,
there was nothing in the conduct of the passenger which justified the conductor in using
insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South
Carolina there held the carrier liable for the mental suffering of said passenger.
Petitioner's contract with Carrascoso is one attended with public duty. The stress of
Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a violation
of public duty by the petitioner-air carrier a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus
"Q. You mentioned about an attendant. Who is that
attendant and purser?
A. When we left already that was already in the trip
I could not help it. So one of the flight
attendants approached me and requested
from me my ticket and I said, What for? and
COURT
I will allow that as part of his testimony." 49
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his
notebooks reading "First class passenger was forced to go to the tourist class against his will,
and that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony
above] which is incompetent. We do not think so. The subject of inquiry is not the entry, but the
ouster incident. Testimony of the entry does not come within the proscription of the best
evidence rule. Such testimony is admissible. 49
Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact
of the startling occurrence was still fresh and continued to be felt. The excitement had not as
yet died down. Statements then, in this environment, are admissible as part of the res
gestae. 50 For, they grow "out of the nervous excitement and mental and physical condition of
the declarant". 51 The utterance of the purser regarding his entry in the notebook was
spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has
been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res
gestae.
At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It
would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it
were really true that no such entry was made, the deposition of the purser could have cleared
up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the Court ample power to grant
exemplary damages in contracts and quasi-contracts. The only condition is that defendant
should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent
manner". 53 The manner of ejectment of respondent Carrascoso from his first class seat fits
into this legal precept. And this, in addition to moral damages. 54
9. The right to attorneys' fees is fully established. The grant of exemplary damages justifies a
similar judgment for attorneys' fees. The least that can be said is that the courts below felt that
it is but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with
the tradition that discretion well exercised as it was here should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and
P3,000.00 as attorney's fees. The task of fixing these amounts is primarily with the trial-
court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense
suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the
reasonableness thereof. 57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible
error. We accordingly vote to affirm the same. Costs against petitioner. So ordered.
Concepcion, C.J., Reyes J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Castro,
JJ., concur.
Bengzon, J.P., J., did not take part.
||| (Air France v. Carrascoso, G.R. No. L-21438, [September 28, 1966], 124 PHIL 722-742)
SECOND DIVISION
[G.R. No. 84698. February 4, 1992.]
PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D.
LIM, BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS, COL.
PEDRO SACRO, AND LT. M. SORIANO,petitioners, vs. COURT OF
APPEALS, HON. REGINA ORDOEZ-BENITEZ, in her capacity as
Presiding Judge of Branch 47, Regional Trial Court, Manila,
SEGUNDA R. BAUTISTA, and ARSENIA D. BAUTISTA, respondents.
Balgos and Perez for petitioners.
Collantes, Ramirez & Associates for private respondents.
SYLLABUS
1. CIVIL LAW; QUASI-DELICTS; DOCTRINE OF IN LOCO PARENTIS. Article 2180, in
conjunction with Article 2176 of the Civil Code, establishes the rule in in loco parentis. This
Court discussed this doctrine in the afore-cited cases of Exconde, (101 Phil. 843) Mendoza,
34
(101 Phil. 414), Palisoc (G.R. No. L-29025, 4 October, 1971, 41 SCRA 548) and, more
recently, in Amadora vs. Court of Appeals, (G.R. No. L-47745, 15 April 1988, 160 SCRA 315). In
all such cases, it had been stressed that the law (Article 2180) plainly provides that the damage
should have been caused or inflicted by pupils or students of the educational institution sought
to be held liable for the acts of its pupils or students while in its custody.
2. ID.; OBLIGATIONS AND CONTRACTS; CONTRACTS RESULTING IN BILATERAL
OBLIGATIONS ESTABLISHED WHEN ACADEMIC INSTITUTION ACCEPTS STUDENTS FOR
ENROLLMENT. When an academic institution accepts students for enrollment, there is
established a contract between them, resulting in bilateral obligations which both parties are
bound to comply with. For its part, the school undertakes to provide the student with an
education that would presumably suffice to equip him with the necessary tools and skills to
pursue higher education or a profession. On the other hand, the student covenants to abide by
the school's academic requirements and observe its rules and regulations. Institutions of
learning must also meet the implicit or "built-in" obligation of providing their students with an
atmosphere that promotes or assists in attaining its primary undertaking of imparting
knowledge. Certainly, no student can absorb the intricacies of physics or higher mathematics
or explore the realm of the arts and other sciences when bullets are flying or grenades
exploding in the air or where there looms around the school premises a constant threat to life
and limb. Necessarily, the school must ensure that adequate steps are taken to maintain peace
and order within the campus premises and to prevent the breakdown thereof.
3. ID.; QUASI-DELICTS; OBLIGATIONS ARISING FROM QUASI-DELICTS OR TORTS ARISE
ONLY BETWEEN PARTIES NOT BOUND BY CONTRACT. Because the circumstances of the
present case evince a contractual relation between the PSBA and Carlitos Bautista, the rules on
quasi-delict do not really govern. A perusal of Article 2176 shows that obligations arising from
quasi-delicts or tort, also known as extra-contractual obligations, arise only between parties not
otherwise bound by contract, whether express or implied.
4. ID.; ID.; VIEW THAT LIABILITY FROM TORT MAY EXIST EVEN IF THERE IS A CONTRACT.
In Air France vs. Carroscoso (124 Phil. 722), the private respondent was awarded damages
for his unwarranted expulsion from a first-class seat aboard the petitioner airline. It is noted,
however, that the Court referred to the petitioner-airline's liability as one arising from tort, not
one arising from a contract of carriage. In effect, Air France is authority for the view that liability
from tort may exist even if there is a contract, for the act that breaks the contract may be also a
tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed. 231).
5. ID.; ID.; AN ACT WHICH BREACHES A CONTRACT IN BAD FAITH AND IN VIOLATION OF
ART. 21 CONSTITUTES QUASI-DELICT. Air France penalized the racist policy of the airline
which emboldened the petitioner's employee to forcibly oust the private respondent to cater to
the comfort of a white man who allegedly "had a better right to the seat." In Austro-American,
supra, the public embarrassment caused to the passenger was the justification for the Circuit
Court of Appeals, (Second Circuit), to award damages to the latter. From the foregoing, it can
be concluded that should the act which breaches a contract be done in bad faith and be
violative of Article 21, then there is a cause to view the act as constituting a quasi-delict.
6. ID.; ID.; CONTRACTUAL RELATION, A CONDITION SINE QUA NON TO SCHOOL'S
LIABILITY. A contractual relation is a condition sine qua non to the school's liability. The
negligence of the school cannot exist independently on the contract, unless the negligence
occurs under the circumstances set out in Article 21 of the Civil Code.
7. ID.; ID.; ID.; SCHOOL MAY STILL AVOID LIABILITY BY PROVING THAT THE BREACH OF
CONTRACTUAL OBLIGATION TO STUDENTS WAS NOT DUE TO ITS NEGLIGENCE.
Conceptually a school, like a common carrier, cannot be an insurer of its students
against all risks. It would not be equitable to expect of schools to anticipate all types of violent
trespass upon their premises, for notwithstanding the security measures installed, the same

may still fail against an individual or group determined to carry out a nefarious deed inside
school premises and environs. Should this be the case, the school may still avoid liability by
proving that the breach of its contractual obligation to the students was not due to its
negligence.
8. ID.; ID.; NEGLIGENCE; DEFINED. Negligence is statutorily defined to be the omission of
that degree of diligence which is required by the nature of the obligation and corresponding to
the circumstances of persons, time and place.
DECISION
PADILLA, J p:
A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the
second-floor premises of the Philippine School of Business Administration (PSBA) prompted
the parents of the deceased to file suit in the Regional Trial Court of Manila (Branch 47)
presided over by Judge (now Court of Appeals justice) Regina Ordoez-Benitez, for damages
against the said PSBA and its corporate officers. At the time of his death, Carlitos was enrolled
in the third year commerce course at the PSBA. It was established that his assailants were not
members of the schools academic community but were elements from outside the school.
Specifically, the suit impleaded the PSBA and the following school authorities: Juan D. Lim
(President), Benjamin P. Paulino (Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col.
Pedro Sacro (Chief of Security) and a Lt. M. Soriano (Assistant Chief of Security). Substantially,
the plaintiffs (now private respondents) sought to adjudge them liable for the victim's untimely
demise due to their alleged negligence, recklessness and lack of security precautions, means
and methods before, during and after the attack on the victim. During the proceedings a quo,
Lt. M. Soriano terminated his relationship with the other petitioners by resigning from his
position in the school.
Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they
are presumably sued under Article 2180 of the Civil Code, the complaint states no cause of
action against them, as jurisprudence on the subject is to the effect that academic institutions,
such as the PSBA, are beyond the ambit of the rule in the afore-stated article.
The respondent trial court, however, overruled petitioners' contention and thru an order dated 8
December 1987, denied their motion to dismiss. A subsequent motion for reconsideration was
similarly dealt with by an order dated 25 January 1988. Petitioners then assailed the trial court's
dispositions before the respondent appellate court which, in a decision * promulgated on 10
June 1988, affirmed the trial court's orders. On 22 August 1988, the respondent appellate court
resolved to deny the petitioners' motion for reconsideration. Hence, this petition.
At the outset, it is to be observed that the respondent appellate court primarily anchored its
decision on the law of quasi-delicts, as enunciated in Articles 2176 and 2180 of the Civil
Code. 1 Pertinent portions of the appellate court's now assailed ruling state:
"Article 2180 (formerly Article 1903) of the Civil Code is an adoptation
from the old Spanish Civil Code. The comments of Manresa and learned
authorities on its meaning should give way to present day changes. The
law is not fixed and flexible (sic); it must be dynamic. In fact, the greatest
value and significance of law as a rule of conduct in (sic) its flexibility to
35
adopt to changing social conditions and its capacity to meet the new
challenges of progress.
Construed in the light of modern day educational systems, Article 2180
cannot be construed in its narrow concept as held in the old case
of Exconde vs. Capuno 2 and Mercado vs. Court of Appeals 3 ; hence,
the ruling in the Palisoc 4 case that it should apply to all kinds of
educational institutions, academic or vocational.
At any rate, the law holds the teachers and heads of the school staff
liable unless they relieve themselves of such liability pursuant to the last
paragraph of Article 2180 by 'proving that they observed all the diligence
to prevent damage.' This can only be done at a trial on the merits of the
case." 5
While we agree with the respondent appellate court that the motion to dismiss the
complaint was correctly denied and the complaint should be tried on the merits, we do not
however agree with the premises of the appellate court's ruling.
Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco
parentis. This Court discussed this doctrine in the afore-cited cases of Exconde, Mendoza,
Palisoc and, more recently, in Amadora vs. Court of Appeals. 6 In all such cases, it had been
stressed that the law (Article 2180) plainly provides that the damage should have been caused
or inflicted by pupils or students of the educational institution sought to be held liable for the
acts of its pupils or students while in its custody. However, this material situation does not exist
in the present case for, as earlier indicated, the assailants of Carlitos were not students of the
PSBA, for whose acts the school could be made liable.
However, does the appellate court's failure to consider such material facts mean the
exculpation of the petitioners from liability? It does not necessarily follow.
When an academic institution accepts students for enrollment, there is established
a contract between them, resulting in bilateral obligations which both parties are bound to
comply with. 7 For its part, the school undertakes to provide the student with an education that
would presumably suffice to equip him with the necessary tools and skills to pursue higher
education or a profession. On the other hand, the student covenants to abide by the school's
academic requirements and observe its rules and regulations.
Institutions of learning must also meet the implicit or "built-in" obligation of providing their
students with an atmosphere that promotes or assists in attaining its primary undertaking of
imparting knowledge. Certainly, no student can absorb the intricacies of physics or higher
mathematics or explore the realm of the arts and other sciences when bullets are flying or
grenades exploding in the air or where there looms around the school premises a constant
threat to life and limb. Necessarily, the school must ensure that adequate steps are taken to
maintain peace and order within the campus premises and to prevent the breakdown thereof.
Because the circumstances of the present case evince a contractual relation between the
PSBA and Carlitos Bautista, the rules on quasi-delict do not really govern. 8 A perusal of Article
2176 shows that obligations arising from quasi-delicts or tort, also known as extra-contractual
obligations, arise only between parties not otherwise bound by contract, whether express or
implied. However, this impression has not prevented this Court from determining the existence
of a tort even when there obtains a contract. In Air France vs. Carroscoso (124 Phil. 722), the
private respondent was awarded damages for his unwarranted expulsion from a first-class seat
aboard the petitioner airline. It is noted, however, that the Court referred to the petitioner-
airline's liability as one arising from tort, not one arising from a contract of carriage. In effect, Air

France is authority for the view that liability from tort may exist even if there is a contract, for the
act that breaks the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed.
231).
This view was not all that revolutionary, for even as early as 1918, this Court was already of a
similar mind. In Cangco vs. Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated thus:
"The field of non-contractual obligation is much more broader than that
of contractual obligation, comprising, as it does, the whole extent of
juridical human relations. These two fields, figuratively speaking,
concentric; that is to say, the mere fact that a person is bound to another
by contract does not relieve him from extra-contractual liability to such
person. When such a contractual relation exists the obligor may break
the contract under such conditions that the same act which constitutes a
breach of the contract would have constituted the source of an extra-
contractual obligation had no contract existed between the parties."
Immediately what comes to mind is the chapter of the Civil Code on Human Relations,
particularly Article 21, which provides:
"Any person who wilfully causes loss or injury to another in a manner that
is contrary to morals, good customs or public policy shall compensate
the latter for the damage." (emphasis supplied)
Air France penalized the racist policy of the airline which emboldened the petitioner's employee
to forcibly oust the private respondent to cater to the comfort of a white man who allegedly
"had a better right to the seat." In Austro-American, supra, the public embarrassment caused to
the passenger was the justification for the Circuit Court of Appeals, (Second Circuit), to award
damages to the latter. From the foregoing, it can be concluded that should the act which
breaches a contract be done in bad faith and be violative of Article 21, then there is a cause to
view the act as constituting a quasi-delict.
In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the
contract between the school and Bautista had been breached thru the former's negligence in
providing proper security measures. This would be for the trial court to determine. And, even if
there be a finding of negligence, the same could give rise generally to a breach of contractual
obligation only. Using the test of Cangco, supra, the negligence of the school would not be
relevant absent a contract. In fact, that negligence becomes material only because of the
contractual relation between PSBA and Bautista. In other words, a contractual relation is a
condition sine qua non to the school's liability. The negligence of the school cannot exist
independently on the contract, unless the negligence occurs under the circumstances set out in
Article 21 of the Civil Code.
This Court is not unmindful of the attendant difficulties posed by the obligation of schools,
above-mentioned, for conceptually a school, like a common carrier, cannot be an insurer of its
students against all risks. This is specially true in the populous student communities of the so-
called "university belt" in Manila where there have been reported several incidents ranging from
gang wars to other forms of hooliganism. It would not be equitable to expect of schools to
anticipate all types of violent trespass upon their premises, for notwithstanding the security
measures installed, the same may still fail against an individual or group determined to carry out
a nefarious deed inside school premises and environs. Should this be the case, the school may
still avoid liability by proving that the breach of its contractual obligation to the students was
not due to its negligence, here statutorily defined to be the omission of that degree of diligence
which is required by the nature of the obligation and corresponding to the circumstances of
persons, time and place. 9
36
As the proceedings a quo have yet to commence on the substance of the private
respondents' complaint, the record is bereft of all the material facts. Obviously, at this stage,
only the trial court can make such a determination from the evidence still to unfold.
WHEREFORE, the foregoing premises considered, the petition is DENIED. The Court of origin
(RTC, Manila, Br. 47) is hereby ordered to continue proceedings consistent with this ruling of
the Court. Costs against the petitioners.
SO ORDERED.
Melencio-Herrera, Paras, Regalado and Nocon, JJ., concur.
||| (Philippine School of Business Administration v. Court of Appeals, G.R. No. 84698, [February
4, 1992], 282 PHIL 759-767)
EN BANC
[G.R. No. 11318. October 26, 1918.]
THE MANILA RAILROAD CO., plaintiff-appellant, vs. LA COMPAIA
TRASATLANTICA, defendant-appellee, and THE ATLANTIC, GULF &
PACIFIC CO., defendant-appellant.
William A. Kincaid & Thomas L. Hartigan, for plaintiff and appellant.
Lawrence, Ross & Block, for defendant and appellant Atlantic, Gulf & Pacific Co.
Gilbert, Cohn & Fisher, for defendant and appellee Compaia Trasatlantica.
SYLLABUS
1. CARRIERS; CONTRACTS; LIABILITY FOR DAMAGE DONE IN DISCHARGING
CARGO. A steamship company is liable upon its contract of carriage for damage
resulting to cargo by reason of the negligence of a contracting company in discharging the
freight from the ship's hold; and the circumstance that the steamship company had used
due diligence in selecting a competent person to discharge the cargo does not exempt the
ship's company from liability. The failure to comply with a contractual obligation cannot be
excused by proof that the damage was due to the negligence of one whom the
contracting party has selected to perform the contract.
2. NEGLIGENCE; EXEMPTION FROM LIABILITY FOR DAMAGES. A contract
exempting a party from liability for the damages consequent upon accidents occurring in
the course of certain operations will not be construed to extend to damages resulting from
the negligence of the contracting party or its servants in conducting such operations,
unless the contract is so explicit as to leave no room for doubt that the parties so
intended. Contracts against liability for negligence are not favored in the law and should
be strictly construed, with every intendment against the party claiming the benefit of the
exemption from such liability.

3. ID.; ID.; CASE AT BAR. A contracting company was employed by a
steamship company to lift a number of heavy steamboilers from the ship's hold and place
them on a lighter alongside, with the understanding that while the contracting company
would use due care in getting the boilers out, no responsibility would be assumed by it for
accidents due to any hidden defect in the lifting apparatus or other unforeseen
occurrence. There was no express reservation with regard to damage attributable to the
negligence of the contracting company, or its agents in the lifting operations. In the course
of discharging the boilers, serious damage was done to one of them by reason of the
negligence of the person in charge of the lifting operations. Held: That the contracting
company was liable for the damage thus done in the performance of its contract and could
not be exempted by- reason of the fact that it had used due care in selecting the servant
whom it had placed in charge of the work.
4. ID.; "CULPA CONTRACTUAL" AND "CULPA AQUILIANA" DISTINGUISHED.
Negligence incident to the performance of a contractual obligation (culpa contractual) is
entirely distinct from negligence considered as an independent source of liability in the
absence of special relation. The latter species of negligence is the culpa aquiliana of the
civil law; and liability arising therefrom is governed by articles 1902-1904 of the Civil Code;
while the liability incident to the performance of contractual obligations is governed by
articles 1101 et seq. and other special provisions relative to contractual obligations.
5. ID.; LIABILITY OF OFFICIOUS MEDDLER (GESTOR OFICIOSO). A party
who, in the absence of any contract whatever, officiously undertakes to do a service with
respect to the property of another, as in moving it from one place to another, is liable for
any damage resulting thereto by reason of negligence on his part or that of his servants in
performing such service.
6. CONTRACTS; PRIVITY OF CONTRACT; ACTION BY OWNER FOR DAMAGE
IN DISCHARGE OF FREIGHT. A contracting company which undertakes to remove
freight from a ship's hold, subject to certain conditions defined in a contract made with the
steamship company, is not liable to the owner of freight for damage done thereto in the
lifting operations. In such case the owner of the freight must look for redress to the ship's
company and for lack of privity cannot maintain an action on the contract made between
the ship's company and the other.
DECISION
STREET, J p:
In March, 1914, the steamship Alicante, belonging to the Compaia Trasatlantica
de Barcelona, arrived at Manila with two locomotive boilers aboard, the property of The
Manila Railroad Company. The equipment of the ship for discharging heavy cargo was not
sufficiently strong to handle these boilers, and it was therefore necessary for the
Steamship Company to procure assistance in the port of Manila.
The Atlantic, Gulf and Pacific Company (hereafter called the Atlantic Company)
was accordingly employed by the Steamship Company, as having probably the best
equipment for this purpose of any contracting company in the city. The service to be
performed by the Atlantic Company consisted in bringing its floating crane alongside
the Alicante, lifting the boilers out of the ship's hold, and transferring them to a barge
which would be placed ready to receive them.
37
Upon the arrival of the Alicante, the Atlantic Company sent out its crane in
charge of one Leyden. In preparing to hoist the first boiler the sling was unfortunately
adjusted near the middle of the boiler, and it was thus raised nearly in an horizontal
position. The boiler was too long to clear the hatch in this position, and after one end of
the boiler had emerged on one side of the hatch, the other still remained below on the
other side. When the boiler had been gotten into this position and was being hoisted still
further, a rivet near the head of the boiler was caught under the edge of the hatch. The
weight on the crane was thus increased by a strain estimated at fifteen tons with the result
that the cable of the sling parted and the boiler fell to the bottom of the ship's hold. The
sling was again adjusted to the boiler but instead of being placed near the middle it was
now slung nearer one of the ends, as should have been done at first. The boiler was again
lifted; but as it was being brought up, the bolt at the end of the derrick boom broke, and
again the boiler fell.
The crane was repaired and the boiler discharged, but it was found to be so
badly damaged that it had to be reshipped to England where it was rebuilt, and afterwards
was returned to Manila. The Railroad Company's damage by reason of the cost of repairs,
expenses, and loss of the use of the boiler proved to be P22,343.29; and as to the amount
of the damage so resulting there is practically no dispute. To recover these damages the
present action was instituted by the Railroad Company against the Steamship Company.
The latter caused the Atlantic Company to be brought in as a codefendant, and insisted
that whatever liability existed should be fixed upon the Atlantic Company as an
independent contractor who had undertaken to discharge the boilers and had become
responsible for such damage as had been done.
The judge of the Court of First Instance gave judgment in favor of the plaintiff
against the Atlantic Company, but absolved the Steamship Company from the complaint.
The plaintiff has appealed from the action of the court in failing to give judgment against
the Steamship Company, while the Atlantic Company has appealed from the judgment
against it.
The mishap was undoubtedly due, as the lower court found, to the negligence of
one Leyden, the foreman in charge; and we may add that the evidence tends to show that
his negligence was of a type which may without exaggeration be denominated gross. The
sling was in the first place improperly adjusted, and the attention of Leyden was at once
called to this by the man in charge of the stevedores. Nevertheless he proceeded and,
instead of lowering the boiler when it was seen that it could not readily pass through the
hatch, he attempted to force it through; and the ship's tackle was brought into use to
assist in this maneuver. The second fall was, it appears, caused by the weakening of the
bolt at the head of the derrick boom, due to the shock incident to the first accident. This
defect was possibly such as not to be patent to external observation but we are of the
opinion that a person of sufficient skill to be trusted with the operation of machinery of this
character should have known that the crane had possibly been weakened by the jar
received in the first accident. The foreman was therefore guilty of negligence in attempting
to hoist the boiler the second time under the conditions that had thus developed. It should
be noted that the operation was at all its stages entirely under Leyden's control; and,
although in the first lift he utilized the ship's tackle to aid in hoisting the boiler, everything
was done under his immediate supervision. There is no evidence tending to show that the
first fall of the boiler might have been due to any hidden defect in the lifting apparatus; and
if it had not been for the additional strain caused by one end of the boiler catching under
the hatch, the operation would doubtless have been accomplished without difficulty. The
accident is therefore to be attributed to the failure of Leyden to exercise the degree of care
which an ordinarily competent and prudent person would have exhibited under the
circumstances which then confronted him. This conclusion of fact cannot be refuted; and,
indeed, no attempt is here made by the appellant to reverse this finding of the trial court.

Three questions are involved in the case, namely: (1) Is the Steamship Company
liable to the plaintiff by reason of having delivered the boiler in question in a damaged
condition? (2) Is the Atlantic Company liable to be made to respond to the steamship
company for the amount the latter may be required to pay to the plaintiff for the damage
done ? (3) Is the Atlantic Company directly liable to the plaintiff, as the trial court held?
It will be observed that a contractual relation existed between the Railroad
Company and the Steamship Company; and the duties of the latter with respect to the
carrying and delivery of the boilers are to be discovered by considering the terms and legal
effect of that contract. A contractual relation also existed between the Steamship
Company and the Atlantic Company; and the duties owing by the latter to the former with
respect to the lifting and the transferring of the boilers are likewise to be discovered by
considering the terms and legal effect of the contract between these parties. On the other
hand, no contractual relation existed directly between the Railroad Company and the
Atlantic Company.
We are all agreed, that, under the contract for transportation from England to
Manila, the Steamship Company is liable to the plaintiff for the injury done to the boiler
while it was being discharged from the ship. The obligation to transport the boiler
necessarily involves the duty to convey and deliver it in a proper condition according to its
nature, and conformably with good faith, custom, and the law (art. 1258, Civ. Code). The
contract to convey imports the duty to convey and deliver safely and securely with
reference to the degree of care which, under the circumstances, are required by law and
custom applicable to the case. The duty to carry and to carry safely is all one.
Such being the contract of the Steamship Company, said company is
necessarily liable, under articles 1103 and 1104 of the Civil Code, for the consequences of
the omission of the care necessary to the proper performance of its obligation. The
contract to transport and deliver at the port of Manila a locomotive boiler, which was
received by it in proper condition, is not complied with by delivery at the port of
destination of a mass of iron the utility of which had been destroyed.
Nor does the Steamship Company escape liability by reason of the fact that it
employed a competent independent contractor to discharge the boilers. The law
applicable to this feature of the case will be more fully discussed further on in this opinion.
At this point we merely observe that in the performance of this service the Atlantic
Company was no more than a servant or employee of the Steamship Company, and it has
never yet been held that the failure to comply with a contractual obligation can be excused
by showing that such delinquency was due to the negligence of one to whom the
contracting party had committed the performance of the contract.
Coming to the question of the liability of the Atlantic Company to respond to the
Steamship Company for the damages which the latter will be compelled to pay to the
plaintiff, we observe that the defense of the Atlantic Company comprises two contentions,
to-wit, first, that by the terms of the engagement in accordance with which the Atlantic
Company agreed to render the service, all risk incident to the discharge of the boilers was
assumed by the Steamship Company; and secondly, that the Atlantic Company should be
absolved under the last paragraph of article 1903 of the Civil Code, inasmuch as it had
used due care in the selection of the employee whose negligent act caused the damage in
question.
At the hearing in first instance the Atlantic Company introduced four witnesses
to prove that at the time said company agreed to lift the boilers out of the Alicante, as
upon other later occasions, the Steamship Company was notified that the service would
only be rendered upon the distinct understanding that the Atlantic Company would not be
responsible for damage. In this connection the president of the company testified that he
38
stipulated that the company would assume no responsibility for any damage which might
be done to the lifts or to the steamer or to its contents or to individuals during the progress
of making these lifts, from any source whatever in connection with the breaking of the
lifting equipment. The vice-president of the Atlantic Company testified that he was present
upon the occasion when the agent of the Steamship Company made arrangements for the
discharge of the boilers and he heard the conversation between the president and said
agent. According to this witness the substance of the agreement was that, while the
Atlantic Company would use all due care in getting the boilers out, no responsibility was
assumed for damage done either to ship or cargo. The intermediary who acted as agent
for the Steamship Company in arranging for the performance of this service stoutly denied
that any such terms were announced by the officials or anybody else connected with the
Atlantic Company at any time while the arrangements were pending.
In the conflict of the evidence, we recognize that, by a preponderance of the
evidence, some reservation or other was made as to the responsibility of the Atlantic
Company; and though the agent who acted on behalf of the Steamship Company possibly
never communicated this reservation to his principal, the latter should nevertheless be
held bound thereby. It thus becomes necessary to discover what the exact terms of this
supposed reservation were.
We think that we must put aside at once the words of studied precision with
which the president of the Atlantic Company would exclude the possibility of any liability
attaching to his company, though we may accept his statement as showing that the
excepted risk contemplated breakage of the lifting equipment. There is undoubtedly a
larger element of truth in the more reasonable statement by the vice-president of the
company. According to this witness the contract combined two features. namely, an
undertaking on the part of the Atlantic Company to use all due care, combined with a
reservation concerning the company's liability for damage.
The Atlantic Company offered in evidence a number of letters which had been
written by it at different times, extending over a period of years, in response to inquiries
made by other firms and persons in Manila concerning the terms upon which the Atlantic
Company would make heavy lifts. These letters tend to show that the Atlantic Company
was not accustomed to assume the risk incident to such work and required the parties for
whom the service might be rendered either to carry the risk or insure against it. One such
letter, dated nearly four years prior to the occurrence which gave rise to this lawsuit, was
addressed to the Compaia Trasatlantica de Barcelona one of the defendants in this case.
It was stated in this communication that the company's derrick would be subject to
inspection prior to making the lift but that the Atlantic Company would not assume
responsibility for any damage that might occur either to ship or cargo from any cause
whatsoever. The Steamship Company rejected the services of the Atlantic Company in
that instance as being too onerous.
The letters directed to third parties, it may be observed, would not, generally
speaking, be admissible as against the plaintiff for the purpose of proving that a similar
reservation was inserted in the contract with it on this occasion; but if knowledge of such
custom is brought home to the Steamship Company, the fact that such reservation was
commonly made is of some probative force. Reference to a number of these letters will
show that no particular formula was used by the Atlantic Company in defining its
exemption, and the tenor of these various communications differs materially. We think,
however, that some of the letters are of value as an aid in interpreting the reservation
which the Atlantic Company may have intended to make. We therefore quote from some
of these letters as follows:
"We will use our best endeavors to carry out the work
successfully and will ask you to inspect our plant but we wish it distinctly
understood that we cannot assume responsibility for damage which may
 39
occur . . . while the lift is being made." (To Rear Admiral, U. S. N., Oct. 4, seem to be broad enough to cover every possible contingency, including the negligent
1909.) act of the defendant's servants. To so hold, however, would run counter to the established
law of England and the United States on that subject. The court then quoted the following
"Our quotation is based on the understanding that we assume
proposition from the decision of the King's Bench Division in Price & Co. vs. Union
no responsibility whatever from any accident which may happen during
Lighterage Co. ( [1903], 1 K. B. D., 750, 754):
our operations. We always insert this clause as a precautionary measure,
but we have never had to avail ourselves of it as yet and do not expect
to now." (To "El Varadero de Manila," Nov. 1, 1913.)
" 'An exemption in general words not expressly relating to
"As is customary in these cases, we will use all precautions negligence, even though the words are wide enough to include loss by
necessary to handle the gun in a proper manner. Our equipment has negligence or default of carriers' servants, must be construed as limiting
been tested and will be again, before making the lift, but we do not the liability of the carrier as assurer, and not as relieving him from the
assume any responsibility for damage to the gun ship, or cargo." (To duty of exercising reasonable skill and care.' "
Warner, Barnes & Co., June 7, 1909.)
Even admitting that, generally speaking, a person may stipulate against liability
The idea expressed in these letters is, we think, entirely consonant with the for the consequences of negligence, at least in those cases where the negligence is not
interpretation which the vice-president of the company placed upon the contract which gross or wilful, the contract conferring such exemption must be so clear as to leave no
was made with the Steamship Company upon this occasion, that is the company room for the operation of the ordinary rules of liability consecrated by experience and
recognized its duty to exercise due supervisory care; and the exemption from liability, sanctioned by the express provisions of law.
whatever may have been its precise words, had reference to disasters which might result
If the exemption should be understood in the sense which counsel for the
from some inherent hidden defect in the lifting apparatus or other unforeseen occurrence
Atlantic Company now insists it should bear, that is, as an absolute exemption from all
not directly attributable to negligence of the company in the lifting operations. Neither
responsibility for negligence, it is evident that the agreement was a most inequitable and
party could have supposed for a moment that it was intended to absolve the Atlantic
unfair one, and hence it is one that the Steamship Company can not be lightly assumed to
Company from its duty to use due care in the work.
have made. Understood in that sense it is the equivalent of licensing the Atlantic Company
It is not pretended that negligence on the part of the Atlantic Company or its to perform its tasks in any manner and fashion that it might please, and to hold it harmless
employees was expressly included in the excepted risk, and we are of the opinion that the from the consequences.
contract should not be understood as covering such an exemption. It is a rudimentary
It is true that, in these days, insurance can usually be obtained in the principal
principle that the contractor is responsible for the work executed by persons whom he
ports of commerce by parties circumstanced as was the steamship company in the case
employs in its performance, and this is expressed in the Civil Code in the form of a
now before us. But the best insurance against disasters of this kind is found in the
positive rule of law (art. 1596). It is also expressly declared by law that liability arising from
exercise of due care; and the chief incentive to the exercise of care is a feeling of
negligence is demandable in the fulfillment of all kinds of obligations (art. 1103, Civil
responsibility on the part of him who undertakes the work. Naturally the courts are little
Code). Every contract for the prestation of service therefore has annexed to it, as an
inclined to aid in the efforts of contractors to evade this responsibility.
inseparable implicit obligation, the duty to exercise due care in the accomplishment of the
work; and no reservation whereby the person rendering the services seeks to escape from There may have been in the minds of the officials of the Atlantic Company an
the consequences of a violation of this obligation can be viewed with favor. idea that the promise to use due care in the lifting operations was not accompanied by a
legal obligation, such promise being intended merely for its moral effect as an assurance
"Contracts against liability for negligence are not favored by
to the steamship company that the latter might rely upon the competence and diligence of
the law. In some instances, such as common carriers, they are
the employees of the Atlantic Company to accomplish the work in a proper way. The
prohibited as against public policy. In all cases such contracts should be
contract can not be permitted to operate in this one-sided manner. The two features of the
construed strictly, with every intendment against the party seeking its
engagement, namely, the promise to use due care and the exemption from liability for
protection." (Crew vs. Bradstreet Company, 134 Pa. St., 161; 7 L. R. A.,
damage should be so construed as to give some legal effect to both. The result is, as
661; 19 Am. St. Rep., 681.)
already indicated, that the Atlantic Company was bound by its undertaking to use due
The strictness with which contracts conferring such an unusual exemption are care and that the exemption was intended to cover accidents due to hidden defects in the
construed is illustrated in Bryan vs. Eastern & Australian S. S. Co. (28 Phil. Rep., 310). The apparatus or other unforeseeable occurrences not having their origin in the immediate
decision in that case is not precisely applicable to the case at bar, since the court was personal negligence of the party in charge of the operations.
there applying the law of a foreign jurisdiction, and the question at issue involved a
We now proceed to consider the contention that the Atlantic Company should
doctrine peculiar to contracts of common carriers. Nevertheless the case is instructive as
be absolved from liability to the Steamship Company under the last paragraph of article
illustrating the universal attitude of courts upon the right of a contracting party to stipulate
1903 of the Civil Code, which declares that the liability there referred to shall cease when
against the consequences of his own negligence. It there appeared that the plaintiff had
the persons mentioned therein prove that they employed all the diligence of a good father
purchased from the defendant company a ticket for the transportation of himself and
of a family to avoid the damage. In this connection the conclusion of fact must be
baggage from Hongkong to Manila. By the terms of the contract printed in legible type
conceded in favor of the Atlantic Company that it had used proper care in the selection of
upon the back of the ticket it was provided that the company would not hold itself
Leyden and that, so far as the company was aware, he was a person to whom might
responsible for any loss or damage to luggage, under any circumstances whatsoever,
properly be committed the task of discharging the boilers. The answer to the contention,
unless it had been paid for as freight. It was held that this limitation upon the liability of the
however, is that the obligation of the Atlantic Company was created by contract, and
defendant company did not relieve it from liability for negligence of its servants by which
article 1903 is not applicable to negligence arising in the course of the performance of a
the baggage of the passenger was lost. Said the court: "Ordinarily this language would
 40
contractual obligation. Article 1903 is exclusively concerned with cases where the other cases (N. T. Hashim & Co. vs. Rocha & Co., 18 Phil. Rep., 315; Tan Chiong Sian vs.
negligence arises in the absence of agreement. Inchausti & Co., 22 Phil. Rep., 152).
In discussing the liability of the Steamship Company to the plaintiff Railroad What has been said suffices in our opinion to demonstrate that the Atlantic
Company we have already shown that a party is bound to the full performance of his Company is liable to the Steamship Company for the damages brought upon the latter by
contractual engagements under articles 1101 et seq. of the Civil Code, and other special the failure of the Atlantic Company to use due care in discharging the boiler, regardless of
provisions of the Code relative to contractual obligations; and if he falls short of complete the fact that the damage was caused by the negligence of an employee who was qualified
performance by reason of his own negligence or that of any person to whom he may for the work and who had been chosen by the Atlantic Company with due care.
commit the work, he is liable for the damages resulting therefrom. What was there said is
This brings us to the last question here to be answered, which is; Can the
also applicable with reference to the liability of the Atlantic Company upon its contract
Atlantic Company be held directly liable to the Railroad Company? In other words, can the
with the Steamship Company, and the same need not be here repeated. It is desirable,
judgment entered in the trial court directly in favor of the plaintiff against the Atlantic
however, in this connection, to bring out somewhat more fully the distinction between
Company be sustained? To answer this it is necessary to examine carefully the legal
negligence in the performance of a contractual obligation (culpa contractual) and
relations existing between the Atlantic Company and the Railroad Company with reference
negligence considered as an independent source of obligation between parties not
to this affair; and we shall for a moment ignore the existence of the contract between the
previously bound (culpa aquiliana).
Steamship Company and the Atlantic Company, to which the railroad company was not a
This distinction is well established in legal jurisprudence and is fully recognized party.
in the provisions of the Civil Code. As illustrative of this, we quote the following passage
Having regard then to the bare fact that the Atlantic Company undertook to
from the opinion of this Court in the well-known case of Rakes vs. Atlantic, Gulf & Pacific
remove the boiler from the ship's hold and for this purpose took the property into its
Co. (7 Phil. Rep., 359, 365), and in this quotation we reproduce the first paragraph of the
power and control, there arose a duty to the owner to use due care in the performance of
passage from Manresa chiefly for the purpose of here presenting a more correct English
that service and to avoid damaging the property in the course of such operation. This duty
version of said passage.
was obviously in existence before the negligent act was done which resulted in damage,
"The acts to which these articles are applicable are and said negligent act may, if we still ignore the existence of the express contract, be
understood to be those not growing out of preexisting duties of the considered as an act done in violation of this duty.
parties to one another. But where relations already formed give rise to
The duty thus to use due care is an implied obligation, of a quasi contractual
duties, whether springing from contract or quasi contract, then breaches
nature, since it is created by implication of law in the absence of express agreement. The
of those duties are subject to articles 1101, 1103, and 1104 of the same
conception of liability with which we are here confronted is somewhat similar to that which
code. A typical application of this distinction may be found in the
is revealed in the case of the depositary, or commodatary, whose legal duty with respect
consequences of a railway accident due to defective machinery supplied
to the property committed to their care is defined by law even in the absence of express
by the employer. His liability to his employee would arise out of the
contract; and it can not be doubted that a person who takes possession of the property of
contract of employment, that to the passengers out of the contract for
another for the purpose of moving or conveying it from one place to another, or for the
passage, while that to the injured by-stander would originate in the
purpose of performing any other service in connection therewith (locatio operis faciendi),
negligent act itself. This distinction is thus clearly set forth by Manresa in
owes to the owner a positive duty to refrain from damaging it, to the same extent as if an
his commentary on article 1033:
agreement for the performance of such service had been expressly made with the owner.
" 'We see with reference to such obligations, that culpa, or The obligation here is really a species of contract le, and it has its source and explanation
negligence, may be understood in two different senses, either as culpa, in the vital fact that the active party has taken upon himself to do something with or to the
substantive and independent, which of itself constitutes the source of an property and has taken it into his power and control for the purpose of performing such
obligation between two persons not formerly bound by any other service. (Compare art. 1889, Civil Code.)
obligation; or as an incident in the performance of an obligation which
already existed, which can not be presumed to exist without the other,
and which increases the liability arising from the already existing In the passage which we have already quoted from the decision in the Rakes
obligation.'" case this Court recognized the fact that the violation of a quasi contractual duty is subject
to articles 1101, 1103, and 1104 of the Civil Code and not within the purview of article
Justice Tracey, the author of the opinion from which we have quoted, proceeds
1903. Manresa also, in the paragraph reproduced above, is of the opinion that negligence,
to observe that Manresa, in commenting on articles 1102 and 1104, has described these
considered as a substantive and independent source of liability, does not include cases
two species of negligence as contractual and extra-contractual, the latter being the culpa
where the parties are previously bound by any other obligation. Again, it is instructive in
aquiliana of the Roman law. "This terminology is unreservedly accepted by Sanchez
this connection to refer to the contents of article 1103 of the Civil Code, where it is
Roman (Derecho Civil, fourth section, chapter XI, article II, No. 12), and the principle stated
declared that the liability proceeding from negligence is demandable in the fulfillment of all
is supported by decisions of the supreme court of Spain, among them those of November
kinds of obligations. These words evidently comprehend both forms of positive
20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75 Jurisprudencia Civil, No.
obligations, whether arising from express contract or from implied contract (quasi
182.)"
contract).
The principle that negligence in the performance of a contract is not governed
In this connection it is instructive to recall the celebrated case of Coggs vs.
by article 1903 of the Civil Code but rather by article 1104 of the same Code was directly
Bernard (2 Ld. Raym, 909), decided in the court of the King's Bench of England in the year
applied by this court in the case of Baer Senior & Co.'s Successors vs. Compaia Maritima
1703. The action was brought by the owner of certain casks of brandy to recover damages
(6 Phil. Rep., 215); and the same idea has been impliedly if not expressly recognized in

from a person who had undertaken to transport them from one place to another. It was
alleged that in so doing the defendant so negligently and improvidently put them down
that one of the casks was staved and the brandy lost. The complaint did not allege that
the defendant was a common carrier or that he was to be paid for his services. It was
therefore considered that the complaint did not state facts sufficient to support an action
for breach of any express contract. This made it necessary for the court to go back to
fundamental principles and to place liability on the ground of a violation of the legal duty
incident to the mere fact of carriage. Said Powell, J.: "An action indeed will not lie for not
doing the thing, for want of a sufficient consideration; but yet if the bailee will take the
goods into his custody, he shall be answerable for them; for the taking of the goods into
his custody is his own act." So Gould, J.: " . . . any man that undertakes to carry goods is
liable to an action, be he a common carrier or whatever he is, if through his neglect they
are lost or come to any damage: . . .." Behind these expressions was an unbroken line of
ancient English precedents holding persons liable for damage inflicted by reason of a
misfeasance in carrying out an undertaking. The principle determined by the court in the
case cited is expressed in the syllabus in these words: "If a man undertakes to carry
goods safely and securely, he is responsible for any damage they may sustain in the
carriage through his neglect, though he was not a common carrier and was to have
nothing for the carriage." Though not stated in so many words, this decision recognizes
that from the mere fact that a person takes the property of another into his possession and
control there arises an obligation in the nature of an assumpsit that he will use due care
with respect thereto. This must be considered a principle of universal jurisprudence, for it
is consonant with justice and common sense and as we have already seen harmonizes
with the doctrine above deduced from the provisions of the Civil Code.
The conclusion must therefore be that if there had been no contract of any sort
between the Atlantic Company and the Steamship Company, an action could have been
maintained by the Railroad Company, as owner, against the Atlantic Company to recover
the damages sustained by the former. Such damages would have been demandable under
article 1103 of the Civil Code and the action would not have been subject to the
qualification expressed in the last paragraph of article 1903.
The circumstance that a contract was made between the Atlantic Company and
the Steamship Company introduces, however, an important, and in our opinion, controlling
factor into this branch of the case. It cannot be denied that the Steamship Company had
possession of this boiler in the capacity of carrier and that, as such, it was authorized to
make a contract with the Atlantic Company to discharge the same from the ship. Indeed, it
appears in evidence that even before the contract of affreightment was made the Railroad
Company was informed that it would be necessary for the Steamship Company to procure
the services of some contractor in the port of Manila to effect the discharge, as the ship's
tackle was inadequate to handle heavy cargo. It is therefore to be assumed that the
Railroad Company had in fact assented to the employment of a contractor to perform this
service.
Now, it cannot be admitted that a person who contracts to do a service like that
rendered by the Atlantic Company in this case incurs a double responsibility upon entering
upon performance, namely, a responsibility to the party with whom he contracted, and
another entirely different responsibility to the owner, based on an implied contract. The
two liabilities can not in our opinion coexist. It is a general rule that an implied contract
never arises where an express contract has been made.
If double responsibility existed in such a case as this, it would result that a
person who had limited his liability by express stipulation might find himself liable to the
owner without regard to the limitation which he had seen fit to impose by contract. There
appears to be no possibility of reconciling the conflict that would be developed in
attempting to give effect to those inconsistent liabilities. The contract which was in fact
made, in our opinion, determines not only the character and extent of the liability of the
41
Atlantic Company but also the person or entity by whom the obligation is exigible. It is of
course quite clear that if the Atlantic Company had refused to carry out its agreement to
discharge the cargo, the plaintiff could not have enforced specific performance and could
not have recovered damages for non-performance. (Art. 1257, Civil Code; Donaldson, Sim
& Co. vs. Smith, Bell & Co., 2 Phil. Rep., 766; Uy Tam and Uy Yet vs. Leonard, 30 Phil.
Rep., 471.) In view of the preceding discussion it is equally obvious that, for lack of privity
with the contract, the Railroad Company can have no right of action to recover damages
from the Atlantic Company for the wrongful act which constituted the violation of said
contract. The rights of the plaintiff can only be made effective through the Compaia
Trasatlantica de Barcelona with whom the contract of affreightment was made.
The judgment entered in the Court of First Instance must, therefore, be reversed
not only with respect to the judgment entered in favor of the plaintiff directly against the
Atlantic Company but also with respect to the absolution of the Steamship Company and
the further failure of the court to enter judgment in favor of the latter against the Atlantic
Company. The Compaia Trasatlantica de Barcelona should be and is hereby adjudged to
pay to the Manila Railroad Company the sum of twenty two thousand three hundred forty
three pesos and twenty nine centavos (P22,343.29), with interest from May 11, 1914, until
paid; and when this judgment is satisfied, the Compaia Trasatlantica de Barcelona is
declared to be entitled to recover the same amount from the Atlantic Gulf & Pacific
Company, against whom judgment is to this end hereby rendered in favor of the Compaia
Trasatlantica de Barcelona. No express adjudication of costs of either instance will be
made. So ordered.
Arellano, C.J., Torres, Araullo and Avancea, JJ., concur.
Separate Opinions
JOHNSON, J., dissenting:
The only question presented by the appellant, the Atlantic, Gulf & Pacific
Company, is whether or not it is liable, either to the Manila Railroad Company, or to
the Compaia Trasatlantica, for the damage caused to a certain locomotive boiler while
being discharged at the port of Manila.
The essential facts important for a decision upon the rights and liabilities of the
Atlantic, Gulf & Pacific Company may be stated as follows:
(1) That the Manila Railroad Company purchased certain locomotive boilers in
Europe and contracted with the Compaia Trasatlantica to transport the same to Manila by
its steamship Alicante; (2) That the tackle and equipment of the steamship Alicante being
insufficient to discharge said locomotive boilers, the Compaia Trasatlantica entered into a
contract with the Atlantic, Gulf & Pacific Company by virtue of the terms of which the latter
company agreed to discharge the said locomotive boilers from the said
steamship Alicante by using its tackle and equipment for that purpose; (3) That in the effort
of the Atlantic, Gulf & Pacific Company to discharge the said locomotive boilers from the
said steamship, the apparatus used, broke and one of the boilers was discharged in the
manner described in the complaint and damaged to the amount found by the lower court;
(4) That while the Atlantic, Gulf & Pacific Company attempted to show, during the trial of
the cause, that it and its employees exercised due care and diligence, it admitted in this
court that its employees had perhaps been negligent in the performance of their duties.
Considering that the relations between the Compaia Trasatlantica and the
Atlantic, Gulf & Pacific Company were contractual, it becomes important to ascertain what
were the terms of the contract, in order to properly understand the rights and liabilities of

the parties thereto, in relation to the admission of the Atlantic, Gulf & Pacific Company that
its employees had perhaps been guilty of negligence in the discharge of said boiler.
The contract was not wholly reduced to writing; it was partly written and partly
oral. The Compania Trasatlantica alleged that under the terms of the contract the Atlantic,
Gulf & Pacific Company was to discharge said boilers from the steamship Alicante, using
its tackle and apparatus therefor, and that no condition of any character was imposed,
while the Atlantic, Gulf & Pacific Company alleged that it agreed to discharge said boilers
and to use its tackle and equipment for that purpose, but with the express condition that it
was, under no circumstances or conditions, to assume any responsibility for any damage
whatever which might be occasioned thereby, either to the cargo, ship or persons.
In support of the allegation of the Compaia Trasatlantica, it really presented but
one witness, while the Atlantic, Gulf & Pacific Company presented several witnesses,
including its president, vice-president and several others, together with a number of
documents showing that the contract was in conformity with its usual custom in making
similar contracts. The Atlantic, Gulf & Pacific Company also showed that the Compaia
Trasatlantica had actual knowledge of such custom.
A careful examination of the proof, in our opinion, clearly shows by a large
preponderance, that the contract in question was as the Atlantic, Gulf & Pacific Company
alleged and that by its terms said company (A. G. & P.) was relieved "of any responsibility
for any damage which might occur either to the ship, cargo or persons, from any
causewhatsoever."
The contract is the law governing the rights and obligations of the parties,
subject to certain well defined exceptions. Persons have a right to enter into any contract
with any clauses, or conditions, or limitations which they may deem convenient and
advisable so long as such clauses or conditions do not conflict with the existing laws,
morals or public order. (Art. 1255, Civil Code.) There are some well defined exceptions to
that rule, the most notable of which are contracts with common carriers. (Hartford F. Ins.
Co., vs. Chicago, M. & St. P. Railway Co., 175 U. S., 91, 97.) The Atlantic, Gulf & Pacific
Company, so far as the record shows, is not a common carrier, and the exception,
therefore, just noted does not apply to it. Neither was the contract between the Compaia
Trasatlantica and the Atlantic, Gulf & Pacific Company a contract for the carriage of
merchandise. It was a contract for services of an entirely different character from that of a
common carrier.
If then, generally speaking, persons may enter into contractual relations with any
clauses or conditions which they may deem advisable and convenient, which do not
conflict with existing laws, morals or public order, we may ask: Is a contract of the
character of that before us in which one of the parties stipulates "that he will not assume
any responsibility for any damage which may occur from any cause whatsoever" in the
execution of said contract, contrary to the laws, morals or public order?
The contract in question was not one which the parties were obliged to enter
into. In that respect, it differed from contracts with common carriers, wherein the latter
have no option, generally speaking. In the present case, the Atlantic, Gulf & Pacific
Company had a perfect right to refuse to enter into the contract in question until and
unless its terms were satisfactory and acceptable. The parties being at perfect liberty to
enter into the contract or to refuse so to do, they must be bound by the law which they
themselves have made for themselves. Having voluntarily made the law (contract), they
must abide by its terms until it can be shown that the same is contrary to the laws, morals
or public order.
It is a fundamental rule of the law that what one may refuse to do entirely, he
may agree to do upon such terms as he pleases so long as he does not contravene the
42
laws, morals or public order. The Atlantic, Gulf & Pacific Company having had the right to
refuse absolutely to enter into the contract, it must have had the right to refuse to enter
into it except upon just such terms and conditions as it saw fit to require. The Atlantic, Gulf
& Pacific Company, therefore, had a right to refuse to enter into the contract in question
until and unless the Compaia Trasatlantica agreed to relieve it of all responsibility for any
damages which might occur either to the ship, cargo or persons from any cause
whatsoever. By the terms of the contract the Compaia Trasatlantica assumed all
responsibility for damages in the discharge of the said locomotive boilers. That must be
true considering that, by the terms of the contract, the Atlantic, Gulf & Pacific Company
was relieved from any and all damages whatsoever which might occur.
The only purpose on the part of the Atlantic, Gulf & Pacific Company, in
imposing the condition above-mentioned, was to avoid the consequences of the
negligence of its agents or employees or of any act or accident which might cause
damage, and to avoid possible lawsuits growing out of the alleged negligent acts.
The question which we are discussing is not a new one in jurisprudence. The
courts have been called upon many times to interpret contracts with conditions like those
contained in the contract before us. (Coup vs. Wabash, St. Louis & Pac. Railway Co., 56
Mich., 111; 56 Am. Rep., 374; Mann vs. Pere Marquette R. Co., 135 Mich., 210;
Stephens vs. Southern Pacific Co., 109 Cal., 86; 29 L. R. A., 751; Quimby vs. Boston &
Maine R., 150 Mass., 365; 5 L. R. A., 846; Pittsburgh, etc. Railway Co. vs. Mahoney, 148
Ind., 196; Russell vs. Pittsburgh, etc., R. Co., 157 Ind., 305; 55 L. R. A., 253; Hartford Fire
Ins. Co. vs. Chicago, M. & St. P. Railway Co., 175 U. S., 91, 97; Baltimore, etc. Railway
Co. vs. Voigt, 176 U. S., 498; Osgood vs. Railway Co., 77 Vermont, 334; 70 L. R. A., 930.)
In the case of the Hartford Insurance Company vs. Chicago, M. & St. P. Railway
Co. (175 U. S., 91, 97, supra). a contract was made by which one of the parties was
relieved from all liability for damage, et cetera, et cetera, even the liability for damage
which might result "from the carelessness or negligence of employees or agents of said
railway company," and the Supreme Court of the United States held that such a condition
in contracts of that character was not void as against public policy, or public morals or
contrary to law. (Baltimore, etc. Railway Co. vs. Voigt, 176 U. S., 498; Osgood vs. Central
Vermont R. Co., 77 Vermont, 334; 70 L. R. A., 930.)
Courts must not forget that they are not to extend, arbitrarily, those rules which
say that a given contract is void as being against public policy, or public laws, because if
there is one thing which more than another public policy requires, it is that men of full age
and competent understanding shall have the utmost liberty of contracting, and that their
contracts when entered into freely and voluntarily, shall be held sacred and must be
enforced in courts of justice. Courts should not lightly interfere with the freedom of
contracts. (Baltimore, etc., Railway Co. vs. Voigt, 176 U. S., 498; Printing, etc.
Company vs. Sampson, Law Reps., 19 Equity, 465; Osgood vs. Central Vermont R. Co.,
77 Vermont, 334.)
The record shows that the Atlantic, Gulf & Pacific Company had, at various
times, discharged other freight from steamships in Manila Bay of much greater weight than
the boiler in question, by means of the same tackle and equipment and by the same
employees which were used in the present case. The record also shows that the tackle
and equipment was ample and that the men in charge were experienced in the work they
were to perform. The record further shows that the Atlantic, Gulf & Pacific Company
undertook the discharge of said boilers at a very low price, for the very reason that they
were relieved of all liability whatsoever for damages in the discharge of the same. The
record further shows that the representative of the Compaia Trasatlantica, who made the
contract in question, was requested to and did make a casual examination of the tackle
and equipment which were to be used in the discharge of the boilers. The record further
shows that said company, after receiving the information that the tackle and equipment
 43
and employees of the Atlantic, Gulf & Pacific Company had discharged, on various
occasions, other and heavier freight without accident or mishap, and after having made a
||| (Manila Railroad Co. v. La Compaia Trasatlantica, G.R. No. 11318, [October 26, 1918], 38
casual examination of such equipment, voluntarily and willingly and without any objection
PHIL 875-901)
or protest for and on behalf of the Compaia Trasatlantica, entered into the contract as
above described, accepting fully and without protest the conditions imposed by the
Atlantic, Gulf & Pacific Company. Having entered into the contract in question and the
same not being in contravention of the laws, morals or public order, the Compaia
Trasatlantica is bound by its terms. FIRST DIVISION
The rule above announced may seem to be a hard one, but when we remember
that the right to enter into contracts carries with it the freedom to impose such conditions [G.R. No. 145804. February 6, 2003.]
as the parties may see fit to impose, subject to specific limitations, the hardship, if any, is
one self-imposed by the parties.
An example may serve to make the rule which we have announced plainer: LIGHT RAIL TRANSIT AUTHORITY & RODOLFO
ROMAN, petitioners, vs. MARJORIE NAVIDAD, Heirs of the Late
A is the owner of an automobile at Manila which he desires to deliver at Baguio. NICANOR NAVIDAD & PRUDENT SECURITY AGENCY, respondents.
B is the owner of a garage at Manila and has in his employ experienced chauffeurs. A
desires to employ B to take the automobile to Baguio and offers a certain price for the
services. B accepts A's proposition with the condition that he will assume no responsibility
whatever for any damages which might occur to the said automobile in the course of its Office of the Government Corporate Counsel for petitioners.
delivery. In passing the zigzag on the way to Baguio, an unforeseen accident happens Mario F. Estayan for Prudent Security Agency.
through the casual neglect or lack of care on the part of the chauffeur and the automobile
is damaged. Can B be held liable, in an action upon the contract, for the damages in the Arias Law Offices for M. Navidad and the Heirs of Navidad.
face of the fact that A had relieved him of all liability for any damages which might occur?
The cases which we have cited above, together with many others which might be cited, all
answer that question in the negative. That question is answered in the negative upon the
theory that A, by the terms of his contract, relieved B, in an action upon the contract, from SYNOPSIS
all liability whatsoever.
It must not be forgotten that what we have said relates to actions upon the On 14 October 1993, Nicanor Navidad, then drunk, entered the EDSA LRT station after
contract with the conditions mentioned and not to actions for damages in an action ex purchasing a "token" (representing payment of the fare). Junelito Escartin, the security guard
delictoresulting from the negligent performance of duties and obligations assumed. assigned to the area, approached Navidad. A misunderstanding or an altercation between the
two apparently ensued that led to a fist fight. At the exact moment that Navidad fell, an LRT
The appellant, the Atlantic, Gulf & Pacific Company, contends that inasmuch as
train, operated by petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving
it had exercised the care of a good father of a family in selecting its employees, that it train, and he was killed instantaneously. Private respondent Marjorie Navidad, the widow of
should be relieved from all liability by virtue of the provisions of article 1903 of the Civil
Nicanor, along with her children, filed a complaint for damages against Junelito Escartin,
Code. We do not believe that the provisions of said article can be invoked when the rights
Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. and Prudent Security Agency
and liabilities of parties to an action depend upon a contract. The rights of parties are
for the death of her husband. The trial court ruled in favor of private respondent by awarding
defined by the contract and there is no occasion to invoke the statute. The argument actual, moral and compensatory damages. Prudent Security Agency appealed to the Court of
employed by the Atlantic, Gulf & Pacific Company, if valid, would also relieve
Appeals. The appellate court exonerated Prudent from any liability for the death of Nicanor and
the Compaia Trasatlantica from all liability. Certainly, the Atlantic, Gulf & Pacific Company
instead held LRTA and Roman jointly and severally liable. In exempting Prudent from liability,
would not deny that the Compaia Trasatlantica had not exercised the care of a good
the appellate court stressed that there was nothing to link the security agency to the death of
father of a family in selecting it for the discharge of said boilers. Neither do we believe that
Navidad. It ruled that Navidad failed to show that Escartin inflicted fist blows upon the victim
the provisions of article 1902 of the Civil Code can be invoked in favor of the Compaia and the evidence merely established the fact of death of Navidad by reason of his having been
Trasatlantica, for the reason that the contract governs the rights and liabilities and by the hit by the train owned and managed by the LRTA and operated at the time by Roman. The
terms of the contract the Atlantic, Gulf & Pacific Company is relieved from all liability appellate court faulted petitioners for their failure to present expert evidence to establish the
whatsoever. A relief from all liability is a relief from any liability caused by negligence, fact that the application of emergency brakes could not have stopped the train. Hence, the
especially so when the action is based upon a contract. Whether or not that rule should be present petition for review. IcTEaC
followed in an action of tort growing out of wilful negligence, quaere?
The Supreme Court affirmed the decision of the Court of Appeals. If there is any liability that
could be attributed to Prudent, it could only be for tort under the provisions of Article 2176 and
From all of the foregoing, we are persuaded that the judgment of the lower court related provisions, in conjunction with Article 2180, of the Civil Code. In the absence of
should be modified and that the Atlantic, Gulf & Pacific Company should be relieved from satisfactory explanation by the carrier on how the accident occurred, which petitioners,
all liability under the complaint. according to the appellate court, have failed to show, the presumption would be that it has
Malcolm, J., concurs. been at fault, an exception from the general rule that negligence must be proved. Regrettably
for LRT, as well as the surviving spouse and heirs of the late Nicanor Navidad, the Court is

concluded by the factual finding of the Court of Appeals that there was 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. The Court also absolved petitioner Rodolfo Roman, there being no
showing that he is guilty of any culpable act or omission and also for the reason that 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 Court
also ruled that the award of nominal damages, in addition to actual damages, is untenable
stressing that 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. It is also an established rule
that nominal damages cannot co-exist with compensatory damages.
SYLLABUS
1.CIVIL LAW; COMMON CARRIERS; LIABILITY FOR DEATH OR INJURY TO PASSENGERS.
The law requires common carriers to carry passengers safely using the utmost diligence of very
cautious persons with due regard for all circumstances. 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. The statutory provisions render a common carrier liable for death of or
injury to passengers (a) through the negligence or willful acts of its employees or b) on account
of willful acts or negligence of other passengers or of strangers if the common carrier's
employees through the exercise of due diligence could have prevented or stopped the act or
omission. In case of such death or injury, a carrier is presumed to have been at fault or been
negligent, and 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. 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, an exception from the general rule that negligence must be proved.
2.ID.; EXTRA CONTRACTUAL OBLIGATIONS; QUASI-DELICTS; AN EMPLOYER CANNOT BE
HELD LIABLE FOR DAMAGES ABSENT PROOF OF FAULT OR NEGLIGENCE ON THE PART
OF ITS EMPLOYEE; CASE AT BAR. The foundation of LRTA's liability is the contract of
carriage and its obligation to indemnify the victim arises from the breach of that contract by
reason of its failure to exercise the high diligence required of the common carrier. In the
discharge of its commitment to ensure the safety of passengers, a carrier may choose to hire its
own employees or avail itself of the services of an outsider or an independent firm to undertake
the task. In either case, the common carrier is not relieved of its responsibilities under the
contract of carriage. Should Prudent be made likewise liable? If at all, that liability could only be
for tort under the provisions of Article 2176 and related provisions, in conjunction with Article
2180, of the Civil Code. The premise, however, for the employer's 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 familias 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 contractualand the other in culpa aquiliana, Article 2194 of the Civil
Code can well apply. In fine, a liability for tort may arise even under a contract, where tort is that
which breaches the contract. Stated differently, when an act which constitutes a breach of
44
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. 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 . . . ."
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.
3.ID.; DAMAGES; AWARD OF NOMINAL DAMAGES IN ADDITION TO ACTUAL DAMAGES IS
UNTENABLE; NOMINAL DAMAGES CANNOT CO-EXIST WITH COMPENSATORY DAMAGES.
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. It is an established rule that nominal
damages cannot co-exist with compensatory damages. ISAcHD
DECISION
VITUG, J p:
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.
On 14 October 1993, about half an hour past seven o'clock 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:
"a)1)Actual damages of P44,830.00;
2)Compensatory damages of P443,520.00;
3)Indemnity for the death of Nicanor Navidad in the
sum of P50,000.00;
"b)Moral damages of P50,000.00;
"c)Attorney's 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 as nominal damages;
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 attorney's 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.
45
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 Escartin's 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 court's conclusion on the existence of an employer-employee 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 former's
employees, although such employees may have acted beyond the scope
of their authority or in violation of the orders of the common carriers.
 46
"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." 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
"Article 1763.A common carrier is responsible for injuries suffered by a contractual tie between the LRT and Navidad is not itself a juridical relation between the latter
passenger on account of the willful acts or negligence of other and Roman; thus, Roman can be made liable only for his own fault or negligence.
passengers or of strangers, if the common carrier's employees through
the exercise of the diligence of a good father of a family could have The award of nominal damages in addition to actual damages is untenable. Nominal damages
prevented or stopped the act or omission." 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
The law requires common carriers to carry passengers safely using the utmost diligence of very plaintiff for any loss suffered by him. 18 It is an established rule that nominal damages cannot
cautious persons with due regard for all circumstances. 5 Such duty of a common carrier to co-exist with compensatory damages. 19
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 WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION
contract of carriage. 6 The statutory provisions render a common carrier liable for death of or but only in that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo
injury to passengers (a) through the negligence or wilful acts of its employees or b) on account Roman is absolved from liability. No costs. DaAIHC
of wilful acts or negligence of other passengers or of strangers if the common carrier's
employees through the exercise of due diligence could have prevented or stopped the act or SO ORDERED.
omission. 7 In case of such death or injury, a carrier is presumed to have been at fault or been Davide, Jr., C.J., Ynares-Santiago, Carpio and Azcuna, JJ., concur.
negligent, and 8 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 ||| (Light Rail Transit Authority v. Navidad, G.R. No. 145804, [February 6, 2003], 445 PHIL 31-42)
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
EN BANC
The foundation of LRTA's 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 [G.R. No. 48006. July 8, 1942.]
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
FAUSTO BARREDO, petitioner, vs. SEVERINO GARCIA and TIMOTEA
common carrier is not relieved of its responsibilities under the contract of carriage.
ALMARIO, respondents.
Should Prudent be made likewise liable? If at all, that liability could only be for tort under the
provisions of Article 2176 12 and related provisions, in conjunction with Article 2180, 13of the
Civil Code. The premise, however, for the employer's liability is negligence or fault on the part Celedonio P. Gloria and Antonio Barredo for petitioner.
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 Jose G. Advincula for respondents.
familias 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 SYLLABUS
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 1. DAMAGES; QUASI-DELICT OR "CULPA AQUILIANA"; PRIMARY AND
contractual and the other in culpa aquiliana, Article 2194 14 of the Civil Code can well DIRECT RESPONSIBILITY OF EMPLOYERS UNDER ARTICLES 1902-1910 OF THE CIVIL
apply. 15 In fine, a liability for tort may arise even under a contract, where tort is that which CODE. A head-on collision between a taxi and a carretela resulted in the death of a 16-
breaches the contract. 16 Stated differently, when an act which constitutes a breach of year-old boy, one of the passengers of the carretela. A criminal action was filed against
contract would have itself constituted the source of a quasi-delictual liability had no contract the taxi driver and he was convicted and sentenced accordingly. The court in the criminal
existed between the parties, the contract can be said to have been breached by tort, thereby case granted the petition that the right to bring a separate civil action be reserved.
allowing the rules on tort to apply. 17 Thereafter the parents of the deceased brought suit for damages against the proprietor of
the taxi, the employer of the taxi driver, under article 1903 of the Civil Code. Defendant
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor
contended that his liability was governed by the Revised Penal Code, according to which
Navidad, this Court is concluded by the factual finding of the Court of Appeals that "there is
his responsibility was only secondary, but no civil action had been brought against the taxi
nothing to link (Prudent) to the death of Nicanor (Navidad), for the reason that the negligence of
driver. Held: That this separate civil action lies, the employer being primarily and directly
its employee, Escartin, has not been duly proven . . . ." This finding of the appellate court is not
responsible in damages under articles 1902 and 1903 of the Civil Code.
without substantial justification in our own review of the records of the case.

2. ID.; ID.; ID. A quasi-delict or "culpa aquiliana" is a separate legal institution
under the Civil Code, with a substantivity all its own, and individuality that is entirely apart
and independent from a delict or crime. Upon this principle, and on the wording and spirit
of article 1903 of the Civil Code, the primary and direct responsibility of employers may be
safely anchored.
3. ID.; ID.; ID. The individuality of cuasi-delito or culpa extra-
contractual looms clear and unmistakable. This legal institution is of ancient lineage, one
of its early ancestors being the Lex Aquilia in the Roman Law. In fact, in Spanish legal
terminology, this responsibility is often referred to as culpa aquiliana. The Partidas also
contributed to the genealogy of the present fault or negligence under the Civil Code: for
instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como
quier que el non fizo a sabiendas el dao al otro, pero acaescio por su culpa."
4. ID.; ID.; ID. The distinctive nature of cuasi-delitos survives in the Civil Code.
According to article 1089, one of the five sources of obligations is this legal institution of
cuasi-delito or culpa extra- contractual: "los actos . . . en que intervenga cualquier genero
de culpa o negligencia." Then article 1093 provides that this kind of obligation shall be
governed by Chapter II of Title XVI of Book IV, meaning articles 1902-1910. This portion of
the Civil Code is exclusively devoted to the legal institution of culpa aquiliana.
BOCOBO, J p:
5. ID.; ID.; ID.; DISTINCTION BETWEEN CRIMES UNDER THE PENAL CODE
AND THE "CULPA AQUILIANA" OR "CUASI-DELITO" UNDER THE CIVIL CODE. A
distinction exists between the civil liability arising from a crime and the responsibility
for cuasi-delitos or culpa extra-contractual. The same negligent act causing damages may
produce civil liability arising from a crime under article 100 of the Revised Penal Code, or
create an action for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the
Civil Code. Plaintiffs were free to choose which remedy to enforce. Some of the
differences between crimes under the Penal Code and the culpa aquiliana or cuasi-
delito under the Civil Code are enumerated in the decision.
6. ID.; ID.; ID.; OPINIONS OF JURISTS. The decision sets out extracts from
opinions of jurists on the separate existence of cuasi- delicts and the employer's primary
and direct liability under article 1903 of the Civil Code.
7. ID.; ID.; ID.; SENTENCES OF THE SUPREME TRIBUNAL OF SPAIN. The
decision cites sentences of the Supreme Tribunal of Spain upholding the principles above
set forth: that a cuasi-delict or culpa extra- contractual is a separate and distinct legal
institution, independent from the civil responsibility arising from criminal liability, and that
an employer is, under article 1903 of the Civil Code, primarily and directly responsible for
the negligent acts of his employee.
8. ID.; ID.; ID.; DECISIONS OF THIS COURT. Decisions of this Court are also
cited holding that, in this jurisdiction, the separate individuality of a cuasi-delito or culpa
aquiliana under the Civil Code has been fully and clearly recognized, even with regard to a
negligent act for which the wrongdoer could have been prosecuted and convicted in a
criminal case and for which, after such a conviction, he could have been sued for his civil
liability arising from his crime.
9. ID.; ID.; ID.; FOUNDATIONS OF DOCTRINES ABOVE SET FORTH; LITERAL
MEANING OF THE LAW. The Revised Penal Code punishes not only reckless but also
simple negligence; if it should be held that articles 1902-1910, Civil Code, apply only to
negligence not punishable by law, culpa aquiliana would have very little application in
actual life. The literal meaning of the law will not be used to smother a principle of such
ancient origin and such full-grown development as culpa aquiliana.
10. ID.; ID.; ID.; ID.; DEGREE OF PROOF. There are numerous cases of
criminal negligence which can not be shown beyond reasonable doubt, but can be proved
47
by a preponderance of evidence. In such cases, defendant can and should be made
responsible in a civil action under articles 1902 to 1910, Civil Code. Ubi jus ibi remedium.
11. ID.; ID.; ID.; ID.; EXPEDITIOUS REMEDY. The primary and direct
responsibility of employer under article 1903, Civil Code, is more likely to facilitate remedy
for civil wrongs. Such primary and direct responsibility of employers is calculated to
protect society.
12. ID.; ID.; ID.; ID.; PRACTICE OF RELYING SOLELY ON CIVIL
RESPONSIBILITY FOR A CRIME. The harm done by such practice is pointed out, and
the principle of responsibility for fault or negligence under articles 1902 et seq., of the Civil
Code is restored to its full vigor.
DECISION
This case comes up from the Court of Appeals which held the petitioner herein,
Fausto Barredo, liable in damages for the death of Faustino Garcia caused by the
negligence of Pedro Fontanilla, a taxi driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road between
Malabon and Navotas, Province of Rizal, there was a head-on collision between a taxi of
the Malate Taxicab driven by Pedro Fontanilla and a carretela guided by Pedro Dimapilis.
The carretela was overturned, and one of its passengers, 16-year-old boy Faustino Garcia,
suffered injuries from which he died two days later. A criminal action was filed against
Fontanilla in the Court of First Instance of Rizal, and he was convicted and sentenced to
an indeterminate sentence of one year and one day to two years of prision correccional.
The court in the criminal case granted the petition that the right to bring a separate civil
action be reserved. The Court of Appeals affirmed the sentence of the lower court in the
criminal case. Severino Garcia and Timotea Almario, parents of the deceased, on March 7,
1939, brought an action in the Court of First Instance of Manila against Fausto Barredo as
the sole proprietor of the Malate Taxicab and employer of Pedro Fontanilla. On July 8,
1939, the Court of First Instance of Manila awarded damages in favor of the plaintiffs for
P2,000 plus legal interest from the date of the complaint. This decision was modified by
the Court of Appeals by reducing the damages to P1,000 with legal interest from the time
the action was instituted. It is undisputed that Fontanilla's negligence was the cause of the
mishap, as he was driving on the wrong side of the road, and at high speed. As to
Barredo's responsibility, the Court of Appeals found:
". . . It is admitted that defendant is Fontanilla's employer.
There is no proof that he exercised the diligence of a good father of a
family to prevent the damage. (See p. 22, appellant's brief.) In fact it is
shown he was careless in employing Fontanilla who had been caught
several times for violation of the Automobile Law and speeding (Exhibit
A) violations which appeared in the records of the Bureau of Public
Works available to the public and to himself. Therefore, he must
indemnify plaintiffs under the provisions of article 1903 of the Civil
Code."
The main theory of the defense is that the liability of Fausto Barredo is governed
by the Revised Penal Code; hence, his liability is only subsidiary, and as there has been no

civil action against Pedro Fontanilla, the person criminally liable, Barredo cannot be held
responsible in this case. The petitioner's brief states on page 10:
". . . The Court of Appeals holds that the petitioner is being
sued for his failure to exercise all the diligence of a good father of a
family in the selection and supervision of Pedro Fontanilla to prevent
damages suffered by the respondents. In other words, the Court of
Appeals insists on applying in this case article 1903 of the Civil Code.
Article 1903 of the Civil Code is found in Chapter II, Title 16, Book IV of
the Civil Code. This fact makes said article inapplicable to a civil liability
arising from a crime as in the case at bar simply because Chapter II of
Title 16 of Book IV of the Civil Code, in the precise words of article 1903
of the Civil Code itself, is applicable only to "those (obligations) arising
from wrongful or negligent acts or omissions not punishable by law.'"
The gist of the decision of the Court of Appeals is expressed thus:
". . . We cannot agree to the defendant's contention. The
liability sought to be imposed upon him in this action is not a civil
obligation arising from a felony or a misdemeanor (the crime of Pedro
Fontanilla), but an obligation imposed in article 1903 of the Civil Code by
reason of his negligence in the selection or supervision of his servant or
employee."
The pivotal question in this case is whether the plaintiffs may bring this separate
civil action against Fausto Barredo, thus making him primarily and directly responsible
under article 1903 of the Civil Code as an employer of Pedro Fontanilla. The defendant
maintains that Fontanilla's negligence being punishable by the Penal Code, his
(defendant's) liability as an employer is only subsidiary, according to said Penal Code, but
Fontanilla has not been sued in a civil action and his property has not been exhausted. To
decide the main issue, we must cut through the tangle that has, in the minds of many,
confused and jumbled together delitos and cuasi delitos, or crimes under the Penal Code
and fault or negligence under articles 1902-1910 of the Civil Code. This should be done,
because justice may be lost in a labyrinth, unless principles and remedies are distinctly
envisaged. Fortunately, we are aided in our inquiry by the luminous presentation of this
perplexing subject by renown jurists and we are likewise guided by the decisions of this
Court in previous cases as well as by the solemn clarity of the considerations in several
sentences of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or "culpa aquiliana" is a
separate legal institution under the Civil Code, with a substantivity all its own, and
individuality that is entirely apart and independent from a delict or crime. Upon this
principle, and on the wording and spirit of article 1903 of the Civil Code, the primary and
direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code are as
follows:
CIVIL CODE
"ART. 1089. Obligations arise from law, from contracts and
quasi- contracts, and from acts and omissions which are unlawful or in
which any kind of fault or negligence intervenes."
xxx xxx xxx
"ART. 1092. Civil obligations arising from felonies or
misdemeanors shall be governed by the provisions of the Penal Code.
48
"ART. 1093. Those which are derived from acts or omissions in
which fault or negligence, not punishable by law, intervenes shall be
subject to the provisions of Chapter II, Title XVI of this book."
xxx xxx xxx
"ART. 1902. Any person who by an act or omission causes
damage to another by his fault or negligence shall be liable for the
damage so done.
"ART. 1903. The obligation imposed by the next preceding
article is enforcible, not only for personal acts and omissions, but also for
those of persons for whom another is responsible.
"The father, and, in case of his death or incapacity, the mother,
are liable for any damages caused by the minor children who live with
them.
"Guardians are liable for damages done by minors or
incapacitated persons subject to their authority and living with them.
"Owners or directors of an establishment or business are
equally liable for any damages caused by their employees while engaged
in the branch of the service in which employed, or on occasion of the
performance of their duties.
"The State is subject to the same liability when it acts through
a special agent, but not if the damage shall have been caused by the
official upon whom properly devolved the duty of doing the act
performed, in which case the provisions of the next preceding article
shall be applicable.
"Finally, teachers or directors of arts and trades are liable for
any damages caused by their pupils or apprentices while they are under
their custody.
"The liability imposed by this article shall cease in case the
persons mentioned therein prove that they exercised all the diligence of
a good father of a family to prevent the damage.".
"Art. 1904.Any person who pays for damage caused by his
employees may recover from the latter what he may have paid.".
REVISED PENAL CODE
"Art. 100. Civil liability of a person guilty of felony. Every
person criminally liable for a felony is also civilly liable.
"Art. 101. Rules regarding civil liability in certain cases. The
exemption from criminal liability established in subdivisions 1, 2, 3, 5,
and 6 of article 12 and in subdivision 4 of article 11 of this Code does not
include exemption from civil liability, which shall be enforced subject to
the following rules:
"First. In cases of subdivisions 1, 2 and 3 of article 12 the civil
liability for acts committed by any imbecile or insane person, and by a
person under nine years of age, or by one over nine but under fifteen
years of age, who has acted without discernment, shall devolve upon
those having such person under their legal authority or control, unless it
appears that there was no fault or negligence on their part.

"Should there be no person having such insane, imbecile or
minor under his authority, legal guardianship, or control, or if such
person be insolvent, said insane, imbecile, or minor shall respond with
their own property, excepting property exempt from execution, in
accordance with the civil law.
"Second. In cases falling within subdivision 4 of article 11, the
persons for whose benefit the harm has been prevented shall be civilly
liable in proportion to the benefit which they may have received.
"The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
"When the respective shares can not be equitably determined,
even approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town, and, in all
events, whenever the damage has been caused with the consent of the
authorities or their agents, indemnification shall be made in the manner
prescribed by special laws or regulations.
"Third. In cases falling within subdivisions 5 and 6 of article 12,
the persons using violence or causing the fear shall be primarily liable
and secondarily, or, if there be no such persons, those doing the act
shall be liable, saving always to the latter that part of their property
exempt from execution.
"ART. 102. Subsidiary civil liability of innkeepers, tavern
keepers and proprietors of establishment. In default of persons
criminally liable, innkeepers, tavern keepers, and any other persons or
corporations shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or
some general or special police regulation shall have been committed by
them or their employees.
"Innkeepers are also subsidiarily liable for the restitution of
goods taken by robbery or theft within their houses from guests lodging
therein, or for the payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper himself, or the
person representing him, of the deposit of such goods within the inn;
and shall furthermore have followed the directions which such innkeeper
or his representative may have given them with respect to the care of
and vigilance over such goods. No liability shall attach in case of robbery
with violence against or intimidation of persons unless committed by the
innkeeper's employees.
"ART. 103. Subsidiary civil liability of other persons. The
subsidiary liability established in the next preceding article shall also
apply to employers, teachers, persons, and corporations engaged in any
kind of industry for felonies committed by their servants, pupils,
workmen, apprentices, or employees in the discharge of their duties."
xxx xxx xxx
"ART. 365. Imprudence and negligence. Any person who,
by reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty of
arresto mayor in its maximum period to prision correccional in its
minimum period; if it would have constituted a less grave felony, the
49
penalty of arresto mayor in its minimum and medium periods shall be
imposed.
"Any person who, by simple imprudence or negligence, shall
commit an act which would otherwise constitute a grave felony, shall
suffer the penalty of arresto mayor in its medium and maximum periods;
if it would have constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed."
It will thus be seen that while the terms of article 1902 of the Civil Code seem to
be broad enough to cover the driver's negligence in the instant case, nevertheless article
1093 limits cuasi-delitos to acts or omissions "not punishable by law." But inasmuch as
article 365 of the Revised Penal Code punishes not only reckless but even simple
imprudence or negligence, the fault or negligence under article 1902 of the Civil Code has
apparently been crowded out. It is this overlapping that makes the "confusion worse
confounded." However, a closer study shows that such a concurrence of scope in regard
to negligent acts does not destroy the distinction between the civil liability arising from a
crime and the responsibility for cuasi- delitos or culpa extra-contractual. The same
negligent act causing damages may produce civil liability arising from a crime under article
100 of the Revised Penal Code, or create an action for cuasi-delito or culpa extra-
contractual under articles 1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms clear and
unmistakable. This legal institution is of ancient lineage, one of its early ancestors being
the Lex Aquilia in the Roman Law. In fact, in Spanish legal terminology, this responsibility
is often referred to as culpa aquiliana. The Partidas also contributed to the genealogy of
the present fault or negligence under the Civil Code, for instance, Law 6, Title 15, of
Partida 7, says: "Tenudo es de fazer emienda, porque, como quier que el non fizo a
sabiendas el dao al otro, pero acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code. According to
article 1089, one of the five sources of obligations is this legal institution of cuasi-
delito or culpa extra- contractual: "los actos . . . en que intervenga cualquier genero de
culpa o negligencia." Then article 1093 provides that this kind of obligation shall be
governed by Chapter II of Title XVI of Book IV, meaning articles 1902-1910. This portion of
the Civil Code is exclusively devoted to the legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code and the culpa
aquiliana or cuasi-delito under the Civil Code are:.
1. That crimes affect the public interest, while cuasi-delitos are only of private
concern.
2. That, consequently, the Penal Code punishes or corrects the criminal act,
while the Civil Code, by means of indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former are
punished only if there is a penal law clearly covering them, while the latter, cuasi-delitos,
include all acts in which "any kind of fault or negligence intervenes." However, it should be
noted that not all violations of the penal law produce civil responsibility, such as begging
in contravention of ordinances, violation of the game laws, infraction of the rules of traffic
when nobody is hurt. (See Colin and Capitant, "Curso Elemental de Derecho Civil," Vol. 3,
p. 728.).
Let us now ascertain what some jurists say on the separate existence of quasi-
delicts and the employer's primary and direct liability under article 1903 of the Civil Code.

Dorado Montero in his essay on "Responsabilidad" in the "Enciclopedia Juridica
Espaola" (Vol. XXVII, p. 414) says:
"El concepto juridico de la responsabilidad civil abarca
diversos aspectos y comprende a diferentes personas. Asi, existe una
responsabilidad civil propiamente dicha, que en ningun caso lleva
aparejada responsabilidad criminal alguna, y otra que es consecuencia
indeclinable de la penal que nace de todo delito o falta."
"The juridical concept of civil responsibility has various
aspects and comprises different persons. Thus, there is a civil
responsibility, properly speaking, which in no case carries with it any
criminal responsibility, and another which is a necessary consequence of
the penal liability as a result of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following case: There
had been a collision between two trains belonging respectively to the Ferrocarril
Cantabrico and the Ferrocarril del Norte. An employee of the latter had been prosecuted in
a criminal case, in which the company had been made a party as subsidiarily responsible
in civil damages. The employee had been acquitted in the criminal case, and the employer,
the Ferrocarril del Norte, had also been exonerated. The question asked was whether the
Ferrocarril Cantabrico could still bring a civil action for damages against the Ferrocarril del
Norte. Maura's opinion was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6,
pp. 511-513):
"Quedando las cosas asi, a proposito de la realidad pura y
neta de los hechos, todavia menos parece sostenible que exista
cosa juzgada acerca de la obligacion civil de indemnizar los quebrantos
y menoscabos inferidos por el choque de los trenes. El titulo en que se
funda la accion para demandar el resarcimiento, no puede confundirse
con las responsabilidades civiles nacidas de delito, siquiera exista en
este, sea el cual sea, una culpa rodeada de notas agravatorias que
motivan sanciones penales, mas o menos severas. La lesion causada
por delito o falta en los derechos civiles, requiere restituciones,
reparaciones o indemnizaciones, que cual la pena misma ataen al
orden publico; por tal motivo vienen encomendadas, de ordinario, al
Ministerio Fiscal; y claro es que si por esta via se enmiendan los
quebrantos y menoscabos, el agraviado excusa procurar el ya
conseguido desagravio; pero esta eventual coincidencia de los efectos,
no borra la diversidad originaria de las acciones civiles para pedir
indemnizacion.
"Estas, para el caso actual (prescindiendo de
culpas contractuales, que no vendrian a cuento y que tienen otro
regimen), dimanan, segun el articulo 1902 del Codigo Civil, de toda
accion u omision, causante de daos o perjuicios, en que intervenga
culpa o negligencia. Es trivial que acciones semejantes son ejercitadas
ante los Tribunales de lo civil cotidianamente, sin que la Justicia punitiva
tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al 128
del Codigo Penal, atentos al espiritu y a los fines sociales y politicos del
mismo, desenvuelven y ordenan la materia de responsabilidades
civiles nacidas de delito, en terminos separados del regimen por ley
comun de la culpa que se denomina aquiliana, por alusion a precedentes
legislativos del Corpus Juris. Seria intempestivo un paralelo entre
aquellas ordenaciones, y la de la obligacion de indemnizar a titulo de
culpa civil; pero viene al caso y es necesaria una de las diferenciaciones
que en el tal paralelo se notarian.
50
"Los articulos 20 y 21 del Codigo Penal, despues de distribuir
a su modo las responsabilidades civiles, entre los que sean por diversos
conceptos culpables del delito o falta, las hacen extensivas a las
empresas y los establecimientos al servicio de los cuales estan los
delincuentes; pero con caracter subsidiario, o sea, segun el texto
literal, en defecto de los que sean responsables criminalmente. No
coincide en ello el Codigo Civil, cuyo articulo 1903, dice; La obligacion
que impone el articulo anterior es exigible, no solo por los actos y
omisiones propios, sino por los de aquellas personas de quienes se debe
responder; personas en la enumeracion de las cuales figuran los
dependientes y empleados de los establecimientos o empresas, sea por
actos del servicio, sea con ocasion de sus funciones. Por esto acontece,
y se observa en la jurisprudencia, que las empresas, despues de
intervenir en las causas criminales con el caracter subsidiario de su
responsabilidad civil por razon del delito, son demandadas y
condenadas directa y aisladamente, cuando se trata de
la obligacion, ante los tribunales civiles.
"Siendo como se ve, diverso el titulo de esta obligacion, y
formando verdadero postulado de nuestro regimen judicial la separacion
entre justicia punitiva y tribunales de lo civil, de suerte que tienen unos y
otros normas de fondo en distintos cuerpos legales, y diferentes modos
de proceder, habiendose por aadidura, abstenido de asistir al juicio
criminal la Compaia del Ferrocarril Cantabrico, que se reservo ejercitar
sus acciones, parece innegable que la de indemnizacion por los daos y
perjuicios que le irrogo el choque, no estuvo sub judice ante el Tribunal
del Jurado, ni fue sentenciada, sino que permanecio intacta, al
pronunciarse el fallo de 21 de marzo. Aun cuando el veredicto no
hubiese sido de inculpabilidad, mostrose mas arriba, que tal accion
quedaba legitimamente reservada para despues del proceso; pero al
declararse que no existio delito, ni responsabilidad dimanada de delito,
materia unica sobre que tenian jurisdiccion aquellos juzgadores, se
redobla el motivo para la obligacion civil ex lege, y se patentiza mas y
mas que la accion para pedir su cumplimiento permanece incolume,
extraa a la cosa juzgada."
"As things are, apropos of the reality pure and simple of the
facts, it seems less tenable that there should be res judicata with regard
to the civil obligation for damages on account of the losses caused by
the collision of the trains. The title upon which the action for reparation is
based cannot be confused with the civil responsibilities born of a crime,
because there exists in the latter, whatever each nature,
a culpa surrounded with aggravating aspects which give rise to penal
measures that are more or less severe. The injury caused by a felony or
misdemeanor upon civil rights requires restitutions, reparations, or
indemnifications which, like the penalty itself, affect public order; for this
reason, they are ordinarily entrusted to the office of the prosecuting
attorney; and it is clear that if by this means the losses and damages are
repaired, the injured party no longer desires to seek another relief; but
this coincidence of effects does not eliminate the peculiar nature of civil
actions to ask for indemnity.
"Such civil actions in the present case (without referring to
contractual faults which are not pertinent and belong to another scope)
are derived, according to article 1902 of the Civil Code, from every act or
omission causing losses and damages in which culpa or negligence

intervenes. It is unimportant that such actions are every day filed before
the civil courts without the criminal courts interfering therewith. Articles
18 to 21 and 121 to 128 of the Penal Code, bearing in mind the spirit and
the social and political purposes of that Code, develop and regulate the
matter of civil responsibilities arising from a crime, separately from the
regime under common law, of culpa which is known as aquiliana, in
accordance with legislative precedent of the Corpus Juris. It would be
unwarranted to make a detailed comparison between the former
provisions and that regarding the obligation to indemnify on account of
civil culpa; but it is pertinent and necessary to point out to one of such
differences.
"Articles 20 and 21 of the Penal Code, after distributing in their
own way the civil responsibilities among those who, for different
reasons, are guilty of felony or misdemeanor, make such civil
responsibilities applicable to enterprises and establishments for which
the guilty parties render service, but with subsidiary character, that is to
say, according to the wording of the Penal Code, in default of those who
are criminally responsible. In this regard, the Civil Code does not
coincide because article 1903 says: 'The obligation imposed by the next
preceding article is demandable, not only for personal acts and
omissions, but also for those of persons for whom another is
responsible.' Among the persons enumerated are the subordinates and
employees of establishments or enterprises, either for acts during their
service or on the occasion of their functions. It is for this reason that it
happens, and it is so observed in judicial decisions, that the companies
or enterprises, after taking part in the criminal cases because of their
subsidiary civil responsibility by reason of the crime, are sued and
sentenced directly and separately with regard to the obligation, before
the civil courts.
"Seeing that the title of this obligation is different, and the
separation between punitive justice and the civil courts being a true
postulate of our judicial system, so that they have different fundamental
norms in different codes, as well as different modes of procedure, and
inasmuch as the Compaia del Ferrocarril Cantabrico has abstained
from taking part in the criminal case and has reserved the right to
exercise its actions, it seems undeniable that the action for
indemnification for the loses and damages caused to it by the collision
was not sub judice before the Tribunal del Jurado, nor was it the subject
of a sentence, but it remained intact when the decision of March 21 was
rendered. Even if the verdict had not been that of acquittal, it has already
been shown that such action had been legitimately reserved till after the
criminal prosecution; but because of the declaration of the non-
existence of the felony and the non- existence of the responsibility
arising from the crime, which was the sole subject matter upon which
the Tribunal del Jurado had jurisdiction, there is greater reason for the
civil obligation ex lege, and it becomes clearer that the action for its
enforcement remain intact and is not res judicata."
Laurent, a jurist who has written a monumental work on the French Civil Code,
on which the Spanish Civil Code is largely based and whose provisions on cuasi-
delito or culpa extra-contractual are similar to those of the Spanish Civil Code, says,
referring to article 1384 of the French Civil Code which corresponds to article 1903,
Spanish Civil Code:
51
"The action can be brought directly against the person
responsible (for another), without including the author of the act. The
action against the principal is accessory in the sense that it implies the
existence of a prejudicial act committed by the employee, but it is not
subsidiary in the sense that it can not be instituted till after the judgment
against the author of the act or at least, that it is subsidiary to the
principal action; the action for responsibility (of the employer) is in itself a
principal action." (Laurent, Principles of French Civil Law, Spanish
translation, Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430),
declares that the responsibility of the employer is principal and not subsidiary. He writes:
"Cuestion 1. La responsabilidad declarada en el articulo 1903
por las acciones u omisiones de aquellas personas por las que se debe
responder, es subsidiaria? es principal? Para contestar a esta pregunta
es necesario saber, en primer lugar, en que se funda el precepto legal.
Es que realmente se impone una responsabilidad por una falta ajena?
Asi parece a primera vista; pero semejante afirmacion seria contraria a la
justicia y a la maxima universal, segun la que las faltas son personales, y
cada uno responde de aquellas que le son imputables. La
responsabilidad de que tratamos se impone con ocasion de un delito o
culpa, pero no por causa de ellos, sino por causa del cuasi delito, esto
es, de la imprudencia o de la negligencia del padre, del tutor, del dueo
o director del establecimiento, del maestro, etc. Cuando cualquiera de
las personas que enumera el articulo citado (menores de edad,
incapacitados, dependientes, aprendices) causan un dao, la ley
presume que el padre, el tutor, el maestro, etc., han cometido una falta
de negligencia para prevenir o evitar el dao. Esta falta es la que la ley
castiga. No hay, pues, responsabilidad por un hecho ajeno, sino en la
apariencia; en realidad la responsabilidad se exige por un hecho propio.
La idea de que esa responsabilidad sea subsidiaria es, por lo tanto,
completamente inadmisible."
"Question No. 1. Is the responsibility declared in article 1903
for the acts or omissions of those persons for whom one is responsible,
subsidiary or principal? In order to answer this question it is necessary to
know, in the first place, on what the legal provision is based. Is it true
that there is a responsibility for the fault of another person? It seems so
at first sight; but such assertion would be contrary to justice and to the
universal maxim that all faults are personal, and that everyone is liable
for those faults that can be imputed to him. The responsibility in question
is imposed on the occasion of a crime or fault, but not because of the
same, but because of the cuasi-delito, that is to say, the imprudence or
negligence of the father, guardian, proprietor or manager of the
establishment, of the teacher, etc. Whenever anyone of the persons
enumerated in the article referred to (minors, incapacitated persons,
employees, apprentices) causes any damage, the law presumes that the
father, guardian, teacher, etc. have committed an act of negligence in
not preventing or avoiding the damage. It is this fault that is condemned
by the law. It is, therefore, only apparent that there is a responsibility for
the act of another; in reality the responsibility exacted is for one's own
act. The idea that such responsibility is subsidiary is, therefore,
completely inadmissible."
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al
Codigo Civil Espaol," says in Vol. VII, p. 743:

"Es decir, no se responde de hechos ajenos, porque se
responde solo de su propia culpa, doctrina del articulo 1902; mas por
excepcion, se responde de la ajena respecto de aquellas personas con
las que media algun nexo o vinculo, que motiva o razona la
responsabilidad. Esta responsabilidad, es directa o es subsidiaria? En el
orden penal, el Codigo de esta clase distingue entre menores e
incapacitados y los demas, declarando directa la primera (articulo 19) y
subsidiaria la segunda (articulos 20 y 21); pero en el orden civil, en el
caso del articulo 1903, ha de entenderse directa, por el tenor del articulo
que impone la responsabilidad precisamente por los actos de aquellas
personas de quienes se deba responder.'"
"That is to say, one is not responsible for the acts of others,
because one is liable only for his own faults, this being the doctrine of
article 1902; but, by exception, one is liable for the acts of those persons
with whom there is a bond or tie which gives rise to the responsibility. Is
this responsibility direct or subsidiary? In the order of the penal law, the
Penal Code distinguishes between minors and incapacitated persons on
the one hand, and other persons on the other, declaring that the
responsibility for the former is direct (article 19), and for the latter,
subsidiary (articles 20 and 21); but in the scheme of the civil law, in the
case of article 1903, the responsibility should be understood as direct,
according to the tenor of that article, for precisely it imposes
responsibility 'for the acts of those persons for whom one should be
responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that court has
upheld the principles above set forth: that a quasi- delict or culpa extra-contractual is a
separate and distinct legal institution, independent from the civil responsibility arising from
criminal liability, and that an employer is, under article 1903 of the Civil Code, primarily and
directly responsible for the negligent acts of his employee.
One of the most important of those Spanish decisions is that of October 21,
1910. In that case, Ramon Lafuente died as the result of having been run over by a street
car owned by the "Compaia Electrica Madrilea de Traccion." The conductor was
prosecuted in a criminal case but he was acquitted. Thereupon, the widow filed a civil
action against the street car company, praying for damages in the amount of 15,000
pesetas. The lower court awarded damages; so the company appealed to the Supreme
Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code because by final
judgment the non-existence of fault or negligence had been declared. The Supreme Court
of Spain dismissed the appeal, saying:.
"Considerando que el primer motivo del recurso se funda en el
equivocado supuesto de que el Tribunal a quo, al condenar a la
Compaia Electrica Madrilea al pago del dao causado con la muerte
de Ramon Lafuente Izquierdo, desconoce el valor y efectos juridicos de
la sentencia absolutoria dictada en la causa criminal que se siguio por el
mismo hecho, cuando es lo cierto que de este han conocido las dos
jurisdicciones bajo diferentes aspectos, y como la de lo criminal declaro
dentro de los limites de su competencia que el hecho de que se trata no
era constitutivo de delito por no haber mediado descuido o negligencia
graves, lo que no excluye, siendo este el unico fundamento del fallo
absolutorio, el concurso de la culpa o negligencia no calificadas, fuente
de obligaciones civiles segun el articulo 1902 del Codigo Civil, y que
alcanzan, segun el 1903, entre otras personas, a los Directores de
establecimientos o empresas por los daos causados por sus
dependientes en determinadas condiciones, es manifiesto que la de lo
52
civil, al conocer del mismo hecho bajo este ultimo aspecto y al condenar
a la Compaia recurrente a la indemnizacion del dao causado por uno
de sus empleados, lejos de infringir los mencionados textos, en relacion
con el articulo 116 de la Ley de Enjuiciamiento Criminal, se ha atenido
estrictamente a ellos, sin invadir atribuciones ajenas a su jurisdiccion
propia, ni contrariar en lo mas minimo el fallo recaido en la causa."
"Considering that the first ground of the appeal is based on
the mistaken supposition that the trial court, in sentencing the Compaia
Madrilea to the payment of the damage caused by the death of Ramon
Lafuente Izquierdo, disregards the value and juridical effects of the
sentence of acquittal rendered in the criminal case instituted on account
of the same act, when it is a fact that the two jurisdictions had taken
cognizance of the same act in its different aspects, and as the criminal
jurisdiction declared within the limits of its authority that the act in
question did not constitute a felony because there was no grave
carelessness or negligence, and this being the only basis of acquittal, it
does not exclude the co-existence of fault or negligence which is not
qualified, and is a source of civil obligations according to article 1902 of
the Civil Code, affecting, in accordance with article 1903, among other
persons, the managers of establishments or enterprises by reason of the
damages caused by employees under certain conditions, it is manifest
that the civil jurisdiction in taking cognizance of the same act in this latter
aspect and in ordering the company, appellant herein, to pay an
indemnity for the damage caused by one of its employees, far from
violating said legal provisions, in relation with article 116 of the Law of
Criminal Procedure, strictly followed the same, without invading
attributes which are beyond its own jurisdiction, and without in any way
contradicting the decision in that cause." (Italics supplied.).
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either separately or with
the street car company. This is precisely what happens in the present case: the driver,
Fontanilla, has not been sued in a civil action, either alone or with his employer.
Second. That the conductor had been acquitted of grave criminal negligence,
but the Supreme Tribunal of Spain said that this did not exclude the co-existence of fault
or negligence, which is not qualified, on the part of the conductor, under article 1902 of
the Civil Code. In the present case, the taxi driver was found guilty of criminal negligence,
so that if he had even sued for his civil responsibility arising from the crime, he would have
been held primarily liable for civil damages, and Barredo would have been held subsidiarily
liable for the same. But the plaintiffs are directly suing Barredo, on his primary
responsibility because of his own presumed negligence which he did not overcome
under article 1903. Thus, there were two liabilities of Barredo: first, the subsidiary one
because of the civil liability of the taxi driver arising from the latter's criminal negligence;
and, second, Barredo's primary liability as an employer under article 1903. The plaintiffs
were free to choose which course to take, and they preferred the second remedy. In so
doing, they were acting within their rights. It might be observed in passing, that the
plaintiffs chose the more expeditious and effective method of relief, because Fontanilla
was either in prison, or had just been released, and besides, he was probably without
property which might be seized in enforcing any judgment against him for damages.
Third. That inasmuch as in the above sentence of October 21, 1910, the
employer was held liable civilly, notwithstanding the acquittal of the employee (the
conductor) in a previous criminal case, with greater reason should Barredo, the employer

in the case at bar, be held liable for damages in a civil suit filed against him because his
taxi driver had been convicted. The degree of negligence of the conductor in the Spanish
case cited was less than that of the taxi driver, Fontanilla, because the former was
acquitted in the previous criminal case while the latter was found guilty of criminal
negligence and was sentenced to an indeterminate sentence of one year and one day to
two years of prision correccional.
(See also Sentence of February 19, 1902, which is similar to the one above
quoted.).
In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an
action was brought against a railroad company for damages because the station agent,
employed by the company, had unjustly and fraudulently, refused to deliver certain articles
consigned to the plaintiff. The Supreme Court of Spain held that this action was properly
under article 1902 of the Civil Code, the court saying:
"Considerando que la sentencia discutida reconoce, en virtud
de los hechos que consigna con relacion a las pruebas del pleito: 1.,
que las expediciones facturadas por la compaia ferroviaria a la
consignacion del actor de las vasijas vacias que en su demanda
relacionan tenian como fin el que este las devolviera a sus remitentes
con vinos y alcoholes; 2., que llegadas a su destino tales mercancias no
se quisieron entregar a dicho consignatario por el jefe de la estacion sin
motivo justificado y con intencion dolosa, y 3., que la falta de entrega
de estas expediciones al tiempo de reclamarlas el demandante le
originaron daos y perjuicios en cantidad de bastante importancia como
expendedor al por mayor que era de vinos y alcoholes por las ganancias
que dejo de obtener al verse privado de servir los pedidos que se le
habian hecho por los remitentes en los envases:
"Considerando que sobre esta base hay necesidad de estimar
los cuatro motivos que integran este recurso, porque la demanda inicial
del pleito a que se contrae no contiene accion que nazca del
incumplimiento del contrato de transporte, toda vez que no se funda en
el retraso de la llegada de las mercancias ni de ningun otro vinculo
contractual entre las partes contendientes, careciendo, por tanto, de
aplicacion el articulo 371 del Codigo de Comercio, en que
principalmente descansa el fallo recurrido, sino que se limita a pedir la
reparacion de los daos y perjuicios producidos en el patrimonio del
actor por la injustificada y dolosa negativa del porteador a la entrega de
las mercancias a su nombre consignadas, segun lo reconoce la
sentencia, y cuya responsabilidad esta claramente sancionada en el
articulo 1902 del Codigo Civil, que obliga por el siguiente a la Compaia
demandada como ligada con el causante de aquellos por relaciones de
caracter economico y de jerarquia administrativa."
"Considering that the sentence in question recognizes, in
virtue of the facts which it declares, in relation to the evidence in the
case: (1) that the invoice issued by the railroad company in favor of the
plaintiff contemplated that the empty receptacles referred to in the
complaint should be returned to the consignors with wines and liquors;
(2) that when the said merchandise reached their destination, their
delivery to the consignee was refused by the station agent without
justification and with fraudulent intent, and (3) that the lack of delivery of
these goods when they were demanded by the plaintiff caused him
losses and damages of considerable importance, as he was a wholesale
vendor of wines and liquors and he failed to realize the profits when he
53
was unable to fill the orders sent to him by the consignors of the
receptacles:
"Considering that upon this basis there is need of upholding
the four assignments of error, as the original complaint did not contain
any cause of action arising from non-fulfilment of a contract of
transportation, because the action was not based on the delay of the
goods nor on any contractual relation between the parties litigant and,
therefore, article 371 of the Code of Commerce, on which the decision
appealed from is based, is not applicable; but it limits itself to asking for
reparation for losses and damages produced on the patrimony of the
plaintiff on account of the unjustified and fraudulent refusal of the carrier
to deliver the goods consigned to the plaintiff as stated by the sentence,
and the carrier's responsibility is clearly laid down in article 1902 of the
Civil Code which binds, in virtue of the next article, the defendant
company, because the latter is connected with the person who caused
the damage by relations of economic character and by administrative
hierarchy." (Emphasis supplied.)
The above case is pertinent because it shows that the same act may come
under both the Penal Code and the Civil Code. In that case, the action of the agent was
unjustified and fraudulent and therefore could have been the subject of a criminal action.
And yet, it was held to be also a proper subject of a civil action under article 1902 of the
Civil Code. It is also to be noted that it was the employer and not the employee who was
being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-
365 [year 1907]), the trial court awarded damages to the plaintiff, a laborer of the
defendant, because the latter had negligently failed to repair a tramway, in consequence
of which the rails slid off while iron was being transported, and caught the plaintiff whose
leg was broken. This Court held:.
"It is contended by the defendant, as its first defense to the
action that the necessary conclusion from these collated laws is that the
remedy for injuries through negligence lies only in a criminal action in
which the official criminally responsible must be made primarily liable
and his employer held only subsidiarily to him. According to this theory
the plaintiff should have procured the arrest of the representative of the
company accountable for not repairing the track, and on his prosecution
a suitable fine should have been imposed, payable primarily by him and
secondarily by his employer.
"This reasoning misconceived the plan of the Spanish codes
upon this subject. Article 1093 of the Civil Code makes obligations
arising from faults or negligence not punished by the law, subject to the
provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:
" 'A person who by an act or omission causes damage to
another when there is fault or negligence shall be obliged to repair the
damage so done.
" 'SEC. 1903. The obligation imposed by the preceding article
is demandable, not only for personal acts and omissions, but also for
those of the persons for whom they should be responsible.
" 'The father, and on his death or incapacity, the mother, is
liable for the damages caused by the minors who live with them.

xxx xxx xxx
" 'Owners or directors of an establishment or enterprise are
equally liable for the damages caused by their employees in the service
of the branches in which the latter may be employed or in the
performance of their duties.
xxx xxx xxx
" '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 damage.'"
"As an answer to the argument urged in this particular action it
may be sufficient to point out that nowhere in our general statutes is the
employer penalized for failure to provide or maintain safe appliances for
his workmen. His obligation therefore is one 'not punished by the laws'
and falls under civil rather than criminal jurisprudence. But the answer
may be a broader one. We should be reluctant, under any conditions, to
adopt a forced construction of these scientific codes, such as is
proposed by the defendant, that would rob some of these articles of
effect, would shut out litigants against their will from the civil courts,
would make the assertion of their rights dependent upon the selection
for prosecution of the proper criminal offender, and render recovery
doubtful by reason of the strict rules of proof prevailing in criminal
actions. Even if these articles had always stood alone, such a
construction would be unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal Procedure of Spain
(Ley de Enjuiciamiento Criminal), which, though never in actual force in
these Islands, was formerly given a suppletory or explanatory effect.
Under article 111 of this law, both classes of action, civil and criminal,
might be prosecuted jointly or separately, but while the penal action was
pending the civil was suspended. According to article 112, the penal
action once started, the civil remedy should be sought therewith, unless
it had been waived by the party injured or been expressly reserved by
him for civil proceedings for the future. If the civil action alone was
prosecuted, arising out of a crime that could be enforced only on private
complaint, the penal action thereunder should be extinguished. These
provisions are in harmony with those of articles 23 and 133 of our Penal
Code on the same subject.
"An examination of this topic might be carried much further,
but the citation of these articles suffices to show that the civil liability
was not intended to be merged in the criminal nor even to be suspended
thereby, except as expressly provided in the law. Where an individual is
civilly liable for a negligent act or omission, it is not required that the
injured party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the enforcement of the
civil right.
"Under article 20 of the Penal Code the responsibility of an
employer may be regarded as subsidiary in respect of criminal actions
against his employees only while they are in process of prosecution, or in
so far as they determine the existence of the criminal act from which
liability arises, and his obligation under the civil law and its enforcement
in the civil courts is not barred thereby unless by the election of the
54
injured person. Inasmuch as no criminal proceeding had been instituted,
growing out of the accident in question, the provisions of the Penal Code
can not affect this action. This construction renders it unnecessary to
finally determine here whether this subsidiary civil liability in penal
actions has survived the laws that fully regulated it or has been
abrogated by the American civil and criminal procedure now in force in
the Philippines.
"The difficulty in construing the articles of the code above
cited in this case appears from the briefs before us to have arisen from
the interpretation of the words of article 1093, 'fault or negligence not
punished by law,' as applied to the comprehensive definition of offenses
in articles 568 and 590 of the Penal Code. It has been shown that the
liability of an employer arising out of his relation to his employee who is
the offender is not to be regarded as derived from negligence punished
by the law, within the meaning of articles 1902 and 1093. More than this,
however, it cannot be said to fall within the class of acts unpunished by
the law, the consequences of which are regulated by articles 1902 and
1903 of the Civil Code. The acts to which these articles are applicable
are understood to be those not growing out of pre-existing duties of the
parties to one another. But where relations already formed give rise to
duties, whether springing from contract or quasi contract, then breaches
of those duties are subject to articles 1101, 1103, and 1104 of the same
code. A typical application of this distinction may be found in the
consequences of a railway accident due to defective machinery supplied
by the employer. His liability to his employee would arise out of the
contract of employment, that to the passengers out of the contract for
passage, while that to the injured bystander would originate in the
negligent act itself."
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 or 9-
year-old child Salvador Bona brought a civil action against Moreta to recover damages
resulting from the death of the child, who had been run over by an automobile driven and
managed by the defendant. The trial court rendered judgment requiring the defendant to
pay the plaintiff the sum of P1,000 as indemnity: This Court in affirming the judgment, said
in part:
"If it were true that the defendant, in coming from the southern
part of Solana Street, had to stop his auto before crossing Real Street,
because he had met vehicles which were going along the latter street or
were coming from the opposite direction along Solana Street, it is to be
believed that, when he again started to run his auto across said Real
Street and to continue its way along Solana Street northward, he should
have adjusted the speed of the auto which he was operating until he had
fully crossed Real Street and had completely reached a clear way on
Solana Street. But, as the child was run over by the auto precisely at the
entrance of Solana Street, this accident could not have occurred if the
auto had been running at a slow speed, aside from the fact that the
defendant, at the moment of crossing Real Street and entering Solana
Street, in a northward direction, could have seen the child in the act of
crossing the latter street from the sidewalk on the right to that on the left,
and if the accident had occurred in such a way that after the automobile
had run over the body of the child, and the child's body had already
been stretched out on the ground, the automobile still moved along a
distance of about 2 meters, this circumstance shows the fact that the
automobile entered Solana Street from Real Street, at a high speed

without the defendant having blown the horn. If these precautions had
been taken by the defendant, the deplorable accident which caused the
death of the child would not have occurred."
It will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the death of the child was
punishable by the Penal Code. Here is therefore a clear instance of the same act of
negligence being a proper subject-matter either of a criminal action with its consequent
civil liability arising from a crime or of an entirely separate and independent civil action for
fault or negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the
separate individuality of a cuasi-delito or culpa aquiliana under the Civil Code has been
fully and clearly recognized, even with regard to a negligent act for which the wrongdoer
could have been prosecuted and convicted in a criminal case and for which, after such a
conviction, he could have been sued for this civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply the same doctrine.
In Bernal and Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the
parents of the five- year-old child, Purificacion Bernal, brought a civil action to recover
damages for the child's death as a result of burns caused by the fault and negligence of
the defendants. On the evening of April 10, 1925, the Good Friday procession was held in
Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal had come from
another municipality to attend the same. After the procession the mother and the daughter
with two others were passing along Gran Capitan Street in front of the offices of the
Tacloban Electric & Ice Plant, Ltd., owned by defendant J. V. House, when an automobile
appeared from the opposite direction. The little girl, who was slightly ahead of the rest,
was so frightened by the automobile that she turned to run, but unfortunately she fell into
the street gutter where hot water from the electric plant was flowing. The child died that
same night from the burns. The trial court dismissed the action because of the
contributory negligence of the plaintiffs. But this Court held, on appeal, that there was no
contributory negligence, and allowed the parents P1,000 in damages from J. V. House
who at the time of the tragic occurrence was the holder of the franchise for the electric
plant. This Court said in part:
"Although the trial judge made the findings of fact hereinbefore
outlined, he nevertheless was led to order the dismissal of the action
because of the contributory negligence of the plaintiffs. It is from this
point that a majority of the court depart from the stand taken by the trial
judge. The mother and her child had a perfect right to be on the principal
street of Tacloban, Leyte, on the evening when the religious procession
was held. There was nothing abnormal in allowing the child to run along
a few paces in advance of the mother. No one could foresee the
coincidence of an automobile appearing and of a frightened child
running and falling into a ditch filled with hot water. The doctrine
announced in the much debated case of Rakes vs. Atlantic Gulf and
Pacific Co. ([1907], 7 Phil., 359), still rule. Article 1902 of the Civil Code
must again be enforced. The contributory negligence of the child and her
mother, if any, does not operate as a bar to recovery, but in its strictest
sense could only result in reduction of the damages."
It is most significant that in the case just cited, this Court specifically applied
article 1902 of the Civil Code. It is thus that although J. V. House could have been
criminally prosecuted for reckless or simple negligence and not only punished but also
made civilly liable because of his criminal negligence, nevertheless this Court awarded
damages in an independent civil action for fault or negligence under article 1902 of the
Civil Code.
55
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915]), the action was for
damages for the death of the plaintiff's daughter alleged to have been caused by the
negligence of the servant in driving an automobile over the child. It appeared that the
cause of the mishap was a defect in the steering gear. The defendant Leynes had rented
the automobile from the International Garage of Manila, to be used by him in carrying
passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the lower court to
pay P1,000 as damages to the plaintiff. On appeal this Court reversed the judgment as to
Leynes on the ground that he had shown that he exercised the care of a good father of a
family, thus overcoming the presumption of negligence under article 1903. This Court said:
"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."
The legal aspect of the case was discussed by this Court thus:.
"Article 1903 of the Civil Code not only establishes liability in
cases of negligence, but also provides when the 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 damage.'"
"From this article two things are apparent: (1) That when an
injury is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on the
part of the master or employer either in the selection of the servant or
employee, or in supervision over him after the selection, or both; and (2)
that that presumption is juris tantum and not juris et de jure, and
consequently, may be rebutted. It follows necessarily that if the employer
shows to the satisfaction of the court that in selection and supervision he
has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.
"This theory bases the responsibility of the master ultimately
on his own negligence and not on that of his servant."
The doctrine of the case just cited was followed by this Court in Cerf vs. Medel
(33 Phil., 37 [year 1915]). In the latter case, the complaint alleged that the defendant's
servant had so negligently driven an automobile, which was operated by defendant as a
public vehicle, that said automobile struck and damaged the plaintiff's motorcycle. This
Court, applying article 1903 and following the rule in Bahia vs. Litonjua and Leynes, said in
part (p. 41) that:
"The master is liable for the negligent acts of his servant where
he is the owner or director of a business or enterprise and the negligent
acts are committed while the servant is engaged in his master's
employment as such owner"
Another case which followed the decision in Bahia vs. Litonjua and Leynes was
Cuison vs. Norton & Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action

for damages brought by Cuison for the death of his seven-year-old son Moises. The little
boy was on his way to school with his sister Marciana. Some large pieces of lumber fell
from a truck and pinned the boy underneath, instantly killing him. Two youths, Telesforo
Binoya and Francisco Bautista, who were working for Ora, an employee of defendant
Norton & Harrison Co., pleaded guilty to the crime of homicide through reckless
negligence and were sentenced accordingly. This Court, applying articles 1902 and 1903,
held:
"The basis of civil law liability is not respondent superior but
the relationship of pater familias. This theory bases the liability of the
master ultimately on his own negligence and not on that of his servant."
(Bahia vs. Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila
Railroad Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year
1930) the plaintiff brought an action for damages for the demolition of its wharf, which had
been struck by the steamer Helen C belonging to the defendant. This Court held (p. 526):
"The evidence shows that Captain Lasa at the time the
plaintiff's wharf collapsed was a duly licensed captain, authorized to
navigate and direct a vessel of any tonnage, and that the appellee
contracted his services because of his reputation as a captain, according
to F. C. Cadwallader. This being so, we are of the opinion that the
presumption of liability against the defendant has been overcome by the
exercise of the care and diligence of a good father of a family in selecting
Captain Lasa, in accordance with the doctrines laid down by this court in
the cases cited above, and the defendant is therefore absolved from all
liability."
It is, therefore, seen that the defendant's theory about his secondary liability is
negatived by the six cases above set forth. He is, on the authority of these cases, primarily
and directly responsible in damages under article 1903, in relation to article 1902, of the
Civil Code.
Let us now take up the Philippine decisions relied upon by the defendant. We
study first, City of Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision
between a truck of the City of Manila and a street car of the Manila Electric Co. took place
on June 8, 1925. The truck was damaged in the amount of P1,788.27. Sixto Eustaquio, the
motorman, was prosecuted for the crime of damage to property and slight injuries through
reckless imprudence. He was found guilty and sentenced to pay a fine of P900, to
indemnify the City of Manila for P1,788.27, with subsidiary imprisonment in case of
insolvency. Unable to collect the indemnity from Eustaquio, the City of Manila filed an
action against the Manila Electric Company to obtain payment, claiming that the
defendant was subsidiarily liable. The main defense was that the defendant had exercised
the diligence of a good father of a family to prevent the damage. The lower court rendered
judgment in favor of the plaintiff. This Court held, in part, that this case was governed by
the Penal Code, saying:
"With this preliminary point out of the way, there is no
escaping the conclusion that the provisions of the Penal Code govern.
The Penal Code in easily understandable language authorizes the
determination of subsidiary liability. The Civil Code negatives its
application by providing that civil obligations arising from crimes or
misdemeanors shall be governed by the provisions of the Penal Code.
The conviction of the motorman was a misdemeanor falling under article
604 of the Penal Code. The act of the motorman was not a wrongful or
negligent act or omission not punishable by law. Accordingly, the civil
obligation connected up with the Penal Code and not with article 1903 of
56
the Civil Code. In other words, the Penal Code affirms its jurisdiction
while the Civil Code negatives its jurisdiction. This is a case of criminal
negligence out of which civil liability arises and not a case of civil
negligence."
xxx xxx xxx
"Our deduction, therefore, is that the case relates to the Penal
Code and not to the Civil Code. Indeed, as pointed out by the trial judge,
any different ruling would permit the master to escape scot- free by
simply alleging and proving that the master had exercised all diligence in
the selection and training of its servants to prevent the damage. That
would be a good defense to a strictly civil action, but might or might not
be to a civil action either as a part of or predicated on conviction for a
crime or misdemeanor. (By way of parenthesis, it may be said further
that the statements here made are offered to meet the argument
advanced during our deliberations to the effect that article 1902 of the
Civil Code should be disregarded and codal articles 1093 and 1903
applied.)"
It is not clear how the above case could support the defendant's proposition,
because the Court of Appeals based its decision in the present case on the defendant's
primary responsibility under article 1903 of the Civil Code and not on his subsidiary liability
arising from Fontanilla's criminal negligence. In other words, the case of City of Manila vs.
Manila Electric Co., supra, is predicated on an entirely different theory, which is the
subsidiary liability of an employer arising from a criminal act of his employee, whereas the
foundation of the decision of the Court of Appeals in the present case is the employer's
primary liability under article 1903 of the Civil Code. We have already seen that this is a
proper and independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the
defendant. A motorman in the employ of the Manila Electric Company had been convicted
of homicide by simple negligence and sentenced, among other things, to pay the heirs of
the deceased the sum of P1,000. An action was then brought to enforce the subsidiary
liability of the defendant as employer under the Penal Code. The defendant attempted to
show that it had exercised the diligence of a good father of a family in selecting the
motorman, and therefore claimed exemption from civil liability. But this Court held:
"In view of the foregoing considerations, we are of opinion and
so hold, (1) that the exemption from civil liability established in article
1903 of the Civil Code for all who have acted with the diligence of a
good father of a family, is not applicable to the subsidiary civil liability
provided in article 20 of the Penal Code."
The above case is also extraneous to the theory of the defendant in the instant
case, because the action there had for its purpose the enforcement of the defendant's
subsidiary liability under the Penal Code, while in the case at bar, the plaintiff's cause of
action is based on the defendant's primary and direct responsibility under article 1903 of
the Civil Code. In fact, the above case destroys the defendant's contention because that
decision illustrates the principle that the employer's primary responsibility under article
1903 of the Civil Code is different in character from his subsidiary liability under the Penal
Code.
In trying to apply the two cases just referred to, counsel for the defendant has
failed to recognize the distinction between civil liability arising from a crime, which is
governed by the Penal Code, and the responsibility for cuasi-delito or culpa
aquiliana under the Civil Code, and has likewise failed to give due importance to the latter
type of civil action.

The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That
case need not be set forth. Suffice it to say that the question involved was also civil liability
arising from a crime. Hence, it is as inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasi-
delitos or culpa aquiliana under the Civil Code. Specifically they show that there is a
distinction between civil liability arising from criminal negligence (governed by the Penal
Code) and responsibility for fault or negligence under articles 1902 to 1910 of the Civil
Code, and that the same negligent act may produce either a civil liability arising from a
crime under the Penal Code, or a separate responsibility for fault or negligence under
articles 1902 to 1910 of the Civil Code. Still more concretely, the authorities above cited
render it inescapable to conclude that the employer in this case the defendant-
petitioner is primarily and directly liable under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be
sufficient to dispose of this case. But inasmuch as we are announcing doctrines that have
been little understood in the past, it might not be inappropriate to indicate their
foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless but also
simple negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only
to fault or negligence not punished by law, according to the literal import of article 1093 of
the Civil Code, the legal institution of culpa aquiliana would have very little scope and
application in actual life. Death or injury to persons and damage to property through any
degree of negligence even the slightest would have to be indemnified only through
the principle of civil liability arising from a crime. In such a state of affairs, what sphere
would remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker
any intention to bring about a situation so absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit
that giveth life. We will not use the literal meaning of the law to smother and render almost
lifeless a principle of such ancient origin and such full-grown development as culpa
aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to 1910 of
the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of evidence is sufficient
to make the defendant pay in damages. There are numerous cases of criminal negligence
which can not be shown beyond reasonable doubt, but can be proved by a
preponderance of evidence. In such cases, the defendant can and should be made
responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise, there
would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make defendant's liability effective,
and that is, to sue the driver and exhaust his (the latter's) property first, would be
tantamount to compelling the plaintiff to follow a devious and cumbersome method of
obtaining relief. True, there is such a remedy under our laws, but there is also a more
expeditious way, which is based on the primary and direct responsibility of the defendant
under article 1903 of the Civil Code. Our view of the law is more likely to facilitate remedy
for civil wrongs, because the procedure indicated by the defendant is wasteful and
productive of delay, it being a matter of common knowledge that professional drivers of
taxis and similar public conveyances usually do not have sufficient means with which to
pay damages. Why then, should the plaintiff be required in all cases to go through this
roundabout, unnecessary, and probably useless procedure? In construing the laws, courts
have endeavored to shorten and facilitate the pathways of right and justice.
57
At this juncture, it should be said that the primary and direct responsibility of
employers and their presumed negligence are principles calculated to protect society.
Workmen and employees should be carefully chosen and supervised in order to avoid
injury to the public. It is the masters or employers who principally reap the profits resulting
from the services of these servants and employees. It is but right that they should
guarantee the latter's careful conduct for the personnel and patrimonial safety of others.
As Theilhard has said, "they should reproach themselves, at least, some for their
weakness, others for their poor selection and all for their negligence." And according to
Manresa, "It is much more equitable and just that such responsibility should fall upon the
principal or director who could have chosen a careful and prudent employee, and not
upon the injured person who could not exercise such selection and who used such
employee because of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.)
Many jurists also base this primary responsibility of the employer on the principle of
representation of the principal by the agent. Thus, Oyuelos says in the work already cited
(Vol. 7, p. 747) that before third persons the employer and employee "vienen a ser como
una sola personalidad, por refundicion de la del dependiente en la de quien le emplea y
utiliza." ("become as one personality by the merging of the person of the employee in that
of him who employs and utilizes him.") All these observations acquire a peculiar force and
significance when it comes to motor accidents, and there is need of stressing and
accentuating the responsibility of owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal Code
and the Civil Code on this subject, which has given rise to the overlapping or concurrence
of spheres already discussed, and for lack of understanding of the character and efficacy
of the action for culpa aquiliana, there has grown up a common practice to seek damages
only by virtue of the civil responsibility arising from a crime, forgetting that there is another
remedy, which is by invoking articles 1902-1910 of the Civil Code. Although this habitual
method is allowed by our laws, it has nevertheless rendered practically useless and
nugatory the more expeditious and effective remedy based on culpa
aquiliana or culpa extra-contractual. In the present case, we are asked to help perpetuate
this usual course. But we believe it is high time we pointed out to the harm done by such
practice and to restore the principle of responsibility for fault or negligence under articles
1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-
delict or culpa aquiliana to flow on its own natural channel, so that its waters may no
longer be diverted into that of a crime under the Penal Code. This will, it is believed, make
for the better safeguarding of private rights because it re- establishes an ancient and
additional remedy, and for the further reason that an independent civil action, not
depending on the issues, limitations and results of a criminal prosecution, and entirely
directed by the party wronged or his counsel, is more likely to secure adequate and
efficacious redress.
In view of the foregoing, the judgment of the Court of Appeals should be and is
hereby affirmed, with costs against the defendant- petitioner.
Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.
||| (Barredo v. Garcia, G.R. No. 48006, [July 8, 1942], 73 PHIL 607-621)
SECOND DIVISION
[G.R. No. L-24803. May 26, 1977.]

PEDRO ELCANO and PATRICIA ELCANO, in their capacity as
Ascendants of Agapito Elcano, deceased, plaintiffs-
appellants, vs. REGINALD HILL, minor, and MARVIN HILL, as father
and Natural Guardian of said minor, defendants-appellees.
Cruz & Avecilla for appellants.
Marvin R. Hill & Associates for appellees.
DECISION
BARREDO, J p:
Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in
Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to
dismiss of defendants, the complaint of plaintiffs for recovery of damages from defendant
Reginald Hill, a minor, married at the time of the occurrence, and his father, the defendant
Marvin Hill, with whom he was living and getting subsistence, for the killing by Reginald of the
son of the plaintiffs, named Agapito Elcano, of which, when criminally prosecuted, the said
accused was acquitted on the ground that his act was not criminal, because of "lack of intent
to kill, coupled with mistake."
Actually, the motion to dismiss based on the following grounds:
"1. The present action is not only against but a violation of section 1,
Rule 107, which is now Rule III, of the Revised Rules of Court;
"2. The action is barred by a prior judgment which is now final and or
in res-adjudicata;
"3. The complaint had no cause of action against defendant Marvin Hill,
because he was relieved as guardian of the other defendant through
emancipation by marriage." (P. 23, Record [p. 4, Record on Appeal.])
was first denied by the trial court. It was only upon motion for reconsideration of the
defendants of such denial, reiterating the above grounds that the following order was
issued:
"Considering the motion for reconsideration filed by the defendants on
January 14, 1965 and after thoroughly examining the arguments therein
contained, the Court finds the same to be meritorious and well-founded.
WHEREFORE, the Order of this Court on December 8, 1964 is hereby
reconsidered by ordering the dismissal of the above entitled case.
"SO ORDERED.
"Quezon City, Philippines, January 29, 1965." (p. 40, Record [p. 21,
Record on Appeal.)
58
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our
resolution the following assignment of errors:
"THE LOWER COURT ERRED IN DISMISSING THE CASE BY
UPHOLDING THE CLAIM OF DEFENDANTS THAT
I
"THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A
VIOLATION OF SECTION 1, RULE 107, NOW RULE 111, OF THE
REVISED RULES OF COURT, AND THAT SECTION 3(c) OF RULE 111,
RULES OF COURT IS INAPPLICABLE;
II
"THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW
FINAL OR RES-ADJUDICATA;
III
"THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF
THE CIVIL CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and
IV
"THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST
DEFENDANT MARVIN HILL BECAUSE HE WAS RELIEVED AS
GUARDIAN OF THE OTHER DEFENDANT THROUGH EMANCIPATION
BY MARRIAGE." (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant-appellee
Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court of First Instance
of Quezon City. After due trial, he was acquitted on the ground that his act was not criminal
because of "lack of intent to kill, coupled with mistake." Parenthetically, none of the parties has
favored Us with a copy of the decision of acquittal, presumably because appellants do not
dispute that such indeed was the basis stated in the court's decision. And so, when appellants
filed their complaint against appellees Reginald and his father, Atty. Marvin Hill, on account of
the death of their son, the appellees filed the motion to dismiss above-referred to.
As We view the foregoing background of this case, the two decisive issues presented for Our
resolution are:
1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal case
wherein the action for civil liability was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code be applied against Atty. Hill,
notwithstanding the undisputed fact that at the time of the occurrence complained of, Reginald,
though a minor, living with and getting subsistence from his father, was already legally married?
The first issue presents no more problem than the need for a reiteration and further clarification
of the dual character, criminal and civil, of fault or negligence as a source of obligation which
was firmly established in this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this
Court postulated, on the basis of a scholarly dissertation by Justice Bocobo on the nature
of culpa aquiliana in relation to culpa criminal or delito and mere culpa or fault, with pertinent
citation of decisions of the Supreme Court of Spain, the works of recognized civilians, and
earlier jurisprudence of our own, that the same given act can result in civil liability not only
under the Penal Code but also under the Civil Code. Thus, the opinion holds:

"The above case is pertinent because it shows that the same act may
come under both the Penal Code and the Civil Code. In that case, the
action of the agent was unjustified and fraudulent and therefore could
have been the subject of a criminal action. And yet, it was held to be also
a proper subject of a civil action under article 1902 of the Civil Code. It is
also to be noted that it was the employer and not the employee who was
being sued." (pp. 615-616, 73 Phil.) 1
"It will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the death
of the child was punishable by the Penal Code. Here is therefore a clear
instance of the same act of negligence being a proper subject matter
either of a criminal action with its consequent civil liability arising from a
crime or of an entirely separate and independent civil action for fault or
negligence under article 1902 of the Civil Code. Thus, in this jurisdiction,
the separate individuality of a cuasi-delito or culpa aquiliana under the
Civil Code has been fully and clearly recognized, even with regard to a
negligent act for which the wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after such a conviction, he
could have been sued for this civil liability arising from his crime." (p.
617, 73 Phil.) 2
"It is most significant that in the case just cited, this Court specifically
applied article 1902 of the Civil Code. It is thus that although J. V. House
could have been criminally prosecuted for reckless or simple negligence
and not only punished but also made civilly liable because of his criminal
negligence, nevertheless this Court awarded damages in an independent
civil action for fault or negligence under article 1902 of the Civil Code."
(p. 618, 73 Phil.) 3
"The legal provisions, authors, and cases already invoked should
ordinarily be sufficient to dispose of this case. But inasmuch as we are
announcing doctrines that have been little understood, in the past, it
might not be inappropriate to indicate their foundations.
"Firstly, the Revised Penal Code in articles 365 punishes not only
reckless but also simple negligence. If we were to hold that articles 1902
to 1910 of the Civil Code refer only to fault or negligence not punished
by law, accordingly to the literal import of article 1093 of the Civil Code,
the legal institution of culpa aquilina would have very little scope and
application in actual life. Death or injury to persons and damage to
property through any degree of negligence even the slightest
would have to be indemnified only through the principle of civil liability
arising from a crime. In such a state of affairs, what sphere would remain
for cuasi-delito or culpa aquiliana? We are loath to impute to the
lawmaker any intention to bring about a situation to absurd and
anomalous. Nor are we, in the interpretation of the laws, disposed to
uphold the letter that killeth rather than the spirit that giveth life. We will
not use the literal meaning of the law to smother and render almost
lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is conserved and
made enduring in articles 1902 to 1910 of the Spanish Civil Code.
"Secondly, to find the accused guilty in a criminal case, proof of guilt
beyond reasonable doubt is required, while in a civil case,
preponderance of evidence is sufficient to make the defendant pay in
59
damages. There are numerous cases of criminal negligence which can
not be shown beyond reasonable doubt, but can be proved by a
preponderance of evidence. In such cases, the defendant can and
should be made responsible in a civil action under articles 1902 to 1910
of the Civil Code. Otherwise, there would be many instances of
unvindicated civil wrongs. Ubi jus ibi remedium." (p. 620, 73 Phil.)
"Fourthly, because of the broad sweep of the provisions of both the
Penal Code and the Civil Code on this subject, which has given rise to
the overlapping or concurrence of spheres already discussed, and for
lack of understanding of the character and efficacy of the action
for culpa aquiliana, there has grown up a common practice to seek
damages only by virtue of the civil responsibility arising from a crime,
forgetting that there is another remedy, which is by invoking articles
1902-1910 of the Civil Code. Although this habitual method is allowed by
our laws, it has nevertheless rendered practically useless and nugatory
the more expeditious and effective remedy based on culpa
aquiliana or culpa extra-contractual. In the present case, we are asked to
help perpetuate this usual course. But we believe it is high time we
pointed out to the harms done by such practice and to restore the
principle of responsibility for fault or negligence under articles 1902 et
seq. of the Civil Code to its full rigor. It is high time we caused the stream
of quasi-delict or culpa aquiliana to flow on its own natural channel, so
that its waters may no longer be diverted into that of a crime under the
Penal Code. This will, it is believed, make for the better safeguarding or
private rights because it re-establishes an ancient and additional
remedy, and for the further reason that an independent civil action, not
depending on the issues, limitations and results of a criminal
prosecution, and entirely directed by the party wronged or his counsel, is
more likely to secure adequate and efficacious redress." (p. 621, 73 Phil.)
Contrary to an immediate impression one might get upon a reading of the foregoing excerpts
from the opinion in Garcia - that the concurrence of the Penal Code and the Civil Code therein
referred to contemplate only acts of negligence and not intentional voluntary acts deeper
reflection would reveal that the thrust of the pronouncements therein is not so limited, but that
in fact it actually extends to fault or culpa. This can be seen in the reference made therein to the
Sentence of the Supreme Court of Spain of February 14, 1919, supra, which involved a case of
fraud or estafa, not a negligent act. Indeed, Article 1093 of the Civil Code of Spain, in force here
at the time of Garcia, provided textually that obligations "which are derived from acts or
omissions in which fault or negligence, not punishable by law, intervene shall be the subject of
Chapter II, Title XV of this book (which refers to quasi-delicts.)" And it is precisely the underline
qualification, "not punishable by law", that Justice Bocobo emphasized could lead to an
undesirable construction or interpretation of the letter of the law that "killeth, rather than the
spirit that giveth life" hence, the ruling that "(W)e will not use the literal meaning of the law to
smother and render almost lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in
articles 1902 to 1910 of the Spanish Civil Code." And so, because Justice Bacobo was
Chairman of the Code Commission that drafted the original text of the new Civil Code, it is to
be noted that the said Code, which was enacted after the Garcia doctrine, no longer uses the
term, "not punishable by law," thereby making it clear that the concept of culpa
aquiliana includes acts which are criminal in character or in violation of the penal law, whether
voluntary or negligent. Thus, the corresponding provisions to said Article 1093 in the new code,
which is Article 1162, simply says, "Obligations derived from quasi-delicts shall be governed by

the provisions of Chapter 2, Title XVII of this Book, (on quasi-delicts) and by special laws." More
precisely, a new provision, Article 2177 of the new code provides:
"ART. 2177. Responsibility for fault or negligence under the preceding
article is entirely separate and distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the defendant."
According to the Code Commission: "The foregoing provision (Article 2177) through at first
sight startling, is not so novel or extraordinary when we consider the exact nature of criminal
and civil negligence. The former is a violation of the criminal law, while the latter is a 'culpa
aquilian' or quasi-delict, of ancient origin, having always had its own foundation and
individuality, separate from criminal negligence. Such distinction between criminal negligence
and 'culpa extra-contractual' or 'cuasi-delito' has been sustained by decision of the Supreme
Court of Spain and maintained as clear, sound and perfectly tenable by Maura, an outstanding
Spanish jurist. Therefore, under the proposed Article 2177, acquittal from an accusation of
criminal negligence, whether on reasonable doubt or not, shall not be a bar to a subsequent
civil action, not for civil liability arising from criminal negligence, but for damages due to a
quasi-delict or 'culpa aquiliana'. But said article forestalls a double recovery." (Report of the
Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the
same argument of Justice Bacobo about construction that upholds "the spirit that giveth life"
rather than that which is literal that killeth the intent of the lawmaker should be observed in
applying the same. And considering that the preliminary chapter on human relations of the new
Civil Code definitely establishes the separability and independence of liability in a civil action for
acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime
fixed by Article 100 of the Revised Penal Code, and, in a sense, the Rules of Court, under
Sections 2 and 3 (c), Rule 111, contemplate also the same separability, it is "more congruent
with the spirit of law, equity and justice, and more in harmony with modern progress", to
borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to
hold, as We do hold, that Article 2176, where it refers to "fault or negligence," covers not only
acts "not punishable by law" but also acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a separate civil action lies against the offender in a
criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided
that the offended party is not allowed, if he is actually charged also criminally, to recover
damages on both scores, and would be entitled in such eventuality only to the bigger award of
the two, assuming the awards made in the two cases vary. In other words, the extinction of civil
liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on
Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as
a quasi-delict only and not as a crime is not estinguished even by a declaration in the criminal
case that the criminal act charged has not happened or has not been committed by the
accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes
voluntary and negligent acts which may be punishable by law. 4
It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished
his liability for quasi-delict, hence that acquittal is not a bar to the instant action against him.
Coming now to the second issue about the effect of Reginald's emancipation by marriage on
the possible civil liability of Atty. Hill, his father, it is also Our considered opinion that the
conclusion of appellees that Atty. Hill is already free from responsibility cannot be upheld.
While it is true that parental authority is terminated upon emancipation of the child (Article 327,
Civil Code), and under Article 397, emancipation takes place "by the marriage of the minor
(child)", it is, however, also clear that pursuant to Article 399, emancipation by marriage of the
minor is not really full or absolute. Thus "(E)mancipation by marriage or by voluntary concession
60
shall terminate parental authority over the child's person. It shall enable the minor to
administer his property as though he were of age, but he cannot borrow money or alienate or
encumber real property without the consent of his father or mother, or guardian. He can sue
and be sued in court only with the assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is responsible. The
father and, in case of his death or incapacity, the mother, are responsible. The father and, in
case of his death or incapacity, the mother, are responsible for the damages caused by the
minor children who live in their company." In the instant case, it is not controverted that
Reginald, although married, was living with his father and getting subsistence from him at the
time of the occurrence in question. Factually, therefore, Reginald was still subservient to and
dependent on his father, a situation which is not unusual.
It must be borne in mind that, according to Manresa, the reason behind the joint and solidary
liability of parents with their offending child under Article 2180 is that is the obligation of the
parent to supervise their minor children in order to prevent them from causing damage to third
persons. 5 On the other hand, the clear implication of Article 399, in providing that a minor
emancipated by marriage may not, nevertheless, sue or be sued without the assistance of the
parents, is that such emancipation does not carry with it freedom to enter into transactions or
do any act that can give rise to judicial litigation. (See Manresa, id., Vol. II, pp. 766-767, 776.)
And surely, killing someone else invites judicial action. Otherwise stated, the marriage of a
minor child does not relieve the parents of the duty to see to it that the child, while still a minor,
does not give answerable for the borrowings of money and alienation or encumbering of real
property which cannot be done by their minor married child without their consent. (Art. 399;
Manresa, supra.)
Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the
emancipation by marriage of Reginald. However, inasmuch as it is evident that Reginald is now
of age, as a matter of equity, the liability of Atty. Hill has become merely subsidiary to that of his
son.
WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in
accordance with the foregoing opinion. Costs against appellees.
Fernando (Chairman), Antonio and Martin, JJ., concur.
Concepcion Jr., J., is on leave.
Martin, J., was designated to sit in the Second Division.
Separate Opinions
AQUINO, J., concurring:
Article 2176 of the Civil Code comprehends any culpable act, which is blameworthy, when
judged by accepted legal standards. "The idea thus expressed is undoubtedly board enough to
include any rational conception of liability for the tortious acts likely to be developed in any
society." (Street, J. in Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39 Phil. 587, 600).
See article 38, Civil Code and the ruling that "the infant tortfeasor is liable in a civil action to the
injured person in the same manner and to the same extent as an adult" (27 Am. Jur. 812 cited
by Bocobo, J., in Magtibay vs. Tiangco, 74 Phil. 576, 579).

||| (Elcano v. Hill, G.R. No. L-24803, [May 26, 1977], 167 PHIL 462-475)
THIRD DIVISION
[G.R. No. 143360. September 5, 2002.]
EQUITABLE LEASING CORPORATION, petitioner, vs. LUCITA
SUYOM, MARISSA ENANO, MYRNA TAMAYO and FELIX
OLEDAN, respondents.
Santos Pilapil & Associates for petitioner.
Mercado Lim & Associates Law Offices for private respondents.
SYNOPSIS
Petitioner sold a Fuso Road Tractor to Ecatine Corporation. However, the sale was not
registered with the Land Transportation Office. The controversy in the present case arose when
the said tractor, driven by Raul Tutor, an employee of Ecatine, rammed into a house cum store
of respondent Myrna Tamayo which resulted to deaths and physical injuries. Tutor was charged
with and later convicted of reckless imprudence resulting in multiple homicide and multiple
physical injuries. The trial court ordered petitioner to pay actual and moral damages and
attorney's fees to respondents. It held that since the Deed of Sale between petitioner and
Ecatine had not been registered with the Land Transportation Office, the legal owner was still
the petitioner. Thus, petitioner was liable to respondents. On appeal, the Court of Appeals
sustained the decision of the trial court. Hence, this petition.
In affirming the assailed decision, the Supreme Court held that petitioner was liable for the
deaths and the injuries complained of, because it was the registered owner of the tractor at the
time of the accident. The Court has consistently ruled 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. In 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. The same principle
applies even if the registered owner of any vehicle does not use it for public service. Since
petitioner remained the registered owner of the tractor, it could not escape primary liability for
the deaths and the injuries arising from the negligence of the driver.
The Court likewise ruled that the award of moral damages in the case at bar is proper. Having
established the liability of petitioner as the registered owner of the vehicle, respondents have
satisfactorily shown the existence of the factual basis for the award and its causal connection
to the acts of Tutor, who is deemed as petitioner's employee. Indeed, the damages and injuries
suffered by respondents were the proximate result of petitioner's tortious act or
omission. ScCDET
SYLLABUS
61
1. CRIMINAL LAW; CIVIL LIABILITY EX DELICTO; PERSONS CIVILLY LIABLE FOR
FELONIES; SUBSIDIARY LIABILITY; ATTACHED TO EMPLOYERS FOR FELONIES
COMMITTED BY THEIR INSOLVENT EMPLOYEES IN THE DISCHARGE OF THE LATTER'S
DUTIES. [U]nder Article 103 of the Revised Penal Code, employers may be held subsidiarily
liable for felonies committed by their employees in the discharge of the latter's duties. This
liability attaches when the employees who are convicted of crimes committed in the
performance of their work are found to be insolvent and are thus unable to satisfy the civil
liability adjudged.
2. CIVIL LAW; OBLIGATIONS AND CONTRACTS; EXTRA-CONTRACTUAL OBLIGATIONS;
QUASI-DELICTS; LIABILITY OF EMPLOYER FOR EMPLOYEE'S ACT OR OMISSION IS DIRECT
AND PRIMARY; REQUISITES TO SUSTAIN CLAIM BASED ON QUASI-DELICT. [U]nder
Article 2176 in relation to Article 2180 of the Civil Code, an action predicated on quasi delict
may be instituted against the employer for an employee's act or omission. The liability for the
negligent conduct of the subordinate is direct and primary, but is subject to the defense of due
diligence in the selection and supervision of the employee. The enforcement of the judgment
against the employer for an action based on Article 2176 does not require the employee to be
insolvent, since the liability of the former is solidary the latter being statutorily considered a
joint tortfeasor. To sustain a claim based on quasi delict, the following requisites must be
proven: (a) damage suffered by the plaintiff, (b) fault or negligence of the defendant, and (c)
connection of cause and effect between the fault or negligence of the defendant and the
damage incurred by the plaintiff.
3. ID.; DAMAGES; LIABILITY EX DELICTO AND CIVIL LIABILITY EX QUASI DELICTO; MAY BE
AVAILED OF IN NEGLIGENCE CASES BUT OFFENDED PARTY CANNOT RECOVER
DAMAGES TWICE FOR SAME ACT OR OMISSION; CASE AT BAR. These two causes of
action (ex delicto or ex quasi delicto) may be availed of, subject to the caveat that the offended
party cannot "recover damages twice for the same act or omission" or under both causes.
Since these two civil liabilities are distinct and independent of each other, the failure to recover
in one will not necessarily preclude recovery in the other. In the instant case, respondents
having failed to recover anything in the criminal case elected to file a separate civil action for
damages, based on quasi delict under Article 2176 of the Civil Code. The evidence is clear that
the deaths and the injuries suffered by respondents and their kins were due to the fault of the
driver of the Fuso tractor.
4. ID.; OBLIGATIONS AND CONTRACTS; EXTRA-CONTRACTUAL OBLIGATIONS; QUASI-
DELICTS; LIABILITY ARISING FROM NEGLIGENCE OF DRIVER IS ASSUMED BY
REGISTERED OWNER OF VEHICLE AT THE TIME OF ACCIDENT; CASE AT BAR. We hold
petitioner liable for the deaths and the injuries complained of, because it was the registered
owner of the tractor at the time of the accident on July 17, 1994. The Court has consistently
ruled 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. In 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. The same principle applies even if the registered owner of any
vehicle does not use it for public service. Since Equitable remained the registered owner of the
tractor, it could not escape primary liability for the deaths and the injuries arising from the
negligence of the driver. EIcTAD
5. ID.; DAMAGES; MORAL DAMAGES; AWARDED IN CASE AT BAR. Moral damages are not
punitive in nature, but are designed to compensate and alleviate in some way the physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury unjustly caused a person. Although incapable
of pecuniary computation, moral damages must nevertheless be somehow proportional to and
in approximation of the suffering inflicted. This is so because moral damages are in the
category of an award designed to compensate the claimant for actual injury suffered, not to

impose a penalty on the wrongdoer. Viewed as an action for quasi delict, the present case falls
squarely within the purview of Article 2219 (2), which provides for the payment of moral
damages in cases of quasi delict. Having established the liability of petitioner as the registered
owner of the vehicle, respondents have satisfactorily shown the existence of the factual basis
for the award and its causal connection to the acts of Raul Tutor, who is deemed as petitioner's
employee. Indeed, the damages and injuries suffered by respondents were the proximate result
of petitioner's tortious act or omission. Further, no proof of pecuniary loss is necessary in order
that moral damages may be awarded, the amount of indemnity being left to the discretion of
the court. The evidence gives no ground for doubt that such discretion was properly and
judiciously exercised by the trial court. The award is in fact consistent with the rule that moral
damages are not intended to enrich the injured party, but to alleviate the moral suffering
undergone by that party by reason of the defendant's culpable action.
DECISION
PANGANIBAN, J p:
In an action based on quasi delict, the registered owner of a motor vehicle is solidarily liable for
the injuries and damages caused by the negligence of the driver, in spite of the fact that the
vehicle may have already been the subject of an unregistered Deed of Sale in favor of another
person. Unless registered with the Land Transportation Office, the sale while valid and
binding between the parties does not affect third parties, especially the victims of accidents
involving the said transport equipment. Thus, in the present case, petitioner, which is the
registered owner, is liable for the acts of the driver employed by its former lessee who has
become the owner of that vehicle by virtue of an unregistered Deed of Sale.
Statement of the Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the May 12,
2000 Decision 1 of the Court of Appeals 2 (CA) in CA-G.R. CV No. 55474. The decretal portion
of the Decision reads as follows:
"WHEREFORE, premises considered, the instant appeal is hereby
DISMISSED for lack of merit. The assailed decision, dated May 5, 1997,
of the Regional Trial Court of Manila, Branch 14, in Civil Case No. 95-
73522, is hereby AFFIRMED with MODIFICATION that the award of
attorney's fees is DELETED." 3
On the other hand, in Civil Case No. 95-73522, the Regional Trial Court (RTC) of Manila (Branch
14) had earlier disposed in this wise:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and
against the defendant Equitable Leasing Corporation ordering said
defendant to pay to the plaintiffs the following:
A. TO MYRNA TAMAYO
1. the sum of P50,000.00 for the death of Reniel Tamayo;
2. P50,000.00 as moral damages; and
62
3. P56,000.00 for the damage to the store and its
contents, and funeral expenses.
B. TO FELIX OLEDAN
1. the sum of P50,000.00 for the death of Felmarie
Oledan;
2. P50,000.00 as moral damages; and
3. P30,000.00 for medical expenses, and funeral
expenses.
C. TO MARISSA ENANO
1. P7,000.00 as actual damages
D. TO LUCITA SUYOM
1. The sum of P5,000.00 for the medical treatment of her
two sons.
The sum of P120,000.00 as and for attorney's fees." 4
The Facts
On July 17, 1994, a Fuso Road Tractor driven by Raul Tutor rammed into the house cum store
of Myrna Tamayo located at Pier 18, Vitas, Tondo, Manila. A portion of the house was
destroyed. Pinned to death under the engine of the tractor were Respondent Myrna Tamayo's
son, Reniel Tamayo, and Respondent Felix Oledan's daughter, Felmarie Oledan. Injured were
Respondent Oledan himself, Respondent Marissa Enano, and two sons of Respondent Lucita
Suyom.
Tutor was charged with and later convicted of reckless imprudence resulting in multiple
homicide and multiple physical injuries in Criminal Case No. 296094-SA, Metropolitan Trial
Court of Manila, Branch 12. 5
Upon verification with the Land Transportation Office, respondents were furnished a copy of
Official Receipt No. 62204139 6 and Certificate of Registration No. 08262797, 7 showing that
the registered owner of the tractor was "Equitable Leasing Corporation/leased to Edwin Lim."
On April 15, 1995, respondents filed against Raul Tutor, Ecatine Corporation ("Ecatine") and
Equitable Leasing Corporation ("Equitable") a Complaint 8 for damages docketed as Civil Case
No. 95-73522 in the RTC of Manila, Branch 14.
The trial court, upon motion of plaintiffs' counsel, issued an Order dropping Raul Tutor, Ecatine
and Edwin Lim from the Complaint, because they could not be located and served with
summonses. 9 On the other hand, in its Answer with Counterclaim, 10 petitioner alleged that
the vehicle had already been sold to Ecatine and that the former was no longer in possession
and control thereof at the time of the incident. It also claimed that Tutor was an employee, not
of Equitable, but of Ecatine.
After trial on the merits, the RTC rendered its Decision ordering petitioner to pay actual and
moral damages and attorney's fees to respondents. It held that since the Deed of Sale between
petitioner and Ecatine had not been registered with the Land Transportation Office, (LTO), the
legal owner was still Equitable. 11 Thus, petitioner was liable to respondents. 12
Ruling of the Court of Appeals

Sustaining the RTC, the CA held that petitioner was still to be legally deemed the
owner/operator of the tractor, even if that vehicle had been the subject of a Deed of Sale in
favor of Ecatine on December 9, 1992. The reason cited by the CA was that the Certificate of
Registration on file with the LTO still remained in petitioner's name. 13 In order that a transfer of
ownership of a motor vehicle can bind third persons, it must be duly recorded in the LTO. 14
The CA likewise upheld respondents' claim for moral damages against petitioner because the
appellate court considered Tutor, the driver of the tractor, to be an agent of the registered
owner/operator. 15
Hence, this Petition. 16
Issues
In its Memorandum, petitioner raises the following issues for the Court's consideration:
I Dated June 4, 1991, the Lease Agreement 32 between petitioner and Edwin Lim stipulated that
"Whether or not the Court of Appeals and the trial court gravely erred
when they decided and held that petitioner [was] liable for damages
suffered by private respondents in an action based on quasi delict for the
negligent acts of a driver who [was] not the employee of the petitioner.
II
"Whether or not the Court of Appeals and the trial court gravely erred
when they awarded moral damages to private respondents despite their
failure to prove that the injuries they suffered were brought by
petitioner's wrongful act." 17
This Court's Ruling
The Petition has no merit.
First Issue:
Liability for Wrongful Acts
Petitioner contends that it should not be held liable for the damages sustained by respondents
and that arose from the negligence of the driver of the Fuso Road Tractor, which it had already
sold to Ecatine at the time of the accident. Not having employed Raul Tutor, the driver of the
vehicle, it could not have controlled or supervised him. 18
We are not persuaded. In negligence cases, the aggrieved party may sue the negligent party
under (1) Article 100 19 of the Revised Penal Code, for civil liability ex delicto; or (2)
under Article 2176 20 of the Civil Code, for civil liability ex quasi delicto. 21
Furthermore, under Article 103 of the Revised Penal Code, employers may be held subsidiarily
liable for felonies committed by their employees in the discharge of the latter's duties. 22 This
liability attaches when the employees who are convicted of crimes committed in the
performance of their work are found to be insolvent and are thus unable to satisfy the civil
liability adjudged. 23
On the other hand, under Article 2176 in relation to Article 2180 24 of the Civil Code, an action
predicated on quasi delict may be instituted against the employer for an employee's act or
omission. The liability for the negligent conduct of the subordinate is direct and primary, but is
subject to the defense of due diligence in the selection and supervision of the employee. 25 The
enforcement of the judgment against the employer for an action based on Article 2176 does not
require the employee to be insolvent, since the liability of the former is solidary the latter
63
being statutorily considered a joint tortfeasor. 26 To sustain a claim based on quasi delict,
the following requisites must be proven: (a) damage suffered by the plaintiff, (b) fault or
negligence of the defendant, and (c) connection of cause and effect between the fault or
negligence of the defendant and the damage incurred by the plaintiff. 27
These two causes of action (ex delicto or ex quasi delicto) may be availed of, subject to the
caveat 28 that the offended party cannot "recover damages twice for the same act or omission"
or under both causes. 29 Since these two civil liabilities are distinct and independent of each
other, the failure to recover in one will not necessarily preclude recovery in the other. 30
In the instant case, respondents having failed to recover anything in the criminal case
elected to file a separate civil action for damages, based on quasi delict under Article 2176 of
the Civil Code. 31 The evidence is clear that the deaths and the injuries suffered by
respondents and their kins were due to the fault of the driver of the Fuso tractor.
"it is the intention of the parties to enter into a FINANCE LEASE AGREEMENT." 33 Under such
scheme, ownership of the subject tractor was to be registered in the name of petitioner, until
the value of the vehicle has been fully paid by Edwin Lim. 34 Further, in the "Lease
Schedule," 35 the monthly rental for the tractor was stipulated, and the term of the Lease was
scheduled to expire on December 4, 1992. After a few months, Lim completed the payments to
cover the full price of the tractor. 36 Thus, on December 9, 1992, a Deed of Sale 37 over the
tractor was executed by petitioner in favor of Ecatine represented by Edwin Lim. However, the
Deed was not registered with the LTO.
We hold petitioner liable for the deaths and the injuries complained of, because it was the
registered owner of the tractor at the time of the accident on July 17, 1994. 38 The Court has
consistently ruled 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. 39 In 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. 40 The same principle applies even if the
registered owner of any vehicle does not use it for public service. 41
Since Equitable remained the registered owner of the tractor, it could not escape primary
liability for the deaths and the injuries arising from the negligence of the driver. 42
The finance-lease agreement between Equitable on the one hand and Lim or Ecatine on the
other has already been superseded by the sale. In any event, it does not bind third persons.
The rationale for this rule has been aptly explained in Erezo v. Jepte, 43 which we quote
hereunder:
". . . . 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." 44
Further, petitioner's insistence on FGU Insurance Corp. v. Court of Appeals is misplaced.
45 First, in FGU Insurance, the registered vehicle owner, which was engaged in a rent-a-car
 64
business, rented out the car. In this case, the registered owner of the truck, which is engaged in WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against
the business of financing motor vehicle acquisitions, has actually sold the truck to Ecatine, petitioner.
which in turn employed Tutor. Second, in FGU Insurance, the registered owner of the vehicle
was not held responsible for the negligent acts of the person who rented one of its cars, SO ORDERED.
because Article 2180 of the Civil Code was not applicable. We held that no vinculum juris as
Puno, Corona and Carpio-Morales, JJ., concur.
employer and employee existed between the owner and the driver. 46 In this case, the
registered owner of the tractor is considered under the law to be the employer of the driver, Sandoval-Gutierrez, J., is on leave.
while the actual operator is deemed to be its agent. 47 Thus, Equitable, the registered owner of
the tractor, is for purposes of the law on quasi delict the employer of Raul Tutor, the driver ||| (Equitable Leasing Corp. v. Suyom, G.R. No. 143360, [September 5, 2002], 437 PHIL 244-
of the tractor. Ecatine, Tutor's actual employer, is deemed as merely an agent of Equitable. 48 259)

True, the LTO Certificate of Registration, dated "5/31/91," qualifies the name of the registered
owner as "EQUITABLE LEASING CORPORATION/Leased to Edwin Lim." But the lease FIRST DIVISION
agreement between Equitable and Lim has been overtaken by the Deed of Sale on December
9, 1992, between petitioner and Ecatine. While this Deed does not affect respondents in
this quasi delict suit, it definitely binds petitioner because, unlike them, it is a party to it. [G.R. No. 175256. August 23, 2012.]

We must stress that the failure of Equitable and/or Ecatine to register the sale with the LTO
should not prejudice respondents, who have the legal right to rely on the legal principle that the LILY LIM, petitioner, vs. KOU CO PING a.k.a. CHARLIE
registered vehicle owner is liable for the damages caused by the negligence of the driver. CO, respondent.
Petitioner cannot hide behind its allegation that Tutor was the employee of Ecatine. This will
effectively prevent respondents from recovering their losses on the basis of the inaction or fault
of petitioner in failing to register the sale. The non-registration is the fault of petitioner, which [G.R. No. 179160. August 23, 2012.]
should thus face the legal consequences thereof.

Second Issue:
KOU CO PING a.k.a. CHARLIE CO, petitioner, vs. LILY LIM,
Moral Damages respondent.
Petitioner further claims that it is not liable for moral damages, because respondents failed to
establish or show the causal connection or relation between the factual basis of their claim and
their wrongful act or omission, if any. 49
DECISION
Moral damages are not punitive in nature, but are designed to compensate 50 and alleviate in
some way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury unjustly caused a
person. 51 Although incapable of pecuniary computation, moral damages must nevertheless be DEL CASTILLO, J p:
somehow proportional to and in approximation of the suffering inflicted. 52 This is so because
moral damages are in the category of an award designed to compensate the claimant for actual
Is it forum shopping for a private complainant to pursue a civil complaint for specific
injury suffered, not to impose a penalty on the wrongdoer. 53
performance and damages, while appealing the judgment on the civil aspect of a criminal
Viewed as an action for quasi delict, the present case falls squarely within the purview of Article case for estafa?
2219 (2), 54 which provides for the payment of moral damages in cases of quasi
Before the Court are consolidated Petitions for Review assailing the separate Decisions of the
delict. 55 Having established the liability of petitioner as the registered owner of the
Second and Seventeenth Divisions of the Court of Appeals (CA) on the above issue.
vehicle, 56 respondents have satisfactorily shown the existence of the factual basis for the
award 57 and its causal connection to the acts of Raul Tutor, who is deemed as petitioner's Lily Lim's (Lim) Petition for Review 1 assails the October 20, 2005 Resolution 2 of the Second
employee. 58 Indeed, the damages and injuries suffered by respondents were the proximate Division in CA-G.R. CV No. 85138, which ruled on the above issue in the affirmative:
result of petitioner's tortious act or omission. 59
Due to the filing of the said civil complaint (Civil Case No. 5112396),
Further, no proof of pecuniary loss is necessary in order that moral damages may be awarded, Charlie Co filed the instant motion to dismiss [Lily Lim's] appeal, alleging
the amount of indemnity being left to the discretion of the court. 60 The evidence gives no that in filing said civil case, Lily Lim violated the rule against forum
ground for doubt that such discretion was properly and judiciously exercised by the trial shopping as the elements of litis pendentia are present.
court. 61 The award is in fact consistent with the rule that moral damages are not intended to
enrich the injured party, but to alleviate the moral suffering undergone by that party by reason This Court agrees. 3
of the defendant's culpable action. 62

xxx xxx xxx
IN VIEW OF THE FOREGOING, the appeal is DISMISSED.
SO ORDERED. 4
On the other hand, Charlie Co's (Co) Petition for Review 5 assails the April 10, 2007
Decision 6 of the Seventeenth Division in CA-G.R. SP No. 93395 for ruling on the same issue in
the negative:
We find no grave abuse of discretion committed by respondent judge.
The elements of litis pendentia and forum-shopping were not met in this
case. 7
xxx xxx xxx
WHEREFORE, in view of the foregoing, the instant petition is DENIED.
This case is REMANDED to the court of origin for further proceedings.
SO ORDERED. 8 EcIDaA
Factual Antecedents
In February 1999, FR Cement Corporation (FRCC), owner/operator of a cement manufacturing
plant, issued several withdrawal authorities 9 for the account of cement dealers and traders, Fil-
Cement Center and Tigerbilt. These withdrawal authorities state the number of bags that the
dealer/trader paid for and can withdraw from the plant. Each withdrawal authority contained a
provision that it is valid for six months from its date of issuance, unless revoked by FRCC
Marketing Department.
Fil-Cement Center and Tigerbilt, through their administrative manager, Gail Borja (Borja), sold
the withdrawal authorities covering 50,000 bags of cement to Co for the amount of P3.15
million or P63.00 per bag. 10 On February 15, 1999, Co sold these withdrawal authorities to Lim
allegedly at the price of P64.00 per bag or a total of P3.2 million. 11
Using the withdrawal authorities, Lim withdrew the cement bags from FRCC on a staggered
basis. She successfully withdrew 2,800 bags of cement, and sold back some of the withdrawal
authorities, covering 10,000 bags, to Co.
Sometime in April 1999, FRCC did not allow Lim to withdraw the remaining 37,200 bags
covered by the withdrawal authorities. Lim clarified the matter with Co and Borja, who
explained that the plant implemented a price increase and would only release the goods once
Lim pays for the price difference or agrees to receive a lesser quantity of cement. Lim objected
and maintained that the withdrawal authorities she bought were not subject to price
fluctuations. Lim sought legal recourse after her demands for Co to resolve the problem with
the plant or for the return of her money had failed.
The criminal case
An Information for Estafa through Misappropriation or Conversion was filed against Co before
Branch 154 of the Regional Trial Court (RTC) of Pasig City. The accusatory portion thereof
reads:
On or about between the months of February and April 1999, in San
Juan, Metro Manila and within the jurisdiction of this Honorable Court,
the accused, with intent to defraud Lily Lim, with grave abuse of
confidence, with unfaithfulness, received in trust from Lily Lim cash
money in the amount of P2,380,800.00 as payment for the 37,200 bags
65
of cement, under obligation to deliver the 37,200 bags of cement to said
Lily Lim, but far from complying with his obligation, misappropriated,
misapplied and converted to his own personal use and benefit the said
amount of P2,300,800.00 [sic] and despite demands, the accused failed
and refused to return said amount, to the damage and prejudice of Lily
Lim in the amount of P2,380,800.00.
Contrary to Law. 12
The private complainant, Lily Lim, participated in the criminal proceedings to prove her
damages. She prayed for Co to return her money amounting to P2,380,800.00, foregone
profits, and legal interest, and for an award of moral and exemplary damages, as well as
attorney's fees. 13
On November 19, 2003, the RTC of Pasig City, Branch 154, rendered its Order 14 acquitting Co
of the estafa charge for insufficiency of evidence. The criminal court's Order reads:
The first and second elements of the crime of estafa [with abuse of
confidence under Article 315, paragraph 1(b)] for which the accused is
being charged and prosecuted were not established by the
prosecution's evidence.
xxx xxx xxx
In view of the absence of the essential requisites of the crime of estafa
for which the accused is being charged and prosecuted, as above
discussed, the Court has no alternative but to dismiss the case against
the accused for insufficiency of evidence. 15
WHEREFORE, in view of the foregoing, the Demurrer to
Evidence is GRANTED, and the accused is hereby ACQUITTED of the
crime of estafa charged against him under the present information for
insufficiency of evidence. Insofar as the civil liability of the accused is
concerned, however, set this case for the reception of his evidence on
the matter on December 11, 2003 at 8:30 o'clock [sic] in the morning.
SO ORDERED. 16
After the trial on the civil aspect of the criminal case, the Pasig City RTC also relieved Co of civil
liability to Lim in its December 1, 2004 Order. 17 The dispositive portion of the Order reads as
follows:
WHEREFORE, premises considered, judgment is hereby rendered
holding the accused CHARLIE CO not civilly liable to the private
complainant Lily Lim.
SO ORDERED. 18
Lim sought a reconsideration of the above Order, arguing that she has presented preponderant
evidence that Co committed estafa against her. 19 SECIcT
The trial court denied the motion in its Order 20 dated February 21, 2005.
On March 14, 2005, Lim filed her notice of appeal 21 on the civil aspect of the criminal case.
Her appeal was docketed as CA-G.R. CV No. 85138 and raffled to the Second Division of the
CA.
The civil action for specific performance

On April 19, 2005, Lim filed a complaint for specific performance and damages before Branch
21 of the RTC of Manila. The defendants in the civil case were Co and all other parties to the
withdrawal authorities, Tigerbilt, Fil-Cement Center, FRCC, Southeast Asia Cement, and La
Farge Corporation. The complaint, docketed as Civil Case No. 05-112396, asserted two causes
of action: breach of contract and abuse of rights. Her allegations read:
ALLEGATIONS COMMON
TO ALL CAUSES OF ACTION
xxx xxx xxx
23. Charlie Co obligated himself to deliver to Lily Lim 50,000 bags of
cement of P64.00 per bag on an x-plant basis within 3 months from the
date of their transaction, i.e., February 15, 1999. Pursuant to said
agreement, Lily Lim paid Charlie Co P3.2 Million while Charlie Co
delivered to Lily Lim FR Cement Withdrawal Authorities representing
50,000 bags of cement.
24. The withdrawal authorities issued by FR Cement Corp. allowed the
assignee or holder thereof to withdraw within a six-month period from
date a certain amount of cement indicated therein. The Withdrawal
Authorities given to Lily Lim were dated either 3 February 1999 or 23
February 1999. The Withdrawal Authorities were first issued to Tigerbilt
and Fil-Cement Center which in turn assigned them to Charlie Co.
Charlie Co then assigned the Withdrawal Authorities to Lily Lim on
February 15, 1999. Through these series of assignments, Lily Lim
acquired all the rights (rights to withdraw cement) granted in said
Withdrawal Authorities.
25. That these Withdrawal Authorities are valid is established by the fact
that FR Cement earlier allowed Lily Lim to withdraw 2,800 bags of
cement on the basis thereof.
26. However, sometime 19 April 1999 (within the three (3)-month period
agreed upon by Charlie Co and Lily Lim and certainly within the six (6)-
month period indicated in the Withdrawal Authorities issued by FR
Cement Corp.), Lily Lim attempted but failed to withdraw the remaining
bags of cement on account of FR Cement's unjustified refusal to honor
the Withdrawal Authorities. . . .
xxx xxx xxx
FIRST CAUSE OF ACTION:
BREACH OF CONTRACT
30. Charlie Co committed and is therefore liable to deliver to Lily Lim
37,200 bags of cement. If he cannot, then he must pay her the current
fair market value thereof.
31. FR Cement Corporation is also liable to deliver to Lily Lim the amount
of cement as indicated in the Withdrawal Authorities it issued. . . . FR
Cement Corporation has no right to impose price adjustments as a
qualification for honoring the Withdrawal Authorities.
32. Fil-Cement Center, Tigerbilt and Gail Borja as the original
holders/assignees of the Withdrawal Authorities repeatedly assured Lily
66
Lim that the same were valid and would be honored. They are liable to
make good on their assurances.
SECOND CAUSE OF ACTION:
ABUSE OF RIGHTS AND UNJUST ENRICHMENT
33. Charlie Co's acts of falsely representing to Lily Lim that she may be
able to withdraw the cement from FR Cement Corp. caused Lily Lim to
incur expenses and losses. Such act was made without justice, without
giving Lily Lim what is due her and without observing honesty and good
faith, all violative of the law, more specifically Articles 19 and 20 of
the Civil Code.Such willful act was also made by Charlie Co in a manner
contrary to morals, good customs or public policy, in violation of Article
21 of the Civil Code.
34. FR Cement Corporation's unjust refusal to honor the Withdrawal
Authorities they issued also caused damage to Lily Lim. Further, FR
Cement Corporation's act of withholding the 37,200 bags of cement
despite earning income therefor constitutes as an unjust enrichment
because FR Cement Corporation acquired income through an act or
performance by another or any other means at the expense of another
without just or legal ground in violation of Article 22 of the Civil
Code. IDCScA
35. Fil-Cement Center, Tigerbilt and Gail Borja's false assurances that
Lily Lim would be able to withdraw the remaining 37,200 bags of cement
caused Lily Lim to incur expenses and losses. . . . Moreover, Fil-Cement
Center admitted receiving payment for said amount of cement, thus they
are deemed to have come into possession of money at the expense of
Lily Lim without just or legal ground, in violation of Article 22 of the Civil
Code.
THIRD CAUSE OF ACTION:
MORAL AND EXEMPLARY DAMAGES and
ATTORNEY'S FEES AND COSTS OF SUIT 22
Lim prayed for Co to honor his contractual commitments either by delivering the 37,200 bags of
cement, making arrangements with FRCC to allow Lim to withdraw the cement, or to pay for
their value. She likewise asked that the defendants be held solidarily liable to her for the
damages she incurred in her failed attempts to withdraw the cement and for the damages they
inflicted on her as a result of their abuse of their rights. 23
Motions to dismiss both actions
In reaction to the filing of the civil complaint for specific performance and damages, Co filed
motions to dismiss the said civil case 24 and Lim's appeal in the civil aspect of the estafa case
or CA-G.R. CV No. 85138. 25 He maintained that the two actions raise the same issue, which is
Co's liability to Lim for her inability to withdraw the bags of cement, 26 and should be
dismissed on the ground of lis pendens and forum shopping.
Ruling of the Court of Appeals Second Division in CA-G.R. CV No. 85138
The appellate court (Second Division) favorably resolved Co's motion and dismissed Lim's
appeal from the civil aspect of the estafa case. In its Resolution dated October 20, 2005, the
CA Second Division held that the parties, causes of action, and reliefs prayed for in Lim's
appeal and in her civil complaint are identical. Both actions seek the same relief, which is the
payment of the value of the 37,200 bags of cement. 27 Thus, the CA Second Division

dismissed Lim's appeal for forum shopping. 28 The CA denied 29 Lim's motion for
reconsideration. 30
Lim filed the instant petition for review, which was docketed as G.R. No. 175256.
Ruling of the Manila Regional Trial Court in Civil Case No. 05-112396
Meanwhile, the Manila RTC denied Co's Motion to Dismiss in an Order 31 dated December 6,
2005. The Manila RTC held that there was no forum shopping because the causes of action
invoked in the two cases are different. It observed that the civil complaint before it is based on
an obligation arising from contract and quasi-delict, whereas the civil liability involved in the
appeal of the criminal case arose from a felony.
Co filed a petition for certiorari, 32 docketed as CA-G.R. SP No. 93395, before the appellate
court. He prayed for the nullification of the Manila RTC's Order in Civil Case No. 05-112396 for
having been issued with grave abuse of discretion. 33
Ruling of the Court of Appeals Seventeenth Division in CA-G.R. SP No. 93395
The CA Seventeenth Division denied Co's petition and remanded the civil complaint to the trial
court for further proceedings. The CA Seventeenth Division agreed with the Manila RTC that the
elements of litis pendentia and forum shopping are not met in the two proceedings because
they do not share the same cause of action. 34
The CA denied 35 Co's motion for reconsideration. 36
Co filed the instant Petition for Review, which was docketed as G.R. No. 179160.
Upon Co's motion, 37 the Court resolved to consolidate the two petitions. 38
Kou Co Ping's arguments
Co maintains that Lim is guilty of forum shopping because she is asserting only one cause of
action in CA-G.R. CV No. 85138 (the appeal from the civil aspect of Criminal Case No. 116377)
and in Civil Case No. 05-112396, which is for Co's violation of her right to receive 37,200 bags
of cement. Likewise, the reliefs sought in both cases are the same, that is, for Co to deliver the
37,200 bags of cement or its value to Lim. That Lim utilized different methods of presenting her
case a criminal action for estafa and a civil complaint for specific performance and damages
should not detract from the fact that she is attempting to litigate the same cause of action
twice. 39 CIHTac
Co makes light of the distinction between civil liability ex contractu and ex delicto. According to
him, granting that the two civil liabilities are independent of each other, nevertheless, the two
cases arising from them would have to be decided using the same evidence and going over the
same set of facts. Thus, any judgment rendered in one of these cases will constitute res
judicata on the other. 40
In G.R. No. 179160, Co prays for the annulment of the CA Decision and Resolution in CA-G.R.
SP No. 93395, for a declaration that Lim is guilty of forum shopping, and for the dismissal of
Civil Case No. 05-112396. 41
In G.R. No. 175256, Co prays for the affirmation of the CA Decision in CA-G.R. CV No. 85138
(which dismissed Lim's appeal from the trial court's decision in Criminal Case No. 116377). 42
Lily Lim's arguments
Lim admits that the two proceedings involve substantially the same set of facts because they
arose from only one transaction. 43 She is quick to add, however, that a single act or omission
does not always make a single cause of action. 44 It can possibly give rise to two separate civil
67
liabilities on the part of the offender (1) ex delicto or civil liability arising from crimes, and
(2) independent civil liabilities or those arising from contracts or intentional torts. The only
caveat provided in Article 2177 of the Civil Code is that the offended party cannot recover
damages twice for the same act or omission. 45 Because the law allows her two independent
causes of action, Lim contends that it is not forum shopping to pursue them. 46
She then explains the separate and distinct causes of action involved in the two cases. Her
cause of action in CA-G.R. CV No. 85138 is based on the crime of estafa. Co violated Lim's
right to be protected against swindling. He represented to Lim that she can withdraw 37,200
bags of cement using the authorities she bought from him. This is a fraudulent representation
because Co knew, at the time that they entered into the contract, that he could not deliver what
he promised. 47 On the other hand, Lim's cause of action in Civil Case No. 05-112396 is based
on contract. Co violated Lim's rights as a buyer in a contract of sale. Co received payment for
the 37,200 bags of cement but did not deliver the goods that were the subject of the sale. 48
In G.R. No. 179160, Lim prays for the denial of Co's petition. 49 In G.R. No. 175256, she prays
for the reversal of the CA Decision in CA-G.R. CV No. 85138, for a declaration that she is not
guilty of forum shopping, and for the reinstatement of her appeal in Criminal Case No. 116377
to the CA. 50
Issue
Did Lim commit forum shopping in filing the civil case for specific performance and damages
during the pendency of her appeal on the civil aspect of the criminal case for estafa?
Our Ruling
A single act or omission that causes damage to an offended party may give rise to two separate
civil liabilities on the part of the offender 51 (1) civil liability ex delicto, that is, civil liability
arising from the criminal offense under Article 100 of the Revised Penal Code, 52 and
(2) independent civil liability, that is, civil liability that may be pursued independently of the
criminal proceedings. The independent civil liability may be based on "an obligation not arising
from the act or omission complained of as a felony," as provided in Article 31 of the Civil
Code (such as for breach of contract or for tort). 53 It may also be based on an act or omission
that may constitute felony but, nevertheless, treated independently from the criminal action by
specific provision of Article 33 of the Civil Code ("in cases of defamation, fraud and physical
injuries").
The civil liability arising from the offense or ex delicto is based on the acts or omissions that
constitute the criminal offense; hence, its trial is inherently intertwined with the criminal action.
For this reason, the civil liability ex delicto is impliedly instituted with the criminal offense. 54 If
the action for the civil liability ex delicto is instituted prior to or subsequent to the filing of the
criminal action, its proceedings are suspended until the final outcome of the criminal
action. 55 The civil liability based on delict is extinguished when the court hearing the criminal
action declares that "the act or omission from which the civil liability may arise did not exist." 56
On the other hand, the independent civil liabilities are separate from the criminal action and
may be pursued independently, as provided in Articles 31 and 33 of the Civil Code, which state
that:
ART. 31. When the civil action is based on an obligation not arising
from the act or omission complained of as a felony, such civil action
may proceed independently of the criminal proceedings and regardless
of the result of the latter. (Emphasis supplied.) aEDCSI
ART. 33. In cases of defamation, fraud, and physical injuries a civil action
for damages, entirely separate and distinct from the criminal action, may

be brought by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a
preponderance of evidence. (Emphasis supplied.)
Because of the distinct and independent nature of the two kinds of civil liabilities, jurisprudence
holds that the offended party may pursue the two types of civil liabilities simultaneously or
cumulatively, without offending the rules on forum shopping, litis pendentia, or res
judicata. 57 As explained in Cancio, Jr. v. Isip: 58
One of the elements of res judicata is identity of causes of action. In the
instant case, it must be stressed that the action filed by petitioner is an
independent civil action, which remains separate and distinct from any
criminal prosecution based on the same act. Not being deemed
instituted in the criminal action based on culpa criminal, a ruling on the
culpability of the offender will have no bearing on said independent civil
action based on an entirely different cause of action, i.e., culpa
contractual.
In the same vein, the filing of the collection case after the dismissal of
the estafa cases against [the offender] did not amount to forum-
shopping. The essence of forum shopping is the filing of multiple suits
involving the same parties for the same cause of action, either
simultaneously or successively, to secure a favorable judgment.
Although the cases filed by [the offended party] arose from the same act
or omission of [the offender], they are, however, based on different
causes of action. The criminal cases for estafa are based on culpa
criminal while the civil action for collection is anchored on culpa
contractual. Moreover, there can be no forum-shopping in the instant
case because the law expressly allows the filing of a separate civil action
which can proceed independently of the criminal action. 59
Since civil liabilities arising from felonies and those arising from other sources of obligations are
authorized by law to proceed independently of each other, the resolution of the present issue
hinges on whether the two cases herein involve different kinds of civil obligations such that they
can proceed independently of each other. The answer is in the affirmative.
The first action is clearly a civil action ex delicto, it having been instituted together with the
criminal action. 60
On the other hand, the second action, judging by the allegations contained in the
complaint, 61 is a civil action arising from a contractual obligation and for tortious
conduct (abuse of rights). In her civil complaint, Lim basically alleges that she entered into a
sale contract with Co under the following terms: that she bought 37,200 bags of cement at the
rate of P64.00 per bag from Co; that, after full payment, Co delivered to her the withdrawal
authorities issued by FRCC corresponding to these bags of cement; that these withdrawal
authorities will be honored by FRCC for six months from the dates written thereon. Lim then
maintains that the defendants breached their contractual obligations to her under the sale
contract and under the withdrawal authorities; that Co and his co-defendants wanted her to pay
more for each bag of cement, contrary to their agreement to fix the price at P64.00 per bag and
to the wording of the withdrawal authorities; that FRCC did not honor the terms of the
withdrawal authorities it issued; and that Co did not comply with his obligation under the sale
contract to deliver the 37,200 bags of cement to Lim. From the foregoing allegations, it is
evident that Lim seeks to enforce the defendants' contractual obligations, given that she has
already performed her obligations. She prays that the defendants either honor their part of the
contract or pay for the damages that their breach has caused her.
68
Lim also includes allegations that the actions of the defendants were committed in such
manner as to cause damage to Lim without regard for morals, good customs and public policy.
These allegations, if proven, would constitute tortious conduct (abuse of rights under the
Human Relations provisions of the Civil Code).
Thus, Civil Case No. 05-112396 involves only the obligations arising from contract and from
tort, whereas the appeal in the estafa case involves only the civil obligations of Co arising from
the offense charged. They present different causes of action, which, under the law, are
considered "separate, distinct, and independent" 62 from each other. Both cases can proceed
to their final adjudication, subject to the prohibition on double recovery under Article 2177 of
the Civil Code.63
WHEREFORE, premises considered, Lily Lim's Petition in G.R. No. 175256 is GRANTED. The
assailed October 20, 2005 Resolution of the Second Division of the Court of Appeals in CA-
G.R. CV No. 85138 is REVERSED and SET ASIDE. Lily Lim's appeal in CA-G.R. CV No. 85138
is ordered REINSTATED and the Court of Appeals is DIRECTED to RESOLVE the same
with DELIBERATE DISPATCH. THCSAE
Charlie Co's Petition in G.R. No. 179160 is DENIED. The assailed April 10, 2007 Decision of the
Seventeenth Division of the Court of Appeals in CA-G.R. SP No. 93395 is AFFIRMED in toto.
SO ORDERED.
Leonardo-de Castro, * Bersamin, Villarama, Jr. and Perlas-Bernabe, ** JJ., concur.
||| (Lim v. Kou Co Ping, G.R. No. 175256, 179160, [August 23, 2012], 693 PHIL 286-302)
EN BANC
[G.R. No. L-12219. March 15, 1918.]
AMADO PICART, plaintiff-appellant, vs. FRANK SMITH, jr., defendant-
appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
SYLLABUS
1. NEGLIGENCE; CRITERION FOR DETERMINING EXISTENCE OF
NEGLIGENCE. The test for determining whether a person is negligent in doing an act
whereby injury or damage results to the person or property of another is this: Would a
prudent man, in the position of the person to whom negligence is attributed, foresee harm
to the person injured as a reasonable consequence of the course about to be pursued. If
so, the law imposes a duty on the actor to refrain from that course or to take precaution
against its mischievous results, and the failure to do so constitutes negligence.

Reasonable foresight of harm, followed by the ignoring of the admonition born of this
prevision, is the constitutive fact in negligence.
2. ID.; CONTRIBUTORY NEGLIGENCE; SUCCESSIVE NEGLIGENT ACTS.
Where both parties are guilty of negligence, but the negligent act of one succeeds that of
the other by an appreciable interval of time, the one who has the last reasonable
opportunity to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party.
3. ID.; ID.; CASE AT BAR. The plaintiff was riding a pony on a bridge. Seeing
an automobile ahead he improperly pulled his horse over to the railing on the right. The
driver of the automobile, however, guided his car toward the plaintiff without diminution of
speed until he was only a few feet away. He then turned to the right but passed so closely
to the horse that the latter being frightened, jumped around and was killed by the passing
car. Held: That although the plaintiff was guilty of negligence in being on the wrong side of
the bridge, the defendant was nevertheless civilly liable for the legal damages resulting
from the collision, as he had a fair opportunity to avoid the accident after he realized the
situation created by the negligence of the plaintiff and failed to avail himself of that
opportunity; while the plaintiff could by no means then place himself in a position of
greater safety.
DECISION
STREET, J p:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant,
Frank Smith, jr., the sum of P31,100, as damages alleged to have been caused by an
automobile driven by the defendant. From a judgment of the Court of First Instance of the
Province of La Union absolving the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that
upon the occasion in question the plaintiff was riding on his pony over said bridge. Before
he had gotten half way across, the defendant approached from the opposite direction in
an automobile, going at the rate of about ten or twelve miles per hour. As the defendant
neared the bridge he saw a horseman on it and blew his horn to give warning of his
approach. He continued his course and after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the apparition or the rapidity of the
approach, he pulled the pony closely up against the railing on the right side of the bridge
instead of going to the left. He says that the reason he did this was that he thought he did
not have sufficient time to get over to the other side. The bridge is shown to have a length
of about 75 meters and a width of 4.08 meters. As the automobile approached, the
defendant guided it toward his left, that being the proper side of the road for the machine.
In so doing the defendant assumed that the horseman would move to the other side. The
pony had not as yet exhibited fright, and the rider had made no sign for the automobile to
stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the
right while yet some distance away or slowing down, continued to approach directly
toward the horse without diminution of speed. When he had gotten quite near, there being
69
then no possibility of the horse getting across to the other side, the defendant quickly
turned his car sufficiently to the right to escape hitting the horse alongside of the railing
where it was then standing; but in so doing the automobile passed in such close proximity
to the animal that it became frightened and turned its body across the bridge with its head
toward the railing. In so doing, it was struck on the hock of the left hind leg by the flange of
the car and the limb was broken. The horse fell and its rider was thrown off with some
violence. From the evidence adduced in the case we believe that when the accident
occurred the free space where the pony stood between the automobile and the railing of
the bridge was probably less than one and one half meters. As a result of its injuries the
horse died. The plaintiff received contusions which caused temporary unconsciousness
and required medical attention for several days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of negligence such as gives
rise to a civil obligation to repair the damage done; and we are of the opinion that he is so
liable. As the defendant started across the bridge, he had the right to assume that the
horse and rider would pass over to the proper side; but as he moved toward the center of
the bridge it was demonstrated to his eyes that this would not be done; and he must in a
moment have perceived that it was too late for the horse to cross with safety in front of the
moving vehicle. In the nature of things this change of situation occurred while the
automobile was yet some distance away; and from this moment it was not longer within
the power of the plaintiff to escape being run down by going to a place of greater safety.
The control of the situation had then passed entirely to the defendant; and it was his duty
either to bring his car to an immediate stop or, seeing that there were no other persons on
the bridge, to take the other side and pass sufficiently far away from the horse to avoid the
danger of collision. Instead of doing this, the defendant ran straight on until he was almost
upon the horse. He was, we think, deceived into doing this by the fact that the horse had
not yet exhibited fright. But in view of the known nature of horses, there was an
appreciable risk that, if the animal in question was unacquainted with automobiles, he
might get excited and jump under the conditions which here confronted him. When the
defendant exposed the horse and rider to this danger he was, in our opinion, negligent in
the eye of the law.
The test by which to determine the existence of negligence in a particular case
may be stated as follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts the
standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor in the situation before him.
The law considers what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a
given situation must of course be always determined in the light of human experience and
in view of the facts involved in the particular case. Abstract speculation cannot here be of
much value but his much can be profitably said: Reasonable men govern their conduct by
the circumstances which are before them or known to them. They are not, and are not
supposed to be, omniscient of the future. Hence they can be expected to take care only
when there is something before them to suggest or warn of danger. Could a prudent man,
in the case under consideration, foresee harm as a result of the course actually pursued? If
so, it was the duty of the actor to take precautions to guard against that harm. Reasonable
foresight of harm, followed by the ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these terms, the proper
criterion for determining the existence of negligence in a given case is this: Conduct is said
to be negligent when a prudent man in the position of the tortfeasor would have foreseen
 70
that an effect harmful to another was sufficiently probable to warrant his foregoing the offense mentioned would be res adjudicata upon the question of his civil liability arising
conduct or guarding against its consequences. from negligence a point upon which it is unnecessary to express an opinion the
action of the justice of the peace in dismissing the criminal proceeding upon the
Applying this test to the conduct of the defendant in the present case we think
preliminary hearing can have no such effect. (See U.S. vs. Banzuela and Banzuela, 31 Phil.
that negligence is clearly established. A prudent man, placed in the position of the
Rep., 564.)
defendant, would, in our opinion, have recognized that the course which he was pursuing
was fraught with risk, and would therefore have foreseen harm to the horse and rider as a From what has been said it results that the judgment of the lower court must be
reasonable consequence of that course. Under these circumstances the law imposed on reversed, and judgment is here rendered that the plaintiff recover of the defendant the sum
the defendant the duty to guard against the threatened harm. of two hundred pesos (P200), with costs of both instances. The sum here awarded is
estimated to include the value of the horse, medical expenses of the plaintiff, the loss or
It goes without saying that the plaintiff himself was not free from fault, for he was
damage occasioned to articles of his apparel, and lawful interest on the whole to the date
guilty of antecedent negligence in planting himself on the wrong side of the road. But as
of this recovery. The other damages claimed by the plaintiff are remote or otherwise of
we have already stated, the defendant was also negligent; and in such case the problem
such characters as not to be recoverable. So ordered.
always is to discover which agent is immediately and directly responsible. It will be noted
that the negligent acts of the two parties were not contemporaneous, since the negligence Arellano, C.J., Torres, Carson, Araullo, Avancea, and Fisher, JJ., concur.
of the defendant succeeded the negligence of the plaintiff by an appreciable interval.
Johnson, J., reserves his vote.
Under these circumstances the law is that the person who has the last fair chance to avoid
the impending harm and fails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party.
Separate Opinions

The decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co.(7 Phil. Rep.,
359) should perhaps be mentioned in this connection. This Court there held that while MALCOLM, J., concurring:
contributory negligence on the part of the person injured did not constitute a bar to
recover, it could be received in evidence to reduce the damages which would otherwise After mature deliberation, I have finally decided to concur with the judgment in
have been assessed wholly against the other party. The defendant company had there this case. I do so because of my understanding of the "last clear chance" rule of the law of
employed the plaintiff, a laborer, to assist in transporting iron rails from a barge in Manila negligence as particularly applied to automobile accidents. This rule cannot be invoked
harbor to the company's yards located not far away. The rails were conveyed upon cars where the negligence of the plaintiff is concurrent with that of the defendant. Again, if a
which were hauled along a narrow track. At a certain spot near the water's edge the track traveller when he reaches the point of collision is in a situation to extricate himself and
gave way by reason of the combined effect of the weight of the car and the insecurity of avoid injury, his negligence at that point will prevent a recovery. But Justice Street finds as
the road bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg a fact that the negligent act of the defendant succeeded that of the plaintiff by an
was caught and broken. It appeared in evidence that the accident was due to the effects of appreciable interval of time, and that at that moment the plaintiff had no opportunity to
a typhoon which had dislodged one of the supports of the track. The court found that the avoid the accident. consequently, the "last clear chance" rule is applicable. In other words,
defendant company was negligent in having failed to repair the bed of the track and also when a traveller has reached a point where he cannot extricate himself and vigilance on
that the plaintiff was, at the moment of the accident, guilty of contributory negligence in his part will not avert the injury, his negligence in reaching that position becomes the
walking at the side of the car instead of being in front or behind. It was held that while the condition and not the proximate cause of the injury and will not preclude a recovery. (Note
defendant was liable to the plaintiff by reason of its negligence in having failed to keep the especially Aiken vs. Metcalf [1917], 102 Atl., 330.)
track in proper repair, nevertheless the amount of the damages should be reduced on
||| (Picart v. Smith, Jr., G.R. No. L-12219, [March 15, 1918], 37 PHIL 809-816)
account of the contributory negligence of the plaintiff. As will be seen the defendant's
negligence in that case consisted in an omission only. The liability of the company arose
from its responsibility for the dangerous condition of its track. In a case like the one now
before us, where the defendant was actually present and operating the automobile which
caused the damage, we do not feel constrained to attempt to weigh the negligence of the EN BANC
respective parties in order to apportion the damage according to the degree of their
relative fault. It is enough to say that the negligence of the defendant was in this case the
immediate and determining cause of the accident and that the antecedent negligence of [G.R. No. L-21291. March 28, 1969.]
the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense PRECIOLITA V. CORLISS, plaintiff-appellant, vs. THE MANILA
pleaded in the defendant's answer, to the effect that the subject matter of the action had RAILROAD CO., defendant-appellee.
been previously adjudicated in the court of a justice of the peace. In this connection it
appears that soon after the accident in question occurred, the plaintiff caused criminal
proceedings to be instituted before a justice of the peace charging the defendant with the
infliction of serious injuries (lesiones graves). At the preliminary investigation the defendant Moises C . Nicomedes for plaintiff-appellant.
was discharged by the magistrate and the proceedings were dismissed. Conceding that
The Government Corporate Counsel for defendant-appellee.
the acquittal of the defendant at a trial upon the merits in a criminal prosecution for the

SYLLABUS
1.REMEDIAL LAW; APPEALS; FINDING OF FACT OF TRIAL COURT BINDING ON APPELLATE
COURT; INSTANT CASE. Plaintiff-appellant filed against defendant-appellee Manila Railroad
Company a complaint for recovery of damages for the death of the former's husband resulting
from a collision between the jeep he was driving and defendant appellee's locomotive. After
trial, the lower court dismissed the complaint and concluded that the accident was the victim's
own doing; and that there was no negligence on the part of defendant-appellee. Held: The
decision appealed from should be affirmed, the finding of the trial court having been arrived at
after a careful judicial appraisal and scrutiny of the evidence of record.
2.ID.; ID.; ID.; PRESUMPTION OF CORRECTNESS OF LOWER COURT'S DECISION. The
lower court's judgment has in its favor the presumption of correctness. It is entitled to great
respect. After all, the lower court had the opportunity of weighing carefully what was testified to
and apparently did not neglect it. There is no affront to justice then if its finding be accorded
acceptance, subject of course to the contingency of ultimate reversal if error or errors,
substantial in character, be shown in the conclusion thus arrived at. It is a fair statement of the
governing principle to say that the appellate function is exhausted when there is found to be
rational basis for the result reached by the trial court.
3.CIVIL LAW; DAMAGES; LIABILITY FOR ACTS CAUSING DAMAGE TO ANOTHER. The
Civil Code is clear that whoever by act or omission causes damage to another, there being
negligence, is under obligation to pay for the damage done. Unless it could be satisfactorily
shown, therefore, that defendant-appellee was guilty of negligence then it could not be held
liable.
4.ID.; ID.; ID.; FACTORS TO CONSIDER WHETHER THERE IS NEGLIGENCE. The factors
that enter the judgment are too many and diverse for this court to imprison them in a formula
sufficient of itself to yield the correct answer to the multi-faceted problems the question of
negligence possess. Every case must be dependent on its facts. The circumstances indicative
of lack of due care must be judged in the light of what could reasonably be expected of the
parties. If the objective standard of prudence be met, then negligence is ruled out.
5.ID.; ID.; ID.; EACH NEGLIGENCE CASE MUST BE DECIDED IN ACCORDANCE WITH THE
PECULIAR CIRCUMSTANCES. Each and every case on questions of negligence is to be
decided in accordance with the peculiar circumstances that present themselves. There can be
no hard and fast rule. There must be that observance of that degree of care, precaution and
vigilance which the situation demands.
DECISION
FERNANDO, J p:
Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-being, and
with reason. The future, bright with promise, looms ahead. One's powers are still to be tested,
but one feels ready for whatever challenge may come his way. There is that heady atmosphere
of self-confidence, at times carried to excess. The temptation to take risks is there, ever so
often, difficult, if not impossible, to resist. There could be then a lessening of prudence and
foresight, qualities usually associated with age. For death seems so remote and contingent an
71
event. Such is not always the case though, and a slip may be attended with consequences
at times unfortunate, even fatal.
Some such thought apparently was in the mind of the lower court when it dismissed the
complaint for recovery of damages filed by plaintiff-appellant, Preciolita V. Corliss, whose
husband, the late Ralph W. Corliss, was, at the tender age of twenty-one, the victim of a grim
tragedy, when the jeep he was driving collided with a locomotive of defendant-appellee Manila
Railroad Company, close to midnight on the evening of February 21, 1957, at the railroad
crossing in Balibago, Angeles, Pampanga, in front of the Clark Air Force Base. In the decision
appealed from, the lower court, after summarizing the evidence, concluded that the deceased
"in his eagerness to beat, so to speak, the oncoming locomotive, took the risk and attempted
to reach the other side, but unfortunately he became the victim of his own miscalculation." 1
The negligence imputed to defendant-appellee was thus ruled out by the lower court,
satisfactory proof to that effect, in its opinion, being lacking. Hence this appeal direct to us, the
amount sought in the concept of damages reaching the sum of P282,065.40. An examination of
the evidence of record fails to yield a basis for a reversal of the decision appealed from. We
affirm.
According to the decision appealed from, there is no dispute as to the following: "In December
1956, plaintiff, 19 years of age, married Ralph W. Corliss, Jr., 21 years of age, . . . ; that Corliss,
Jr. was an air police of the Clark Air Force Base; that at the time of the accident, he was driving
the fatal jeep; that he was then returning in said jeep, together with a P.C. soldier, to the Base;
and that Corliss, Jr. died of serious burns at the Base Hospital the next day, while the soldier
sustained serious physical injuries and burns." 2
Then came a summary of the testimony of two of the witnesses for plaintiff-appellant. Thus:
"Ronald J. Ennis, a witness of the plaintiff, substantially declared in his deposition, . . ., that at
the time of the accident, he was awaiting transportation at the entrance of Clark Field, which
was about 40 to 50 yards away from the tracks and that while there he saw the jeep coming
towards the Base. He said that said jeep slowed down before reaching the crossing, that it
made a brief stop but that it did not stop dead stop. Elaborating, he declared that while it
was slowing down, Corliss, Jr. shifted into first gear and that was what he meant by a brief
stop. He also testified that he could see the train coming from the direction of San Fernando
and that he heard a warning but that it was not sufficient enough to avoid the accident." 3 Also:
"Virgilio de la Paz, another witness of the plaintiff, testified that on the night of February 21,
1957, he was at the Balibago checkpoint and saw the train coming from Angeles and a jeep
going towards the direction of Clark Field. He stated that he heard the whistle of the locomotive
and saw the collision. The jeep, which caught fire, was pushed forward. He helped the P.C.
soldier. He stated that he saw the jeep running fast and heard the tooting of the horn. It did not
stop at the railroad crossing, according to him." 4
After which reference was made to the testimony of the main witness for defendant-appellee,
Teodorico Capili, "who was at the engine at the time of the mishap," and who "testified that
before the locomotive, which had been previously inspected and found to be in good condition,
approached the crossing, that is, about 300 meters away, he blew the siren and repeated it in
compliance with the regulations until he saw the jeep suddenly spurt, and that although the
locomotive was running between 20 and 25 kilometers an hour and although he had applied the
brakes, the jeep was caught in the middle of the tracks." 5
1.The above finding as to the non-existence of negligence attributable to defendant-appellee
Manila Railroad Company comes to us encased in the armor of what admittedly appears to be
a careful judicial appraisal and scrutiny of the evidence of record. It is thus proof against any
attack unless sustained and overwhelming. Not that it is invulnerable, but it is likely to stand
firm in the face of even the most formidable barrage.

In the more traditional terminology, the lower court judgment has in its favor the presumption of
correctness. It is entitled to great respect. After all, the lower court had the opportunity of
weighing carefully what was testified to and apparently did not neglect it. There is no affront to
justice then if its finding be accorded acceptance, subject of course to the contingency of
ultimate reversal if error or errors, substantial in character, be shown in the conclusion thus
arrived at. It is fair statement of the governing principle to say that the appellate function is
exhausted when there is found to be a rational basis for the result reached by the trial court.
As was held in a 1961 decision: "We have already ruled that when the credibility of witnesses is
the one at issue, the trial court's judgment as to their degree of credence deserves serious
consideration by this Court." 6 An earlier expression of the same view is found in Jai-Alai
Corporation v. Ching Kiat: "After going over the record, we find no reason for rejecting the
findings of the court below. The questions raised hinge on credibility, and it is well-settled that
in the absence of compelling reasons, its determination is best left to the trial judge who had
the advantage of hearing the parties testify and of observing their demeanor on the witness
stand." 7
In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record suggests any
arbitrary or abusive conduct on the part of the trial judge in the formulation of the ruling. His
conclusion on the matter is sufficiently borne out by the evidence presented. We are denied,
therefore, the prerogative to disturb that finding, consonant to the time-honored tradition of this
Tribunal to hold trial judges better situated to make conclusions on questions of fact.'" 8 On
this ground alone we can rest the affirmance of the judgment appealed from.
2.Nor is the result different even if no such presumption were indulged in and the matter
examined as if we were exercising original and not appellate jurisdiction. The sad and
deplorable situation in which plaintiff-appellant now finds herself, to the contrary
notwithstanding, we find no reason for reversing the judgment of the lower court.
This action is predicated on negligence, the Civil Code making clear that whoever by act or
omission causes damage to another, there being negligence, is under obligation to pay for the
damage done. 9 Unless it could be satisfactorily shown, therefore, that defendant- appellee
was guilty of negligence then it could not be held liable. The crucial question, therefore, is the
existence of negligence.
The above Civil Code provision, which is reiteration of that found in the Civil Code of Spain,
formerly applicable in this jurisdiction, 10 had been interpreted in earlier decisions. Thus, in
Smith v. Cadwallader Gibson Lumber Co., 11 Manresa was cited to the following effect:
"'Among the questions most frequently raised and upon which the majority of cases have been
decided with respect to the application of this liability, are those referring to the determination
of the damage or prejudice, and to the fault or negligence of the person responsible therefor.
These are the two indispensable factors in the obligations under discussion, for without
damage or prejudice there can be no liability, and although this element is present no indemnity
can be awarded unless arising from some person's fault or negligence.'"
Negligence was defined by us in two 1912 decisions, United States v. Juanillo 12 and United
States v. Barias 13 Cooley's formulation was quoted with approval in both the Juanillo and
Barias decisions. Thus: "Judge Cooley, in his work on Torts (3d ed.), Sec. 1324, defines
negligence to be: 'The failure to observe for the protection of the interests of another person
that degree of care, precaution, and vigilance which the circumstances justly demand, whereby
such other person suffers injury.'" There was likewise a reliance on Ahern v. Oregon Telephone
Co. 14 Thus: "Negligence is want of the care required by the circumstances. It is a relative or
comparative, not an absolute, term and its application depends upon the situation of the parties
and the degree of care and vigilance which the circumstances reasonably require. Where the
72
danger is great, a high degree of care is necessary, and the failure to observe it is a want of
ordinary care under the circumstances."
To repeat, by such a test, no negligence could be imputed to defendant-appellee, and the
action of plaintiff-appellant must necessary fail. The facts, being what they are, compel the
conclusion that the liability sought to be fastened on defendant-appellee had not arisen.
3.Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment appealed from
on the ground that there was a failure to appreciate the true situation. Thus the first three
assigned errors are factual in character. The third assigned error could be summarily disposed
of. It would go against the evidence to maintain the view that the whistle was not sounded and
the brakes not applied at a distance of 300 meters before reaching the crossing.
The first two assigned errors would make much of the failure of the lower court to hold that the
crossing bars not having been put down and there being no guard at the gate-house, there still
was a duty on the part of Corliss to stop his jeep to avoid a collision and that Teodorico Capili,
who drove the engine, was not qualified to do so at the time of the accident. For one cannot
just single out a circumstance and then confidently assign to it decisive weight and
significance. Considered separately, neither of the two above errors assigned would call for a
judgment different in character. Nor would a combination of acts allegedly impressed with
negligence suffice to alter the result. The quantum of proof required still had not been met. The
alleged errors fail of their desired effect. The case for plaintiff-appellant, such as it was, had not
been improved. There is no justification for reversing the judgment of the lower court.
It cannot be stressed too much that the decisive considerations are too variable, too dependent
in the last analysis upon a common sense estimate of the situation as it presented itself to the
parties for us to be able to say that this or that element having been isolated, negligence is
shown. The factors that enter the judgment are too many and diverse for us to imprison them in
the formula sufficient of itself to yield the correct answer to the multi-faceted problems the
question of negligence poses. Every case must be dependent on its facts. The circumstances
indicative of lack of due care must be judged in the light of what could reasonably be expected
of the parties. If the objective standard of prudence be met, then negligence is ruled out.
In this particular case, it would be to show less than fidelity to the controlling facts to impute
negligence to defendant-appellee. The first three errors assigned certainly do not call for that
conclusion.
4.The fourth assigned error is deserving of a more extended treatment. Plaintiff-appellant
apparently had in mind this portion of the opinion of the lower court: "The weight of authorities
is to the effect that a railroad track is in itself a warning or a signal of danger to those who go
upon it, and that those who, for reasons of their own, ignore such warning, do so at their own
risk and responsibility. Corliss, Jr., who undoubtedly had crossed the checkpoint frequently, if
not daily, must have known that locomotive engines and trains usually pass at that particular
crossing where the accident had taken place." 15
Her assignment of error, however, would single out not the above excerpt from the decision
appealed from but what to her is the apparent reliance of the lower court on Mestres v. Manila
Electric Railroad & Light Co. 16 and United States v. Manabat & Pasibi. 17 In the Manabat case,
the doctrine announced by this Court follows: "A person in control of an automobile who
crosses a railroad, even at a regular road crossing, and who does not exercise that precaution
and that control over it as to be able to stop the same almost immediately upon the appearance
of a train, is guilty of criminal negligence, providing a collision occurs and injury results.
Considering the purposes and the general methods adopted for the management of railroads
and railroad trains, we think it is incumbent upon one approaching a railroad crossing to use all
of his faculties of seeing and hearing. He should approach a railroad crossing cautiously and
carefully. He should look and listen and do everything that a reasonably prudent man would do

before he attempts to cross the track." The Mestres doctrine in a suit arising from a collision
between an automobile and a street car is substantially similar. Thus: "It may be said, however,
that, where a person is nearing a street crossing toward which a car is approaching, the duty is
on the party to stop and avoid a collision who can most readily adjust himself to the exigencies
of the case, and where such person can do so more readily, the motorman has a right to
presume that such duty will be performed."
It is true, as plaintiff-appellant would now allege, that there has been a drift away from the
apparent rigid and inflexible doctrine thus set forth in the two above cases as evidenced by
Lilius v. Manila Railroad Co., 18 the controlling facts of which, however, are easily
distinguishable from what had been correctly ascertained in the present case. Such a deviation
from the earlier principle announced is not only true of this jurisdiction but also of the United
States.
This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he had the
following to say: "Especially noteworthy in this respect is the attempt of Mr. Justice Holmes, in
Baltimore & Ohio Railway v. Goodman, to 'lay down a standard once for all,' which would
require an automobile driver approaching a railroad crossing with an obstructed view to stop,
look and listen, and if he cannot be sure otherwise that no train is coming, to get out of the car.
The basic idea behind this is sound enough; it is by no means proper care to cross a railroad
track without taking reasonable precautions against a train, and normally such precautions will
require looking, hearing, and a stop, or at least slow speed, where the view is obstructed." 19
Then, barely seven years later, in 1934, came Pokora v. Wabash Railway, 20 where, according
to Prosser, it being shown that "the only effective stop must be made upon the railway tracks
themselves, in a position of obvious danger, the court disregarded any such uniform rule,
rejecting the 'get out of the car' requirement as 'an uncommon precaution, likely to be futile and
sometimes even dangerous,' and saying that the driver need not always stop. 'Illustrations such
as these,' said Mr. Justice Cardozo, 'bear witness to the need for caution in framing standards
of behavior that amount to rules of law . . . Extraordinary situations may not wisely or fairly be
subjected to tests or regulations that are fitting for the commonplace or normal." 21
What Justice Cardozo announced would merely emphasize what was set forth earlier that each
and every case on questions of negligence is to be decided in accordance with the peculiar
circumstances that present themselves. There can be no hard and fast rule. There must be that
observance of the degree of care, precaution, and vigilance which the situation demands. Thus
defendant-appellee acted. It is undeniable then that no negligence can rightfully be imputed to
it.
What commends itself for acceptance is this conclusion arrived at by the lower court:
"Predicated on the testimonies of the plaintiff's witnesses, on the knowledge of the deceased
and his familiarity with the setup of the checkpoint, the existence of the tracks; and on the
further fact that the locomotive had blown its siren or whistle, which was heard by said
witnesses, it is clear that Corliss, Jr. was so sufficiently warned in advance of the oncoming
train that it was incumbent upon him to avoid a possible accident and this consisted simply
in stopping his vehicle before the crossing and allowing the train to move on. A prudent man
under similar circumstances would have acted in this manner. This, unfortunately, Corliss, Jr.
failed to do." 22
WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the complaint,
is affirmed. Without pronouncement as to costs.
Concepcion, C .J ., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Capistrano,
Teehankee, and Barredo, JJ ., concur.
73
||| (Corliss v. Manila Railroad Co., G.R. No. L-21291, [March 28, 1969], 137 PHIL 101-112)
SECOND DIVISION
[G.R. No. 171636. April 7, 2009.]
NORMAN A. GAID, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
TINGA, J p:
Before the Court is a petition for review on certiorari 1 assailing the 12 July 2005
Decision 2 of the Court of Appeals and its subsequent Resolution 3 denying petitioner's
motion for reconsideration. ScAIaT
Petitioner Norman A. Gaid was charged with the crime of reckless imprudence
resulting in homicide in an information which reads as follow:
That on or about 12:00 high noon of October 25, 2001, infront of the
Laguindingan National High School, Poblacion, Laguindingan, Misamis
Oriental, Philippines and within the jurisdiction of this Honorable Court,
the said accused mentioned above while driving a passenger's jeepney
color white bearing plate no. KVG-771 owned by barangay captain Levy
Etom has no precautionary measure to preempt the accident, did then
and there willfully, unlawfully and feloniously ran [sic] over Michael
Dayata resulting of [sic] his untimely death as pronounced by the
attending physician of Northern Mindanao Medical Center Hospital,
Cagayan de Oro City.
CONTRARY TO LAW. 4
Petitioner entered a not guilty plea. Thereafter, trial ensued.
The antecedent facts are undisputed.
At around 12:00 noon on 25 October 2001, petitioner was driving his passenger
jeepney along a two-lane road where the Laguindingan National High School is located
toward the direction of Moog in Misamis Oriental. His jeepney was filled to seating
capacity. 5 At the time several students were coming out of the school
premises. 6 Meanwhile, a fourteen-year-old student, Michael Dayata (Dayata), was seen
by eyewitness Artman Bongolto (Bongolto) sitting near a store on the left side of the road.
From where he was at the left side of the road, Dayata raised his left hand to flag down
petitioner's jeepney 7 which was traveling on the right lane of the road. 8 However, neither
did petitioner nor the conductor, Dennis Mellalos (Mellalos), saw anybody flagging down
the jeepney to ride at that point. 9

The next thing Bongalto saw, Dayata's feet was pinned to the rear wheel of the
jeepney, after which, he laid flat on the ground behind the jeepney. 10 Another prosecution
witness, Usaffe Actub (Actub), who was also situated on the left side of the street but
directly in front of the school gate, heard "a strong impact coming from the jeep sounding
as if the driver forced to accelerate in order to hurdle an obstacle." 11 Dayata was then
seen lying on the ground 12 and caught in between the rear tires. 13 Petitioner felt that the
left rear tire of the jeepney had bounced and the vehicle tilted to the right side. 14
Mellalos heard a shout that a boy was run over, prompting him to jump off the
jeepney to help the victim. Petitioner stopped and saw Mellalos carrying the body of the
victim. 15 Mellalos loaded the victim on a motorcycle and brought him to the hospital.
Dayata was first brought to the Laguindingan Health Center, but it was closed. Mellalos
then proceeded to the El Salvador Hospital. Upon advice of its doctors, however, Dayata
was brought to the Northern Mindanao Medical Center where he was pronounced dead on
arrival. 16
Dr. Tammy Uy issued an autopsy report stating cranio-cerebral injuries as the
cause of death. 17 She testified that the head injuries of Dayata could have been caused
by having run over by the jeepney. 18
The Municipal Circuit Trial Court (MCTC) of Laguindingan 19 found petitioner
guilty beyond reasonable doubt of the crime charged. The lower court held petitioner
negligent in his driving considering that the victim was dragged to a distance of 5.70
meters from the point of impact. He was also scored for "not stopping his vehicle after
noticing that the jeepney's left rear tire jolted causing the vehicle to tilt towards the
right." 20 On appeal, the Regional Trial Court (RTC) 21 affirmed in toto the decision of the
MCTC.
The Court of Appeals affirmed the trial court's judgment with modification in that
it found petitioner guilty only of simple negligence resulting in homicide.
The Court of Appeals exonerated petitioner from the charge of reckless
imprudence resulting to homicide on the ground that he was not driving recklessly at the
time of the accident. However, the appellate court still found him to be negligent when he
failed "to promptly stop his vehicle to check what caused the sudden jotting of its rear
tire." 22
In its 6 February 2006 Resolution, the Court of Appeals denied petitioner's
motion for reconsideration. 23
Hence, the instant petition.
Petitioner submits that the Court of Appeals erred in finding that "there is (sic)
absolutely lack of precaution on the part of the petitioner when he continued even after he
had noticed that the left rear tire and the jeep tilted to its right side." 24 Petitioner stressed
that he, in fact, stopped his jeep when its left rear tire bounced and upon hearing that
somebody had been ran over. ADTCaI
Moreover, petitioner asserts that the Court of Appeals committed a grave abuse
of discretion in convicting him of the offense of simple negligence resulting in homicide.
Assuming arguendo that he failed to promptly stop his vehicle, petitioner maintains that no
prudent man placed in the same situation could have foreseen the vehicular accident or
could have stopped his vehicle in time when its left rear tire bounced due to the following
reasons: (1) the victim was only a trespasser; (2) petitioner's attention was focused on the
road and the students outside the school's gate; and (3) the jeepney was fully loaded with
passengers and cargoes and it was impossible for the petitioner to promptly stop his
vehicle. 25
74
The Office of the Solicitor-General (OSG) maintained that petitioner was
negligent when he continued to run towards the direction of Moog, Laguindingan,
dragging the victim a few meters from the point of impact, despite hearing that a child had
been run over. 26
The presence or absence of negligence on the part of petitioner is determined
by the operative events leading to the death of Dayata which actually comprised of two
phases or stages. The first stage began when Dayata flagged down the jeepney while
positioned on the left side of the road and ended when he was run over by the jeepney.
The second stage covered the span between the moment immediately after the victim was
run over and the point when petitioner put the jeepney to a halt.
During the first stage, petitioner was not shown to be negligent.
Reckless imprudence consists of voluntarily doing or failing to do, without
malice, an act from which material damage results by reason of an inexcusable lack of
precaution on the part of the person performing or failing to perform such act. 27
In Manzanares v. People, 28 this Court convicted petitioner of the crime of
reckless imprudence resulting in multiple homicide and serious physical injuries when he
was found driving the Isuzu truck very fast before it smashed into a jeepney. 29 Likewise,
in Pangonorom v. People, 30 a public utility driver, who was driving very fast, failed to slow
down and hit a swerving car. He was found negligent by this Court.
In the instant case, petitioner was driving slowly at the time of the accident, as
testified to by two eyewitnesses. Prosecution witness Actub affirmed this fact on cross-
examination, thus:
ATTY. MACUA:
(to the witness)
Q Mr. Witness, when the passenger jeepney passed by the gate of the
Laguindingan National High School, is it running slowly, am I
correct?
A Yes, he was running slowly. 31
The slow pace of the jeepney was seconded by Mellalos:
Q You testified that you heard somebody outside from the vehicle
shouting that a boy was ran over, am I correct?
A Yes, Sir.
Q Now, before you heard that shouting, did you observe any motion
from the vehicle?
A The jeep was moving slowly and I noticed that there was something
that [sic] the jeep a little bit bounced up as if a hump that's the
time I heard a shout from outside. 32
Petitioner stated that he was driving at no more than 15 kilometers per hour. 33
It appears from the evidence Dayata came from the left side of the street.
Petitioner, who was driving the jeepney on the right lane, did not see the victim flag him
down. He also failed to see him go near the jeepney at the left side. Understandably,
petitioner was focused on the road ahead. In Dayata's haste to board the jeep which was

then running, his feet somehow got pinned to the left rear tire, as narrated by Bongolto.
Actub only saw Dayata after he heard a strong impact coming from the jeep.
With the foregoing facts, petitioner can not be held liable during the first stage.
Specifically, he cannot be held liable for reckless imprudence resulting in homicide, as
found by the trial court. The proximate cause of the accident and the death of the victim
was definitely his own negligence in trying to catch up with the moving jeepney to get a
ride.
In the instant case, petitioner had exercised extreme precaution as he drove
slowly upon reaching the vicinity of the school. He cannot be faulted for not having seen
the victim who came from behind on the left side. TCIEcH
However, the Court of Appeals found petitioner guilty of simple negligence
resulting in homicide for failing to stop driving at the time when he noticed the bouncing of
his vehicle. Verily, the appellate court was referring to the second stage of the incident.
Negligence has been defined as the failure to observe for the protection of the
interests of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury. 34
The elements of simple negligence: are (1) that there is lack of precaution on the
part of the offender; and (2) that the damage impending to be caused is not immediate or
the danger is not clearly manifest. 35
The standard test in determining whether a person is negligent in doing an act
whereby injury or damage results to the person or property of another is this: could a
prudent man, in the position of the person to whom negligence is attributed, foresee harm
to the person injured as a reasonable consequence of the course actually pursued? If so,
the law imposes a duty on the actor to refrain from that course or to take precautions to
guard against its mischievous results, and the failure to do so constitutes negligence.
Reasonable foresight of harm, followed by the ignoring of the admonition born of this
provision, is always necessary before negligence can be held to exist. 36
In Philippine National Construction Corporation v. Court of Appeals, 37 the
petitioner was the franchisee that operates and maintains the toll facilities in the North and
South Luzon Toll Expressways. It failed to exercise the requisite diligence in maintaining
the NLEX safe for motorists. The lighted cans and lane dividers on the highway were
removed even as flattened sugarcanes lay scattered on the ground. The highway was still
wet from the juice and sap of the flattened sugarcanes. The petitioner should have
foreseen that the wet condition of the highway would endanger motorists passing by at
night or in the wee hours of the morning. 38 Consequently, it was held liable for damages.
In an American case, Hernandez v. Lukas, 39 a motorist traveling within the
speed limit and did all was possible to avoid striking a child who was then six years old
only. The place of the incident was a neighborhood where children were playing in the
parkways on prior occasions. The court ruled that it must be still proven that the driver did
not exercise due care. The evidence showed that the driver was proceeding in lawful
manner within the speed limit when the child ran into the street and was struck by the
driver's vehicle. Clearly, this was an emergency situation thrust upon the driver too
suddenly to avoid.
In this case, the courts below zeroed in on the fact that petitioner did not stop
the jeepney when he felt the bouncing of his vehicle, a circumstance which the appellate
court equates with negligence. Petitioner contends that he did not immediately stop
because he did not see anybody go near his vehicle at the time of the incident. 40
Assuming arguendo that petitioner had been negligent, it must be shown that his
negligence was the proximate cause of the accident. Proximate cause is defined as that
75
which, in the natural and continuous sequence, unbroken by any efficient, intervening
cause, produces the injury, and without which the result would not have occurred. 41 In
order to establish a motorist's liability for the negligent operation of a vehicle, it must be
shown that there was a direct causal connection between such negligence and the injuries
or damages complained of. Thus, negligence that is not a substantial contributing factor in
the causation of the accident is not the proximate cause of an injury. 42
The head injuries sustained by Dayata at the point of impact proved to be the
immediate cause of his death, as indicated in the post-mortem findings. 43 His skull was
crushed as a result of the accident. Had petitioner immediately stopped the jeepney, it
would still not have saved the life of the victim as the injuries he suffered were fatal.
The evidence on record do not show that the jeepney dragged the victim after
he was hit and run over by the jeepney. Quite the contrary, the evidence discloses that the
victim was not dragged at all. In fact, it is the other way around. Bongolto narrated that
after the impact, he saw Dayata left behind the jeepney. 44 Actub saw Dayata in a prone
position and bleeding within seconds after impact. 45 Right after the impact, Mellalos
immediately jumped out of the jeepney and saw the victim lying on the ground. 46 The
distance of 5.70 meters is the length of space between the spot where the victim fell to the
ground and the spot where the jeepney stopped as observed by the trial judge during the
ocular inspection at the scene of the accident. 47
Moreover, mere suspicions and speculations that the victim could have lived
had petitioner stopped can never be the basis of a conviction in a criminal case. 48 The
Court must be satisfied that the guilt of the accused had been proven beyond reasonable
doubt. 49 Conviction must rest on nothing less than a moral certainty of the guilt of the
accused. The overriding consideration is not whether the court doubts the innocence of
the accused but whether it entertains doubt as to his guilt. 50 aIcSED
Clearly then, the prosecution was not able to establish that the proximate cause
of the victim's death was petitioner's alleged negligence, if at all, even during the second
stage of the incident.
If at all again, petitioner's failure to render assistance to the victim would
constitute abandonment of one's victim punishable under Article 275 of the Revised Penal
Code. However, the omission is not covered by the information. Thus, to hold petitioner
criminally liable under the provision would be tantamount to a denial of due process.
Therefore, petitioner must be acquitted at least on reasonable doubt. The award
of damages must also be deleted pursuant to Article 2179 of the Civil Code which states
that when the plaintiff's own negligence was the immediate and proximate cause of his
injury, he cannot recover damages.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals
dated 12 July 2005 is REVERSED and SET ASIDE. Petitioner Norman A. Gaid is
ACQUITTED of the crime of Simple Negligence Resulting in Homicide as found by the
Court of Appeals and of the charge of Reckless Imprudence Resulting in Homicide in
Criminal Case No. 1937 of the MCTC of Laguindingan, Misamis Oriental.
SO ORDERED.
Quisumbing, Carpio-Morales and Peralta, JJ., concur.
Velasco, Jr., J., pls. see dissent.
Separate Opinions

VELASCO, JR., J., dissenting:
With all due respect to my esteemed colleague, Mr. Justice Tinga, who has, as
usual, prepared a well-written and comprehensive ponencia, I regret my inability to share
the view that petitioner Norman A. Gaid should be acquitted of the crime of Simple
Negligence Resulting in Homicide.
Simple negligence was shown on the part of petitioner at the second stage of
the operative events leading to the death of Dayata. The second stage constituted the time
between the moment immediately after the victim was run over and the point when
petitioner stopped the jeepney.
Article 365 of the Revised Penal Code (RPC) defines "simple negligence" as one
that "consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest."
The elements of simple imprudence are (1) that there is lack of precaution on the
part of the offender; and (2) that the damage impending to be caused is not immediate or
the danger is not clearly manifest. 1 As early as in People v. Vistan, 2 the Court defined
simple negligence, penalized under what is now Art. 365 of the RPC, as "a mere lack of
prevision in a situation where either the threatened harm is not immediate or the danger
not openly visible." Elsewise put, the gravamen of the offense of simple negligence is the
failure to exercise the diligence necessitated or called for by the situation which was not
immediately life-destructive but which culminated, in the present case, in the death of a
human being.
On October 25, 2001, on or about 12:00 high noon, the victim Dayata was
waiting for a ride home in front of the gate of Laguindingan National High School, Misamis
Oriental when he was run over by a passenger utility jeep, driven by petitioner. Dayata was
dragged to a distance of 5.7 meters from the point of impact before petitioner stopped the
jeep which was running at an estimated speed of 15 kilometers per hour. Petitioner did not
get off to attend to the victim; only the conductor did. The conductor loaded the victim on
a motorcycle, and brought the victim to the hospital. The victim was declared dead on
arrival. Petitioner claimed that he did not see the victim prior to the accident and was
unaware of how it happened because the passenger jeep was fully loaded.
The evidence shows that petitioner continued on his route even after sensing
that he had run over a "hard object". At this point, petitioner should have displayed
precaution by stopping on his tracks. Unfortunately, this was not done. Instead, even after
he heard the shout "adunay bata naligsan!" which means "a child has been run over,"
petitioner nonetheless continued to run towards the direction of Moog, Laguindingan,
dragging the victim a few meters from the point of impact. His lack of care was, thus,
perceivable.
Indeed, petitioner could not exonerate himself from his negligent act. He failed
the test of being a prudent man. The test for determining whether or not a person is
negligent in doing an act that results in damage or injury to the person or property of
another is: Would a prudent man, in the position of the person to whom negligence is
attributed, foresee harm to the person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes the duty on the doer to refrain from
that course or take precaution against its mischievous results, and the failure to do so
constitutes negligence. Reasonable foresight of harm, followed by ignoring the admonition
borne of this prevision, is the constitutive fact in negligence. 3 CcHDSA
Even the Death Certificate of the victim and the testimonies of Dr. Remedios L.
Uy and Dr. Tammy L. Uy of the National Bureau of Investigation proved that the victim
76
died of injuries caused by the force or impact and found extensive/serious fractures and
disfigurement as described in the Autopsy Report. 4
Dr. Tammy further testified that based on the type, multiplicity, and severity of
the injuries to the victim's head, he believed that the head was run over and subsequently,
the body was dragged also based on the multiplicity of the abrasions. 5
The degree of precaution and diligence required of an individual in any given
case so as to avoid being charged with recklessness varies with the degree of the danger.
If the danger of doing harm to a person or to another's property, on account of a certain
line of conduct, is great, the individual who chooses to follow that particular course of
conduct is compelled to be very careful in order to prevent or avoid the damage or injury.
On the other hand, if the danger is small, very little care is required. It is, thus, possible
that there are infinite degrees of precaution or diligence, from the most slight and
instantaneous thought or the transitory glance of care to the most vigilant effort. The duty
of the person to employ more or less degree of care in such cases will depend upon the
circumstances of each particular case. 6
An example of simple imprudence is a case where the driver of a cart, passing
along the street of a city at the speed prescribed by the ordinances and leading his team
from the side by a strap attached to the bridle or head of one of the horses, on turning a
corner and in a moment of distraction, does not see a child asleep in the gutter on the side
of the team opposite to him, by reason whereof the child is run over by the cart and killed.
The act cannot be denominated as purely accidental, because, if the cart driver had been
paying attention to his duty, he would have seen the child and very likely would have been
able to avoid the accident. Nor can it be called gross or reckless negligence, because he
was not able to foresee the extremely unusual occurrence of a child being asleep in the
gutter. 7
In the fairly similar case of People v. De los Santos, 8 where petitioner Glenn De
los Santos run over several Philippine National Police (PNP) trainees doing their jogging,
killing 11 of them and injuring another 10, this Court set aside the Regional Trial Court's
conviction of Glenn for the complex crime of multiple murder, multiple frustrated murder
and multiple attempted murder, with the use of motor vehicle as the qualifying
circumstance. We held that what happened in the wee hours of the morning with overcast
skies and the PNP trainees who were hard to discern due to their dark attire and running
at the wrong side of the road was an accident. Glenn was, however, found to be negligent
in failing to apply the brakes, or to swerve his vehicle to the left or to a safe place the
moment he heard and felt the first bumping thuds. Had he done so, many trainees would
have been spared.
It is true that in the instant case, it could be argued that victim Dayata might
have died instantaneously upon being run over by the left rear tire of petitioner's jeepney.
Nonetheless, that is already academic at this point. Had petitioner promptly applied the
brakes when he heard the shout that he ran over someone and felt the bump, could the
victim had survived? Alas, that cannot be answered as the victim was dragged for
approximately 5.7 meters. If indeed petitioner's jeepney was running at only around 15
kilometers per hour, it would be easy to stop the jeepney within a distance of five (5) feet.
Had he instantly applied the brakes and put the jeepney to a sudden stop, hence, the life
of Dayata could have been saved. Worse, the lack of care and precaution of petitioner was
shown in his utter lack of concern towards the victim. It was only his conductor who
brought the victim on a motorcycle to the hospital when petitioner was duty-bound to do
so.
Clear to my mind is that petitioner did not exercise the necessary care expected
of him given the circumstances. What the Court said in De los Santos is apropos that "[A]
man must use common sense, and exercise due reflection in all his acts; it is his duty to

be cautious, careful, and prudent, if not from instinct, then through fear of incurring
punishment. He is responsible for such results as anyone might foresee and for acts which
no one would have performed except through culpable abandon." 9
In the instant case, like in De los Santos, petitioner's offense is in not applying
the brakes when he heard the shout and felt the bump that he ran over something. These
are not denied by petitioner. Petitioner, thus, failed to show lack of precaution given the
circumstances.
Therefore, I vote to affirm the finding of the Court of Appeals that petitioner is
guilty beyond reasonable doubt of the lesser offense of Simple Negligence Resulting in
Homicide under Art. 365 of the RPC, with the corresponding penalty of four (4) months
imprisonment, including the awards of civil indemnity, moral and actual damages, plus
costs.
FROM ALL THE FOREGOING REASONS, I, therefore, vote for the outright
DISMISSAL of the instant petition for lack of merit. cDCaTH
||| (Gaid v. People, G.R. No. 171636, [April 7, 2009], 602 PHIL 858-876)
SECOND DIVISION
[G.R. No. 169467. February 25, 2010.]
ALFREDO P. PACIS and CLEOPATRA D. PACIS, petitioners, vs.
JEROME JOVANNE MORALES, respondent.
DECISION
CARPIO, J p:
The Case
dispositive portion of the decision reads:
This petition for review 1 assails the 11 May 2005 Decision 2 and the 19 August
2005 Resolution of the Court of Appeals in CA-G.R. CV No. 60669.
The Facts
On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis
(petitioners) filed with the trial court a civil case for damages against respondent Jerome
Jovanne Morales (respondent). Petitioners are the parents of Alfred Dennis Pacis, Jr.
(Alfred), a 17-year old student who died in a shooting incident inside the Top Gun Firearms
and Ammunitions Store (gun store) in Baguio City. Respondent is the owner of the gun
store.
The facts as found by the trial court are as follows:
On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a first
year student at the Baguio Colleges Foundation taking up BS Computer
77
Science, died due to a gunshot wound in the head which he sustained
while he was at the Top Gun Firearm[s] and Ammunition[s] Store located
at Upper Mabini Street, Baguio City. The gun store was owned and
operated by defendant Jerome Jovanne Morales.
With Alfred Pacis at the time of the shooting were Aristedes Matibag and
Jason Herbolario. They were sales agents of the defendant, and at that
particular time, the caretakers of the gun store.
The bullet which killed Alfred Dennis Pacis was fired from a gun brought
in by a customer of the gun store for repair.
The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No. SN-
H34194 (Exhibit "Q"), was left by defendant Morales in a drawer of a
table located inside the gun store.
Defendant Morales was in Manila at the time. His employee Armando
Jarnague, who was the regular caretaker of the gun store was also not
around. He left earlier and requested sales agents Matibag and
Herbolario to look after the gun store while he and defendant Morales
were away. Jarnague entrusted to Matibag and Herbolario a bunch of
keys used in the gun store which included the key to the drawer where
the fatal gun was kept. aEcDTC
It appears that Matibag and Herbolario later brought out the gun from
the drawer and placed it on top of the table. Attracted by the sight of the
gun, the young Alfred Dennis Pacis got hold of the same. Matibag asked
Alfred Dennis Pacis to return the gun. The latter followed and handed the
gun to Matibag. It went off, the bullet hitting the young Alfred in the
head.
A criminal case for homicide was filed against Matibag before branch VII
of this Court. Matibag, however, was acquitted of the charge against him
because of the exempting circumstance of "accident" under Art. 12, par.
4 of the Revised Penal Code.
By agreement of the parties, the evidence adduced in the criminal case
for homicide against Matibag was reproduced and adopted by them as
part of their evidence in the instant case. 3
On 8 April 1998, the trial court rendered its decision in favor of petitioners. The
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the plaintiffs [Spouses Alfredo P. Pacis and Cleopatra D. Pacis]
and against the defendant [Jerome Jovanne Morales] ordering the
defendant to pay plaintiffs
(1) P30,000.00 as indemnity for the death of Alfred Pacis;
(2) P29,437.65 as actual damages for the hospitalization and
burial expenses incurred by the plaintiffs;
(3) P100,000.00 as compensatory damages;
(4) P100,000.00 as moral damages;
(5) P50,000.00 as attorney's fees.

SO ORDERED. 4
Respondent appealed to the Court of Appeals. In its Decision 5 dated 11 May
2005, the Court of Appeals reversed the trial court's Decision and absolved respondent
from civil liability under Article 2180 of the Civil Code. 6
Petitioners filed a motion for reconsideration, which the Court of Appeals denied
in its Resolution dated 19 August 2005.
Hence, this petition.
The Trial Court's Ruling
The trial court held respondent civilly liable for the death of Alfred under Article
2180 in relation to Article 2176 of the Civil Code. 7 The trial court held that the accidental
shooting of Alfred which caused his death was partly due to the negligence of
respondent's employee Aristedes Matibag (Matibag). Matibag and Jason Herbolario
(Herbolario) were employees of respondent even if they were only paid on a commission
basis. Under the Civil Code, respondent is liable for the damages caused by Matibag on
the occasion of the performance of his duties, unless respondent proved that he observed
the diligence of a good father of a family to prevent the damage. The trial court held that
respondent failed to observe the required diligence when he left the key to the drawer
containing the loaded defective gun without instructing his employees to be careful in
handling the loaded gun. EcSCHD
The Court of Appeals' Ruling
The Court of Appeals held that respondent cannot be held civilly liable since
there was no employer-employee relationship between respondent and Matibag. The
Court of Appeals found that Matibag was not under the control of respondent with respect
to the means and methods in the performance of his work. There can be no employer-
employee relationship where the element of control is absent. Thus, Article 2180 of the
Civil Code does not apply in this case and respondent cannot be held liable.
Furthermore, the Court of Appeals ruled that even if respondent is considered an
employer of Matibag, still respondent cannot be held liable since no negligence can be
attributed to him. As explained by the Court of Appeals:
Granting arguendo that an employer-employee relationship existed
between Aristedes Matibag and the defendant-appellant, we find that no
negligence can be attributed to him.
Negligence is best exemplified in the case of Picart vs. Smith (37 Phil.
809). The test of negligence is this:
". . . . Could a prudent man, in the position of the person to
whom negligence is attributed, foresee harm to the person
injured as a reasonable consequence of the course about to
be pursued? If so, the law imposes a duty on the actor to
refrain from that course or take precaution against its
mischievous results, and the failure to do so constitutes
negligence. . . . ."
Defendant-appellant maintains that he is not guilty of negligence and
lack of due care as he did not fail to observe the diligence of a good
father of a family. He submits that he kept the firearm in one of his table
drawers, which he locked and such is already an indication that he took
the necessary diligence and care that the said gun would not be
accessible to anyone. He puts [sic] that his store is engaged in selling
78
firearms and ammunitions. Such items which are per se dangerous are
kept in a place which is properly secured in order that the persons
coming into the gun store would not be able to take hold of it unless it is
done intentionally, such as when a customer is interested to purchase
any of the firearms, ammunitions and other related items, in which case,
he may be allowed to handle the same.
We agree. Much as We sympathize with the family of the deceased,
defendant-appellant is not to be blamed. He exercised due diligence in
keeping his loaded gun while he was on a business trip in Manila. He
placed it inside the drawer and locked it. It was taken away without his
knowledge and authority. Whatever happened to the deceased was
purely accidental. 8 AIHDcC
The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN
RENDERING THE DECISION AND RESOLUTION IN
QUESTION IN DISREGARD OF LAW AND JURISPRUDENCE
BY REVERSING THE ORDER OF THE REGIONAL TRIAL
COURT (BRANCH 59) OF BAGUIO CITY NOTWITHSTANDING
CLEAR, AUTHENTIC RECORDS AND TESTIMONIES
PRESENTED DURING THE TRIAL WHICH NEGATE AND
CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE ERROR
IN RENDERING THE DECISION AND RESOLUTION IN
QUESTION BY DEPARTING FROM THE ACCEPTED AND
USUAL COURSE OF JUDICIAL PROCEEDINGS THEREBY
IGNORING THE FACTUAL FINDINGS OF THE REGIONAL
TRIAL COURT (BRANCH 59) OF BAGUIO CITY SHOWING
PETITIONER'S CLEAR RIGHTS TO THE AWARD OF
DAMAGES. 9
The Ruling of the Court
We find the petition meritorious.
This case for damages arose out of the accidental shooting of petitioners' son.
Under Article 1161 10 of the Civil Code, petitioners may enforce their claim for damages
based on the civil liability arising from the crime under Article 100 11 of the Revised Penal
Code or they may opt to file an independent civil action for damages under the Civil Code.
In this case, instead of enforcing their claim for damages in the homicide case filed against
Matibag, petitioners opted to file an independent civil action for damages against
respondent whom they alleged was Matibag's employer. Petitioners based their claim for
damages under Articles 2176 and 2180 of the Civil Code.
Unlike the subsidiary liability of the employer under Article 103 12 of the Revised
Penal Code, 13 the liability of the employer, or any person for that matter, under Article
2176 of the Civil Code is primary and direct, based on a person's own negligence. Article
2176 states:
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 quasi-delict and is governed by the
provisions of this Chapter.
This case involves the accidental discharge of a firearm inside a gun store.
Under PNP Circular No. 9, entitled the "Policy on Firearms and Ammunition
Dealership/Repair," a person who is in the business of purchasing and selling of firearms
and ammunition must maintain basic security and safety requirements of a gun dealer,
otherwise his License to Operate Dealership will be suspended or canceled. 14 CAaEDH
Indeed, a higher degree of care is required of someone who has in his
possession or under his control an instrumentality extremely dangerous in character, such
as dangerous weapons or substances. Such person in possession or control of dangerous
instrumentalities has the duty to take exceptional precautions to prevent any injury being
done thereby. 15 Unlike the ordinary affairs of life or business which involve little or no risk,
a business dealing with dangerous weapons requires the exercise of a higher degree of
care.
As a gun store owner, respondent is presumed to be knowledgeable about
firearms safety and should have known never to keep a loaded weapon in his store to
avoid unreasonable risk of harm or injury to others. Respondent has the duty to ensure
that all the guns in his store are not loaded. Firearms should be stored unloaded and
separate from ammunition when the firearms are not needed for ready-access defensive
use. 16 With more reason, guns accepted by the store for repair should not be loaded
precisely because they are defective and may cause an accidental discharge such as what
happened in this case. Respondent was clearly negligent when he accepted the gun for
repair and placed it inside the drawer without ensuring first that it was not loaded. In the
first place, the defective gun should have been stored in a vault. Before accepting the
defective gun for repair, respondent should have made sure that it was not loaded to
prevent any untoward accident. Indeed, respondent should never accept a firearm from
another person, until the cylinder or action is open and he has personally checked that the
weapon is completely unloaded. 17 For failing to insure that the gun was not loaded,
respondent himself was negligent. Furthermore, it was not shown in this case whether
respondent had a License to Repair which authorizes him to repair defective firearms to
restore its original composition or enhance or upgrade firearms. 18
Clearly, respondent did not exercise the degree of care and diligence required of
a good father of a family, much less the degree of care required of someone dealing with
dangerous weapons, as would exempt him from liability in this case.
WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005
Decision and the 19 August 2005 Resolution of the Court of Appeals in CA-G.R. CV No.
60669. We REINSTATE the trial court's Decision dated 8 April 1998.
SO ORDERED.
Brion, Del Castillo, Abad and Perez, JJ., concur.
||| (Spouses Pacis v. Morales, G.R. No. 169467, [February 25, 2010], 627 PHIL 424-433)
THIRD DIVISION
[G.R. No. 51806. November 8, 1988.]
79
CIVIL AERONAUTICS ADMINISTRATION, petitioner, vs. COURT OF
APPEALS and ERNEST E. SIMKE, respondents.
The Solicitor General for petitioner.
Ledesma, Guytingco, Velasco & Associates for respondent Ernest E. Simke.
SYLLABUS
1. ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCY; CIVIL AERONAUTICS
ADMINISTRATION. If the power to sue and be sued has been granted without qualification, it
can include a claim based on tort or quasi-delict.
2. ID.; ID.; IMMUNITY FROM SUIT DETERMINED BY THE OBJECTS FOR ITS CREATION.
Not all government entities, whether corporate or non-corporate, are immune from suits.
Immunity from suits is determined by the character of the objects for which the entity was
organized.
3. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT BY THE TRIAL COURT, BINDING UPON
THE SUPREME COURT. The trial court's findings during its ocular inspection of the MIA
terrace that the elevation where plaintiff slipped was a dangerous sliding step and the
proximate cause of plaintiff's injury are factual findings binding upon the Supreme Court.
4. CIVIL LAW; TORTS AND DAMAGES; QUASI-DELICT; BASIS OF LIABILITY. Article 2176 of
the Civil Code which provides the basis for liability for quasi-delict. CAA knew of the existence
of the dangerous elevation. Its failure to have it repaired or altered in order to eliminate the
existing hazard constitutes such negligence as to warrant a finding of liability based on quasi-
delict upon CAA.
5. ID.; ID.; ID.; NEGLIGENCE; TEST TO DETERMINE EXISTENCE THEREOF. As formulated
in the case of Picart v. Smith, 37 Phil. 809 (1918) the test by which to determine the existence
of negligence may be stated as follows: Did the defendant in doing the alleged negligent act
use that reasonable care and caution which an ordinarily prudent man would have used in the
same situation? If not, then he is guilty of negligence.
6. ID.; ID.; ID.; LACK OF CONTRIBUTORY NEGLIGENCE. No contributory negligence can be
imputed to the private respondent, considering the following test formulated in the early case of
Picart v. Smith, 37 Phil. 809 (1918). The private respondent could not have reasonably foreseen
the harm that would befall him, considering the attendant factual circumstances. Even if the
private respondent had been looking where he was going, the step in question could not easily
be noticed because of its construction.
7. ID.; ID.; ID.; LIABILITY FOR DAMAGES IMPLIED FROM THE GRANT OF POWER TO SUE
AND BE SUED. The liability of CAA to answer for damages, whether actual, moral or
exemplary, cannot be seriously doubted in view of the conferment of the power to sue and be
sued upon it.
8. ID.; ID.; ID.; ACTUAL OR COMPENSATORY DAMAGE. Article 2199 of the Civil Code, with
respect to actual or compensatory damages, mandates that the same be proven. Private
respondent claims P15,589.55 representing medical and hospitalization bills P20,000.00 spent
as transportation expenses of two layers who represented private respondent abroad and the
publication of the postponement notices of the wedding, were found by the court to have been
duly proven.

9. ID.; ID.; ID.; MORAL DAMAGES. The court holds private respondent entitled to the award
of P30,000.00 as moral damages because of the physical suffering and physical injuries caused
by the negligence of the CAA (Arts. 2217 and 2R 19 (2), New Civil Code.)
10. ID.; ID.; ID.; EXEMPLARY DAMAGES; AWARD DUE TO DEFENDANT'S GROSS
NEGLIGENCE. Gross negligence is equivalent to the term "notorious negligence" and
consists in the failure to exercise even slight care (Caunan v. Compania General de Tabacos, 56
Phil. 542 (1932)) can be attributed to the CAA for its failure to remedy the dangerous condition
of the questioned elevation. The award of P40,000.00 by the trial court as exemplary damages
appropriately underscores the point that as an entity charged with providing service to the
public, the CAA, like all other entities serving the public, has the obligation to provide the public
with reasonably safe service.
11. ID.; ID.; ID.; ATTORNEY'S FEES. The award of attorney's fees is also upheld considering
that under Art. 2208 (1) of the Civil Code, the same may be awarded whenever exemplary
damages are awarded, as in this case, and, at any rate, under Art. 2208 (11), the Court has the
discretion to grant the same when it is just and equitable.
DECISION
CORTES, J p:
Assailed in this petition for review on certiorari is the decision of the Court of Appeals affirming
the trial court decision which reads as follows:
WHEREFORE, judgment is hereby rendered ordering defendant to pay
plaintiff the amount of P15,589.55 as full reimbursement of his actual
medical and hospital expenses, with interest at the legal rate from the
commencement of the suit; the amount of P20,200.00 as consequential
damages; the amount of P30,000.00 as moral damages; the amount of
P40,000.00 as exemplary damages; the further amount of P20,000.00 as
attorney's fees and the costs [Rollo, p. 24].
The facts of the case are as follows:
Private respondent is a naturalized Filipino citizen and at the time of the incident was the
Honorary Consul General of Israel in the Philippines.
In the afternoon of December 13, 1968, private respondent with several other persons went to
the Manila International Airport to meet his future son-in-law. In order to get a better view of the
incoming passengers, he and his group proceeded to the viewing deck or terrace of the airport.
While walking on the terrace, then filled with other people, private respondent slipped over an
elevation about four (4) inches high at the far end of the terrace. As a result, private respondent
fell on his back and broke his thigh bone.
The next day, December 14, 1963, private respondent was operated on for about three hours.
Private respondent then filed an action for damages based on quasi-delict with the Court of
First Instance of Rizal, Branch VII against petitioner Civil Aeronautics Administration or CAA as
the entity empowered "to administer, operate, manage, control, maintain and develop the
Manila International Airport . . ." [Sec. 32 (24), R.A. 776].
80
Said claim for damages included, aside from the medical and hospital bills, consequential
damages for the expenses of two lawyers who had to go abroad in private respondent's stead
to finalize certain business transactions and for the publication of notices announcing the
postponement of private respondent's daughter's wedding which had to be cancelled because
of his accident [Record on Appeal, p. 5].
Judgment was rendered in private respondent's favor prompting petitioner to appeal to the
Court of Appeals. The latter affirmed the trial court's decision. Petitioner then filed with the
same court a Motion for Reconsideration but this was denied.
Petitioner now comes before this Court raising the following assignment of errors:
1. The Court of Appeals gravely erred in not holding that the present suit
against the CAA is really a suit against the Republic of the Philippines
which cannot be sued without its consent, which was not given in this
case.
2. The Court of Appeals gravely erred in finding that the injuries of
respondent Ernest E. Simke were due to petitioner's negligence
although there was no substantial evidence to support such finding; and
that the inference that the hump or elevation in the surface of the floor
area of the terrace of the (old) MIA building is dangerous just because
said respondent tripped over it is manifestly mistaken circumstances
that justify a review by this Honorable Court of the said finding of fact of
respondent appellate court (Garcia v. Court of Appeals, 33 SCRA 622;
Ramos v. CA, 63 SCRA 331.)
3. The Court of Appeals gravely erred in ordering petitioner to pay actual,
consequential, moral and exemplary damages, as well as attorney's fees
to respondent Simke although there was no substantial and
competent proof to support said awards [Rollo, pp. 93-94].
I
Invoking the rule that the State cannot be sued without its consent, petitioner contends that
being an agency of the government, it cannot be made a party-defendant in this case.
This Court has already held otherwise in the case of National Airports Corporation v. Teodoro,
Sr. [91 Phil. 203 (1952)].
Petitioner contends that the said ruling does not apply in this case because: First, in
the Teodoro case, the CAA was sued only in a substituted capacity, the National Airports
Corporation being the original party. Second, in the Teodoro case, the cause of action was
contractual in nature while here, the cause of action is based on a quasi-delict. Third, there is
no specific provision in Republic Act No. 776, the law governing the CAA, which would justify
the conclusion that petitioner was organized for business and not for governmental purposes.
[Rollo, pp. 94-97].
Such arguments are untenable.
First, the Teodoro case, far from stressing the point that the CAA was only substituted for the
National Airports Corporation, in fact treated the CAA as the real party in interest when it stated
that:
xxx xxx xxx
. . . To all legal intents and practical purposes the National Airports
Corporation is dead and the Civil Aeronautics Administration is its heir or

legal representative, acting by the law of its creation upon its own lights
and in its own name. The better practice then should have been to make
the Civil Aeronautics Administration the third party defendant instead of
the National Airports Corporation.[National Airports Corp. v. Teodoro,
supra, p. 208.]
xxx xxx xxx
Second, the Teodoro case did not make any qualification or limitation as to whether or not the
CAA's power to sue and be sued applies only to contractual obligations. The Court in
the Teodoro case ruled that Sections 3 and 4 of Executive Order 365 confer upon the CAA,
without any qualification, the power to sue and be sued, albeit only by implication. Accordingly,
this Court's pronouncement that where such power to sue and be sued has been granted
without any qualification, it can include a claim based on tort or quasi-delict [Rayo v. Court of
First Instance of Bulacan, G.R. Nos. 55273-83, December 19, 1981, 110 SCRA 456] finds
relevance and applicability to the present case.
Third, it has already been settled in the Teodoro case that the CAA as an agency is not immune
from suit, it being engaged in functions pertaining to a private entity.
xxx xxx xxx
The Civil Aeronautics Administration comes under the category of a
private entity. Although not a body corporate it was created, like the
National Airports Corporation, not to maintain a necessary function of
government, but to run what is essentially a business, even if revenues
be not its prime objective but rather the promotion of travel and the
convenience of the travelling public. It is engaged in an enterprise which,
far from being the exclusive prerogative of state, may, more than the
construction of public roads, be undertaken by private concerns.
[National Airports Corp. v. Teodoro, supra, p. 207.]
xxx xxx xxx
True, the law prevailing in 1952 when the Teodoro case was promulgated was Exec. Order 365
(Reorganizing the Civil Aeronautics Administration and Abolishing the National Airports
Corporation). Republic Act No. 776 (Civil Aeronautics Act of the Philippines), subsequently
enacted on June 20, 1952, did not alter the character of the CAA's objectives under Exec.
Order 365. The pertinent provisions cited in the Teodoro case, particularly Secs. 3 and 4 of
Exec. Order 365, which led the Court to consider the CAA in the category of a private entity
were retained substantially in Republic Act 776, Sec. 32 (24) and (25). Said Act provides:
Sec. 32. Powers and Duties of the Administrator. Subject to the
general control and supervision of the Department Head, the
Administrator shall have among others, the following powers and duties:
xxx xxx xxx
(24) To administer, operate, manage, control, maintain and develop the
Manila International Airport and all government-owned aerodromes
except those controlled or operated by the Armed Forces of the
Philippines including such powers and duties as: (a) to plan, design,
construct, equip, expand, improve, repair or alter aerodromes or such
structures, improvement or air navigation facilities; (b) to enter into, make
81
and execute contracts of any kind with any person, firm, or public or
private corporation or entity;. . . .
(25) To determine, fix, impose, collect and receive landing fees, parking
space fees, royalties on sales or deliveries, direct or indirect, to any
aircraft for its use of aviation gasoline, oil and lubricants, spare parts,
accessories and supplies, tools, other royalties, fees or rentals for the
use of any of the property under its management and control.
xxx xxx xxx
From the foregoing, It can be seen that the CAA is tasked with private or non-governmental
functions which operate to remove it from the purview of the rule on State immunity from suit.
For the correct rule as set forth in the Teodoro case states:
xxx xxx xxx
Not all government entities, whether corporate or non-corporate, are
immune from suits. Immunity from suits is determined by the character of
the objects for which the entity was organized. The rule is thus stated in
Corpus Juris:
Suits against State agencies with relation to matters
in which they have assumed to act in private or non-
governmental capacity, and various suits against certain
corporations created by the state for public purposes, but to
engage in matters partaking more of the nature of ordinary
business rather than functions of a governmental or political
character, are not regarded as suits against the state. The
latter is true, although the state may own stock or property of
such a corporation for by engaging in business operations
through a corporation, the state divests itself so fan of its
sovereign character, and by implication consents to suits
against the corporation. (59 C.J., 313) [National Airports
Corporation v. Teodoro, supra, pp. 206-207; Emphasis
supplied.]
This doctrine has been reaffirmed in the recent case of Malong v. Philippine National
Railways [G.R. No. L-49930, August 7, 1985, 138 SCRA 63], where it was held that the
Philippine National Railways, although owned and operated by the government, was not
immune from suit as it does not exercise sovereign but purely proprietary and business
functions. Accordingly, as the CAA was created to undertake the management of airport
operations which primarily involve proprietary functions, it cannot avail of the immunity from
suit accorded to government agencies performing strictly governmental functions.
II
Petitioner tries to escape liability on the ground that there was no basis for a finding of
negligence. There can be no negligence on its part, it alleged, because the elevation in question
"had a legitimate purpose for being on the terrace and was never intended to trip down people
and injure them. It was there for no other purpose but to drain water on the floor area of the
terrace" [Rollo, p. 99].
To determine whether or not the construction of the elevation was done in a negligent manner,
the trial court conducted an ocular inspection of the premises.
xxx xxx xxx

. . . This Court after its ocular inspection found the elevation shown in
Exhs. A or 6-A where plaintiff slipped to be a step, a dangerous sliding
step, and the proximate cause of plaintiffs injury . . .
xxx xxx xxx
This Court during its ocular inspection also observed the dangerous and
defective condition of the open terrace which has remained unrepaired
through the years. It has observed the lack of maintenance and upkeep
of the MIA terrace, typical of many government buildings and offices.
Aside from the litter allowed to accumulate in the terrace, pot holes
cause by missing tiles remained unrepaired and unattented. The several
elevations shown in the exhibits presented were verified by this Court
during the ocular inspection it undertook. Among these elevations is the
one (Exh. A) where plaintiff slipped. This Court also observed the other
hazard, the slanting or sliding step (Exh. B) as one passes the entrance
door leading to the terrace [Record on Appeal, U.S., pp. 56 and 59;
Italics supplied.]
The Court of Appeals further noted that:
The inclination itself is an architectural anomaly for as stated by the said
witness, it is neither a ramp because a ramp is an inclined surface in
such a way that it will prevent people or pedestrians from sliding. But if,
it is a step then it will not serve its purpose, for pedestrian purposes.
(tsn, p. 35, id.) [Rollo. p. 29.]
These factual findings are binding and conclusive upon this Court. Hence, the CAA cannot
disclaim its liability for the negligent construction of the elevation since under Republic Act No.
776, it was charged with the duty of planning, designing, constructing, equipping, expanding,
improving, repairing or altering aerodromes or such structures, improvements or air navigation
facilities [Section 32, supra, R.A. 776]. In the discharge of this obligation, the CAA is duty-bound
to exercise due diligence in overseeing the construction and maintenance of the viewing deck
or terrace of the airport.
It must be borne in mind that pursuant to Article 1173 of the Civil Code, "(t)he fault or
negligence of the obligor consists in the omission of that diligence which is required by the
nature of the obligation and corresponds with the circumstances of the person, of the time and
of the place." Here, the obligation of the CAA in maintaining the viewing deck, a facility open to
the public, requires that CAA insure the safety of the viewers using it. As these people come to
the viewing deck to watch the planes and passengers, their tendency would be to look to
where the planes and the incoming passengers are and not to look down on the floor or
pavement of the viewing deck. The CAA should have thus made sure that no dangerous
obstructions or elevations exist on the floor of the deck to prevent any undue harm to the
public.
The legal foundation of CAA's liability for quasi-delict can be found in Article 2176 of the Civil
Code which provides that "(w)hoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. . . ." As the CAA knew of the
existence of the dangerous elevation which it claims though, was made precisely in accordance
with the plans and specifications of the building for proper drainage of the open terrace [See
Record on Appeal, pp. 13 and 57; Rollo, p. 39], its failure to have it repaired or altered in order
to eliminate the existing hazard constitutes such negligence as to warrant a finding of liability
based on quasi-delict upon CAA.
The Court finds the contention that private respondent was, at the very least, guilty of
contributory negligence, thus reducing the damages that plaintiff may recover, unmeritorious.
82
Contributory negligence under Article 2179 of the Civil Code contemplates a negligent act
or omission on the part of the plaintiff, which although not the proximate cause of his
injury, contributed to his own damage, the proximate cause of the plaintiffs own injury being the
defendant's lack of due care. In the instant case, no contributory negligence can be imputed to
the private respondent, considering the following test formulated in the early case of Picart v.
Smith, 37 Phil. 809 (1918):
The test by which to determine the existence of negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily
prudent man would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of the negligence in a
given case is not determined by reference to the personal judgment of
the actor in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man
in a given situation must of course be always determined in the light of
human experience and in view of the facts involved in the particular
case. Abstract speculations cannot be here of much value but this much
can be profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not,
and are not supposed to be omniscient of the future. Hence they can be
expected to take care only when there is something before them to
suggest or warn of danger. Could a prudent man, in the case under
consideration, foresee harm as a result of the course actually pursued? If
so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by the ignoring of the
suggestion born of this prevision, is always necessary before negligence
can be held to exist . . . [Picart v. Smith, supra, p. 813; emphasis
supplied.]
The private respondent, who was the plaintiff in the case before the lower court, could not
have reasonably foreseen the harm that would befall him, considering the attendant factual
circumstances. Even if the private respondent had been looking where he was going, the
step in question could not easily be noticed because of its construction. As the trial court
found:
In connection with the incident testified to, a sketch, Exhibit O, shows a
section of the floorings on which plaintiff had tripped. This sketch reveals
two pavements adjoining each other, one being elevated by four and
one-fourth inches than the other. From the architectural standpoint the
higher pavement is a step. However, unlike a step commonly seen
around, the edge of the elevated pavement slanted outward as one
walks to the interior of the terrace. The length of the inclination between
the edges of the two pavements is three inches. Obviously, plaintiff had
stepped on the inclination because had his foot landed on the lower
pavement he would not have lost his balance. The same sketch shows
that both pavements including the inclined portion are tiled in red
cement, and as shown by the photograph Exhibit A, the lines of the
tilings are continuous. It would therefore be difficult for a pedestrian to

see the inclination especially where there are plenty of persons in the
terrace as was the situation when plaintiff fell down. There was no
warning sign to direct one's attention to the change in the elevation of
the floorings. [Rollo, pp. 28-29.]
III
Finally, petitioner appeals to this Court the award of damages to private respondent. The
liability of CAA to answer for damages, whether actual, moral or exemplary, cannot be seriously
doubted in view of the conferment of the power to sue and be sued upon it, which, as held in
the case of Rayo v. Court of First Instance, supra, includes liability on a claim for quasi-delict. In
the aforestated case, the liability of the National Power Corporation to answer for damages
resulting from its act of sudden, precipitate and simultaneous opening of the Angat Dam, which
caused the death of several residents of the area and the destruction of properties, was upheld
since the grant of the power to sue and be sued upon it necessarily implies that it can be held
answerable for its tortious acts or any wrongful act for that matter.
With respect to actual or compensatory damages, the law mandates that the same be proven.
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 [New Civil Code].
Private respondent claims P15,589.55 representing medical and hospitalization bills. This Court
finds the same to have been duly proven through the testimony of Dr. Ambrosio Tangco, the
physician who attended to private respondent (Rollo, p. 26 ) and who identified Exh. "H" which
was his bill for professional services [Rollo, p. 31].
Concerning the P20,200.00 alleged to have been spent for other expenses such as the
transportation of the two lawyers who had to represent private respondent abroad and the
publication of the postponement notices of the wedding, the Court holds that the same had
also been duly proven. Private respondent had adequately shown the existence of such losses
and the amount thereof in the testimonies before the trial court [CA decision, p. 8]. At any rate,
the findings of the Court of Appeals with respect to this are findings of facts [One Heart
Sporting Club, Inc. v. Court of Appeals, G.R. Nos. 53790-53972, Oct. 23, 1981 , 108 SCRA 416]
which, as had been held time and again, are, as a general rule, conclusive before this Court
[Sese v. Intermediate Appellate Court, G.R. No. 66186, July 31, 1987, 152 SCRA 585].
With respect to the P30,000.00 awarded as moral damages, the Court holds private respondent
entitled thereto because of the physical suffering and physical injuries caused by the
negligence of the CAA [Arts. 2217 and 2219 (2), New Civil Code].
With respect to the award of exemplary damages, the Civil Code explicitly states:
83
The wanton disregard by the CAA of the safety of the people using the viewing deck, who
are charged an admission fee, including the petitioner who paid the entrance fees to get inside
the vantage place [CA decision, p. 2; Rollo, p. 25] and are, therefore, entitled to expect a facility
that is properly and safely maintained justifies the award of exemplary damages against the
CAA as a deterrent and by way of example or correction for the public good. The award of
P40,000.00 by the trial court as exemplary damages appropriately underscores the point that
as an entity charged with providing service to the public, the CAA, like all other entities serving
the public, has the obligation to provide the public with reasonably safe service.
Finally, the award of attorney's fees is also upheld considering that under Art. 2208 (1 ) of the
Civil Code, the same may be awarded whenever exemplary damages are awarded, as in this
case, and, at any rate, under Art. 2208 (11), the Court has the discretion to grant the same
when it is just and equitable.
However, since the Manila International Airport Authority (MIAA) has taken over the
management and operations of the Manila International Airport [renamed Ninoy Aquino
International Airport under Republic Act No. 6639] pursuant to Executive Order No. 778 as
amended by executive Orders Nos. 903 (1983), 909 (1983) and 298 (1987) and under Section
24 of the said Exec. Order 778, the MIAA has assumed all the debts, liabilities and obligations
of the now defunct Civil Aeronautics Administration (CAA), the liabilities of the CAA have now
been transferred to the MIAA.
WHEREFORE, finding no reversible error, the Petition for review on Certiorari is DENIED and the
decision of the Court of Appeals in CA-G.R. No. 51172-R is AFFIRMED.
SO ORDERED.
Fernan, C .J ., Gutierrez Jr., Feliciano and Bidin JJ ., concur.
||| (Civil Aeronautics Administration v. Court of Appeals, G.R. No. 51806, [November 8, 1988],
249 PHIL 27-41)
FIRST DIVISION
[G.R. No. 189998. August 29, 2012.]
MAKATI SHANGRI-LA HOTEL AND RESORT, INC., petitioner, vs.
ELLEN JOHANNE HARPER, JONATHAN CHRISTOPHER HARPER,
and RIGOBERTO GILLERA,respondents.

Art. 2229. Exemplary or corrective damages are imposed, by way of

example or correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages.
DECISION
Art. 2231. In quasi-delicts, exemplary damages may be granted if the
defendant acted with gross negligence.

Gross negligence which, according to the Court, is equivalent to the term "notorious BERSAMIN, J p:
negligence" and consists in the failure to exercise even slight care [Caunan v. Compania
General de Tabacos, 56 Phil. 542 (1932)] can be attributed to the CAA for its failure to remedy
The hotel owner is liable for civil damages to the surviving heirs of its hotel guest whom
the dangerous condition of the questioned elevation or to even post a warning sign directing
the attention of the viewers to the change in the elevation of the floorings notwithstanding its strangers murder inside his hotel room.
knowledge of the hazard posed by such elevation [Rollo, pp. 28-29; Record on Appeal, p. 57].

The Case
Petitioner, the owner and operator of the 5-star Shangri-La Hotel in Makati City (Shangri-La
Hotel), appeals the decision promulgated on October 21, 2009, 1 whereby the Court of Appeals
(CA) affirmed with modification the judgment rendered on October 25, 2005 by the Regional
Trial Court (RTC) in Quezon City holding petitioner liable for damages for the murder of
Christian Fredrik Harper, a Norwegian national. 2 Respondents Ellen Johanne Harper and
Jonathan Christopher Harper are the widow and son of Christian Harper, while respondent
Rigoberto Gillera is their authorized representative in the Philippines.
Antecedents
In the first week of November 1999, Christian Harper came to Manila on a business trip as the
Business Development Manager for Asia of ALSTOM Power Norway AS, an engineering firm
with worldwide operations. He checked in at the Shangri-La Hotel and was billeted at Room
1428. He was due to check out on November 6, 1999. In the early morning of that date,
however, he was murdered inside his hotel room by still unidentified malefactors. He was then
30 years old.
How the crime was discovered was a story in itself. A routine verification call from the American
Express Card Company to cardholder Harper's residence in Oslo, Norway (i.e., Bygdoy Terasse
16, 0287 Oslo, Norway) led to the discovery. It appears that at around 11:00 am of November 6,
1999, a Caucasian male of about 30-32 years in age, 5'4" in height, clad in maroon long
sleeves, black denims and black shoes, entered the Alexis Jewelry Store in Glorietta, Ayala
Center, Makati City and expressed interest in purchasing a Cartier lady's watch valued at
P320,000.00 with the use of two Mastercard credit cards and an American Express credit card
issued in the name of Harper. But the customer's difficulty in answering the queries phoned in
by a credit card representative sufficiently aroused the suspicion of saleslady Anna Liza Lumba
(Lumba), who asked for the customer's passport upon suggestion of the credit card
representative to put the credit cards on hold. Probably sensing trouble for himself, the
customer hurriedly left the store, and left the three credit cards and the passport
behind. TCHEDA
In the meanwhile, Harper's family in Norway must have called him at his hotel room to inform
him about the attempt to use his American Express card. Not getting any response from the
room, his family requested Raymond Alarcon, the Duty Manager of the Shangri-La Hotel, to
check on Harper's room. Alarcon and a security personnel went to Room 1428 at 11:27 a.m.,
and were shocked to discover Harper's lifeless body on the bed.
Col. Rodrigo de Guzman (de Guzman), the hotel's Security Manager, initially investigated the
murder. In his incident report, he concluded from the several empty bottles of wine in the trash
can and the number of cigarette butts in the toilet bowl that Harper and his visitors had drunk
that much and smoked that many cigarettes the night before. 3
The police investigation actually commenced only upon the arrival in the hotel of the team of
PO3 Carmelito Mendoza 4 and SPO4 Roberto Hizon. Mendoza entered Harper's room in the
company of De Guzman, Alarcon, Gami Holazo (the hotel's Executive Assistant Manager),
Norge Rosales (the hotel's Executive Housekeeper), and Melvin Imperial (a security personnel
of the hotel). They found Harper's body on the bed covered with a blanket, and only the back of
the head could be seen. Lifting the blanket, Mendoza saw that the victim's eyes and mouth had
PhP43,901,055.00
been bound with electrical and packaging tapes, and his hands and feet tied with a white rope.
The body was identified to be that of hotel guest Christian Fredrik Harper.
Mendoza subsequently viewed the closed circuit television (CCTV) tapes, from which he found
that Harper had entered his room at 12:14 a.m. of November 6, 1999, and had been followed
into the room at 12:17 a.m. by a woman; that another person, a Caucasian male, had entered
PhP739,075.00
84
Harper's room at 2:48 a.m.; that the woman had left the room at around 5:33 a.m.; and that
the Caucasian male had come out at 5:46 a.m.
On November 10, 1999, SPO1 Ramoncito Ocampo, Jr. interviewed Lumba about the incident in
the Alexis Jewelry Shop. During the interview, Lumba confirmed that the person who had
attempted to purchase the Cartier lady's watch on November 6, 1999 had been the person
whose picture was on the passport issued under the name of Christian Fredrik Harper and the
Caucasian male seen on the CCTV tapes entering Harper's hotel room.
Sr. Insp. Danilo Javier of the Criminal Investigation Division of the Makati City Police reflected in
his Progress Report No. 2 5 that the police investigation showed that Harper's passport, credit
cards, laptop and an undetermined amount of cash had been missing from the crime scene;
and that he had learned during the follow-up investigation about an unidentified Caucasian
male's attempt to purchase a Cartier lady's watch from the Alexis Jewelry Store in Glorietta,
Ayala Center, Makati City with the use of one of Harper's credit cards.
On August 30, 2002, respondents commenced this suit in the RTC to recover various damages
from petitioner, 6 pertinently alleging:
xxx xxx xxx
7. The deceased was to check out and leave the hotel on November 6,
1999, but in the early morning of said date, while he was in his hotel
room, he was stabbed to death by an (sic) still unidentified male who had
succeeded to intrude into his room.
8. The murderer succeeded to trespass into the area of the hotel's
private rooms area and into the room of the said deceased on account of
the hotel's gross negligence in providing the most basic security system
of its guests, the lack of which owing to the acts or omissions of its
employees was the immediate cause of the tragic death of said
deceased.
xxx xxx xxx
10. Defendant has prided itself to be among the top hotel chains in the
East claiming to provide excellent service, comfort and security for its
guests for which reason ABB Alstom executives and their guests have
invariably chosen this hotel to stay. 7
xxx xxx xxx
Ruling of the RTC
On October 25, 2005, the RTC rendered judgment after trial, 8 viz.:
WHEREFORE, finding the defendant hotel to be remiss in its duties and
thus liable for the death of Christian Harper, this Court orders the
defendant to pay plaintiffs the amount of:
as and by way of actual and compensatory
damages;
representing the expenses of transporting

the remains of Harper to Oslo, Norway;
00.00 attorney's fees;
and to pay the cost of suit.
SO ORDERED.
Ruling of the CA
Petitioner appealed, assigning to the RTC the following errors, to wit:
I PROVE WITH COMPETENT EVIDENCE THE AFFIRMATIVE
THE TRIAL COURT ERRED IN RULING THAT THE PLAINTIFFS-
APPELLEES ARE THE HEIRS OF THE LATE CHRISTIAN HARPER, AS
THERE IS NO COMPETENT EVIDENCE ON RECORD SUPPORTING
SUCH RULING. TIcAaH
II
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT-
APPELLANT'S NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE
DEATH OF MR. HARPER, OR IN NOT RULING THAT IT WAS MR.
CHRISTIAN HARPER'S OWN NEGLIGENCE WHICH WAS THE SOLE,
PROXIMATE CAUSE OF HIS DEATH.
III
THE TRIAL COURT ERRED IN AWARDING TO THE PLAINTIFFS-
APPELLEES THE AMOUNT OF PHP43,901,055.00, REPRESENTING
THE ALLEGED LOST EARNING OF THE LATE CHRISTIAN HARPER,
THERE BEING NO COMPETENT PROOF OF THE EARNING OF MR.
HARPER DURING HIS LIFETIME AND OF THE ALLEGATION THAT
THE PLAINTIFFS-APPELLEES ARE MR. HARPER'S HEIRS.
IV
THE TRIAL COURT ERRED IN AWARDING TO THE PLAINTIFFS-
APPELLEES THE AMOUNT OF PHP739,075.00, REPRESENTING THE
ALLEGED COST OF TRANSPORTING THE REMAINS OF MR.
CHRISTIAN HARPER TO OSLO, NORWAY, THERE BEING NO
PROOF ON RECORD THAT IT WAS PLAINTIFFS-APPELLEES WHO
PAID FOR SAID COST.
V Johanne Harper;
THE TRIAL COURT ERRED IN AWARDING ATTORNEY'S FEES AND
COST OF SUIT TO THE PLAINTIFFS-APPELLEES, THERE BEING NO
PROOF ON RECORD SUPPORTING SUCH AWARD.
On October 21, 2009, the CA affirmed the judgment of the RTC with modification, 9 as follows:
85
WHEREFORE, the assailed Decision of the Regional Trial Court dated
October 25, 2005 is hereby AFFIRMED with MODIFICATION.
Accordingly, defendant-appellant is ordered to pay plaintiffs-appellees
the amounts of P52,078,702.50, as actual and compensatory damages;
P25,000.00, as temperate damages; P250,000.00, as attorney's fees;
and to pay the costs of the suit.
SO ORDERED. 10
Issues
Petitioner still seeks the review of the judgment of the CA, submitting the following issues for
consideration and determination, namely:
I.
WHETHER OR NOT THE PLAINTIFFS-APPELLEES WERE ABLE TO
ALLEGATIONS IN THE COMPLAINT THAT THEY ARE THE WIDOW
AND SON OF MR. CHRISTIAN HARPER. TaCIDS
II.
WHETHER OR NOT THE APPELLEES WERE ABLE TO PROVE WITH
COMPETENT EVIDENCE THE AFFIRMATIVE ALLEGATIONS IN THE
COMPLAINT THAT THERE WAS NEGLIGENCE ON THE PART OF
THE APPELLANT AND ITS SAID NEGLIGENCE WAS THE
PROXIMATE CAUSE OF THE DEATH OF MR. CHRISTIAN HARPER.
III.
WHETHER OR NOT THE PROXIMATE CAUSE OF THE DEATH OF
MR. CHRISTIAN HARPER WAS HIS OWN NEGLIGENCE.
Ruling
The appeal lacks merit.
1.
Requirements for authentication of documents
establishing respondents' legal relationship
with the victim as his heirs were complied with
As to the first issue, the CA pertinently held as follows:
The documentary evidence that plaintiffs-appellees offered relative to
their heirship consisted of the following
1. Exhibit "Q" Birth Certificate of Jonathan Christopher
Harper, son of Christian Fredrik Harper and Ellen
2. Exhibit "Q-1" Marriage Certificate of Ellen Johanne
Clausen and Christian Fredrik Harper;
3. Exhibit "R" Birth Certificate of Christian Fredrick Harper,
son of Christopher Shaun Harper and Eva Harper;
and

4. Exhibit "R-1" Certificate from the Oslo Probate Court
stating that Ellen Harper was married to the
deceased, Christian Fredrick Harper and listed Ellen
Harper and Jonathan Christopher Harper as the
heirs of Christian Fredrik Harper.
Defendant-appellant points out that plaintiffs-appellees committed
several mistakes as regards the above documentary exhibits, resultantly
making them incompetent evidence, to wit, (a) none of the plaintiffs-
appellees or any of the witnesses who testified for the plaintiffs gave
evidence that Ellen Johanne Harper and Jonathan Christopher Harper
are the widow and son of the deceased Christian Fredrik Harper; (b)
Exhibit "Q" was labeled as Certificate of Marriage in plaintiffs-appellees'
Formal Offer of Evidence, when it appears to be the Birth Certificate of
the late Christian Harper; (c) Exhibit "Q-1" is a translation of the Marriage
Certificate of Ellen Johanne Harper and Christian Fredrik Harper, the
original of which was not produced in court, much less, offered in
evidence. Being a mere translation, it cannot be a competent evidence of
the alleged fact that Ellen Johanne Harper is the widow of Christian
Fredrik Harper, pursuant to the Best Evidence Rule. Even assuming that
it is an original Marriage Certificate, it is not a public document that is
admissible without the need of being identified or authenticated on the
witness stand by a witness, as it appears to be a document issued by
the Vicar of the Parish of Ullern and, hence, a private document; (d)
Exhibit "R" was labeled as Probate Court Certificate in plaintiffs-
appellees' Formal Offer of Evidence, when it appears to be the Birth
Certificate of the deceased, Christian Fredrik Harper; and (e) Exhibit "R-
1" is a translation of the supposed Probate Court Certificate, the original
of which was not produced in court, much less, offered in evidence.
Being a mere translation, it is an incompetent evidence of the alleged
fact that plaintiffs-appellees are the heirs of Christian Fredrik Harper,
pursuant to the Best Evidence Rule. ECaTDc
Defendant-appellant further adds that Exhibits "Q-1" and "R-1" were not
duly attested by the legal custodians (by the Vicar of the Parish of Ullern
for Exhibit "Q-1" and by the Judge or Clerk of the Probate Court for
Exhibit "R-1") as required under Sections 24 and 25, Rule 132 of
the Revised Rules of Court. Likewise, the said documents are not
accompanied by a certificate that such officer has the custody as also
required under Section 24 of Rule 132. Consequently, defendant-
appellant asseverates that Exhibits "Q-1" and "R-1" as private
documents, which were not duly authenticated on the witness stand by a
competent witness, are essentially hearsay in nature that have no
probative value. Therefore, it is obvious that plaintiffs-appellees failed to
prove that they are the widow and son of the late Christian Harper.
Plaintiffs-appellees make the following counter arguments, viz., (a)
Exhibit "Q-1", the Marriage Certificate of Ellen Johanne Harper and
Christian Fredrik Harper, was issued by the Office of the Vicar of Ullern
with a statement that "this certificate is a transcript from the Register of
Marriage of Ullern Church." The contents of Exhibit "Q-1" were
translated by the Government of the Kingdom of Norway, through its
authorized translator, into English and authenticated by the Royal
Ministry of Foreign Affairs of Norway, which in turn, was also
authenticated by the Consul, Embassy of the Republic of the Philippines
in Stockholm, Sweden; (b) Exhibit "Q", the Birth Certificate of Jonathan
86
Christopher Harper, was issued and signed by the Registrar of the
Kingdom of Norway, as authenticated by the Royal Ministry of Foreign
Affairs of Norway, whose signature was also authenticated by the
Consul, Embassy of the Republic of the Philippines in Stockholm,
Sweden; and (c) Exhibit "R-1", the Probate Court Certificate was also
authenticated by the Royal Ministry of Foreign Affairs of Norway, whose
signature was also authenticated by the Consul, Embassy of the
Republic of the Philippines in Stockholm, Sweden.
They further argue that since Exhibit "Q-1", Marriage Certificate, was
issued by the vicar or parish priest, the legal custodian of parish records,
it is considered as an exception to the hearsay rule. As for Exhibit "R-1",
the Probate Court Certificate, while the document is indeed a translation
of the certificate, it is an official certification, duly confirmed by the
Government of the Kingdom of Norway; its contents were lifted by the
Government Authorized Translator from the official record and thus, a
written official act of a foreign sovereign country.
WE rule for plaintiffs-appellees.
The Revised Rules of Court provides that public documents may be
evidenced by a copy attested by the officer having the legal custody of
the record. The attestation must state, in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the case may
be. The attestation must be under the official seal of the attesting officer,
if there be any, or if he be the clerk of a court having a seal, under the
seal of such court.
If the record is not kept in the Philippines, the attested copy must be
accompanied with a certificate that such officer has the custody. If the
office in which the record is kept is in a foreign country, the certificate
may be made by a secretary of the embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office.
The documents involved in this case are all kept in Norway. These
documents have been authenticated by the Royal Norwegian
Ministry of Foreign Affairs; they bear the official seal of the Ministry
and signature of one, Tanja Sorlie. The documents are accompanied
by an Authentication by the Consul, Embassy of the Republic of the
Philippines in Stockholm, Sweden to the effect that, Tanja Sorlie is
duly authorized to legalize official documents for the Ministry.
Exhibits "Q" and "R" are extracts of the register of births of both
Jonathan Christopher Harper and the late Christian Fredrik Harper,
respectively, wherein the former explicitly declares that Jonathan
Christopher is the son of Christian Fredrik and Ellen Johanne
Harper. Said documents bear the signature of the keeper, Y. Ayse B.
Nordal with the official seal of the Office of the Registrar of Oslo,
and the authentication of Tanja Sorlie of the Royal Ministry of
Foreign Affairs, Oslo, which were further authenticated by Philippine
Consul Marian Jocelyn R. Tirol. In addition, the latter states that said
documents are the birth certificates of Jonathan Christopher Harper
and Christian Fredrik Harper issued by the Registrar Office of Oslo,
Norway on March 23, 2004.

Exhibits "Q-1", on the other hand, is the Marriage Certificate of
Christian Fredrik Harper and Ellen Johanne Harper issued by the
vicar of the Parish of Ullern while Exhibit "R-1" is the Probate Court
Certificate from the Oslo Probate Court, naming Ellen Johanne
Harper and Jonathan Christopher Harper as the heirs of the
deceased Christian Fredrik Harper. The documents are certified true
translations into English of the transcript of the said marriage
certificate and the probate court certificate. They were likewise
signed by the authorized government translator of Oslo with the seal
of his office; attested by Tanja Sorlie and further certified by our
own Consul.
In view of the foregoing, WE conclude that plaintiffs-appellees had
substantially complied with the requirements set forth under the
rules. WE would also like to stress that plaintiffs-appellees herein
are residing overseas and are litigating locally through their
representative. While they are not excused from complying with our
rules, WE must take into account the attendant reality that these
overseas litigants communicate with their representative and
counsel via long distance communication. Add to this is the fact that
compliance with the requirements on attestation and authentication
or certification is no easy process and completion thereof may vary
depending on different factors such as the location of the
requesting party from the consulate and the office of the record
custodian, the volume of transactions in said offices and even the
mode of sending these documents to the Philippines. With these
circumstances under consideration, to OUR minds, there is every
reason for an equitable and relaxed application of the rules on the
issuance of the required attestation from the custodian of the
documents to plaintiffs-appellees' situation. Besides, these
questioned documents were duly signed by the officers having
custody of the same. 11 HAaDTE
Petitioner assails the CA's ruling that respondents substantially complied with the rules on the
authentication of the proofs of marriage and filiation set by Section 24 and Section 25 of Rule
132 of the Rules of Court when they presented Exhibit Q, Exhibit Q-1, Exhibit R and Exhibit R-1,
because the legal custodian did not duly attest that Exhibit Q-1 and Exhibit R-1 were the
correct copies of the originals on file, and because no certification accompanied the documents
stating that "such officer has custody of the originals." It contends that respondents did not
competently prove their being Harper's surviving heirs by reason of such documents being
hearsay and incompetent.
Petitioner's challenge against respondents' documentary evidence on marriage and heirship is
not well-taken.
Section 24 and Section 25 of Rule 132 provide:
Section 24. Proof of official record. The record of public documents
referred to in paragraph (a) of Section 19, when admissible for any
purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the record, or by
his deputy, and accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. If the office in which
the record is kept is in a foreign country, the certificate may be made by
a secretary of the embassy or legation, consul general, consul, vice
87
consul, or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept,
and authenticated by the seal of his office.
Section 25. What attestation of copy must state. Whenever a copy of
a document or record is attested for the purpose of evidence, the
attestation must state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there
be any, or if he be the clerk of a court having a seal, under the seal of
such court.
Although Exhibit Q, 12 Exhibit Q-1, 13 Exhibit R 14 and Exhibit R-1 15 were not attested by the
officer having the legal custody of the record or by his deputy in the manner required in Section
25 of Rule 132, and said documents did not comply with the requirement under Section 24 of
Rule 132 to the effect that if the record was not kept in the Philippines a certificate of the
person having custody must accompany the copy of the document that was duly attested
stating that such person had custody of the documents, the deviation was not enough reason
to reject the utility of the documents for the purposes they were intended to serve. TAHcCI
Exhibit Q and Exhibit R were extracts from the registry of births of Oslo, Norway issued on
March 23, 2004 and signed by Y. Ayse B. Nordal, Registrar, and corresponded to respondent
Jonathan Christopher Harper and victim Christian Fredrik Harper, respectively. 16 Exhibit Q
explicitly stated that Jonathan was the son of Christian Fredrik Harper and Ellen Johanne
Harper, while Exhibit R attested to the birth of Christian Fredrik Harper on December 4, 1968.
Exhibit Q and Exhibit R were authenticated on March 29, 2004 by the signatures of Tanja Sorlie
of the Royal Ministry of Foreign Affairs of Norway as well as by the official seal of that office. In
turn, Consul Marian Jocelyn R. Tirol of the Philippine Consulate in Stockholm, Sweden
authenticated the signatures of Tanja Sorlie and the official seal of the Royal Ministry of Foreign
Affairs of Norway on Exhibit Q and Exhibit R, explicitly certifying to the authority of Tanja Sorlie
"to legalize official documents for the Royal Ministry of Foreign Affairs of Norway." 17 DIAcTE
Exhibit Q-1, 18 the Marriage Certificate of Ellen Johanne Clausen Harper and Christian Fredrik
Harper, contained the following data, namely: (a) the parties were married on June 29, 1996 in
Ullern Church; and (b) the certificate was issued by the Office of the Vicar of Ullern on June 29,
1996. Exhibit Q-1 was similarly authenticated by the signature of Tanja Sorlie of the Royal
Ministry of Foreign Affairs of Norway, with the official seal of that office. Philippine Consul Tirol
again expressly certified to the capacity of Sorlie "to legalize official documents for the Royal
Ministry of Foreign Affairs of Norway," 19 and further certified that the document was a true
translation into English of a transcript of a Marriage Certificate issued to Christian Frederik
Harper and Ellen Johanne Clausen by the Vicar of the Parish of Ullern on June 29, 1996.
Exhibit R-1, 20 a Probate Court certificate issued by the Oslo Probate Court on February 18,
2000 through Morten Bolstad, its Senior Executive Officer, was also authenticated by the
signature of Tanja Sorlie and with the official seal of the Royal Ministry of Foreign Affairs of
Norway. As with the other documents, Philippine Consul Tirol explicitly certified to the capacity
of Sorlie "to legalize official documents for the Royal Ministry of Foreign Affairs of Norway," and
further certified that the document was a true translation into English of the Oslo Probate Court
certificate issued on February 18, 2000 to the effect that Christian Fredrik Harper, born on
December 4, 1968, had reportedly died on November 6, 1999. 21
The Oslo Probate Court certificate recited that both Ellen Johanne Harper and Christopher S.
Harper were Harper's heirs, to wit:
The above names surviving spouse has accepted responsibility for the
commitments of the deceased in accordance with the provisions of

Section 78 of the Probate Court Act (Norway), and the above
substitute guardian has agreed to the private division of the estate.
The following heir and substitute guardian will undertake the private
division of the estate:
Ellen Johanne Harper
Christopher S. Harper
This probate court certificate relates to the entire estate.
Oslo Probate Court, 18 February 2000. 22
The official participation in the authentication process of Tanja Sorlie of the Royal Ministry of
Foreign Affairs of Norway and the attachment of the official seal of that office on each
authentication indicated that Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-1 were documents
of a public nature in Norway, not merely private documents. It cannot be denied that based on
Philippine Consul Tirol's official authentication, Tanja Sorlie was "on the date of signing, duly
authorized to legalize official documents for the Royal Ministry of Foreign Affairs of Norway."
Without a showing to the contrary by petitioner, Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-
1 should be presumed to be themselves official documents under Norwegian law, and
admissible as prima facie evidence of the truth of their contents under Philippine law. IHCSTE
At the minimum, Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-1 substantially met the
requirements of Section 24 and Section 25 of Rule 132 as a condition for their admission as
evidence in default of a showing by petitioner that the authentication process was tainted with
bad faith. Consequently, the objective of ensuring the authenticity of the documents prior to
their admission as evidence was substantially achieved. In Constantino-David v. Pangandaman-
Gania, 23 the Court has said that substantial compliance, by its very nature, is actually
inadequate observance of the requirements of a rule or regulation that are waived under
equitable circumstances in order to facilitate the administration of justice, there being no
damage or injury caused by such flawed compliance.
The Court has further said in Constantino-David v. Pangandaman-Gania that the focus in every
inquiry on whether or not to accept substantial compliance is always on the presence of
equitable conditions to administer justice effectively and efficiently without damage or injury to
the spirit of the legal obligation. 24 There are, indeed, such equitable conditions attendant here,
the foremost of which is that respondents had gone to great lengths to submit the documents.
As the CA observed, respondents' compliance with the requirements on attestation and
authentication of the documents had not been easy; they had to contend with many difficulties
(such as the distance of Oslo, their place of residence, from Stockholm, Sweden, where the
Philippine Consulate had its office; the volume of transactions in the offices concerned; and the
safe transmission of the documents to the Philippines). 25 Their submission of the documents
should be presumed to be in good faith because they did so in due course. It would be
inequitable if the sincerity of respondents in obtaining and submitting the documents despite
the difficulties was ignored.
The principle of substantial compliance recognizes that exigencies and situations do
occasionally demand some flexibility in the rigid application of the rules of procedure and the
laws. 26 That rules of procedure may be mandatory in form and application does not forbid a
showing of substantial compliance under justifiable circumstances, 27 because substantial
compliance does not equate to a disregard of basic rules. For sure, substantial compliance and
strict adherence are not always incompatible and do not always clash in discord. The power of
the Court to suspend its own rules or to except any particular case from the operation of the
rules whenever the purposes of justice require the suspension cannot be challenged. 28 In the
interest of substantial justice, even procedural rules of the most mandatory character in terms
of compliance are frequently relaxed. Similarly, the procedural rules should definitely be liberally
88
construed if strict adherence to their letter will result in absurdity and in manifest injustice,
or where the merits of a party's cause are apparent and outweigh considerations of non-
compliance with certain formal requirements. 29 It is more in accord with justice that a party-
litigant is given the fullest opportunity to establish the merits of his claim or defense than for
him to lose his life, liberty, honor or property on mere technicalities. Truly, the rules of
procedure are intended to promote substantial justice, not to defeat it, and should not be
applied in a very rigid and technical sense. 30 DaAIHC
Petitioner urges the Court to resolve the apparent conflict between the rulings in Heirs of Pedro
Cabais v. Court of Appeals 31 (Cabais) and in Heirs of Ignacio Conti v. Court of
Appeals 32 (Conti) establishing filiation through a baptismal certificate. 33
Petitioner's urging is not warranted, both because there is no conflict between the rulings
in Cabais and Conti, and because neither Cabais nor Conti is relevant herein.
In Cabais, the main issue was whether or not the CA correctly affirmed the decision of the RTC
that had relied mainly on the baptismal certificate of Felipa C. Buesa to establish the parentage
and filiation of Pedro Cabais. The Court held that the petition was meritorious, stating:
A birth certificate, being a public document, offers prima facie evidence
of filiation and a high degree of proof is needed to overthrow the
presumption of truth contained in such public document. This is
pursuant to the rule that entries in official records made in the
performance of his duty by a public officer are prima facie evidence of
the facts therein stated. The evidentiary nature of such document must,
therefore, be sustained in the absence of strong, complete and
conclusive proof of its falsity or nullity.
On the contrary, a baptismal certificate is a private document, which,
being hearsay, is not a conclusive proof of filiation. It does not have the
same probative value as a record of birth, an official or public document.
In US v. Evangelista, this Court held that church registers of births,
marriages, and deaths made subsequent to the promulgation of General
Orders No. 68 and the passage of Act No. 190 are no longer public
writings, nor are they kept by duly authorized public officials. Thus, in
this jurisdiction, a certificate of baptism such as the one herein
controversy is no longer regarded with the same evidentiary value as
official records of birth. Moreover, on this score, jurisprudence is
consistent and uniform in ruling that the canonical certificate of baptism
is not sufficient to prove recognition. 34
The Court sustained the Cabais petitioners' stance that the RTC had apparently erred in relying
on the baptismal certificate to establish filiation, stressing the baptismal certificate's limited
evidentiary value as proof of filiation inferior to that of a birth certificate; and declaring that the
baptismal certificate did not attest to the veracity of the statements regarding the kinsfolk of the
one baptized. Nevertheless, the Court ultimately ruled that it was respondents' failure to
present the birth certificate, more than anything else, that lost them their case, stating that:
"The unjustified failure to present the birth certificate instead of the baptismal certificate now
under consideration or to otherwise prove filiation by any other means recognized by law weigh
heavily against respondents." 35 cDCHaS
In Conti, the Court affirmed the rulings of the trial court and the CA to the effect that
the Conti respondents were able to prove by preponderance of evidence their being the
collateral heirs of deceased Lourdes Sampayo. The Conti petitioners disagreed, arguing that
baptismal certificates did not prove the filiation of collateral relatives of the deceased. Agreeing
with the CA, the Court said:

We are not persuaded. Altogether, the documentary and testimonial
evidence submitted . . . are competent and adequate proofs that private
respondents are collateral heirs of Lourdes Sampayo.
xxx xxx xxx
Under Art. 172 of the Family Code, the filiation of legitimate children shall
be proved by any other means allowed by the Rules of Court and special
laws, in the absence of a record of birth or a parent's admission of such
legitimate filiation in a public or private document duly signed by the
parent. Such other proof of one's filiation may be a baptismal certificate,
a judicial admission, a family Bible in which his name has been entered,
common reputation respecting his pedigree, admission by silence, the
testimonies of witnesses and other kinds of proof admissible under Rule
130 of the Rules of Court. By analogy, this method of proving filiation
may also be utilized in the instant case.
Public documents are the written official acts, or records of the official
act of the sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or a foreign country. The baptismal
certificates presented in evidence by private respondents are public
documents. Parish priests continue to be the legal custodians of the
parish records and are authorized to issue true copies, in the form
of certificates, of the entries contained therein.
The admissibility of baptismal certificates offered by Lydia S. Reyes,
absent the testimony of the officiating priest or the official recorder, was
settled in People v. Ritter, citing U.S. v. de Vera (28 Phil. 105 [1914],
thus: EcAISC
. . . . The entries made in the Registry Book may be considered
as entries made in the course of business under Section 43 of
Rule 130, which is an exception to the hearsay rule. The
baptisms administered by the church are one of its
transactions in the exercise of ecclesiastical duties and
recorded in the book of the church during this course of its
business.
It may be argued that baptismal certificates are evidence only of the
administration of the sacrament, but in this case, there were four (4)
baptismal certificates which, when taken together, uniformly show
that Lourdes, Josefina, Remedios and Luis had the same set of
parents, as indicated therein. Corroborated by the undisputed
testimony of Adelaida Sampayo that with the demise of Lourdes and
her brothers Manuel, Luis and sister Remedios, the only sibling left
was Josefina Sampayo Reyes, such baptismal certificates have
acquired evidentiary weight to prove filiation. 36
Obviously, Conti did not treat a baptismal certificate, standing alone, as sufficient to prove
filiation; on the contrary, Conti expressly held that a baptismal certificate had evidentiary value
to prove filiation if considered alongside other evidence of filiation. As such, a baptismal
certificate alone is not sufficient to resolve a disputed filiation.
Unlike Cabais and Conti, this case has respondents presenting several documents, like the birth
certificates of Harper and respondent Jonathan Harper, the marriage certificate of Harper and
Ellen Johanne Harper, and the probate court certificate, all of which were presumably regarded
89
as public documents under the laws of Norway. Such documentary evidence sufficed to
competently establish the relationship and filiation under the standards of our Rules of Court.
II
Petitioner was liable due to its own negligence
Petitioner argues that respondents failed to prove its negligence; that Harper's own negligence
in allowing the killers into his hotel room was the proximate cause of his own death; and that
hotels were not insurers of the safety of their guests. ACTESI
The CA resolved petitioner's arguments thuswise:
Defendant-appellant contends that the pivotal issue is whether or not it
had committed negligence and corollarily, whether its negligence was
the immediate cause of the death of Christian Harper. In its defense,
defendant-appellant mainly avers that it is equipped with adequate
security system as follows: (1) keycards or vingcards for opening the
guest rooms, (2) two CCTV monitoring cameras on each floor of the
hotel and (3) roving guards with handheld radios, the number of which
depends on the occupancy rate of the hotel. Likewise, it reiterates that
the proximate cause of Christian Harper's death was his own negligence
in inviting to his room the two (2) still unidentified suspects.
Plaintiffs-appellees in their Brief refute, in that, the liability of defendant-
appellant is based upon the fact that it was in a better situation than the
injured person, Christian Harper, to foresee and prevent the happening
of the injurious occurrence. They maintain that there is no dispute that
even prior to the untimely demise of Christian Harper, defendant-
appellant was duly forewarned of its security lapses as pointed out by its
Chief Security Officer, Col. Rodrigo De Guzman, who recommended that
one roving guard be assigned on each floor of the hotel considering the
length and shape of the corridors. They posit that defendant-appellant's
inaction constitutes negligence.
This Court finds for plaintiffs-appellees.
As the action is predicated on negligence, the relevant law is Article 2176
of the Civil Code, which states that
"Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there was no pre-existing
contractual relation between the parties, is called quasi-delict
and is governed by the provisions of this chapter." EDIaSH
Negligence is defined as the omission to do something which a
reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do. The
Supreme Court likewise ruled that negligence is want of care required by
the circumstances. It is a relative or comparative, not an absolute, term
and its application depends upon the situation of the parties and the
degree of care and vigilance which the circumstances reasonably
require. In determining whether or not there is negligence on the part of
the parties in a given situation, jurisprudence has laid down the following
test: Did defendant, in doing the alleged negligent act, use that
reasonable care and caution which an ordinarily prudent person would

have used in the same situation? If not, the person is guilty of
negligence. The law, in effect, adopts the standard supposed to be
supplied by the imaginary conduct of the discreet pater familias of the
Roman law.
The test of negligence is objective. WE measure the act or omission of
the tortfeasor with a perspective as that of an ordinary reasonable
person who is similarly situated. The test, as applied to the extant case,
is whether or not defendant-appellant, under the attendant
circumstances, used that reasonable care and caution which an ordinary
reasonable person would have used in the same situation.
WE rule in the negative.
In finding defendant-appellant remiss in its duty of exercising the
required reasonable care under the circumstances, the court a
quo reasoned-out, to wit:
"Of the witnesses presented by plaintiffs to prove its (sic) case,
the only one with competence to testify on the issue of
adequacy or inadequacy of security is Col. Rodrigo De
Guzman who was then the Chief Security Officer of defendant
hotel for the year 1999. He is a retired police officer and had
vast experience in security jobs. He was likewise a member of
the elite Presidential Security Group. ASHICc
He testified that upon taking over the job as the chief of the
security force of the hotel, he made an assessment of the
security situation. Col. De Guzman was not satisfied with the
security set-up and told the hotel management of his desire to
improve it. In his testimony, De Guzman testified that at the
time he took over, he noticed that there were few guards in the
elevated portion of the hotel where the rooms were located.
The existing security scheme then was one guard for 3 or 4
floors. He likewise testified that he recommended to the hotel
management that at least one guard must be assigned per
floor especially considering that the hotel has a long "L-
shaped" hallway, such that one cannot see both ends of the
hallway. He further opined that "even one guard in that hallway
is not enough because of the blind portion of the hallway."
On cross-examination, Col. De Guzman testified that the
security of the hotel was adequate at the time the crime
occurred because the hotel was not fully booked. He qualified
his testimony on direct in that his recommendation of one
guard per floor is the "ideal" set-up when the hotel is fully-
booked.
Be that as it may, it must be noted that Col. De Guzman also
testified that the reason why the hotel management
disapproved his recommendation was that the hotel was not
doing well. It is for this reason that the hotel management did
not heed the recommendation of Col. De Guzman, no matter
how sound the recommendation was, and whether the hotel is
fully-booked or not. It was a business judgment call on the
part of the defendant.
90
Plaintiffs anchor its (sic) case on our law on quasi-delicts.
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 quasi-delict.
Liability on the part of the defendant is based upon the fact
that he was in a better situation than the injured person to
foresee and prevent the happening of the injurious
occurrence. HTCIcE
There is no dispute that even prior to the untimely demise of
Mr. Harper, defendant was duly forewarned of the security
lapses in the hotel. Col. De Guzman was particularly
concerned with the security of the private areas where the
guest rooms are. He wanted not just one roving guard in every
three or four floors. He insisted there must be at least one in
each floor considering the length and the shape of the
corridors. The trained eyes of a security officer
was (sic) looking at that deadly scenario resulting from that
wide security breach as that which befell Christian Harper.
The theory of the defense that the malefactor/s was/were
known to Harper or was/were visitors of Harper and that there
was a shindig among [the] three deserves scant consideration.
The NBI Biology Report (Exhs. "C" & "D") and the Toxicology
Report (Exh. "E") belie the defense theory of a joyous party
between and among Harper and the unidentified malefactor/s.
Based on the Biology Report, Harper was found negative of
prohibited and regulated drugs. The Toxicology Report
likewise revealed that the deceased was negative of the
presence of alcohol in his blood.
The defense even suggests that the malefactor/s gained entry
into the private room of Harper either because Harper allowed
them entry by giving them access to the vingcard or because
Harper allowed them entry by opening the door for them, the
usual gesture of a room occupant to his visitors.
While defendant's theory may be true, it is more likely, under
the circumstances obtaining that the malefactor/s gained entry
into his room by simply knocking at Harper's door and the
latter opening it probably thinking it was hotel personnel,
without an inkling that criminal/s could be in the premises.
The latter theory is more attuned to the dictates of reason. If
indeed the female "visitor" is known to or a visitor of Harper,
she should have entered the room together with Harper. It is
quite unlikely that a supposed "visitor" would wait three
minutes to be with a guest when he/she could go with the
guest directly to the room. The interval of three minutes in
Harper's entry and that of the alleged female visitor belies the
"theory of acquaintanceship". It is most likely that the female

"visitor" was the one who opened the door to the male
"visitor", undoubtedly, a co-conspirator. AEHCDa
In any case, the ghastly incident could have been prevented
had there been adequate security in each of the hotel floors.
This, coupled with the earlier recommendation of Col. De
Guzman to the hotel management to act on the security lapses
of the hotel, raises the presumption that the crime was
foreseeable.
Clearly, defendant's inaction constitutes negligence or want of
the reasonable care demanded of it in that particular situation.
In a case, the Supreme Court defined negligence as:
The failure to observe for the protection of the
interests of another person that degree of care,
precaution and vigilance, which the circumstances
justly demand, whereby such person suffers injury.
Negligence is want of care required by the
circumstances. It is a relative or comparative, not an
absolute term, and its application depends upon the
situation of the parties, and the degree of care and
vigilance which the circumstances reasonably
impose. Where the danger is great, a high degree of
care is necessary. TCDHaE
Moreover, in applying the premises liability rule in the instant
case as it is applied in some jurisdiction (sic) in the United
States, it is enough that guests are injured while inside the
hotel premises to make the hotelkeeper liable. With great
caution should the liability of the hotelkeeper be enforced
when a guest died inside the hotel premises.
It also bears stressing that there were prior incidents that
occurred in the hotel which should have forewarned the hotel
management of the security lapses of the hotel. As testified to
by Col. De Guzman, "there were 'minor' incidents" (loss of
items) before the happening of the instant case.
These "minor" incidents may be of little significance to the
hotel, yet relative to the instant case, it speaks volume. This
should have served as a caveat that the hotel security has
lapses.
Makati Shangri-La Hotel, to stress, is a five-star hotel. The
"reasonable care" that it must exercise for the safety and
comfort of its guests should be commensurate with the grade
and quality of the accommodation it offers. If there is such a
thing as "five-star hotel security", the guests at Makati
Shangri-La surely deserves just that!
When one registers (as) a guest of a hotel, he makes the
establishment the guardian of his life and his personal
belongings during his stay. It is a standard procedure of the
management of the hotel to screen visitors who call on their
91
guests at their rooms. The murder of Harper could have been
avoided had the security guards of the Shangri-La Hotel in
Makati dutifully observed this standard procedure."
WE concur.
Well settled is the doctrine that "the findings of fact by the trial court are
accorded great respect by appellate courts and should not be disturbed
on appeal unless the trial court has overlooked, ignored, or disregarded
some fact or circumstances of sufficient weight or significance which, if
considered, would alter the situation." After a conscientious sifting of the
records, defendant-appellant fails to convince US to deviate from this
doctrine.
It could be gleaned from findings of the trial court that its conclusion of
negligence on the part of defendant-appellant is grounded mainly on the
latter's inadequate hotel security, more particularly on the failure to
deploy sufficient security personnel or roving guards at the time the
ghastly incident happened.
A review of the testimony of Col. De Guzman reveals that on direct
examination he testified that at the time he assumed his position as
Chief Security Officer of defendant-appellant, during the early part of
1999 to the early part of 2000, he noticed that some of the floors of the
hotel were being guarded by a few guards, for instance, 3 or 4 floors by
one guard only on a roving manner. He then made a recommendation
that the ideal-set up for an effective security should be one guard for
every floor, considering that the hotel is L-shaped and the ends of the
hallways cannot be seen. At the time he made the recommendation, the
same was denied, but it was later on considered and approved on
December 1999 because of the Centennial Celebration.
On cross-examination, Col. De Guzman confirmed that after he took
over as Chief Security Officer, the number of security guards was
increased during the first part of December or about the last week of
November, and before the incident happened, the security was
adequate. He also qualified that as to his direct testimony on "ideal-set
up", he was referring to one guard for every floor if the hotel is fully
booked. At the time he made his recommendation in the early part of
1999, it was disapproved as the hotel was not doing well and it was not
fully booked so the existing security was adequate enough. He further
explained that his advice was observed only in the late November 1999
or the early part of December 1999. IATHaS
It could be inferred from the foregoing declarations of the former Chief
Security Officer of defendant-appellant that the latter was negligent in
providing adequate security due its guests. With confidence, it was
repeatedly claimed by defendant-appellant that it is a five-star hotel.
Unfortunately, the record failed to show that at the time of the death of
Christian Harper, it was exercising reasonable care to protect its guests
from harm and danger by providing sufficient security commensurate to
it being one of the finest hotels in the country. In so concluding, WE are
reminded of the Supreme Court's enunciation that 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 but also security to their persons and belongings. The twin duty
constitutes the essence of the business.
It is clear from the testimony of Col. De Guzman that his
recommendation was initially denied due to the fact that the business
was then not doing well. The "one guard, one floor" recommended
policy, although ideal when the hotel is fully-booked, was observed only
later in November 1999 or in the early part of December 1999, or
needless to state, after the murder of Christian Harper. The apparent
security lapses of defendant-appellant were further shown when the
male culprit who entered Christian Harper's room was never checked by
any of the guards when he came inside the hotel. As per interview
conducted by the initial investigator, PO3 Cornelio Valiente to the
guards, they admitted that nobody know that said man entered the hotel
and it was only through the monitor that they became aware of his entry.
It was even evidenced by the CCTV that before he walked to the room of
the late Christian Harper, said male suspect even looked at the
monitoring camera. Such act of the man showing wariness, added to the
fact that his entry to the hotel was unnoticed, at an unholy hour, should
have aroused suspicion on the part of the roving guard in the said floor,
had there been any. Unluckily for Christian Harper, there was none at
that time.
Proximate cause is defined as that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces, the injury, and without which the result would not have
occurred. More comprehensively, proximate cause is that cause acting
first and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the injury
as natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as
an ordinarily prudent and intelligent person, have reasonable ground to
expect at the moment of his act or default that an injury to some person
might probably result therefrom.
Defendant-appellant's contention that it was Christian Harper's own
negligence in allowing the malefactors to his room that was the
proximate cause of his death, is untenable. To reiterate, defendant-
appellant is engaged in a business imbued with public interest, ergo, it is
bound to provide adequate security to its guests. As previously
discussed, defendant-appellant failed to exercise such reasonable care
expected of it under the circumstances. Such negligence is the
proximate cause which set the chain of events that led to the eventual
demise of its guest. Had there been reasonable security precautions, the
same could have saved Christian Harper from a brutal death. IEaATD
The Court concurs entirely with the findings and conclusions of the CA, which the Court
regards to be thorough and supported by the records of the trial. Moreover, the Court cannot
now review and pass upon the uniform findings of negligence by the CA and the RTC because
doing so would require the Court to delve into and revisit the factual bases for the finding of
negligence, something fully contrary to its character as not a trier of facts. In that regard, the
factual findings of the trial court that are supported by the evidence on record, especially when
affirmed by the CA, are conclusive on the Court. 37 Consequently, the Court will not review
unless there are exceptional circumstances for doing so, such as the following:
92
(a) When the findings are grounded entirely on speculation, surmises or
conjectures;
(b) When the inference made is manifestly mistaken, absurd or
impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the Court of Appeals went beyond the
issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee;
(g) When the findings are contrary to the trial court;
(h) When the findings are conclusions without citation of specific
evidence on which they are based;
(i) When the facts set forth in the petition as well as in the petitioner's
main and reply briefs are not disputed by the respondent;
(j) When the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record; and
(k) When the Court of Appeals manifestly overlooked certain relevant
facts not disputed by the parties, which, if properly
considered, would justify a different conclusion. 38
None of the exceptional circumstances obtains herein. Accordingly, the Court cannot depart
from or disturb the factual findings on negligence of petitioner made by both the RTC and the
CA. 39 HITAEC
Even so, the Court agrees with the CA that petitioner failed to provide the basic and adequate
security measures expected of a five-star hotel; and that its omission was the proximate cause
of Harper's death.
The testimony of Col. De Guzman revealed that the management practice prior to the murder of
Harper had been to deploy only one security or roving guard for every three or four floors of the
building; that such ratio had not been enough considering the L-shape configuration of the
hotel that rendered the hallways not visible from one or the other end; and that he had
recommended to management to post a guard for each floor, but his recommendation had
been disapproved because the hotel "was not doing well" at that particular time. 40
Probably realizing that his testimony had weakened petitioner's position in the case, Col. De
Guzman soon clarified on cross-examination that petitioner had seen no need at the time of the
incident to augment the number of guards due to the hotel being then only half-booked. Here is
how his testimony went: HSaCcE
ATTY. MOLINA:
I just forgot one more point, Your Honor please. Was there ever a time,
Mr. Witness, that your recommendation to post a guard in
every floor ever considered and approved by the hotel?
A: Yes, Sir.

Q: When was this?
A: That was on December 1999 because of the Centennial Celebration
when the hotel accepted so many guests wherein most of the
rooms were fully booked and I recommended that all the
hallways should be guarded by one guard. 41
xxx xxx xxx
ATTY. COSICO:
Q: So at that time that you made your recommendation, the hotel was
half-filled.
A: Maybe.
Q: And even if the hotel is half-filled, your recommendation is that each
floor shall be maintained by one security guard per floors?
A: Yes sir.
93
Petitioner would thereby have the Court believe that Col. De Guzman's initial
recommendation had been rebuffed due to the hotel being only half-booked; that there had
been no urgency to adopt a one-guard-per-floor policy because security had been adequate at
that time; and that he actually meant by his statement that "the hotel was not doing well" that
the hotel was only half-booked.
We are not convinced. CTSDAI
The hotel business is imbued with public interest. Catering to the public, hotelkeepers are
bound to provide not only lodging for their guests but also security to the persons and
belongings of their guests. The twin duty constitutes the essence of the business. 43 Applying
by analogy Article 2000, 44 Article 2001 45 and Article 2002 46 of the Civil Code (all of which
concerned the hotelkeepers' degree of care and responsibility as to the personal effects of their
guests), we hold that there is much greater reason to apply the same if not greater degree of
care and responsibility when the lives and personal safety of their guests are involved.
Otherwise, the hotelkeepers would simply stand idly by as strangers have unrestricted access
to all the hotel rooms on the pretense of being visitors of the guests, without being held liable
should anything untoward befall the unwary guests. That would be absurd, something that no
good law would ever envision.

Q: Would you agree with me that even if the hotel is half-filled, there is In fine, the Court sees no reversible error on the part of the CA.
no need to increase the guards because there were only few
customers? WHEREFORE, the Court AFFIRMS the judgment of the Court of Appeals;
and ORDERS petitioner to pay the costs of suit.
A: I think so.
SO ORDERED.
Q: So you will agree with me that each floor should be maintained by
one security guard if the rooms are filled up or occupied? Sereno, C.J., Leonardo-de Castro, Villarama, Jr. and Reyes, JJ., concur.

A: Yes sir. IDSaAH ||| (Makati Shangri-La Hotel and Resort, Inc. v. Harper, G.R. No. 189998, [August 29, 2012], 693
PHIL 596-629)
Q: Now, you even testified that from January 1999 to November 1999
thereof, only minor incidents were involved?

A: Yes sir.
THIRD DIVISION
Q: So it would be correct to say that the security at that time in February
was adequate?
[G.R. No. 161803. February 4, 2008.]
A: I believe so.

Q: Even up to November when the incident happened for that same DY TEBAN TRADING, INC., petitioner, vs. JOSE CHING AND/OR
reason, security was adequate? LIBERTY FOREST, INC. and CRESILITO M. LIMBAGA, respondents.
A: Yes, before the incident.

Q: Now, you testified on direct that the hotel posted one guard each
floor? DECISION

A: Yes sir.

Q: And it was your own recommendation?

A: Yes, because we are expecting that the hotel will be filled up.
Q: In fact, the hotel was fully booked?
A: Yes sir. 42
REYES, R.T., J p:
THE vehicular collision resulting in damages and injuries in this case could have been avoided if
the stalled prime mover with trailer were parked properly and equipped with an early warning
device. It is high time We sounded the call for strict enforcement of the law and regulation on

traffic and vehicle registration. Panahon na para mahigpit na ipatupad ang batas at
regulasyon sa trapiko at pagpapatala ng sasakyan.
Before Us is a petition for review on certiorari of the Decision 1 of the Court of Appeals (CA)
modifying that 2 of the Regional Trial Court (RTC) in Butuan City finding private respondents
Liberty Forest, Inc. and Cresilito Limbaga liable to petitioner Dy Teban Trading, Inc. for
damages.
Facts
On July 4, 1995, at around 4:45 a.m., Rogelio Ortiz, with helper Romeo Catamora, was driving a
Nissan van owned by petitioner Dy Teban Trading, Inc. along the National Highway
inBarangay Sumilihon, Butuan City, going to Surigao City. They were delivering commercial ice
to nearby barangays and municipalities. A Joana Paula passenger bus was cruising on the
opposite lane towards the van. In between the two vehicles was a parked prime mover with a
trailer, owned by private respondent Liberty Forest, Inc. 3
The night before, at around 10:00 p.m., the prime mover with trailer suffered a tire blowout. The
driver, private respondent Cresilito Limbaga, parked the prime mover askew occupying a
substantial portion of the national highway, on the lane of the passenger bus. He parked the
prime mover with trailer at the shoulder of the road with the left wheels still on the cemented
highway and the right wheels on the sand and gravel shoulder of the highway. 4 The prime
mover was not equipped with triangular, collapsible reflectorized plates, the early warning
device required under Letter of Instruction No. 229. As substitute, Limbaga placed a banana
trunk with leaves on the front and the rear portion of the prime mover to warn incoming
motorists. It is alleged that Limbaga likewise placed kerosene lighted tin cans on the front and
rear of the trailer. 5
To avoid hitting the parked prime mover occupying its lane, the incoming passenger bus
swerved to the right, onto the lane of the approaching Nissan van. Ortiz saw two bright and
glaring headlights and the approaching passenger bus. He pumped his break slowly, swerved
to the left to avoid the oncoming bus but the van hit the front of the stationary prime mover. The
passenger bus hit the rear of the prime mover. 6
Ortiz and Catamora only suffered minor injuries. The Nissan van, however, became inoperable
as a result of the incident. After the collision, SPO4 Teofilo Pame conducted an investigation
and submitted a police traffic incident investigation report. 7
On October 31, 1995, petitioner Nissan van owner filed a complaint for damages 8 against
private respondents prime mover owner and driver with the RTC in Butuan City. The Joana
Paula passenger bus was not impleaded as defendant in the complaint.
RTC Disposition
On August 7, 2001, the RTC rendered a decision in favor of petitioner Dy Teban Trading, Inc.
with a fallo reading:
WHEREFORE, judgment is hereby rendered directing, ordaining and
ordering:
a) That defendants Liberty Forest, Inc. and Cresilito M.
Limbaga pay, jointly and solidarily, plaintiff Dy Teban
Trading, Inc. the amounts of P279,832.00 as actual
and compensatory damages, P30,000.00 as
attorney's fees and P5,000.00 as expenses of
litigation;
94
b) That all money claims of plaintiff Rogelio C. Ortiz are
dismissed;
c) That defendant Jose Ching is absolved from any civil liability
or the case against him dismissed;
d) That the counterclaim of all the defendants is dismissed;
and
e) That defendants Liberty Forest, Inc. and Cresilito M.
Limbaga to pay, jointly and solidarily, the costs.
SO ORDERED. 9
The RTC held that the proximate cause of the three-way vehicular collision was improper
parking of the prime mover on the national highway and the absence of an early warning device
on the vehicle, thus:
The court finds that the proximate cause of the incidents is the
negligence and carelessness attributable to the defendants. When the
trailer being pulled by the prime mover suffered two (2) flat tires at
Sumilihon, the prime mover and trailer were parked haphazardly, as the
right tires of the prime mover were the only ones on the sand and gravel
shoulder of the highway while the left tires and all the tires of the trailer
were on the cemented pavement of the highway, occupying almost the
whole of the right lane on the direction the prime mover and trailer were
traveling. The statement of Limbaga that he could not park the prime
mover and trailer deeper into the sand and gravel shoulder of the
highway to his right because there were banana plants is contradicted
by the picture marked Exhibit "F." The picture shows that there was
ample space on the shoulder. If defendant Limbaga was careful and
prudent enough, he should have the prime mover and trailer traveled
more distance forward so that the bodies of the prime mover and trailer
would be far more on the shoulder rather than on the cemented highway
when they were parked. . . . The court has some doubts on the
statement of witness-driver Limbaga that there were banana trunks with
leaves and lighted tin cans with crude oil placed 3 strides in front of the
prime mover and behind the trailer because the testimonies of witnesses
Rogelio C. Ortiz, driver of the ice van, Romeo D. Catamora, helper of the
ice van, and Police Traffic Investigator SPO3 Teofilo M. Pame show that
there were no banana trunks with leaves and lighted tin cans at the
scene of the incident. But even assuming that there were banana trunks
with leaves but they were placed close to the prime mover and trailer as
they were placed 3 strides away which to the mind of the court is
equivalent approximately to 3 meters and with this distance,
approaching vehicles would have no sufficient time and space to make a
complete stop, especially if the vehicles are heavy and loaded. If there
were lighted tin cans, it was not explained by the defendants why the
driver, especially driver witness Ortiz, did not see them.
xxx xxx xxx
Defendant Liberty Forest, Inc. did not exercise the diligence of a good
father of a family in managing and running its business. The evidence on
record shows that it failed to provide its prime mover and trailer with the
required "early warning devices" with reflectors and it did not keep
proper maintenance and condition of the prime mover and the trailer.

The circumstances show that the trailer were provided with wornout tires
and with only one (1) piece of spare tire. The pictures marked Exhibit "3"
and "4" show that two (2) flat tires suffered by the trailer and these two
(2) tires were attached to one of the two (2) I-beams or axles attached to
the rear of the trailer which axle is very near but behind the other axle
and with the location of the 2 I-beams, it would have the other I-beam
that would have suffered the flat tires as it has to bear the brunt of
weight of the D-8 bulldozer. The bulldozer was not loaded directly above
the two (2) I-beams as 2 I-beams, as a pair, were attached at the far rear
end of the trailer.
xxx xxx xxx
However, defendant Jose Ching should be absolved of any liability as
there is no showing that he is the manager or CEO of defendant Liberty
Forest, Inc. Although in the answer, it is admitted that he is an officer of
the defendant corporation, but it is not clarified what kind of position he
is holding, as he could be an officer as one of the members of the Board
of Directors or a cashier and treasurer of the corporation. Witness
Limbaga in his testimony mentioned a certain Boy Ching as the Manager
but it was never clarified whether or not Boy Ching and defendant Jose
Ching is one and the same person. 10
Private respondents appealed to the CA.
CA Disposition
On August 28, 2003, the CA reversed the RTC decision, disposing as follows:
WHEREFORE, premises considered, the decision dated August 7, 2001
of the Regional Trial Court, Branch 2, Butuan City in Civil Case No. 4360
is hereby PARTLY MODIFIED by absolving the defendants-
appellants/appellees of any liability to plaintiffs-appellants/appellees by
reason of the incident on July 4, 1995.
The dismissal of the case against Jose Ching, the counterclaim of
defendants-appellants/appellees and the money claim of Rogelio
Ortiz STANDS.
SO ORDERED. 11
In partly reversing or partly modifying the RTC decision, the CA held that the proximate cause
of the vehicular collision was the failure of the Nissan van to give way or yield to the right of way
of the passenger bus, thus:
It was stated that the Joana Paula bus in trying to avoid a head-on
collision with the truck, sideswept the parked trailer loaded with
bulldozer.
Evidently, the driver of the Joana Paula bus was aware of the presence
on its lane of the parked trailer with bulldozer. For this reason, it
proceeded to occupy what was left of its lane and part of the opposite
lane. The truck occupying the opposite lane failed to give way or yield
the right of way to the oncoming bus by proceeding with the same
speed. The two vehicles were, in effect, trying to beat each other in
occupying a single lane. The bus was the first to occupy the said lane
but upon realizing that the truck refused to give way or yield the right of
way, the bus, as a precaution, geared to its right where the trailer was
95
parked. Unfortunately, the bus miscalculated its distance from the
parked trailer and its rear right side hit the protruding blade of the
bulldozer then on the top of the parked trailer. The impact of the collision
on its right rear side with the blade of the bulldozer threw the bus further
to the opposite lane, landing its rear portion on the shoulder of the
opposite lane.
xxx xxx xxx
Facts of the case reveal that when Ortiz, the driver of the truck, failed to
give the Joana Paula bus the space on the road it needed, the latter
vehicle scraped its rear right side on the protruded bulldozer blade and
the impact threw the bus directly on the path of the oncoming truck. This
made plaintiffs-appellants/appellees conclude that the Joana Paula bus
occupied its lane which forced Ortiz, the driver of the truck, to swerve to
its left and ram the front of the parked trailer.
xxx xxx xxx
The trailer was parked because its two (2) rear-left tires were blown
out. With a bulldozer on top of the trailer and two (2) busted tires, it
would be dangerous and quite impossible for the trailer to further park
on the graveled shoulder of the road. To do so will cause the flat car to
tilt and may cause the bulldozer to fall from where it was mounted. In
fact, it appeared that the driver of the trailer tried its best to park on the
graveled shoulder since the right-front tires were on the graveled
shoulder of the road.
The lower court erred in stating that the Joana Paula bus swerved to the
left of the truck because it did not see the parked trailer due to lack of
warning sign of danger of any kind that can be seen from a distance. The
damage suffered by the Joana Paula bus belied this assessment. As
stated before, the Joana Paula bus, with the intention of passing first
which it did, first approached the space beside the parked trailer, veered
too close to the parked trailer thereby hitting its rear right side on the
protruding bulldozer blade. Since the damage was on the rear right most
of the bus, it was clearly on the space which was wide enough for a
single passing vehicle but not sufficient for two (2) passing vehicles. The
bus was thrown right to the path of the truck by the impact of the
collision of its rear right side with the bulldozer blade. 12
The CA disagreed with the RTC that the prime mover did not have an early warning device. The
appellate court accepted the claim of private respondent that Limbaga placed kerosene lighted
tin cans on the front and rear of the trailer which, in Baliwag Transit, Inc. v. Court of
Appeals, 13 may act as substitute early warning device. The CA stated:
Likewise, it was incorrect for the lower court to state that there was no
warning sign of danger of any kind, most probably referring to the
absence of the triangular reflectorized plates. The police sketch clearly
indicated the stack of banana leaves placed at the rear of the parked
trailer. The trailer's driver testified that they placed kerosene lighted tin
can at the back of the parked trailer.

A pair of triangular reflectorized plates is not the only early warning
device allowed by law. The Supreme Court (in Baliwag Transit, Inc. v.
Court of Appeals) held that:
". . . Col. dela Cruz and Romano testified that they did not see
any early warning device at the scene of the accident. They
were referring to the triangular reflectorized plates in red and
yellow issued by the Land Transportation Office. However, the
evidence shows that Recontique and Ecala placed a kerosene
lamp or torch at the edge of the road, near the rear portion of
the truck to serve as an early warning device. This
substantially complies with Section 34 (g) of the Land
Transportation and Traffic Code . . .
Baliwag's argument that the kerosene lamp or torch does not
substantially comply with the law is untenable. The
aforequoted law clearly allows the use not only of an early
warning device of the triangular reflectorized plates' variety but
also parking lights or flares visible one hundred meters away. .
. . ."
This Court holds that the defendants-appellants/appellees were not
negligent in parking the trailer on the scene of the accident. It would
have been different if there was only one flat tire and defendant-
appellant/appellee Limbaga failed to change the same and left
immediately.
As such, defendants-appellants/appellees are not liable for the damages
suffered by plaintiffs-appellants/appellees. Whatever damage plaintiffs-
appellants/appellees suffered, they alone must bear them. 14
Issues
Petitioner raises two issues 15 for Our consideration, to wit:
I.
THE HONORABLE COURT OF APPEALS, WITHOUT ANY AVAILABLE
CONCRETE EVIDENCE, ERRONEOUSLY DETERMINED THAT THERE
WERE EARLY WARNING DEVICES PLACED IN FRONT OF THE
DEFENDANT-APPELLANTS/APPELLEES' TRUCK AND FLAT CAR TO
WARN PLAINTIFF-APPELLANT/APPELLEE ROGELIO ORTIZ OF THEIR
PRESENCE.
II.
WITH DUE RESPECT, IT IS HIGH TIME TO ENFORCE THE LAW ON
EARLY WARNING DEVICES IN THE PUBLIC INTEREST.
Our Ruling
The petition is meritorious.
The meat of the petition is whether or not the prime mover is liable for the damages suffered by
the Nissan van. The RTC ruled in the affirmative holding that the proximate cause of the
vehicular collision was the negligence of Limbaga in parking the prime mover on the national
highway without an early warning device on the vehicle. The CA reversed the RTC decision,
96
holding that the proximate cause of the collision was the negligence of Ortiz in not yielding
to the right of way of the passenger bus.
Article 2176 of the Civil Code provides that whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-
delict. To sustain a claim based on quasi-delict, the following requisites must concur: (a)
damage suffered by plaintiff; (b) fault or negligence of defendant; and (c) connection of cause
and effect between the fault or negligence of defendant and the damage incurred by
plaintiff. 16
There is no dispute that the Nissan van suffered damage. That is borne by the records and
conceded by the parties. The outstanding issues are negligence and proximate cause. Tersely
put, the twin issues are: (a) whether or not prime mover driver Limbaga was negligent in parking
the vehicle; and (b) whether or not his negligence was the proximate cause of the damage to
the Nissan van.
Limbaga was negligent in parking
the prime mover on the national
highway; he failed to prevent or
minimize the risk to oncoming
motorists.
Negligence is defined as the failure to observe for the protection of the interests of another
person that degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury. 17 The Supreme Court stated the test of negligence
in the landmark case Picart v. Smith 18 as follows:
The test by which to determine the existence or negligence in a
particular case may be stated as follows: Did the defendant in doing the
alleged negligent act use that reasonable care and caution which an
ordinary person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of negligence in a given
case is not determined by reference to the personal judgment of the
actor in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that. (Underscoring supplied)
The test of negligence is objective. We measure the act or omission of the tortfeasor with that
of an ordinary reasonable person in the same situation. The test, as applied to this case, is
whether Limbaga, in parking the prime mover, used that reasonable care and caution which an
ordinary reasonable person would have used in the same situation.
We find that Limbaga was utterly negligent in parking the prime mover askew on the right side
of the national highway. The vehicle occupied a substantial portion of the national road on the
lane of the passenger bus. It was parked at the shoulder of the road with its left wheels still on
the cemented highway and the right wheels on the sand and gravel shoulder of the highway. It
is common sense that the skewed parking of the prime mover on the national road posed a
serious risk to oncoming motorists. It was incumbent upon Limbaga to take some measures to
prevent that risk, or at least minimize it.
We are unable to agree with the CA conclusion "it would have been dangerous and quite
impossible to further park the prime mover on the graveled shoulder of the road because the
prime mover may tilt and the bulldozer may fall off." The photographs taken after the incident
show that it could have been possible for Limbaga to park the prime mover completely on the

shoulder of the national road without risk to oncoming motorists. We agree with the RTC
observation on this point, thus:
. . . The statement of Limbaga that he could not park the prime mover
and trailer deeper into the sand and gravel shoulder of the highway to his
right because there were banana plants is contradicted by the picture
marked Exhibit "F." The picture shows that there was ample space on
the shoulder. If defendant Limbaga was careful and prudent enough, he
should have the prime mover and trailer traveled more distance forward
so that the bodies of the prime mover and trailer would be far more on
the shoulder rather than on the cemented highway when they were
parked. Although at the time of the incident, it was about 4:45 in the
morning and it was drizzling but there is showing that it was pitch dark
that whoever travels along the highway must be extra careful. If the
Joana Paula bus swerved to the lane on which the "Nissan" ice van was
properly traveling, as prescribed by Traffic Rules and Regulations, it is
because the driver of the bus did not see at a distance the parked prime
mover and trailer on the bus' proper lane because there was no warning
signs of danger of any kind that can be seen from a distance. 19
Limbaga also failed to take proper steps to minimize the risk posed by the improperly parked
prime mover. He did not immediately inform his employer, private respondent Liberty Forest,
Inc., that the prime mover suffered two tire blowouts and that he could not have them fixed
because he had only one spare tire. Instead of calling for help, Limbaga took it upon himself to
simply place banana leaves on the front and rear of the prime mover to serve as warning to
oncoming motorists. Worse, Limbaga slept on the prime mover instead of standing guard
beside the vehicle. By his own account, Limbaga was sleeping on the prime mover at the time
of the collision and that he was only awakened by the impact of the Nissan van and the
passenger bus on the prime mover. 20
Limbaga also admitted on cross-examination that it was his first time to drive the prime mover
with trailer loaded with a D-8 caterpillar bulldozer. 21 We find that private respondent Liberty
Forest, Inc. was utterly negligent in allowing a novice driver, like Limbaga, to operate a vehicle,
such as a truck loaded with a bulldozer, which required highly specialized driving skills.
Respondent employer clearly failed to properly supervise Limbaga in driving the prime mover.
The RTC noted that private respondent Liberty Forest, Inc. also failed to keep the prime mover
in proper condition at the time of the collision. The prime mover had worn out tires. It was only
equipped with one spare tire. It was for this reason that Limbaga was unable to change the two
blown out tires because he had only one spare. The bulldozer was not even loaded properly on
the prime mover, which caused the tire blowouts.
All told, We agree with the RTC that private respondent Limbaga was negligent in parking the
prime mover on the national highway. Private respondent Liberty Forest, Inc. was also negligent
in failing to supervise Limbaga and in ensuring that the prime mover was in proper condition.
The case of Baliwag Transit, Inc. v.
Court of Appeals is inapplicable;
Limbaga did not put lighted kerosene
tin cans on the front and rear of the
prime mover.
Anent the absence of an early warning device on the prime mover, the CA erred in accepting
the bare testimony of Limbaga that he placed kerosene lighted tin cans on the front and rear of
the prime mover. The evidence on records belies such claim. The CA reliance on Baliwag
97
Transit, Inc. v. Court of Appeals 22 as authority for the proposition that kerosene lighted tin
cans may act as substitute early warning device is misplaced.
First, the traffic incident report did not mention any lighted tin cans on the prime mover or
within the immediate vicinity of the accident. Only banana leaves were placed on the prime
mover. The report reads:
VIII RESULT OF INVESTIGATION: A Joana Paula Bus, with Body No.
7788, with Plate No. LVA-137, driven by one Temestocles Relova v.
Antero, of legal age, married and a resident of San Roque, Kitcharao,
Agusan del Norte, while traveling along the National Highway, coming
from the east going to the west direction, as it moves along the way and
upon reaching Brgy. Sumilihon, Butuan City to evade bumping to the
approaching Nissan Ice Van with Plate No. PNT-247, driven by one
Rogelio Cortez y Ceneza. As the result, the Joana Paula Bus accidentally
busideswept (sic) to the parked Prime Mover with Trailer loaded with
Bulldozer without early warning device, instead placing only dry
banana leaves three (3) meters at the rear portion of the Trailer, while
failure to place at the front portion, and the said vehicle occupied the
whole lane. As the result, the Joana Paula Bus hit to the left edge blade
of the Bulldozer. Thus, causing the said bus swept to the narrow
shouldering, removing the rear four (4) wheels including the differential
and injuring the above-stated twelve (12) passengers and damaged to
the right side fender above the rear wheel. Thus, causing damage on it.
While the Nissan Ice Van in evading, accidentally swerved to the left lane
and accidentally bumped to the front bumper of the parked Prime Mover
with Trailer loaded with Bulldozer. Thus, causing heavy damage to said
Nissan Ice Van including the cargoes of the said van. 23
Second, SPO4 Pame, who investigated the collision, testified 24 that only banana leaves were
placed on the front and rear of the prime mover. He did not see any lighted tin cans in the
immediate vicinity of the collision.
Third, the claim of Limbaga that he placed lighted tin cans on the front and rear of the prime
mover belatedly surfaced only during his direct examination. No allegation to this effect was
made by private respondents in their Answer to the complaint for damages. Petitioner's counsel
promptly objected to the testimony of Limbaga, thus:
ATTY. ROSALES:
Q. Now you mentioned about placing some word signs in front and at
the rear of the prime mover with trailer, will you please
describe to us what this word signs are?
A. We placed a piece of cloth on tin cans and filled them with crude oil.
And these tin cans were lighted and they are like torches.
These two lights or torches were placed in front and at the rear
side of the prime mover with trailer. After each torch, we
placed banana trunk. The banana trunk is placed between the
two (2) torches and the prime mover, both on the rear and on
the front portion of the prime mover.
Q. How far was the lighted tin cans with wick placed in front of the prime
mover.
ATTY. ASIS:

At this point, we will be objecting to questions particularly referring to
the alleged tin cans as some of the warning-sign devices,
considering that there is no allegation to that effect in the
answer of the defendants. The answer was just limited to the
numbers 4 & 5 of the answer. And, therefore, if we follow the
rule of the binding effect of an allegation in the complaint, then
the party will not be allowed to introduce evidence to attack
jointly or rather the same, paragraph 5 states, warning device
consisting of 3 banana trunks, banana items and leaves were
filed. He can be cross-examined in the point, Your Honor.
COURT:
Q. Put that on record that as far as this tin cans are concerned, the
plaintiffs are interposing continuing objections. But the Court
will allow the question. 25
We thus agree with the RTC that Limbaga did not place lighted tin cans on the front and rear of
the prime mover. We give more credence to the traffic incident report and the testimony of
SPO4 Pame that only banana leaves were placed on the vehicle. Baliwag Transit, Inc. v. Court
of Appeals 26 thus finds no application to the case at bar.
The skewed parking of the prime
mover was the proximate cause of
the collision.
Proximate cause is defined as that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the result
would not have occurred. More comprehensively, proximate cause is that cause acting first and
producing the injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as natural
and probable result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person
might probably result therefrom. 27
There is no exact mathematical formula to determine proximate cause. It is based upon mixed
considerations of logic, common sense, policy and precedent. 28 Plaintiff must, however,
establish a sufficient link between the act or omission and the damage or injury. That link must
not be remote or far-fetched; otherwise, no liability will attach. The damage or injury must be a
natural and probable result of the act or omission. In the precedent-setting Vda. de Bataclan v.
Medina, 29 this Court discussed the necessary link that must be established between the act or
omission and the damage or injury, viz.:
It may be that ordinarily, when a passenger bus overturns, and pins
down a passenger, merely causing him physical injuries, if through some
event, unexpected and extraordinary, the overturned bus is set on fire,
say, by lightning, or if some highwaymen after looting the vehicle sets it
on fire, and the passenger is burned to death, one might still contend
that the proximate cause of his death was the fire and not the
overturning of the vehicle. But in the present case and under the
circumstances obtaining in the same, we do not hesitate to hold that the
proximate cause of the death of Bataclan was the overturning of the bus,
this for the reason that when the vehicle turned not only on its side but
completely on its back, the leaking of the gasoline from the tank was not
unnatural or unexpected; that the coming of the men with a lighted torch
98
was in response to the call for help, made not only by the passengers,
but most probably, by the driver and the conductor themselves, and that
because it was very dark (about 2:30 in the morning), the rescuers had to
carry a light with them; and coming as they did from a rural area where
lanterns and flashlights were not available, they had to use a torch, the
most handy and available; and what was more natural than that said
rescuers should innocently approach the overturned vehicle to extend
the aid and effect the rescue requested from them. In other words, the
coming of the men with the torch was to be expected and was natural
sequence of the overturning of the bus, the trapping of some of its
passengers' bus, the trapping of some of its passengers and the call for
outside help.
The ruling in Bataclan has been repeatedly cited in subsequent cases as authority for the
proposition that the damage or injury must be a natural or probable result of the act or
omission. Here, We agree with the RTC that the damage caused to the Nissan van was a
natural and probable result of the improper parking of the prime mover with trailer. As
discussed, the skewed parking of the prime mover posed a serious risk to oncoming motorists.
Limbaga failed to prevent or minimize that risk. The skewed parking of the prime mover
triggered the series of events that led to the collision, particularly the swerving of the passenger
bus and the Nissan van.
Private respondents Liberty Forest, Inc. and Limbaga are liable for all damages that resulted
from the skewed parking of the prime mover. Their liability includes those damages resulting
from precautionary measures taken by other motorist in trying to avoid collision with the parked
prime mover. As We see it, the passenger bus swerved to the right, onto the lane of the Nissan
van, to avoid colliding with the improperly parked prime mover. The driver of the Nissan van,
Ortiz, reacted swiftly by swerving to the left, onto the lane of the passenger bus, hitting the
parked prime mover. Ortiz obviously would not have swerved if not for the passenger bus
abruptly occupying his van's lane. The passenger bus, in turn, would not have swerved to the
lane of the Nissan van if not for the prime mover improperly parked on its lane. The skewed
parking is the proximate cause of the damage to the Nissan van.
In Phoenix Construction, Inc. v. Intermediate Appellate Court, 30 this Court held that a similar
vehicular collision was caused by the skewed parking of a dump truck on the national road,
thus:
The conclusion we draw from the factual circumstances outlined above
is that private respondent Dionisio was negligent the night of the
accident. He was hurrying home that night and driving faster than he
should have been. Worse, he extinguished his headlights at or near the
intersection of General Lacuna and General Santos Streets and thus did
not see the dump truck that was parked askew and sticking out onto the
road lane.
Nonetheless, we agree with the Court of First Instance and the
Intermediate Appellate Court that the legal and proximate cause of the
accident and of Dionisio's injuries was the wrongful or negligent manner
in which the dump truck was parked in other words, the negligence of
petitioner Carbonel. That there was a reasonable relationship between
petitioner Carbonel's negligence on the one hand and the accident and
respondent's injuries on the other hand, is quite clear. Put in a slightly
different manner, the collision of Dionisio's car with the dump truck was
a natural and foreseeable consequence of the truck driver's negligence.

xxx xxx xxx
We believe, secondly, that the truck driver's negligence far from being a
"passive and static condition" was rather an indispensable and efficient
cause. The collision between the dump truck and the private
respondent's car would in all probability not have occurred had the
dump truck not been parked askew without any warning lights or
reflector devices. The improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down General Lacuna
Street and for having so created this risk, the truck driver must be held
responsible. In our view, Dionisio's negligence, although later in point of
time than the truck driver's negligence and, therefore, closer to the
accident, was not an efficient intervening or independent cause. What
the Petitioner describes as an "intervening cause" was no more than a
foreseeable consequence of the risk created by the negligent manner in
which the truck driver had parked the dump truck. In other words, the
petitioner truck driver owed a duty to private respondent Dionisio and
others similarly situated not to impose upon them the very risk the truck
driver had created. Dionisio's negligence was not of an independent and
overpowering nature as to cut, as it were, the chain of causation in fact
between the improper parking of the dump truck and the accident, nor to
sever the juris vinculum of liability. . . . (Underscoring supplied)
We cannot rule on the proportionate
or contributory liability of the
passenger bus, if any, because it
was not a party to the case; joint
tortfeasors are solidarily liable.
The CA also faults the passenger bus for the vehicular collision. The appellate court noted that
the passenger bus was "aware" of the presence of the prime mover on its lane, but it still
proceeded to occupy the lane of the Nissan van. The passenger bus also miscalculated its
distance from the prime mover when it hit the vehicle.
We cannot definitively rule on the proportionate or contributory liability of the Joana Paula
passenger bus vis--vis the prime mover because it was not a party to the complaint for
damages. Due process dictates that the passenger bus must be given an opportunity to
present its own version of events before it can be held liable. Any contributory or proportionate
liability of the passenger bus must be litigated in a separate action, barring any defense of
prescription or laches. Insofar as petitioner is concerned, the proximate cause of the collision
was the improper parking of the prime mover. It was the improper parking of the prime mover
which set in motion the series of events that led to the vehicular collision.
Even granting that the passenger bus was at fault, it's fault will not necessarily absolve private
respondents from liability. If at fault, the passenger bus will be a joint tortfeasor along with
private respondents. The liability of joint tortfeasors is joint and solidary. This means that
petitioner may hold either of them liable for damages from the collision. In Philippine National
Construction Corporation v. Court of Appeals, 31 this Court held:
According to the great weight of authority, where the concurrent or
successive negligent acts or omission of two or more persons, although
acting independently of each other, are, in combination, the direct and
proximate cause of a single injury to a third person and it is impossible to
determine in what proportion each contributed to the injury, either is
responsible for the whole injury, even though his act alone might not
99
have caused the entire injury, or the same damage might have resulted
from the acts of the other tort-feasor . . . .
In Far Eastern Shipping Company v. Court of Appeals, the Court declared that the liability of
joint tortfeasors is joint and solidary, to wit:
It may be said, as a general rule, that negligence in order to render a
person liable need not be the sole cause of an injury. It is sufficient that
his negligence, concurring with one or more efficient causes other than
plaintiff's, is the proximate cause of the injury. Accordingly, where
several causes combine to produce injuries, a person is not relieved from
liability because he is responsible for only one of them, it being sufficient
that the negligence of the person charged with injury is an efficient cause
without which the injury would not have resulted to as great an extent,
and that such cause is not attributable to the person injured. It is no
defense to one of the concurrent tortfeasors that the injury would not
have resulted from his negligence alone, without the negligence or
wrongful acts of the other concurrent tortfeasors. Where several causes
producing an injury are concurrent and each is an efficient cause without
which the injury would not have happened, the injury may be attributed
to all or any of the causes and recovery may be had against any or all of
the responsible persons although under the circumstances of the case, it
may appear that one of them was more culpable, and that the duty owed
by them to the injured person was not the same. No actor's negligence
ceases to be a proximate cause merely because it does not exceed the
negligence of other actors. Each wrongdoer is responsible for the entire
result and is liable as though his acts were the sole cause of the injury.
There is no contribution between joint tortfeasors whose liability is
solidary since both of them are liable for the total damage. Where the
concurrent or successive negligent acts or omissions of two or more
persons, although acting independently, are in combination with the
direct and proximate cause of a single injury to a third person, it is
impossible to determine in what proportion each contributed to the injury
and either of them is responsible for the whole injury. Where their
concurring negligence resulted in injury or damage to a third party, they
become joint tortfeasors and are solidarily liable for the resulting damage
under Article 2194 of the Civil Code. (Underscoring supplied)
All told, all the elements of quasi delict have been proven by clear and convincing evidence.
The CA erred in absolving private respondents from liability for the vehicular collision.
Final Note
It is lamentable that the vehicular collision in this case could have been easily avoided by
following basic traffic rules and regulations and road safety standards. In hindsight, private
respondent Limbaga could have prevented the three-way vehicular collision if he had properly
parked the prime mover on the shoulder of the national road. The improper parkingof vehicles,
most especially along the national highways, poses a serious and unnecessary risk to the lives
and limbs of other motorists and passengers. Drivers owe a duty of care to follow basic traffic
rules and regulations and to observe road safety standards. They owe that duty not only for
their own safety, but also for that of other motorists. We can prevent most vehicular accidents
by simply following basic traffic rules and regulations.
We also note a failure of implementation of basic safety standards, particularly the law on early
warning devices. This applies even more to trucks and big vehicles, which are prone to
mechanical breakdown on the national highway. The law, as crafted, requires vehicles to be

equipped with triangular reflectorized plates. 32 Vehicles without the required early warning
devices are ineligible for registration. 33 Vehicle owners may also be arrested and fined for non-
compliance with the law. 34
The Land Transportation Office (LTO) owes a duty to the public to ensure that all vehicles on
the road meet basic and minimum safety features, including that of early warning devices. It is
most unfortunate that We still see dilapidated and rundown vehicles on the road with
The CA narrated the antecedents as follows:
substandard safety features. These vehicles not only pose a hazard to the safety of their
occupants but that of other motorists. The prime mover truck in this case should not have been
granted registration because it failed to comply with the minimum safety features required for
vehicles on the road.
It is, indeed, time for traffic enforcement agencies and the LTO to strictly enforce all pertinent
laws and regulations within their mandate.
WHEREFORE, the petition is GRANTED. The Court of Appeals decision dated August 28, 2003
is hereby SET ASIDE. The RTC decision dated August 7, 2001 is REINSTATED IN FULL.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Corona * and Nachura, JJ., concur.
||| (Dy Teban Trading, Inc. v. Ching, G.R. No. 161803, [February 4, 2008], 567 PHIL 531-554)
THIRD DIVISION
[G.R. No. 156940. December 14, 2004.]
ASSOCIATED BANK (Now WESTMONT BANK), petitioner, vs.
VICENTE HENRY TAN, respondent.
DECISION
PANGANIBAN, J p:
While banks are granted by law the right to debit the value of a dishonored check from a
depositor's account, they must do so with the highest degree of care, so as not to prejudice the
depositor unduly.
The Case
Before us is a Petition for Review 1 under Rule 45 of the Rules of Court, assailing the January
27, 2003 Decision 2 of the Court of Appeals (CA) in CA-GR CV No. 56292. The CA disposed as
follows:
100
"WHEREFORE, premises considered, the Decision dated December 3,
1996, of the Regional Trial Court of Cabanatuan City, Third Judicial
Region, Branch 26, in Civil Case No. 892-AF is hereby AFFIRMED. Costs
against the [petitioner]." 3
The Facts
"Vicente Henry Tan (hereafter TAN) is a businessman and a regular
depositor-creditor of the Associated Bank (hereinafter referred to as the
BANK). Sometime in September 1990, he deposited a postdated UCPB
check with the said BANK in the amount of P101,000.00 issued to him
by a certain Willy Cheng from Tarlac. The check was duly entered in his
bank record thereby making his balance in the amount of P297,000.00,
as of October 1, 1990, from his original deposit of P196,000.00.
Allegedly, upon advice and instruction of the BANK that the P101,000.00
check was already cleared and backed up by sufficient funds, TAN, on
the same date, withdrew the sum of P240,000.00, leaving a balance of
P57,793.45. A day after, TAN deposited the amount of P50,000.00
making his existing balance in the amount of P107,793.45, because he
has issued several checks to his business partners, to wit:
CHECK NUMBERS DATE AMOUNT
a. 138814 Sept. 29, 1990 P9,000.00
b. 138804 Oct. 8, 1990 9,350.00
c. 138787 Sept. 30, 1990 6,360.00
d. 138847 Sept. 29, 1990 21,850.00
e. 167054 Sept. 29, 1990 4,093.40
f. 138792 Sept. 29, 1990 3,546.00
g. 138774 Oct. 2, 1990 6,600.00
h. 167072 Oct. 10, 1990 9,908.00
i. 168802 Oct. 10, 1990 3,650.00
"However, his suppliers and business partners went back to him alleging
that the checks he issued bounced for insufficiency of funds. Thereafter,
TAN, thru his lawyer, informed the BANK to take positive steps regarding
the matter for he has adequate and sufficient funds to pay the amount of
the subject checks. Nonetheless, the BANK did not bother nor offer any
apology regarding the incident. Consequently, TAN, as plaintiff, filed a
Complaint for Damages on December 19, 1990, with the Regional Trial
Court of Cabanatuan City, Third Judicial Region, docketed as Civil Case
No. 892-AF, against the BANK, as defendant. SDITAC
"In his [C]omplaint, [respondent] maintained that he ha[d] sufficient funds
to pay the subject checks and alleged that his suppliers decreased in
number for lack of trust. As he has been in the business community for
quite a time and has established a good record of reputation and
probity, plaintiff claimed that he suffered embarrassment, humiliation,

besmirched reputation, mental anxieties and sleepless nights because of
the said unfortunate incident. [Respondent] further averred that he
continuously lost profits in the amount of P250,000.00. [Respondent]
therefore prayed for exemplary damages and that [petitioner] be ordered
to pay him the sum of P1,000,000.00 by way of moral damages,
P250,000.00 as lost profits, P50,000.00 as attorney's fees plus 25% of
the amount claimed including P1,000.00 per court
appearance. 2004cdasia
"Meanwhile, [petitioner] filed a Motion to Dismiss on February 7, 1991,
but the same was denied for lack of merit in an Order dated March 7,
1991. Thereafter, [petitioner] BANK on March 20, 1991 filed its Answer
denying, among others, the allegations of [respondent] and alleged that
no banking institution would give an assurance to any of its
client/depositor that the check deposited by him had already been
cleared and backed up by sufficient funds but it could only presume that
the same has been honored by the drawee bank in view of the lapse of
time that ordinarily takes for a check to be cleared. For its part,
[petitioner] alleged that on October 2, 1990, it gave notice to the
[respondent] as to the return of his UCPB check deposit in the amount of
P101,000.00, hence, on even date, [respondent] deposited the amount
of P50,000.00 to cover the returned check.
"By way of affirmative defense, [petitioner] averred that [respondent] had
no cause of action against it and argued that it has all the right to debit
the account of the [respondent] by reason of the dishonor of the check
deposited by the [respondent] which was withdrawn by him prior to its
clearing. [Petitioner] further averred that it has no liability with respect to
the clearing of deposited checks as the clearing is being undertaken by
the Central Bank and in accepting [the] check deposit, it merely
obligates itself as depositor's collecting agent subject to actual payment
by the drawee bank. [Petitioner] therefore prayed that [respondent] be
ordered to pay it the amount of P1,000,000.00 by way of loss of
goodwill, P7,000.00 as acceptance fee plus P500.00 per appearance
and by way of attorney's fees.
"Considering that Westmont Bank has taken over the management of
the affairs/properties of the BANK, [respondent] on October 10, 1996,
filed an Amended Complaint reiterating substantially his allegations in
the original complaint, except that the name of the previous defendant
ASSOCIATED BANK is now WESTMONT BANK.
"Trial ensured and thereafter, the court rendered its Decision dated
December 3, 1996 in favor of the [respondent] and against the
[petitioner], ordering the latter to pay the [respondent] the sum of
P100,000.00 by way of moral damages, P75,000.00 as exemplary
damages, P25,000.00 as attorney's fees, plus the costs of this suit. In
making said ruling, it was shown that [respondent] was not officially
informed about the debiting of the P101,000.00 [from] his existing
balance and that the BANK merely allowed the [respondent] to use the
fund prior to clearing merely for accommodation because the BANK
considered him as one of its valued clients. The trial court ruled that the
bank manager was negligent in handling the particular checking account
of the [respondent] stating that such lapses caused all the
inconveniences to the [respondent]. The trial court also took into
consideration that [respondent's] mother was originally maintaining with
101
the . . . BANK [a] current account as well as [a] time deposit, but [o]n one
occasion, although his mother made a deposit, the same was not
credited in her favor but in the name of another." 4
Petitioner appealed to the CA on the issues of whether it was within its rights, as collecting
bank, to debit the account of its client for a dishonored check; and whether it had informed
respondent about the dishonor prior to debiting his account.
Ruling of the Court of Appeals
Affirming the trial court, the CA ruled that the bank should not have authorized the withdrawal
of the value of the deposited check prior to its clearing. Having done so, contrary to its
obligation to treat respondent's account with meticulous care, the bank violated its own policy.
It thereby took upon itself the obligation to officially inform respondent of the status of his
account before unilaterally debiting the amount of P101,000. Without such notice, it is
estopped from blaming him for failing to fund his account.
The CA opined that, had the P101,000 not been debited, respondent would have had sufficient
funds for the postdated checks he had issued. Thus, the supposed accommodation accorded
by petitioner to him is the proximate cause of his business woes and shame, for which it is
liable for damages.
Because of the bank's negligence, the CA awarded respondent moral damages of P100,000. It
also granted him exemplary damages of P75,000 and attorney's fees of P25,000.
Hence this Petition. 5
Issue
In its Memorandum, petitioner raises the sole issue of "whether or not the petitioner, which is
acting as a collecting bank, has the right to debit the account of its client for a check deposit
which was dishonored by the drawee bank." 6
The Court's Ruling
The Petition has no merit. ESaITA
Sole Issue:
Debit of Depositor's Account
Petitioner-bank contends that its rights and obligations under the present set of facts were
misappreciated by the CA. It insists that its right to debit the amount of the dishonored check
from the account of respondent is clear and unmistakable. Even assuming that it did not give
him notice that the check had been dishonored, such right remains immediately enforceable.
In particular, petitioner argues that the check deposit slip accomplished by respondent on
September 17, 1990, expressly stipulated that the bank was obligating itself merely as the
depositor's collecting agent and until such time as actual payment would be made to it it
was reserving the right to charge against the depositor's account any amount previously
credited. Respondent was allowed to withdraw the amount of the check prior to clearing,
merely as an act of accommodation, it added.
At the outset, we stress that the trial court's factual findings that were affirmed by the CA are
not subject to review by this Court. 7 As petitioner itself takes no issue with those findings, we
need only to determine the legal consequence, based on the established facts.
Right of Setoff

A bank generally has a right of setoff over the deposits therein for the payment of any
withdrawals on the part of a depositor. 8 The right of a collecting bank to debit a client's
account for the value of a dishonored check that has previously been credited has fairly been
established by jurisprudence. To begin with, Article 1980 of the Civil Code provides that
"[f]ixed, savings, and current deposits of money in banks and similar institutions shall be
governed by the provisions concerning simple loan."
Hence, the relationship between banks and depositors has been held to be that of creditor and
debtor. 9 Thus, legal compensation under Article 1278 10 of the Civil Code may take place
"when all the requisites mentioned in Article 1279 are present," 11 as follows:
"(1) That each one of the obligors be bound principally, and that he be at
the same time a principal creditor of the other;
(2) That both debts consist in a sum of money, or if the things due are
consumable, they be of the same kind, and also of the same quality if the
latter has been stated;
(3) That the two debts be due;
(4) That they be liquidated and demandable;
(5) That over neither of them there be any retention or controversy,
commenced by third persons and communicated in due time to the
debtor." 12
Nonetheless, the real issue here is not so much the right of petitioner to debit respondent's
account but, rather, the manner in which it exercised such right. The Court has held that even
while the right of setoff is conceded, separate is the question of whether that remedy has
properly been exercised. 13
The liability of petitioner in this case ultimately revolves around the issue of whether it properly
exercised its right of setoff. The determination thereof hinges, in turn, on the bank's role and
obligations, first, as respondent's depositary bank; and second, as collecting agent for the
check in question.
Obligation as
Depositary Bank
In BPI v. Casa Montessori, 14 the Court has emphasized that the banking business is
impressed with public interest. "Consequently, the highest degree of diligence is expected, and
high standards of integrity and performance are even required of it. By the nature of its
functions, a bank is under obligation to treat the accounts of its depositors with meticulous
care." 15
Also affirming this long standing doctrine, Philippine Bank of Commerce v. Court of
Appeals 16 has held that "the degree of diligence required of banks is more than that of a good
father of a family where the fiduciary nature of their relationship with their depositors is
concerned." 17 Indeed, the banking business is vested with the trust and confidence of the
public; hence the "appropriate standard of diligence must be very high, if not the highest,
degree of diligence." 18 The standard applies, regardless of whether the account consists of
only a few hundred pesos or of millions. 19
The fiduciary nature of banking, previously imposed by case law, 20 is now enshrined
in Republic Act No. 8791 or the General Banking Law of 2000. Section 2 of the law specifically
102
says that the State recognizes the "fiduciary nature of banking that requires high
standards of integrity and performance."
Did petitioner treat respondent's account with the highest degree of care? From all indications,
it did not.
It is undisputed nay, even admitted that purportedly as an act of accommodation to a
valued client, petitioner allowed the withdrawal of the face value of the deposited check prior to
its clearing. That act certainly disregarded the clearance requirement of the banking system.
Such a practice is unusual, because a check is not legal tender or money; 21 and its value can
properly be transferred to a depositor's account only after the check has been cleared by the
drawee bank. 22
Under ordinary banking practice, after receiving a check deposit, a bank either immediately
credit the amount to a depositor's account; or infuse value to that account only after the
drawee bank shall have paid such amount. 23 Before the check shall have been cleared for
deposit, the collecting bank can only "assume" at its own risk as herein petitioner did that
the check would be cleared and paid out.
Reasonable business practice and prudence, moreover, dictated that petitioner should not have
authorized the withdrawal by respondent of P240,000 on October 1, 1990, as this amount was
over and above his outstanding cleared balance of P196,793.45. 24 Hence, the lower courts
correctly appreciated the evidence in his favor.
Obligation as
Collecting Agent
Indeed, the bank deposit slip expressed this reservation:
"In receiving items on deposit, this Bank obligates itself only as the
Depositor's Collecting agent, assuming no responsibility beyond
carefulness in selecting correspondents, and until such time as actual
payments shall have come to its possession, this Bank reserves the right
to charge back to the Depositor's account any amounts previously
credited whether or not the deposited item is returned. . . ." 25
However, this reservation is not enough to insulate the bank from any liability. In the past, we
have expressed doubt about the binding force of such conditions unilaterally imposed by a
bank without the consent of the depositor. 26 It is indeed arguable that "in signing the deposit
slip, the depositor does so only to identify himself and not to agree to the conditions set forth at
the back of the deposit slip." 27
Further, by the express terms of the stipulation, petitioner took upon itself certain obligations as
respondent's agent, consonant with the well-settled rule that the relationship between the
payee or holder of a commercial paper and the collecting bank is that of principal and
agent. 28 Under Article 1909 29 of the Civil Code, such bank could be held liable not only for
fraud, but also for negligence.
As a general rule, a bank is liable for the wrongful or tortuous acts and declarations of its
officers or agents within the course and scope of their employment. 30 Due to the very nature
of their business, banks are expected to exercise the highest degree of diligence in the
selection and supervision of their employees. 31 Jurisprudence has established that the lack of
diligence of a servant is imputed to the negligence of the employer, when the negligent or
wrongful act of the former proximately results in an injury to a third person; 32 in this case, the
depositor.

The manager of the bank's Cabanatuan branch, Consorcia Santiago, categorically admitted
that she and the employees under her control had breached bank policies. They admittedly
breached those policies when, without clearance from the drawee bank in Baguio, they allowed
respondent to withdraw on October 1, 1990, the amount of the check deposited. Santiago
testified that respondent "was not officially informed about the debiting of the P101,000 from
his existing balance of P170,000 on October 2, 1990 . . . " 33
Being the branch manager, Santiago clearly acted within the scope of her authority in
authorizing the withdrawal and the subsequent debiting without notice. Accordingly, what
remains to be determined is whether her actions proximately caused respondent's injury.
Proximate cause is that which in a natural and continuous sequence, unbroken by any
efficient intervening cause produces the injury, and without which the result would not have
occurred. 34
103
use of the money standing in his account to make good for the treasury
warrant. At this point recall that Gullas was merely an indorser and had
issued checks in good faith. As to a depositor who has funds sufficient to
meet payment of a check drawn by him in favor of a third party, it has
been held that he has a right of action against the bank for its refusal to
pay such a check in the absence of notice to him that the bank has
applied the funds so deposited in extinguishment of past due claims held
against him. (Callahan vs. Bank of Anderson [1904], 2 Ann. Cas.,
203.) However this may be, as to an indorser the situation is different,
and notice should actually have been given him in order that he might
protect his interests." 40

Let us go back to the facts as they unfolded. It is undeniable that the bank's premature Third, regarding the deposit of P50,000 made by respondent on October 2, 1990, we fully
authorization of the withdrawal by respondent on October 1, 1990, triggered in rapid subscribe to the CA's observations that it was not unusual for a well-reputed businessman like
succession and in a natural sequence the debiting of his account, the fall of his account him, who "ordinarily takes note of the amount of money he takes and releases," to immediately
balance to insufficient levels, and the subsequent dishonor of his own checks for lack of funds. deposit money in his current account to answer for the postdated checks he had issued. 41
The CA correctly noted thus:
Damages
". . . [T]he depositor . . . withdrew his money upon the advice by
Inasmuch as petitioner does not contest the basis for the award of damages and attorney's
[petitioner] that his money was already cleared. Without such advice,
[respondent] would not have withdrawn the sum of P240,000.00. fees, we will no longer address these matters.
Therefore, it cannot be denied that it was [petitioner's] fault which WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against
allowed [respondent] to withdraw a huge sum which he believed was petitioner.
already his. TaCEHA
SO ORDERED.
"To emphasize, it is beyond cavil that [respondent] had sufficient funds
for the check. Had the P101,000.00 not [been] debited, the subject Sandoval-Gutierrez, Carpio Morales and Garcia, JJ ., concur.
checks would not have been dishonored. Hence, we can say that
[respondent's] injury arose from the dishonor of his well-funded checks. . Corona, J ., is on leave.
. ." 35
||| (Associated Bank (now Westmont Bank) v. Tan, G.R. No. 156940, [December 14, 2004], 487
Aggravating matters, petitioner failed to show that it had immediately and duly informed PHIL 512-530)
respondent of the debiting of his account. Nonetheless, it argues that the giving of notice was
discernible from his act of depositing P50,000 on October 2, 1990, to augment his account and
allow the debiting. This argument deserves short shrift.
SECOND DIVISION
First, notice was proper and ought to be expected. By the bank manager's account,
respondent was considered a "valued client" whose checks had always been sufficiently
funded from 1987 to 1990, 36 until the October imbroglio. Thus, he deserved nothing less than [G.R. No. 193577. September 7, 2011.]
an official notice of the precarious condition of his account.

Second, under the provisions of the Negotiable Instruments Law regarding the liability of a
ANTONIO FRANCISCO, substituted by his heirs: NELIA E.S.
general indorser 37 and the procedure for a notice of dishonor, 38 it was incumbent on the
FRANCISCO, EMILIA F. BERTIZ, REBECCA E.S. FRANCISCO,
bank to give proper notice to respondent. In Gullas v. National Bank, 39 the Court emphasized:
ANTONIO E.S. FRANCISCO, JR., SOCORRO F. FONTANILLA, and
". . . [A] general indorser of a negotiable instrument engages that if the JOVITO E.S. FRANCISCO, petitioners, vs. CHEMICAL BULK
instrument the check in this case is dishonored and the necessary CARRIERS, INCORPORATED, respondent.
proceedings for its dishonor are duly taken, he will pay the amount
thereof to the holder (Sec. 66) It has been held by a long line of
authorities that notice of dishonor is necessary to charge an indorser and
that the right of action against him does not accrue until the notice is DECISION
given.

". . . The fact we believe is undeniable that prior to the mailing of notice
of dishonor, and without waiting for any action by Gullas, the bank made

CARPIO, J p:
The Case
This is a petition for review 1 of the 31 May 2010 Decision 2 and 31 August 2010
Resolution 3 of the Court of Appeals in CA G.R. CV No. 63591. In its 31 May 2010
Decision, the Court of Appeals set aside the 21 August 1998 Decision 4 of the Regional
Trial of Pasig City, Branch 71 (trial court), and ordered petitioner Antonio Francisco
(Francisco) to pay respondent Chemical Bulk Carriers, Incorporated (CBCI) P1,119,905 as
actual damages. In its 31 August 2010 Resolution, the Court of Appeals denied
Francisco's motion for reconsideration. DHSCEc
The Facts
Since 1965, Francisco was the owner and manager of a Caltex station in Teresa,
Rizal. Sometime in March 1993, four persons, including Gregorio Bacsa (Bacsa), came to
Francisco's Caltex station and introduced themselves as employees of CBCI. Bacsa
offered to sell to Francisco a certain quantity of CBCI's diesel fuel.
After checking Bacsa's identification card, Francisco agreed to purchase CBCI's
diesel fuel. Francisco imposed the following conditions for the purchase: (1) that Petron
Corporation (Petron) should deliver the diesel fuel to Francisco at his business address
which should be properly indicated in Petron's invoice; (2) that the delivery tank is sealed;
and (3) that Bacsa should issue a separate receipt to Francisco.
The deliveries started on 5 April 1993 and lasted for ten months, or up to 25
January 1994. 5 There were 17 deliveries to Francisco and all his conditions were
complied with.
In February 1996, CBCI sent a demand letter to Francisco regarding the diesel
fuel delivered to him but which had been paid for by CBCI. 6 CBCI demanded that
Francisco pay CBCI P1,053,527 for the diesel fuel or CBCI would file a complaint against
him in court. Francisco rejected CBCI's demand.
On 16 April 1996, CBCI filed a complaint for sum of money and damages
against Francisco and other unnamed defendants. 7 According to CBCI, Petron, on
various dates, sold diesel fuel to CBCI but these were delivered to and received by
Francisco. Francisco then sold the diesel fuel to third persons from whom he received
payment. CBCI alleged that Francisco acquired possession of the diesel fuel without
authority from CBCI and deprived CBCI of the use of the diesel fuel it had paid for. CBCI
demanded payment from Francisco but he refused to pay. CBCI argued that Francisco
should have known that since only Petron, Shell and Caltex are authorized to sell and
distribute petroleum products in the Philippines, the diesel fuel came from illegitimate, if
not illegal or criminal, acts. CBCI asserted that Francisco violated Articles
19, 8 20, 9 21, 10 and 22 11 of the Civil Code and that he should be held liable. In the
alternative, CBCI claimed that Francisco, in receiving CBCI's diesel fuel, entered into an
innominate contract of do ut des (I give and you give) with CBCI for which Francisco is
obligated to pay CBCI P1,119,905, the value of the diesel fuel. CBCI also prayed for
exemplary damages, attorney's fees and other expenses of litigation.
On 20 May 1996, Francisco filed a Motion to Dismiss on the ground of forum
shopping. 12 CBCI filed its Opposition. 13 In an Order dated 15 November 1996, the trial
court denied Francisco's motion. 14
Thereafter, Francisco filed his Answer. 15 Francisco explained that he operates
the Caltex station with the help of his family because, in February 1978, he completely lost
his eyesight due to sickness. Francisco claimed that he asked Jovito, his son, to look into
and verify the identity of Bacsa, who introduced himself as a radio operator and
104
confidential secretary of a certain Mr. Inawat (Inawat), CBCI's manager for operations.
Francisco said he was satisfied with the proof presented by Bacsa. When asked to explain
why CBCI was selling its fuel, Bacsa allegedly replied that CBCI was in immediate need of
cash for the salary of its daily paid workers and for petty cash. Francisco maintained that
Bacsa assured him that the diesel fuel was not stolen property and that CBCI enjoyed a
big credit line with Petron. Francisco agreed to purchase the diesel fuel offered by Bacsa
on the following conditions:
1) Defendant [Francisco] will not accept any delivery if it is not company
(Petron) delivered, with his name and address as shipping point properly
printed and indicated in the invoice of Petron, and that the product on
the delivery tank is sealed; [and]
2) Although the original invoice is sufficient evidence of delivery and
payment, under ordinary course of business, defendant still required Mr.
Bacsa to issue a separate receipt duly signed by him acknowledging
receipt of the amount stated in the invoice, for and in behalf of CBCI. 16
During the first delivery on 5 April 1993, Francisco asked one of his sons to
verify whether the delivery truck's tank was properly sealed and whether Petron issued the
invoice. Francisco said all his conditions were complied with. There were 17 deliveries
made from 5 April 1993 to 25 January 1994 and each delivery was for 10,000 liters of
diesel fuel at P65,865. 17 Francisco maintained that he acquired the diesel fuel in good
faith and for value. Francisco also filed a counterclaim for exemplary damages, moral
damages and attorney's fees. aCITEH
In its 21 August 1998 Decision, the trial court ruled in Francisco's favor and
dismissed CBCI's complaint. The dispositive portion of the trial court's 21 August 1998
Decision reads:
WHEREFORE, Judgment is hereby rendered:
1. Dismissing the complaint dated March 13, 1996 with costs.
2. Ordering plaintiff (CBCI), on the counterclaim, to pay
defendant the amount of P100,000.00 as moral
damages and P50,000.00 as and by way of
attorney's fees.
SO ORDERED. 18
CBCI appealed to the Court of Appeals. 19 CBCI argued that Francisco
acquired the diesel fuel from Petron without legal ground because Bacsa was not
authorized to deliver and sell CBCI's diesel fuel. CBCI added that Francisco acted in bad
faith because he should have inquired further whether Bacsa's sale of CBCI's diesel fuel
was legitimate.
In its 31 May 2010 Decision, the Court of Appeals set aside the trial court's 21
August 1998 Decision and ruled in CBCI's favor. The dispositive portion of the Court of
Appeals' 31 May 2010 Decision reads:
IN VIEW OF THE FOREGOING, the assailed decision is hereby
REVERSED and SET ASIDE. Antonio Francisco is ordered to pay
Chemical Bulk Carriers, Incorporated the amount of P1,119,905.00 as
actual damages.
SO ORDERED. 20

On 15 January 2001, Francisco died. 21 Francisco's heirs, namely: Nelia E.S.
Francisco, Emilia F. Bertiz, Rebecca E.S. Francisco, Antonio E.S. Francisco, Jr., Socorro F.
Fontanilla, and Jovito E.S. Francisco (heirs of Francisco) filed a motion for
substitution. 22 The heirs of Francisco also filed a motion for reconsideration. 23 In its 31
August 2010 Resolution, the Court of Appeals granted the motion for substitution but
denied the motion for reconsideration.
Hence, this petition.
The petition has no merit.
The Ruling of the Trial Court
The trial court ruled that Francisco was not liable for damages in favor of CBCI
because the 17 deliveries were covered by original and genuine invoices. The trial court
declared that Bacsa, as confidential secretary of Inawat, was CBCI's authorized
representative who received Francisco's full payment for the diesel fuel. The trial court
stated that if Bacsa was not authorized, CBCI should have sued Bacsa and not Francisco.
The trial court also considered Francisco a buyer in good faith who paid in full for the
merchandise without notice that some other person had a right to or interest in such diesel
fuel. The trial court pointed out that good faith affords protection to a purchaser for value.
Finally, since CBCI was bound by the acts of Bacsa, the trial court ruled that CBCI is liable
to pay damages to Francisco.
The Ruling of the Court of Appeals
The Court of Appeals set aside the trial court's 21 August 1998 Decision and
ruled that Bacsa's act of selling the diesel fuel to Francisco was his personal act and, even
if Bacsa connived with Inawat, the sale does not bind CBCI.
The Court of Appeals declared that since Francisco had been in the business of
selling petroleum products for a considerable number of years, his blindness was not a
hindrance for him to transact business with other people. With his condition and
experience, Francisco should have verified whether CBCI was indeed selling diesel fuel
and if it had given Bacsa authority to do so. Moreover, the Court of Appeals stated that
Francisco cannot feign good faith since he had doubts as to the authority of Bacsa yet he
did not seek confirmation from CBCI and contented himself with an improvised receipt.
Francisco's failure to verify Bacsa's authority showed that he had an ulterior motive. The
receipts issued by Bacsa also showed his lack of authority because it was on a plain sheet
of bond paper with no letterhead or any indication that it came from CBCI. The Court of
Appeals ruled that Francisco cannot invoke estoppel because he was at fault for choosing
to ignore the tell-tale signs of petroleum diversion and for not exercising
prudence. CTIDcA
The Court of Appeals also ruled that CBCI was unlawfully deprived of the diesel
fuel which, as indicated in the invoices, CBCI had already paid for. Therefore, CBCI had
the right to recover the diesel fuel or its value from Francisco. Since the diesel fuel can no
longer be returned, the Court of Appeals ordered Francisco to give back the actual
amount paid by CBCI for the diesel fuel.
The Issues
The heirs of Francisco raise the following issues:
I. WHETHER THE COURT OF APPEALS ERRED IN NOT FINDING THAT
DEFENDANT ANTONIO FRANCISCO EXERCISED THE
REQUIRED DILIGENCE OF A BLIND PERSON IN THE
CONDUCT OF HIS BUSINESS; and
105
II. WHETHER ON THE BASIS OF THE FACTUAL FINDINGS OF THE
COURT OF APPEALS AND THE TRIAL COURT AND
ADMITTED FACTS, IT CAN BE CONCLUDED THAT THE
PLAINTIFF APPROVED EXPRESSLY OR TACITLY THE
TRANSACTIONS. 24
The Ruling of the Court
Required Diligence of a Blind Person
The heirs of Francisco argue that the Court of Appeals erred when it ruled that
Francisco was liable to CBCI because he failed to exercise the diligence of a good father
of a family when he bought the diesel fuel. They argue that since Francisco was blind, the
standard of conduct that was required of him was that of a reasonable person under like
disability. Moreover, they insist that Francisco exercised due care in purchasing the diesel
fuel by doing the following: (1) Francisco asked his son to check the identity of Bacsa; (2)
Francisco required direct delivery from Petron; (3) Francisco required that he be named as
the consignee in the invoice; and (4) Francisco required separate receipts from Bacsa to
evidence actual payment.
Standard of conduct is the level of expected conduct that is required by the
nature of the obligation and corresponding to the circumstances of the person, time and
place. 25 The most common standard of conduct is that of a good father of a family or
that of a reasonably prudent person. 26 To determine the diligence which must be
required of all persons, we use as basis the abstract average standard corresponding to a
normal orderly person. 27
However, one who is physically disabled is required to use the same degree of
care that a reasonably careful person who has the same physical disability would
use. 28Physical handicaps and infirmities, such as blindness or deafness, are treated as
part of the circumstances under which a reasonable person must act. Thus, the standard
of conduct for a blind person becomes that of a reasonable person who is blind.
We note that Francisco, despite being blind, had been managing and operating
the Caltex station for 15 years and this was not a hindrance for him to transact business
until this time. In this instance, however, we rule that Francisco failed to exercise the
standard of conduct expected of a reasonable person who is blind. First, Francisco merely
relied on the identification card of Bacsa to determine if he was authorized by CBCI.
Francisco did not do any other background check on the identity and authority of Bacsa.
Second, Francisco already expressed his misgivings about the diesel fuel, fearing that they
might be stolen property, 29 yet he did not verify with CBCI the authority of Bacsa to sell
the diesel fuel. Third, Francisco relied on the receipts issued by Bacsa which were
typewritten on a half sheet of plain bond paper. 30 If Francisco exercised reasonable
diligence, he should have asked for an official receipt issued by CBCI. Fourth, the delivery
to Francisco, as indicated in Petron's invoice, does not show that CBCI authorized Bacsa
to sell the diesel fuel to Francisco. Clearly, Francisco failed to exercise the standard of
conduct expected of a reasonable person who is blind.
Express or Tacit Approval of the Transaction
The heirs of Francisco argue that CBCI approved expressly or tacitly the
transactions. According to them, there was apparent authority for Bacsa to enter into the
transactions. They argue that even if the agent has exceeded his authority, the principal is
solidarily liable with the agent if the former allowed the later to act as though he had full
powers. 31 They insist CBCI was not unlawfully deprived of its property because Inawat
gave Bacsa the authority to sell the diesel fuel and that CBCI is bound by such action.

Lastly, they argue that CBCI should be considered in estoppel for failure to act during the
ten month period that deliveries were being made to Francisco. ACDIcS
The general principle is that a seller without title cannot transfer a better title
than he has. 32 Only the owner of the goods or one authorized by the owner to sell can
transfer title to the buyer. 33 Therefore, a person can sell only what he owns or is
authorized to sell and the buyer can, as a consequence, acquire no more than what the
seller can legally transfer. 34
Moreover, the owner of the goods who has been unlawfully deprived of it may
recover it even from a purchaser in good faith. 35 Thus, the purchaser of property which
PERALTA, J p:
has been stolen from the owner has been held to acquire no title to it even though he
purchased for value and in good faith.
The exception from the general principle is the doctrine of estoppel where the
owner of the goods is precluded from denying the seller's authority to sell. 36 But in order
that there may be estoppel, the owner must, by word or conduct, have caused or allowed
it to appear that title or authority to sell is with the seller and the buyer must have been
misled to his damage. 37
In this case, it is clear that Bacsa was not the owner of the diesel fuel. Francisco
was aware of this but he claimed that Bacsa was authorized by CBCI to sell the diesel fuel.
However, Francisco's claim that Bacsa was authorized is not supported by any evidence
except his self-serving testimony. First, Francisco did not even confirm with CBCI if it was
indeed selling its diesel fuel since it is not one of the oil companies known in the market to
be selling petroleum products. This fact alone should have put Francisco on guard.
Second, it does not appear that CBCI, by some direct and equivocal act, has clothed
Bacsa with the indicia of ownership or apparent authority to sell CBCI's diesel fuel.
Francisco did not state if the identification card presented by Bacsa indicated that he was
CBCI's agent or a mere employee. Third, the receipt issued by Bacsa was typewritten on a
half sheet of plain bond paper. There was no letterhead or any indication that it came from
CBCI. We agree with the Court of Appeals that this was a personal receipt issued by
Bacsa and not an official receipt issued by CBCI. Consequently, CBCI is not precluded by
its conduct from denying Bacsa's authority to sell. CBCI did not hold out Bacsa or allow
Bacsa to appear as the owner or one with apparent authority to dispose of the diesel fuel.
Clearly, Bacsa cannot transfer title to Francisco as Bacsa was not the owner of
the diesel fuel nor was he authorized by CBCI to sell its diesel fuel. CBCI did not commit
any act to clothe Bacsa with apparent authority to sell the diesel fuel that would have
misled Francisco. Francisco, therefore, did not acquire any title over the diesel fuel. Since
CBCI was unlawfully deprived of its property, it may recover from Francisco, even if
Francisco pleads good faith.
WHEREFORE, we DENY the petition. We AFFIRM the 31 May 2010 Decision
and 31 August 2010 Resolution of the Court of Appeals.
SO ORDERED.
Brion, Peralta, * Perez and Mendoza, ** JJ., concur.
||| (Francisco v. Chemical Bulk Carriers, Inc., G.R. No. 193577, [September 7, 2011], 672 PHIL
795-806)
THIRD DIVISION
[G.R. No. 166869. February 16, 2010.]
106
PHILIPPINE HAWK CORPORATION, petitioner, vs. VIVIAN TAN
LEE, respondent.
DECISION
This is a Petition for Review on Certiorari 1 of the Decision of the Court of
Appeals in CA-G.R. CV No. 70860, promulgated on August 17, 2004, affirming with
modification the Decision of the Regional Trial Court (RTC) of Quezon City, Branch 102,
dated March 16, 2001, in Civil Case No. Q-91-9191, ordering petitioner Philippine Hawk
Corporation and Margarito Avila to jointly and severally pay respondent Vivian Tan Lee
damages as a result of a vehicular accident.
The facts are as follows:
On March 15, 2005, respondent Vivian Tan Lee filed before the RTC of Quezon
City a Complaint 2 against petitioner Philippine Hawk Corporation and defendant
Margarito Avila for damages based on quasi-delict, arising from a vehicular accident that
occurred on March 17, 1991 in Barangay Buensoceso, Gumaca, Quezon. The accident
resulted in the death of respondent's husband, Silvino Tan, and caused respondent
physical injuries.
On June 18, 1992, respondent filed an Amended Complaint, 3 in her own behalf
and in behalf of her children, in the civil case for damages against petitioner. Respondent
sought the payment of indemnity for the death of Silvino Tan, moral and exemplary
damages, funeral and interment expenses, medical and hospitalization expenses, the cost
of the motorcycle's repair, attorney's fees, and other just and equitable reliefs.
The accident involved a motorcycle, a passenger jeep, and a bus with Body No.
119. The bus was owned by petitioner Philippine Hawk Corporation, and was then being
driven by Margarito Avila.
In its Answer, 4 petitioner denied liability for the vehicular accident, alleging that
the immediate and proximate cause of the accident was the recklessness or lack of
caution of Silvino Tan. Petitioner asserted that it exercised the diligence of a good father of
the family in the selection and supervision of its employees, including Margarito
Avila. CcaDHT
On March 25, 1993, the trial court issued a Pre-trial Order 5 stating that the
parties manifested that there was no possibility of amicable settlement between them.
However, they agreed to stipulate on the following facts:
1. On March 17, 1991, in Bgy. Buensoceso, Gumaca, Quezon, plaintiff
Vivian Lee Tan and her husband Silvino Tan, while on board a
motorcycle with [P]late No. DA-5480 driven by the latter, and a
Metro Bus with [P]late No. NXR-262 driven by Margarito Avila,
were involved in an accident;
2. As a result of the accident, Silvino Tan died on the spot while plaintiff
Vivian Lee Tan suffered physical injuries which necessitated
medical attention and hospitalization;

3. The deceased Silvino Tan is survived by his wife, plaintiff Vivian Lee
Tan and four children, three of whom are now residents of the
United States; and
4. Defendant Margarito Avila is an employee of defendant Philippine
Hawk. 6
The parties also agreed on the following issues:
1. Whether or not the proximate cause of the accident causing physical
injuries upon the plaintiff Vivian Lee Tan and resulting in the
death of the latter's husband was the recklessness and
negligence of Margarito Avila or the deceased Silvino Tan;
and
2. Whether or not defendant Philippine Hawk Transport Corporation
exercised the diligence of a good father of the family in the
selection and supervision of its driver Margarito Avila. 7
Respondent testified that on March 17, 1991, she was riding on their motorcycle
in tandem with her husband, who was on the wheel, at a place after a Caltex gasoline
station in Barangay Buensoceso, Gumaca, Quezon on the way to Lopez, Quezon. They
came from the Pasumbal Machine Shop, where they inquired about the repair of their
tanker. They were on a stop position at the side of the highway; and when they were about
to make a turn, she saw a bus running at fast speed coming toward them, and then the
bus hit a jeep parked on the roadside, and their motorcycle as well. She lost
consciousness and was brought to the hospital in Gumaca, Quezon, where she was
confined for a week. She was later transferred to St. Luke's Hospital in Quezon City,
Manila. She suffered a fracture on her left chest, her left arm became swollen, she felt pain
in her bones, and had high blood pressure. 8
Respondent's husband died due to the vehicular accident. The immediate cause
of his death was massive cerebral hemorrhage. 9
Respondent further testified that her husband was leasing 10 and operating a
Caltex gasoline station in Gumaca, Quezon that yielded one million pesos a year in
revenue. They also had a copra business, which gave them an income of P3,000.00 a
month or P36,000.00 a year. 11
Ernest Ovial, the driver of the passenger jeep involved in the accident, testified
that in the afternoon of March 17, 1991, his jeep was parked on the left side of the
highway near the Pasumbal Machine Shop. He did not notice the motorcycle before the
accident. But he saw the bus dragging the motorcycle along the highway, and then the
bus bumped his jeep and sped away. 12
For the defense, Margarito Avila, the driver of petitioner's bus, testified that on
March 17, 1999, at about 4:30 p.m., he was driving his bus at 60 kilometers per hour on
the Maharlika Highway. When they were at Barangay Buensoceso, Gumaca, Quezon, a
motorcycle ran from his left side of the highway, and as the bus came near, the
motorcycle crossed the path of the bus, and so he turned the bus to the right. He heard a
loud banging sound. From his side mirror, he saw that the motorcycle turned
turtle ("bumaliktad").He did not stop to help out of fear for his life, but drove on and
surrendered to the police. He denied that he bumped the motorcycle. 13
Avila further testified that he had previously been involved in sideswiping
incidents, but he forgot how many times. 14
107
Rodolfo Ilagan, the bus conductor, testified that the motorcycle bumped the
left side of the bus that was running at 40 kilometers per hour. 15
Domingo S. Sisperes, operations officer of petitioner, testified that, like their
other drivers, Avila was subjected to and passed the following requirements: TcHDIA
(1) Submission of NBI clearance;
(2) Certification from his previous employer that he had no bad record;
(3) Physical examination to determine his fitness to drive;
(4) Test of his driving ability, particularly his defensive skill; and
(5) Review of his driving skill every six months. 16
Efren Delantar, a Barangay Kagawad in Buensoceso, Gumaca, Quezon, testified
that the bus was running on the highway on a straight path when a motorcycle, with a
woman behind its driver, suddenly emerged from the left side of the road from a machine
shop. The motorcycle crossed the highway in a zigzag manner and bumped the side of the
bus. 17
In its Decision dated March 16, 2001, the trial court rendered judgment against
petitioner and defendant Margarito Avila, the dispositive portion of which reads:
ACCORDINGLY, MARGARITO AVILA is adjudged guilty of simple
negligence, and judgment is hereby rendered in favor of the plaintiff
Vivian Lee Tan and h[er] husband's heirs ordering the defendants
Philippine Hawk Corporation and Margarito Avila to pay them jointly and
solidarily the sum of P745,575.00 representing loss of earnings and
actual damages plus P50,000.00 as moral damages. 18
The trial court found that before the collision, the motorcycle was on the left side
of the road, just as the passenger jeep was. Prior to the accident, the motorcycle was in a
running position moving toward the right side of the highway. The trial court agreed with
the bus driver that the motorcycle was moving ahead of the bus from the left side of the
road toward the right side of the road, but disagreed that the motorcycle crossed the path
of the bus while the bus was running on the right side of the road. 19
The trial court held that if the bus were on the right side of the highway, and
Margarito Avila turned his bus to the right in an attempt to avoid hitting the motorcyle, then
the bus would not have hit the passenger jeep, which was then parked on the left side of
the road. The fact that the bus also hit the passenger jeep showed that the bus must have
been running from the right lane to the left lane of the highway, which caused the collision
with the motorcycle and the passenger jeep parked on the left side of the road. The trial
court stated that since Avila saw the motorcycle before the collision, he should have
stepped on the brakes and slowed down, but he just maintained his speed and veered to
the left. 20 The trial court found Margarito Avila guilty of simple negligence.
The trial court held petitioner bus company liable for failing to exercise the
diligence of a good father of the family in the selection and supervision of Avila, having
failed to sufficiently inculcate in him discipline and correct behavior on the
road. 21 DaAISH
On appeal, the Court of Appeals affirmed the decision of the trial court with
modification in the award of damages. The dispositive portion of the decision reads:
WHEREFORE, foregoing premises considered, the appeal is DENIED.
The assailed decision dated March 16, 2001 is hereby AFFIRMED with

MODIFICATION. Appellants Philippine Hawk and Avila are hereby
ordered to pay jointly and severally appellee the following amount: (a)
P168,019.55 as actual damages; (b) P10,000.00 as temperate damages;
(c) P100,000.00 as moral damages; (d) P590,000.00 as unearned
income; and (e) P50,000.00 as civil indemnity. 22
Petitioner filed this petition, raising the following issues:
1) The Court of Appeals committed grave abuse of discretion amounting
to lack of jurisdiction in passing upon an issue, which had not
been raised on appeal, and which had, therefore, attained
finality, in total disregard of the doctrine laid down by this
Court in Abubakar v. Abubakar, G.R. No. 134622, October 22,
1999.
2) The Court of Appeals committed reversible error in its finding that the
petitioner's bus driver saw the motorcycle of private
respondent executing a U-turn on the highway "about fifteen
(15) meters away" and thereafter held that the Doctrine of Last
Clear was applicable to the instant case. This was a palpable
error for the simple reason that the aforesaid distance was the
distance of the witness to the bus and not the distance of the
bus to the respondent's motorcycle, as clearly borne out by
the records.
3) The Court of Appeals committed reversible error in awarding damages
in total disregard of the established doctrine laid down
in Danao v. Court of Appeals, 154 SCRA 447 and Viron
Transportation Co., Inc. v. Delos Santos, G.R. No. 138296,
November 22, 2000. 23
In short, the issues raised by petitioner are: (1) whether or not negligence may
be attributed to petitioner's driver, and whether negligence on his part was the proximate
cause of the accident, resulting in the death of Silvino Tan and causing physical injuries to
respondent; (2) whether or not petitioner is liable to respondent for damages; and (3)
whether or not the damages awarded by respondent Court of Appeals are proper.
Petitioner seeks a review of the factual findings of the trial court, which were
sustained by the Court of Appeals, that petitioner's driver was negligent in driving the bus,
which caused physical injuries to respondent and the death of respondent's husband.
The rule is settled that the findings of the trial court, especially when affirmed by
the Court of Appeals, are conclusive on this Court when supported by the evidence on
record. 24 The Court has carefully reviewed the records of this case, and found no cogent
reason to disturb the findings of the trial court, thus: DACaTI
The Court agree[s] with the bus driver Margarito that the motorcycle was
moving ahead of the bus towards the right side from the left side of the
road, but disagrees with him that it crossed the path of the bus while the
bus was running on the right side of the highway.
If the bus were on the right side of the highway and Margarito turned his
bus to the right in an attempt to avoid hitting it, then the bus would not
have hit the passenger jeep vehicle which was then parked on the left
side of the road. The fact that the bus hit the jeep too, shows that the
bus must have been running to the left lane of the highway from right to
the left, that the collision between it and the parked jeep and the moving
rightways cycle became inevitable. Besides, Margarito said he saw the
108
motorcycle before the collision ahead of the bus; that being so, an extra-
cautious public utility driver should have stepped on his brakes and
slowed down. Here, the bus never slowed down, it simply maintained its
highway speed and veered to the left. This is negligence indeed. 25
Petitioner contends that the Court of Appeals was mistaken in stating that the
bus driver saw respondent's motorcycle "about 15 meters away" before the collision,
because the said distance, as testified to by its witness Efren Delantar Ong, was Ong's
distance from the bus, and not the distance of the bus from the motorcycle. Petitioner
asserts that this mistaken assumption of the Court of Appeals made it conclude that the
bus driver, Margarito Avila, had the last clear chance to avoid the accident, which was the
basis for the conclusion that Avila was guilty of simple negligence.
A review of the records showed that it was petitioner's witness, Efren Delantar
Ong, who was about 15 meters away from the bus when he saw the vehicular
accident. 26Nevertheless, this fact does not affect the finding of the trial court that
petitioner's bus driver, Margarito Avila, was guilty of simple negligence as affirmed by the
appellate court. Foreseeability is the fundamental test of negligence. 27 To be negligent, a
defendant must have acted or failed to act in such a way that an ordinary reasonable man
would have realized that certain interests of certain persons were unreasonably subjected
to a general but definite class of risks. 28
In this case, the bus driver, who was driving on the right side of the road, already
saw the motorcycle on the left side of the road before the collision. However, he did not
take the necessary precaution to slow down, but drove on and bumped the motorcycle,
and also the passenger jeep parked on the left side of the road, showing that the bus was
negligent in veering to the left lane, causing it to hit the motorcycle and the passenger
jeep.
Whenever an employee's negligence causes damage or injury to another, there
instantly arises a presumption that the employer failed to exercise the due diligence of a
good father of the family in the selection or supervision of its employees. 29 To avoid
liability for a quasi-delict committed by his employee, an employer must overcome the
presumption by presenting convincing proof that he exercised the care and diligence of a
good father of a family in the selection and supervision of his employee. 30 SacTCA
The Court upholds the finding of the trial court and the Court of Appeals that
petitioner is liable to respondent, since it failed to exercise the diligence of a good father of
the family in the selection and supervision of its bus driver, Margarito Avila, for having
failed to sufficiently inculcate in him discipline and correct behavior on the road. Indeed,
petitioner's tests were concentrated on the ability to drive and physical fitness to do so. It
also did not know that Avila had been previously involved in sideswiping incidents.
As regards the issue on the damages awarded, petitioner contends that it was
the only one that appealed the decision of the trial court with respect to the award of
actual and moral damages; hence, the Court of Appeals erred in awarding other kinds of
damages in favor of respondent, who did not appeal from the trial court's decision.
Petitioner's contention is unmeritorious.
Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides:
SEC. 8. Questions that may be decided. No error which does not
affect the jurisdiction over the subject matter or the validity of the
judgment appealed from or the proceedings therein will be considered
unless stated in the assignment of errors, or closely related to or
dependent on an assigned error and properly argued in the brief, save as
the court pass upon plain errors and clerical errors.

Philippine National Bank v. Rabat 31 cited the book 32 of Justice Florenz D.
Regalado to explain the section above, thus:
In his book, Mr. Justice Florenz D. Regalado commented on this section,
thus:
1. Sec. 8, which is an amendment of the former Sec. 7 of this Rule, now
includes some substantial changes in the rules on assignment of errors.
The basic procedural rule is that only errors claimed and assigned by a
party will be considered by the court, except errors affecting its
jurisdiction over the subject matter. To this exception has now been
added errors affecting the validity of the judgment appealed from or the
proceedings therein.
Also, even if the error complained of by a party is not expressly stated in
his assignment of errors but the same is closely related to or dependent
on an assigned error and properly argued in his brief, such error may
now be considered by the court. These changes are of jurisprudential
origin. CEDScA
2. The procedure in the Supreme Court being generally the same as
that in the Court of Appeals, unless otherwise indicated (see Secs. 2
and 4, Rule 56), it has been held that the latter is clothed with ample
authority to review matters, even if they are not assigned as errors
on appeal, if it finds that their consideration is necessary in arriving
at a just decision of the case. Also, an unassigned error closely related
to an error properly assigned (PCIB vs. CA, et al., L-34931, Mar. 18,
1988), or upon which the determination of the question raised by error
properly assigned is dependent, will be considered by the appellate
court notwithstanding the failure to assign it as error (Ortigas, Jr. vs.
Lufthansa German Airlines, L-28773, June 30, 1975; Soco vs. Militante,
et al., G.R. No. 58961, June 28, 1983).
109
the deceased is self-employed and earning less than the minimum wage under current
labor laws, in which case, judicial notice may be taken of the fact that in the deceased's
line of work no documentary evidence is available; or (2) the deceased is employed as a
daily wage worker earning less than the minimum wage under current labor laws. 37
In this case, the records show that respondent's husband was leasing and
operating a Caltex gasoline station in Gumaca, Quezon. Respondent testified that her
husband earned an annual income of one million pesos. Respondent presented in
evidence a Certificate of Creditable Income Tax Withheld at Source for the Year
1990, 38 which showed that respondent's husband earned a gross income of P950,988.43
in 1990. It is reasonable to use the Certificate and respondent's testimony as bases for
fixing the gross annual income of the deceased at one million pesos before respondent's
husband died on March 17, 1999. However, no documentary evidence was presented
regarding the income derived from their copra business; hence, the testimony of
respondent as regards such income cannot be considered. HDTSIE
In the computation of loss of earning capacity, only net earnings, not gross
earnings, are to be considered; that is, the total of the earnings less expenses necessary
for the creation of such earnings or income, less living and other incidental expenses. 39 In
the absence of documentary evidence, it is reasonable to peg necessary expenses for the
lease and operation of the gasoline station at 80 percent of the gross income, and peg
living expenses at 50 percent of the net income (gross income less necessary
expenses). ECcTaH
In this case, the computation for loss of earning capacity is as follows:
Net Earning = Life Expectancy x Gross Annual Income - Reasonable and
Capacity [2/3 (80-age at the (GAI) Necessary
time of death) Expenses

It may also be observed that under Sec. 8 of this Rule, the appellate (80% of GAI)
court is authorized to consider a plain error, although it was not
specifically assigned by the appellant (Dilag vs. Heirs of Resurreccion, 76
Phil. 649), otherwise it would be sacrificing substance for
technicalities. 33 X = [2/3 (80-65) x P1,000,000.00 - P800,000.00

In this case for damages based on quasi-delict, the trial court awarded X = 2/3 (15) x P200,000.00 - P100,000.00
respondent the sum of P745,575.00, representing loss of earning capacity (P590,000.00)
and actual damages (P155,575.00 for funeral expenses), plus P50,000.00 as moral (Living Expenses)
damages. On appeal to the Court of Appeals, petitioner assigned as error the award of
damages by the trial court on the ground that it was based merely on suppositions and X = 30/3 x P100,000.00
surmises, not the admissions made by respondent during the trial.
In its Decision, the Court of Appeals sustained the award by the trial court for X = 10 x P100,000.00
loss of earning capacity of the deceased Silvino Tan, moral damages for his death, and
actual damages, although the amount of the latter award was modified. X = P1,000,000.00

The indemnity for loss of earning capacity of the deceased is provided for by
Article 2206 of the Civil Code. 34 Compensation of this nature is awarded not for loss of
earnings, but for loss of capacity to earn money. 35
As a rule, documentary evidence should be presented to substantiate the claim
for damages for loss of earning capacity. 36 By way of exception, damages for loss of
earning capacity may be awarded despite the absence of documentary evidence when: (1)
The Court of Appeals also awarded actual damages for the expenses incurred in
connection with the death, wake, and interment of respondent's husband in the amount of
P154,575.30, and the medical expenses of respondent in the amount of P168,019.55.
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 40 or
the physical injuries sustained by the victim. A review of the valid receipts submitted in

evidence showed that the funeral and related expenses amounted only to P114,948.60,
while the medical expenses of respondent amounted only to P12,244.25, yielding a total of
P127,192.85 in actual damages.
Moreover, the Court of Appeals correctly sustained the award of moral damages
in the amount of P50,000.00 for the death of respondent's husband. Moral damages are
not intended to enrich a plaintiff at the expense of the defendant. 41 They are awarded to
allow the plaintiff to obtain means, diversions or amusements that will serve to alleviate the
moral suffering he/she has undergone due to the defendant's culpable action and must,
perforce, be proportional to the suffering inflicted. 42
In addition, the Court of Appeals correctly awarded temperate damages in the
amount of P10,000.00 for the damage caused on respondent's motorcycle. Under Art.
2224 of the Civil Code, temperate damages "may be recovered when the court finds that
some pecuniary loss has been suffered but its amount cannot, from the nature of the case,
be proved with certainty." The cost of the repair of the motorcycle was prayed for by
respondent in her Complaint. However, the evidence presented was merely a job
estimate 43 of the cost of the motorcycle's repair amounting to P17,829.00. The Court of
Appeals aptly held that there was no doubt that the damage caused on the motorcycle
was due to the negligence of petitioner's driver. In the absence of competent proof of the
actual damage caused on the motorcycle or the actual cost of its repair, the award of
temperate damages by the appellate court in the amount of P10,000.00 was reasonable
under the circumstances. 44
The Court of Appeals also correctly awarded respondent moral damages for the
physical injuries she sustained due to the vehicular accident. Under Art. 2219 of the Civil
Code, 45 moral damages may be recovered in quasi-delicts causing physical injuries.
However, the award of P50,000.00 should be reduced to P30,000.00 in accordance with
prevailing jurisprudence. 46 SCDaHc
Further, the Court of Appeals correctly awarded respondent civil indemnity for
the death of her husband, which has been fixed by current jurisprudence at
P50,000.00. 47The award is proper under Art. 2206 of the Civil Code. 48
In fine, the Court of Appeals correctly awarded civil indemnity for the death of
respondent's husband, temperate damages, and moral damages for the physical injuries
sustained by respondent in addition to the damages granted by the trial court to
respondent. The trial court overlooked awarding the additional damages, which were
prayed for by respondent in her Amended Complaint. The appellate court is clothed with
ample authority to review matters, even if they are not assigned as errors in the appeal, if it
finds that their consideration is necessary in arriving at a just decision of the case. 49
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals
dated August 17, 2004 in CA-G.R. CV No. 70860 is
hereby AFFIRMED with MODIFICATION. Petitioner Philippine Hawk Corporation and
Margarito Avila are hereby ordered to pay jointly and severally respondent Vivian Lee Tan:
(a) civil indemnity in the amount of Fifty Thousand Pesos (P50,000.00); (b) actual damages
in the amount of One Hundred Twenty-Seven Thousand One Hundred Ninety-Two Pesos
and Eighty-Five Centavos (P127,192.85); (c) moral damages in the amount of Eighty
Thousand Pesos (P80,000.00); (d) indemnity for loss of earning capacity in the amount of
One Million Pesos (P1,000,000.00); and (e) temperate damages in the amount of Ten
Thousand Pesos (P10,000.00).
Costs against petitioner.
SO ORDERED.
Corona, Velasco, Jr., Nachura and Mendoza, JJ., concur.
110
||| (Philippine Hawk Corporation v. Lee, G.R. No. 166869, [February 16, 2010], 626 PHIL
483-501)
EN BANC
[G.R. No. 165279. June 7, 2011.]
DR. RUBI LI, petitioner, vs. SPOUSES REYNALDO and LINA
SOLIMAN, as parents/heirs of deceased Angelica
Soliman, respondents.
DECISION
VILLARAMA, JR., J p:
Challenged in this petition for review on certiorari is the Decision 1 dated June
15, 2004 as well as the Resolution 2 dated September 1, 2004 of the Court of Appeals
(CA) in CA-G.R. CV No. 58013 which modified the Decision 3 dated September 5, 1997 of
the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents' 11 year old daughter, Angelica Soliman,
underwent a biopsy of the mass located in her lower extremity at the St. Luke's Medical
Center (SLMC). Results showed that Angelica was suffering from osteosarcoma,
osteoblastic type, 4 a high-grade (highly malignant) cancer of the bone which usually
afflicts teenage children. Following this diagnosis and as primary intervention, Angelica's
right leg was amputated by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant
treatment to eliminate any remaining cancer cells, and hence minimize the chances of
recurrence and prevent the disease from spreading to other parts of the patient's body
(metastasis), chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo referred Angelica
to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she died on
September 1, 1993, just eleven (11) days after the (intravenous) administration of the first
cycle of the chemotherapy regimen. Because SLMC refused to release a death certificate
without full payment of their hospital bill, respondents brought the cadaver of Angelica to
the Philippine National Police (PNP) Crime Laboratory at Camp Crame for post-mortem
examination. The Medico-Legal Report issued by said institution indicated the cause of
death as "Hypovolemic shock secondary to multiple organ hemorrhages and
Disseminated Intravascular Coagulation." 5
On the other hand, the Certificate of Death 6 issued by SLMC stated the cause
of death as follows:

Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy
On February 21, 1994, respondents filed a damage suit 7 against petitioner, Dr.
Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged
them with negligence and disregard of Angelica's safety, health and welfare by their
careless administration of the chemotherapy drugs, their failure to observe the essential
precautions in detecting early the symptoms of fatal blood platelet decrease and stopping
early on the chemotherapy, which bleeding led to hypovolemic shock that caused
Angelica's untimely demise. Further, it was specifically averred that petitioner assured the
respondents that Angelica would recover in view of 95% chance of healing with
chemotherapy ("Magiging normal na ang anak nyo basta ma-chemo. 95% ang healing")and
when asked regarding the side effects, petitioner mentioned only slight vomiting, hair loss
and weakness ("Magsusuka ng kaunti. Malulugas ang buhok. Manghihina"). Respondents
thus claimed that they would not have given their consent to chemotherapy had petitioner
not falsely assured them of its side effects.
In her answer, 8 petitioner denied having been negligent in administering the chemotherapy
drugs to Angelica and asserted that she had fully explained to respondents how the
chemotherapy will affect not only the cancer cells but also the patient's normal body parts,
including the lowering of white and red blood cells and platelets. She claimed that what
happened to Angelica can be attributed to malignant tumor cells possibly left behind after
surgery. Few as they may be, these have the capacity to compete for nutrients such that the
body becomes so weak structurally (cachexia) and functionally in the form of lower resistance
of the body to combat infection. Such infection becomes uncontrollable and triggers a chain of
events (sepsis or septicemia) that may lead to bleeding in the form of Disseminated
Intravascular Coagulation (DIC), as what the autopsy report showed in the case of Angelica.
Since the medical records of Angelica were not produced in court, the trial and appellate courts
had to rely on testimonial evidence, principally the declarations of petitioner and respondents
themselves. The following chronology of events was gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelica's surgery and
discussed with them Angelica's condition. Petitioner told respondents that Angelica should be
given two to three weeks to recover from the operation before starting chemotherapy.
Respondents were apprehensive due to financial constraints as Reynaldo earns only from
P70,000.00 to P150,000.00 a year from his jewelry and watch repairing business. 9 Petitioner,
however, assured them not to worry about her professional fee and told them to just save up
for the medicines to be used.
Petitioner claimed that she explained to respondents that even when a tumor is removed, there
are still small lesions undetectable to the naked eye, and that adjuvant chemotherapy is needed
to clean out the small lesions in order to lessen the chance of the cancer to recur. She did not
give the respondents any assurance that chemotherapy will cure Angelica's cancer. During
these consultations with respondents, she explained the following side effects of chemotherapy
treatment to respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low
count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible sterility due
to the effects on Angelica's ovary; (6) damage to the heart and kidneys; and (7) darkening of the
skin especially when exposed to sunlight. She actually talked with respondents four times, once
at the hospital after the surgery, twice at her clinic and the fourth time when Angelica's mother
called her through long distance. 10 This was disputed by respondents who countered that
petitioner gave them assurance that there is 95% chance of healing for Angelica if she
undergoes chemotherapy and that the only side effects were nausea, vomiting and hair
111
loss. 11 Those were the only side-effects of chemotherapy treatment mentioned by
petitioner. 12
On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be
readmitted after two or three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with
them the results of the laboratory tests requested by petitioner: Angelica's chest x-ray,
ultrasound of the liver, creatinine and complete liver function tests. 13 Petitioner proceeded
with the chemotherapy by first administering hydration fluids to Angelica. 14
The following day, August 19, petitioner began administering three chemotherapy drugs
Cisplatin, 15 Doxorubicin 16 and Cosmegen 17 intravenously. Petitioner was supposedly
assisted by her trainees Dr. Leo Marbella 18 and Dr. Grace Arriete. 19 In his testimony, Dr.
Marbella denied having any participation in administering the said chemotherapy drugs. 20
On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on
Angelica's face. 21 They asked petitioner about it, but she merely quipped, "Wala yan. Epekto
ng gamot." 22 Petitioner recalled noticing the skin rashes on the nose and cheek area of
Angelica. At that moment, she entertained the possibility that Angelica also had systemic lupus
and consulted Dr. Victoria Abesamis on the matter. 23
On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus
provided with oxygen inhalation apparatus. This time, the reddish discoloration on Angelica's
face had extended to her neck, but petitioner dismissed it again as merely the effect of
medicines. 24 Petitioner testified that she did not see any discoloration on Angelica's face, nor
did she notice any difficulty in the child's breathing. She claimed that Angelica merely
complained of nausea and was given ice chips. 25
On August 22, 1993, at around ten o'clock in the morning, upon seeing that their child could
not anymore bear the pain, respondents pleaded with petitioner to stop the chemotherapy.
Petitioner supposedly replied: "Dapat 15 Cosmegen pa iyan. Okay, let's observe. If pwede na,
bigyan uli ng chemo." At this point, respondents asked petitioner's permission to bring their
child home. Later in the evening, Angelica passed black stool and reddish urine. 26 Petitioner
countered that there was no record of blackening of stools but only an episode of loose bowel
movement (LBM). Petitioner also testified that what Angelica complained of was carpo-pedal
spasm, not convulsion or epileptic attack, as respondents call it (petitioner described it in the
vernacular as "naninigas ang kamay at paa"). She then requested for a serum calcium
determination and stopped the chemotherapy. When Angelica was given calcium gluconate,
the spasm and numbness subsided. 27
The following day, August 23, petitioner yielded to respondents' request to take Angelica home.
But prior to discharging Angelica, petitioner requested for a repeat serum calcium
determination and explained to respondents that the chemotherapy will be temporarily stopped
while she observes Angelica's muscle twitching and serum calcium level. Take-home medicines
were also prescribed for Angelica, with instructions to respondents that the serum calcium test
will have to be repeated after seven days. Petitioner told respondents that she will see Angelica
again after two weeks, but respondents can see her anytime if any immediate problem
arises. 28
However, Angelica remained in confinement because while still in the premises of SLMC, her
"convulsions" returned and she also had LBM. Angelica was given oxygen and administration
of calcium continued. 29
The next day, August 24, respondents claimed that Angelica still suffered from convulsions.
They also noticed that she had a fever and had difficulty breathing. 30 Petitioner insisted it was
carpo-pedal spasm, not convulsions. She verified that at around 4:50 that afternoon, Angelica

developed difficulty in breathing and had fever. She then requested for an electrocardiogram
analysis, and infused calcium gluconate on the patient at a "stat dose." She further ordered that
Angelica be given Bactrim, 31 a synthetic antibacterial combination drug, 32 to combat any
infection on the child's body. 33
By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her
anus and urine. When Lina asked petitioner what was happening to her daughter, petitioner
replied, "Bagsak ang platelets ng anak mo." Four units of platelet concentrates were then
transfused to Angelica. Petitioner prescribed Solucortef. Considering that Angelica's fever was
high and her white blood cell count was low, petitioner prescribed Leucomax. About four to
eight bags of blood, consisting of packed red blood cells, fresh whole blood, or platelet
concentrate, were transfused to Angelica. For two days (August 27 to 28), Angelica continued
bleeding, but petitioner claimed it was lesser in amount and in frequency. Petitioner also denied
that there were gadgets attached to Angelica at that time. 34
On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots
that should not be removed. Respondents claimed that Angelica passed about half a liter of
blood through her anus at around seven o'clock that evening, which petitioner likewise denied.
On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric
tubes were inserted into her weakened body. An aspiration of the nasogastric tube inserted to
Angelica also revealed a bloody content. Angelica was given more platelet concentrate and
fresh whole blood, which petitioner claimed improved her condition. Petitioner told Angelica not
to remove the endotracheal tube because this may induce further bleeding. 35 She was also
transferred to the intensive care unit to avoid infection.
The next day, respondents claimed that Angelica became hysterical, vomited blood and her
body turned black. Part of Angelica's skin was also noted to be shredding by just rubbing
cotton on it. Angelica was so restless she removed those gadgets attached to her,
saying "Ayaw ko na"; there were tears in her eyes and she kept turning her head. Observing her
daughter to be at the point of death, Lina asked for a doctor but the latter could not answer her
anymore. 36 At this time, the attending physician was Dr. Marbella who was shaking his head
saying that Angelica's platelets were down and respondents should pray for their daughter.
Reynaldo claimed that he was introduced to a pediatrician who took over his daughter's case,
Dr. Abesamis who also told him to pray for his daughter. Angelica continued to have difficulty in
her breathing and blood was being suctioned from her stomach. A nurse was posted inside
Angelica's room to assist her breathing and at one point they had to revive Angelica by
pumping her chest. Thereafter, Reynaldo claimed that Angelica already experienced difficulty in
urinating and her bowel consisted of blood-like fluid. Angelica requested for an electric fan as
she was in pain. Hospital staff attempted to take blood samples from Angelica but were
unsuccessful because they could not even locate her vein. Angelica asked for a fruit but when it
was given to her, she only smelled it. At this time, Reynaldo claimed he could not find either
petitioner or Dr. Marbella. That night, Angelica became hysterical and started removing those
gadgets attached to her. At three o'clock in the morning of September 1, a priest came and
they prayed before Angelica expired. Petitioner finally came back and supposedly told
respondents that there was "malfunction" or bogged-down machine. 37
By petitioner's own account, Angelica was merely irritable that day (August 31). Petitioner noted
though that Angelica's skin was indeed sloughing off. 38 She stressed that at 9:30 in the
evening, Angelica pulled out her endotracheal tube. 39 On September 1, exactly two weeks
after being admitted at SLMC for chemotherapy, Angelica died. 40 The cause of death,
according to petitioner, was septicemia, or overwhelming infection, which caused Angelica's
other organs to fail. 41 Petitioner attributed this to the patient's poor defense mechanism
brought about by the cancer itself. 42
112
While he was seeking the release of Angelica's cadaver from SLMC, Reynaldo claimed
that petitioner acted arrogantly and called him names. He was asked to sign a promissory note
as he did not have cash to pay the hospital bill. 43
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of
the PNP-Crime Laboratory who conducted the autopsy on Angelica's cadaver, and Dr. Melinda
Vergara Balmaceda who is a Medical Specialist employed at the Department of Health (DOH)
Operations and Management Services.
Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1)
there were fluids recovered from the abdominal cavity, which is not normal, and was due to
hemorrhagic shock secondary to bleeding; (2) there was hemorrhage at the left side of the
heart; (3) bleeding at the upper portion of and areas adjacent to, the esophagus; (4) lungs were
heavy with bleeding at the back and lower portion, due to accumulation of fluids; (4) yellowish
discoloration of the liver; (5) kidneys showed appearance of facial shock on account of
hemorrhages; and (6) reddishness on external surface of the spleen. All these were the end
result of "hypovolemic shock secondary to multiple organ hemorrhages and disseminated
intravascular coagulation." Dr. Vergara opined that this can be attributed to the chemical agents
in the drugs given to the victim, which caused platelet reduction resulting to bleeding sufficient
to cause the victim's death. The time lapse for the production of DIC in the case of Angelica
(from the time of diagnosis of sarcoma) was too short, considering the survival rate of about 3
years. The witness conceded that the victim will also die of osteosarcoma even with amputation
or chemotherapy, but in this case Angelica's death was not caused by osteosarcoma. Dr.
Vergara admitted that she is not a pathologist but her statements were based on the opinion of
an oncologist whom she had interviewed. This oncologist supposedly said that if the victim
already had DIC prior to the chemotherapy, the hospital staff could have detected it. 44
On her part, Dr. Balmaceda declared that it is the physician's duty to inform and explain to the
patient or his relatives every known side effect of the procedure or therapeutic agents to be
administered, before securing the consent of the patient or his relatives to such procedure or
therapy. The physician thus bases his assurance to the patient on his personal assessment of
the patient's condition and his knowledge of the general effects of the agents or procedure that
will be allowed on the patient. Dr. Balmaceda stressed that the patient or relatives must be
informed of all known side effects based on studies and observations, even if such will
aggravate the patient's condition. 45
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelica's lower extremity,
testified for the defendants. He explained that in case of malignant tumors, there is no
guarantee that the ablation or removal of the amputated part will completely cure the cancer.
Thus, surgery is not enough. The mortality rate of osteosarcoma at the time of modern
chemotherapy and early diagnosis still remains at 80% to 90%. Usually, deaths occur from
metastasis, or spread of the cancer to other vital organs like the liver, causing systemic
complications. The modes of therapy available are the removal of the primary source of the
cancerous growth and then the residual cancer cells or metastasis should be treated with
chemotherapy. Dr. Tamayo further explained that patients with osteosarcoma have poor
defense mechanism due to the cancer cells in the blood stream. In the case of Angelica, he had
previously explained to her parents that after the surgical procedure, chemotherapy is
imperative so that metastasis of these cancer cells will hopefully be addressed. He referred the
patient to petitioner because he felt that petitioner is a competent oncologist. Considering that
this type of cancer is very aggressive and will metastasize early, it will cause the demise of the
patient should there be no early intervention (in this case, the patient developed sepsis
which caused her death). Cancer cells in the blood cannot be seen by the naked eye nor
detected through bone scan. On cross-examination, Dr. Tamayo stated that of the more than
50 child patients who had osteogenic sarcoma he had handled, he thought that probably all of
them died within six months from amputation because he did not see them anymore after
follow-up; it is either they died or had seen another doctor. 46

In dismissing the complaint, the trial court held that petitioner was not liable for damages as
she observed the best known procedures and employed her highest skill and knowledge in the
administration of chemotherapy drugs on Angelica but despite all efforts said patient died. It
cited the testimony of Dr. Tamayo who testified that he considered petitioner one of the most
proficient in the treatment of cancer and that the patient in this case was afflicted with a very
aggressive type of cancer necessitating chemotherapy as adjuvant treatment. Using the
standard of negligence laid down in Picart v. Smith, 47 the trial court declared that petitioner
has taken the necessary precaution against the adverse effect of chemotherapy on the patient,
adding that a wrong decision is not by itself negligence. Respondents were ordered to pay their
unpaid hospital bill in the amount of P139,064.43. 48
Respondents appealed to the CA which, while concurring with the trial court's finding that there
was no negligence committed by the petitioner in the administration of chemotherapy treatment
to Angelica, found that petitioner as her attending physician failed to fully explain to the
respondents all the known side effects of chemotherapy. The appellate court stressed that
since the respondents have been told of only three side effects of chemotherapy, they readily
consented thereto. Had petitioner made known to respondents those other side effects which
gravely affected their child such as carpo-pedal spasm, sepsis, decrease in the blood
platelet count, bleeding, infections and eventual death respondents could have decided
differently or adopted a different course of action which could have delayed or prevented the
early death of their child.
The CA thus declared:
Plaintiffs-appellants' child was suffering from a malignant disease. The
attending physician recommended that she undergo chemotherapy
treatment after surgery in order to increase her chances of survival.
Appellants consented to the chemotherapy treatment because they
believed in Dr. Rubi Li's representation that the deceased would have a
strong chance of survival after chemotherapy and also because of the
representation of appellee Dr. Rubi Li that there were only three possible
side-effects of the treatment. However, all sorts of painful side-effects
resulted from the treatment including the premature death of
Angelica. The appellants were clearly and totally unaware of these
other side-effects which manifested only during the chemotherapy
treatment. This was shown by the fact that every time a problem
would take place regarding Angelica's condition (like an unexpected
side-effect manifesting itself), they would immediately seek
explanation from Dr. Rubi Li. Surely, those unexpected side-effects
culminating in the loss of a love[d] one caused the appellants so much
trouble, pain and suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent
which would entitle plaintiffs-appellants to their claim for damages.
xxx xxx xxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the
assailed decision is hereby modified to the extent that defendant-
appellee Dr. Rubi Li is ordered to pay the plaintiffs-appellants the
following amounts:
1. Actual damages of P139,064.43, plus P9,828.00 for funeral
expenses;
2. Moral damages of P200,000.00;
113
3. Exemplary damages of P50,000.00;
4. Attorney's fee of P30,000.00.
SO ORDERED. 49 (Emphasis supplied.)
Petitioner filed a motion for partial reconsideration which the appellate court denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents
all the possible side effects of the chemotherapy on their child, and in holding her liable for
actual, moral and exemplary damages and attorney's fees. Petitioner emphasized that she was
not negligent in the pre-chemotherapy procedures and in the administration of chemotherapy
treatment to Angelica.
On her supposed non-disclosure of all possible side effects of chemotherapy, including death,
petitioner argues that it was foolhardy to imagine her to be all-knowing/omnipotent. While the
theoretical side effects of chemotherapy were explained by her to the respondents, as these
should be known to a competent doctor, petitioner cannot possibly predict how a particular
patient's genetic make-up, state of mind, general health and body constitution would respond
to the treatment. These are obviously dependent on too many known, unknown and
immeasurable variables, thus requiring that Angelica be, as she was, constantly and closely
monitored during the treatment. Petitioner asserts that she did everything within her
professional competence to attend to the medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in her field and her current position as
co-director for clinical affairs of the Medical Oncology, Department of Medicine of SLMC,
petitioner contends that in the absence of any clear showing or proof, she cannot be charged
with negligence in not informing the respondents all the side effects of chemotherapy or in the
pre-treatment procedures done on Angelica.
As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of
sepsis which is a complication of the cancer itself. Sepsis itself leads to bleeding and death.
She explains that the response rate to chemotherapy of patients with osteosarcoma is high, so
much so that survival rate is favorable to the patient. Petitioner then points to some probable
consequences if Angelica had not undergone chemotherapy. Thus, without chemotherapy,
other medicines and supportive treatment, the patient might have died the next day because of
massive infection, or the cancer cells might have spread to the brain and brought the patient
into a coma, or into the lungs that the patient could have been hooked to a respirator, or into
her kidneys that she would have to undergo dialysis. Indeed, respondents could have spent as
much because of these complications. The patient would have been deprived of the chance to
survive the ailment, of any hope for life and her "quality of life" surely compromised. Since she
had not been shown to be at fault, petitioner maintains that the CA erred in holding her liable for
the damages suffered by the respondents. 50
The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose
serious side effects to the parents of the child patient who died while undergoing
chemotherapy, despite the absence of finding that petitioner was negligent in administering the
said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical malpractice or, more appropriately, medical
negligence, is that type of claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm. In order to successfully
pursue such a claim, a patient must prove that a health care provider, in most cases a

physician, either failed to do something which a reasonably prudent health care provider would
have done, or that he or she did something that a reasonably prudent provider would not have
done; and that that failure or action caused injury to the patient. 51
This Court has recognized that medical negligence cases are best proved by opinions of expert
witnesses belonging in the same general neighborhood and in the same general line of practice
as defendant physician or surgeon. The deference of courts to the expert opinion of qualified
physicians stems from the former's realization that the latter possess unusual technical skills
which laymen in most instances are incapable of intelligently evaluating, hence the
indispensability of expert testimonies. 52
In this case, both the trial and appellate courts concurred in finding that the alleged negligence
of petitioner in the administration of chemotherapy drugs to respondents' child was not proven
considering that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were
not qualified to give expert opinion as to whether petitioner's lack of skill, knowledge and
professional competence in failing to observe the standard of care in her line of practice was
the proximate cause of the patient's death. Furthermore, respondents' case was not at all
helped by the non-production of medical records by the hospital (only the biopsy result and
medical bills were submitted to the court). Nevertheless, the CA found petitioner liable for her
failure to inform the respondents on all possible side effects of chemotherapy before securing
their consent to the said treatment.
The doctrine of informed consent within the context of physician-patient relationships goes far
back into English common law. As early as 1767, doctors were charged with the tort of
"battery" (i.e., an unauthorized physical contact with a patient) if they had not gained the
consent of their patients prior to performing a surgery or procedure. In the United States, the
seminal case was Schoendorff v. Society of New York Hospital 53 which involved unwanted
treatment performed by a doctor. Justice Benjamin Cardozo's oft-quoted opinion upheld the
basic right of a patient to give consent to any medical procedure or treatment: "Every human
being of adult years and sound mind has a right to determine what shall be done with his own
body; and a surgeon who performs an operation without his patient's consent, commits an
assault, for which he is liable in damages." 54 From a purely ethical norm, informed consent
evolved into a general principle of law that a physician has a duty to disclose what a reasonably
prudent physician in the medical community in the exercise of reasonable care would disclose
to his patient as to whatever grave risks of injury might be incurred from a proposed course of
treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a
choice of undergoing the proposed treatment, or alternative treatment, or none at all, may
intelligently exercise his judgment by reasonably balancing the probable risks against the
probable benefits. 55
Subsequently, in Canterbury v. Spence 56 the court observed that the duty to disclose should
not be limited to medical usage as to arrogate the decision on revelation to the physician alone.
Thus, respect for the patient's right of self-determination on particular therapy demands a
standard set by law for physicians rather than one which physicians may or may not impose
upon themselves. 57 The scope of disclosure is premised on the fact that patients ordinarily are
persons unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full
measure of a physician's responsibility. It is also his duty to warn of the dangers lurking in the
proposed treatment and to impart information which the patient has every right to expect.
Indeed, the patient's reliance upon the physician is a trust of the kind which traditionally has
exacted obligations beyond those associated with armslength transactions. 58 The physician is
not expected to give the patient a short medical education, the disclosure rule only requires of
him a reasonable explanation, which means generally informing the patient in nontechnical
terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be
achieved, and the risks that may ensue from particular treatment or no treatment. 59 As to the
issue of demonstrating what risks are considered material necessitating disclosure, it was held
that experts are unnecessary to a showing of the materiality of a risk to a patient's decision on
114
treatment, or to the reasonably, expectable effect of risk disclosure on the decision. Such
unrevealed risk that should have been made known must further materialize, for otherwise the
omission, however unpardonable, is without legal consequence. And, as in malpractice actions
generally, there must be a causal relationship between the physician's failure to divulge and
damage to the patient. 60
Reiterating the foregoing considerations, Cobbs v. Grant 61 deemed it as integral part of
physician's overall obligation to patient, the duty of reasonable disclosure of available choices
with respect to proposed therapy and of dangers inherently and potentially involved in each.
However, the physician is not obliged to discuss relatively minor risks inherent in common
procedures when it is common knowledge that such risks inherent in procedure of very low
incidence. Cited as exceptions to the rule that the patient should not be denied the opportunity
to weigh the risks of surgery or treatment are emergency cases where it is evident he cannot
evaluate data, and where the patient is a child or incompetent. 62 The court thus concluded
that the patient's right of self-decision can only be effectively exercised if the patient possesses
adequate information to enable him in making an intelligent choice. The scope of the
physician's communications to the patient, then must be measured by the patient's need, and
that need is whatever information is material to the decision. The test therefore for determining
whether a potential peril must be divulged is its materiality to the patient's decision. 63
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of
the physician for failure to inform patient, there must be causal relationship between physician's
failure to inform and the injury to patient and such connection arises only if it is established that,
had revelation been made, consent to treatment would not have been given.
There are four essential elements a plaintiff must prove in a malpractice action based upon the
doctrine of informed consent: "(1) the physician had a duty to disclose material risks; (2) he
failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of
the failure to disclose, the patient consented to treatment she otherwise would not have
consented to; and (4) plaintiff was injured by the proposed treatment." The gravamen in an
informed consent case requires the plaintiff to "point to significant undisclosed information
relating to the treatment which would have altered her decision to undergo it. 64
Examining the evidence on record, we hold that there was adequate disclosure of material risks
inherent in the chemotherapy procedure performed with the consent of Angelica's parents.
Respondents could not have been unaware in the course of initial treatment and amputation of
Angelica's lower extremity, that her immune system was already weak on account of the
malignant tumor in her knee. When petitioner informed the respondents beforehand of the side
effects of chemotherapy which includes lowered counts of white and red blood cells, decrease
in blood platelets, possible kidney or heart damage and skin darkening, there is reasonable
expectation on the part of the doctor that the respondents understood very well that the
severity of these side effects will not be the same for all patients undergoing the procedure. In
other words, by the nature of the disease itself, each patient's reaction to the chemical agents
even with pre-treatment laboratory tests cannot be precisely determined by the physician. That
death can possibly result from complications of the treatment or the underlying cancer itself,
immediately or sometime after the administration of chemotherapy drugs, is a risk that cannot
be ruled out, as with most other major medical procedures, but such conclusion can be
reasonably drawn from the general side effects of chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the respondents to have considered the
variables in the recommended treatment for their daughter afflicted with a life-threatening
illness. On the other hand, it is difficult to give credence to respondents' claim that petitioner
told them of 95% chance of recovery for their daughter, as it was unlikely for doctors like
petitioner who were dealing with grave conditions such as cancer to have falsely assured
patients of chemotherapy's success rate. Besides, informed consent laws in other countries

generally require only a reasonable explanation of potential harms, so specific disclosures such
as statistical data, may not be legally necessary. 65
The element of ethical duty to disclose material risks in the proposed medical treatment cannot
thus be reduced to one simplistic formula applicable in all instances. Further, in a medical
malpractice action based on lack of informed consent, "the plaintiff must prove both the duty
and the breach of that duty through expert testimony. 66 Such expert testimony must show the
customary standard of care of physicians in the same practice as that of the defendant
doctor. 67
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist
of the DOH's Operational and Management Services charged with receiving complaints against
hospitals, does not qualify as expert testimony to establish the standard of care in obtaining
consent for chemotherapy treatment. In the absence of expert testimony in this regard, the
Court feels hesitant in defining the scope of mandatory disclosure in cases of malpractice
based on lack of informed consent, much less set a standard of disclosure that, even in foreign
jurisdictions, has been noted to be an evolving one.
As society has grappled with the juxtaposition between personal
autonomy and the medical profession's intrinsic impetus to cure, the law
defining "adequate" disclosure has undergone a dynamic evolution. A
standard once guided solely by the ruminations of physicians is now
dependent on what a reasonable person in the patient's position regards
as significant. This change in perspective is especially important as
medical breakthroughs move practitioners to the cutting edge of
technology, ever encountering new and heretofore unimagined
treatments for currently incurable diseases or ailments. An adaptable
standard is needed to account for this constant progression.
Reasonableness analyses permeate our legal system for the very reason
that they are determined by social norms, expanding and contracting
with the ebb and flow of societal evolution.
As we progress toward the twenty-first century, we now realize that the
legal standard of disclosure is not subject to construction as a
categorical imperative. Whatever formulae or processes we adopt are
only useful as a foundational starting point; the particular quality or
quantity of disclosure will remain inextricably bound by the facts of
each case. Nevertheless, juries that ultimately determine whether a
physician properly informed a patient are inevitably guided by what they
perceive as the common expectation of the medical consumer "a
reasonable person in the patient's position when deciding to accept or
reject a recommended medical procedure." 68 (Emphasis supplied.)
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15,
2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No.
58013 are SET ASIDE.
The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in
Civil Case No. 8904 is REINSTATED and UPHELD.
No costs.
SO ORDERED.
Corona, C.J. and Perez, J., concur.
Carpio, J., see dissenting opinion.
115
Carpio Morales, Velasco, Jr. and Peralta, JJ., join the dissent of J. Carpio.
Nachura, Leonardo-de Castro and Mendoza, JJ., join the separate opinion of J. Brion.
Brion, J., in the result: see separate opinion.
Bersamin, J., concur in the result, and I join the separate opinion of J. Brion.
Del Castillo, J., took no part.
Abad, J., please see my concurring opinion.
Sereno, J., I dissent. Evidence was provided by the doctor-petitioner herself. I join J. Antonio
Carpio.
Separate Opinions
CARPIO, J., dissenting:
Dr. Rubi Li (Dr. Li), as oncologist, should have obtained the informed consent of Reynaldo
Soliman (Reynaldo) and Lina Soliman (Lina) before administering chemotherapy to their 11-year
old daughter Angelica Soliman (Angelica). Unfortunately, Dr. Li failed to do so. For her failure to
obtain the informed consent of Reynaldo and Lina, Dr. Li is liable for damages.
The doctrine of informed consent requires doctors, before administering treatment to their
patients, to disclose adequately the material risks and side effects of the proposed treatment.
The duty to obtain the patient's informed consent is distinct from the doctor's duty to skillfully
diagnose and treat the patient. In Wilkinson v. Vesey, 1 the Supreme Court of Rhode Island held
that:
One-half century ago, Justice Cardozo, in the oft-cited case
of Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E.
92 (1914), made the following observation:
"Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon who
performs an operation without his patient's consent, commits an assault,
for which he is liable in damages. This is true except in cases of
emergency where the patient is unconscious and where it is necessary
to operate before consent can be obtained." Id. at 129-130, 105 N.E. at
93. ACEIac
xxx xxx xxx
Shortly after the Schloendorff case, there began to appear on the judicial
scene a doctrine wherein courts with increasing frequency began to rule
that a patient's consent to a proposed course of treatment was valid
only to the extent he had been informed by the physician as to what
was to be done, the risk involved and the alternatives to the
contemplated treatment. This theory, which today is known as the
doctrine of informed consent, imposes a duty upon a doctor which
is completely separate and distinct from his responsibility to
skillfully diagnose and treat the patient's ills. (Emphasis supplied)

Four requisites must be proven in cases involving the doctrine of informed consent. The plaintiff
must show that (1) the doctor had a duty to disclose the associated risks and side effects of a
proposed treatment; (2) the doctor failed to disclose or inadequately disclosed the associated
risks and side effects of the proposed treatment; (3) the plaintiff consented to the proposed
treatment because of the doctor's failure to disclose or because of the inadequate disclosure of
the associated risks and side effects of the proposed treatment; and (4) the plaintiff was injured
as a result of the treatment. In Coryell v. Smith, 2 the Court of Appeals of Illinois held that:
To succeed in a malpractice action based on the doctrine of informed
consent the plaintiff must plead and ultimately prove four essential
elements: (1) the physician had a duty to disclose material risks; (2) he
failed to disclose or inadequately disclosed those risks; (3) as direct and
proximate result of the failure to disclose, the patient consented to
treatment she otherwise would not have consented to; and (4) plaintiff
was injured by proposed treatment.
There are two standards by which courts determine what constitutes adequate disclosure of
associated risks and side effects of a proposed treatment: the physician standard, and the
patient standard of materiality. Under the physician standard, a doctor is obligated to disclose
that information which a reasonable doctor in the same field of expertise would have disclosed
to his or her patient. In Shabinaw v. Brown, 3 the Supreme Court of Idaho held that:
A valid consent must be preceded by the physician disclosing those
pertinent facts to the patient so that he or she is sufficiently aware of the
need for, and the significant risks ordinarily involved in the treatment to
be provided in order that the giving or withholding of consent be a
reasonably informed decision. The requisite pertinent facts to be
disclosed to the patient are those which would be given by a like
physician of good standing in the same community. (Emphasis
supplied) TIDcEH
Under the patient standard of materiality, a doctor is obligated to disclose that information
which a reasonable patient would deem material in deciding whether to proceed with a
proposed treatment. In Johnson by Adler v. Kokemoor, 4 the Supreme Court of Wisconsin held
that:
. . . The concept of informed consent is based on the tenet that in order
to make a rational and informed decision about undertaking a particular
treatment or undergoing a particular surgical procedure, a patient has
the right to know about significant potential risks involved in the
proposed treatment or surgery. In order to insure that a patient can give
an informed consent, a "physician or surgeon is under the duty to
provide the patient with such information as may be necessary under the
circumstances then existing' to assess the significant potential risks
which the patient confronts.
The information that must be disclosed is that information which
would be "material" to a patient's decision. (Emphasis supplied)
Historically, courts used the physician standard. However, the modern and prevailing trend
among courts is to use the patient standard of materiality. In Canterbury v. Spence, 5 the Court
of Appeals of District of Columbia held that:
. . . Some have measured the disclosure by "good medical practice,"
others by what a reasonable practitioner would have bared under
the circumstances, and still others by what medical custom in the
116
community would demand. We have explored this rather
considerable body of law but are unprepared to follow it. The duty to
disclose, we have reasoned, arises from phenomena apart from medical
custom and practice. The latter, we think, should no more establish the
scope of the duty than its existence. Any definition of scope in terms
purely of a professional standard is at odds with the patient's prerogative
to decide on projected therapy himself. That prerogative, we have said,
is at the very foundation of the duty to disclose, and both the patient's
right to know and the physician's correlative obligation to tell him are
diluted to the extent that its compass is dictated by the medical
profession. STaCcA
In our view, the patient's right to self-decision shapes the
boundaries of the duty to reveal. That right can be effectively exercised
only if the patient possesses enough information to enable an intelligent
choice. The scope of the physician's communications to the patient,
then, must be measured by the patient's need, and that need is the
information material to the decision. Thus the test for determining
whether a particular peril must be divulged is its materiality to the
patient's decision: all risks potentially affecting the decision must be
unmasked. (Emphasis supplied)
In Johnson by Adler, the Court held that:
What constitutes informed consent in a given case emanates from
what a reasonable person in the patient's position would want to
know. This standard regarding what a physician must disclose is
described as the prudent patient standard; it has been embraced by
a growing number of jurisdictions since the Canterbury decision.
The Scaria [v. St. Paul Fire & Marine Insurance Co.] court emphasized
that those "disclosures which would be made by doctors of good
standing, under the same or similar circumstances, are certainly relevant
and material" in assessing what constitutes adequate disclosure, adding
that physician disclosures conforming to such a standard "would be
adequate to fulfill the doctor's duty of disclosure in most instances."
But the evidentiary value of what physicians of good standing
consider adequate disclosure is not dispositive, for ultimately "the
extent of the physician's disclosures is driven . . . by what a
reasonable person under the circumstances then existing would
want to know." (Emphasis supplied)
In order to determine what the associated risks and side effects of a proposed treatment are,
testimony by an expert witness is necessary because these are beyond the common
knowledge of ordinary people. In Canterbury, the Court held that, "There are obviously
important roles for medical testimony in [nondisclosure] cases, and some roles which only
medical evidence can fill. Experts are ordinarily indispensable to identify and elucidate for the
fact-finder the risks of therapy." The Court also held that, "medical facts are for medical
experts." ECSaAc
On the other hand, in order to determine what risks and side effects of a proposed treatment
are material and, thus, should be disclosed to the patient, testimony by an expert witness is
unnecessary. In Canterbury, the Court held that:
. . . It is evident that many of the issues typically involved in
nondisclosure cases do not reside peculiarly within the medical domain.

Lay witness testimony can competently establish a physician's failure to
disclose particular risk information, the patient's lack of knowledge of the
risk, and the adverse consequences following the treatment. Experts
are unnecessary to a showing of the materiality of a risk to a
patient's decision on treatment, or to the reasonably, expectable
effect of risk disclosure on the decision. (Emphasis supplied)
In Betterton v. Leichtling, 6 the Court of Appeals of California held that, "Whether to
disclose a significant risk is not a matter reserved for expert opinion."
Again, under the patient standard of materiality, a doctor is obligated to disclose that
information which a reasonable patient would deem material in deciding whether to proceed
with a proposed treatment. Stated differently, what should be disclosed depends on what a
reasonable person, in the same or similar situation as the patient, would deem material in
deciding whether to proceed with the proposed treatment.
The testimony of an expert witness is necessary to determine the associated risks and side
effects of the treatment. This is the only purpose. In the present case, an expert witness
identified the associated risks and side effects of chemotherapy Dr. Li is an expert in
oncology. In its 5 September 1997 Decision, the Regional Trial Court (RTC), Judicial Region 5,
Branch 8, Legazpi City, stated that:
Dr. Rubi Li is a Doctor of Medicine and a Medical Oncologist. She
obtained her degree in Medicine in 1981 at the University of the East.
She went on Junior Internship for one year in Rizal Medical Center
wherein she was exposed to different diseases and specifications. After
the post-graduate internship she underwent six (6) months rural service
internship and then took and passed the board examination. She
likewise underwent a 3-year residency training in internal medicine
wherein she was exposed to different patients, particularly patients with
bone diseases and cancer patients, including their treatment. After the
residency training in internal medicine, one becomes an internist. She
likewise underwent sub-specialty training in medical oncology wherein
she dealt with cancer patients, including bone and breast cancers, and
learned how to deal with the patient as a whole and the treatment.
Before she was admitted to the Society of Medical Oncologists, she first
took the test for and registered with the Philippine College of Physicians.
She was likewise invited to join the Society of Clinical Oncologists. She
has written and has been co-authoring papers on cancer and now she is
into the training program of younger doctors and help them with their
papers. cHDaEI
Every year Dr. Li goes to conventions, usually in May, known as the
American Society of Clinical Oncologist Convention, wherein all the sub-
specialties in cancer treatment and management meet and the latest in
cancer treatment and management is [sic] presented. In December of
each year the Philippine Society of Medical Oncologists have their
convention wherein the latest with regards [sic] to what is going on in the
Philippines is presented. They also have an upgrading or what they call
continuous medical education with [sic] cancer, which is usually every
now and then, especially when there are foreign guests from abroad.
Dr. Li has been dealing with bone cancer treatment for almost thirteen
(13) years now and has seen more than 5,000 patients.
As an expert, Dr. Li identified the associated risks and side effects of chemotherapy: (1) falling
hair; (2) nausea; (3) vomiting; (4) loss of appetite; (5) lowering of white blood cell count; (6)
117
lowering of red blood cell count; (7) lowering of platelet count; (8) sterility; (9) damage to
the kidneys; (10) damage to the heart; (11) skin darkening; (12) rashes; (13) difficulty in
breathing; (14) fever; (15) excretion of blood in the mouth; (16) excretion of blood in the anus;
(17) development of ulcers in the mouth; (18) sloughing off of skin; (19) systemic lupus
erythematosus; (20) carpo-pedal spasm; (21) loose bowel movement; (22) infection; (23) gum
bleeding; (24) hypovolemic shock; (25) sepsis; and (26) death in 13 days.
Dr. Li admitted that she assured Reynaldo and Lina that there was an 80% chance that
Angelica's cancer would be controlled and that she disclosed to them only some of the
associated risks and side effects of chemotherapy. In its 5 September 1997 Decision, the RTC
stated that:
By way of affirmative and special defenses, Dr. Rubi Li alleged that she
saw the deceased patient, Angelica Soliman, and her parents on July 25,
1993, and discussed the patient's condition and the possibility of
adjuvant chemotherapy . . . . The giving of chemotherapy is merely in
aid, or an adjuvant, of surgery, hoping to prevent or control the
recurrence of the malignant disease (cancer). The plaintiffs were likewise
told that there is 80% chance that the cancer could be controlled and
that no assurance of cure was given, considering that the deceased was
suffering from cancer which up to this moment, cure is not yet
discovered and not even the exact cause of cancer is known up to the
present. aCATSI
Plaintiffs were likewise informed that chemotherapy will be given through
dextrose and will, therefore, affect not only the cancer cells, but also the
patient's normal parts of the body, more particularly the fast growing
parts, and as a result, the patient was expected to experience, as she
has in fact experienced, side effects consisting of: 1) Falling hair; 2)
Nausea and vomiting; 3) Loss of appetite considering that there will be
changes in the taste buds of the tongue and lead to body weakening; 4)
Low count of white blood cells (WBC count), red blood cells (RBC
count), and platelets as these would be lowered by the chemotherapy; 5)
The deceased patient's ovaries may be affected resulting to sterility; 6)
The kidneys and the heart might be affected; and 7) There will be
darkening of the skin especially when the skin is exposed to sunlight.
Thus, Dr. Li impliedly admits that she failed to disclose to Reynaldo and Lina many of the
other associated risks and side effects of chemotherapy, including the most material
infection, sepsis and death. She impliedly admits that she failed to disclose as risks and side
effects (1) rashes; (2) difficulty in breathing; (3) fever; (4) excretion of blood in the mouth; (5)
excretion of blood in the anus; (6) development of ulcers in the mouth; (7) sloughing off of skin;
(8) systemic lupus erythematosus; (9) carpo-pedal spasm; (10) loose bowel movement; (11)
infection; (12) gum bleeding; (13) hypovolemic shock; (14) sepsis; and (15) death in 13 days.
Clearly, infection, sepsis and death are material risks and side effects of chemotherapy. To any
reasonable person, the risk of death is one of the most important, if not the most important,
consideration in deciding whether to undergo a proposed treatment. Thus, Dr. Li should have
disclosed to Reynaldo and Lina that there was a chance that their 11-year old daughter could
die as a result of chemotherapy as, in fact, she did after only 13 days of treatment.
In Canterbury and in Wilkinson, the Court of Appeals of District of Columbia and Supreme Court
of Rhode Island, respectively, held that, "A very small chance of death . . . may well be
significant." In the present case, had Reynaldo and Lina fully known the severity of the risks and
side effects of chemotherapy, they may have opted not to go through with the treatment of their

daughter. In fact, after some of the side effects of chemotherapy manifested, they asked Dr. Li
to stop the treatment. SCIacA
The facts, as stated by the RTC and the Court of Appeals, clearly show that, because of the
chemotherapy, Angelica suffered lowering of white blood cell count, lowering of red blood cell
count, lowering of platelet count, skin darkening, rashes, difficulty in breathing, fever, excretion
of blood in the mouth, excretion of blood in the anus, development of ulcers in the mouth,
sloughing off of skin, systemic lupus erythematosus, carpo-pedal spasm, loose bowel
movement, infection, gum bleeding, hypovolemic shock, sepsis, and death after 13 days.
After the administration of chemotherapy, Angelica suffered infection, which progressed to
sepsis. Thereafter, Angelica died. In its 5 September 1997 Decision, the RTC stated that:
Angelica Soliman was admitted at the St. Luke's Medical Center on
August 18, 1993. Preparatory to the chemotherapy, she was hydrated to
make sure that her kidneys will function well and her output was
monitored. Blood test, blood count, kidney function test and complete
liver function test were likewise done. Chemotherapy started on August
19, 1993 with the administration of the three drugs, namely, Cisplatine,
Doxorubicin and Cosmegen. In the evening Angelica started vomiting
which, according to Dr. Rubi Li, was just an effect of the drugs
administered.
Chemotherapy was likewise administered on August 20, 1993. Vomiting
continued. On August 21, 1993 Angelica Soliman developed redness or
rashes all over her face, particularly on the nose and cheek area, which
on subsequent day became darker and has spread to the neck and
chest. Dr. Li told plaintiffs that was just a reaction or effect of the
medicines and it was normal. Vomiting likewise continued. Dr. Li then
consulted Dr. Abesamis, a pediatric oncologist, because she was
entertaining the possibility that the patient might also have systemic
lupus erythematosus.
Angelica Soliman developed fever and difficulty of breathing on the
fourth day and she became weak already. She was placed on oxygen
and antibiotics. Her blood count was checked. Dr. Li began to entertain
the possibility of infection, the lungs being considered the focus of such
infection. An auscultation of the lungs showed just harsh breathing
sounds. She was given Bactrim. The following day the antibiotic was
changed into something stronger by giving the patient Fortum
intravenously. Dr. Li started to consider the possibility of beginning
sepsis, meaning that the germs or bacteria were already in the blood
system. Fortum did not, however, take effect. White cells were down and
it was not enough to control the infection because there was nothing in
her body to fight and help Fortum fight the infection. Another medicine,
Leucomax, was added that would increase the patient's white cell count,
but even this did not help. ScAIaT
Plaintiffs then requested Dr. Li to stop the chemotherapy. Dr. Li
complied, although according to her the chemotherapy should not be
stopped. So chemotherapy was not given on August 22, 1993. Plaintiffs
then asked if they could already bring their daughter home. They were
permitted by Dr. Li.
On August 23, 1993, preparatory to the discharge, Dr. Li prescribed take
home medicines, but while still in the premises of SLMC, Angelica
Soliman had a convulsive attack so she was placed back to her room.
118
This convulsive attack mentioned by the plaintiffs was actually what is
referred to as "carpopedal spasm" in medical parlance, which Dr. Li
described as "naninigas ang kamay at paa." It is a twitching of a group of
muscles of the hands and legs. The patient's calcium was checked and
it was noted to be low, so she was given supplemental calcium which
calmed her down. ECG was likewise conducted. Angelica Soliman
started to bleed through the mouth. This, according to Dr. Li, was only a
spitting of blood because at that time the patient had gum bleeding. Dr.
Li told plaintiffs the bleeding was due to platelet reduction. Angelica
Soliman was then transferred to a private room wherein the plaintiffs
themselves were required to wear a mask to avoid any infection as their
daughter was already sensitive and they might have colds or flu and
might contaminate the patient who was noted to have low defense
mechanism to infection. Plaintiffs were asked to sign a consent form for
blood transfusion. Patient was transfused with more than three (3) bags
of blood and platelets. The bleeding was lessened, but she became
weak.
The bleeding and blood transfusion continued until August 31, 1993.
Angelica Soliman became hysterical and uneasy with the oxygen and
nasogastric tube attached to her. Parts of her skin were shredding or
peeling off, and according to plaintiffs, she already passed black stool.
On September 1, 1993, at around 3:00 p.m., Angelica Soliman died, but
prior to her demise, she pulled out her endotracheal tube at 9:30 p.m. of
August 31, 1993.
As admitted by Dr. Li, infection, sepsis and death are associated risks and side effects of
chemotherapy. These risks and side effects are material to Reynaldo and Lina, and to any other
reasonable person, in deciding whether to undergo chemotherapy. Had Dr. Li adequately
disclosed to Reynaldo and Lina that there was a chance that their 11 year old daughter could
die of infection as a result of chemotherapy, they may have decided against it and sought for an
alternative treatment. SEDaAH
Accordingly, I vote to DENY the petition.
BRION, J.:
I. The Concurrence and Supporting Reasons
I concur in the result with the ponencia and its conclusion that the respondents failed to prove
by preponderance of evidence the essential elements of a cause of action based on the
doctrine of informed consent. This case presents to us for the first time the application of the
common-law doctrine of informed consent in a medical negligence case, based on Article 2176
of the Civil Code. I do not question the applicability of this novel doctrine in this jurisdiction.
However, I do not agree with the ponencia's conclusion that "there was adequate disclosure of
material risks of the [chemotherapy administered] with the consent of Angelica's parents" 1 in
view of a complete absence of competent expert testimony establishing a medical disclosure
standard in the present case. As I shall discuss below, the respondents failed to sufficiently
establish the information that should have been disclosed to enable them to arrive at a decision
on how proceed with the treatment.
As in any ordinary medical negligence action based on Article 2176 of the Civil Code, the
burden to prove the necessary elements i.e., duty, breach, injury and proximate causation

rests with the plaintiff. 2 In a lack of informed consent litigation, the plaintiff must prove by
preponderance of evidence the following requisites: 3
(1) the physician had a duty to disclose material risks;
(2) he failed to disclose or inadequately disclosed those risks;
(3) as a direct and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented to; and
(4) plaintiff was injured by the proposed treatment.
Of crucial significance in establishing the elements involved in medical negligence cases is
expert medical testimony since the facts and issues to be resolved by the Court in these cases
are matters peculiarly within the knowledge of experts in the medical field. 4 ETHSAI
I base my conclusion on the ground that the respondents failed to prove by competent
expert testimony the first and fourth elements of a prima facie case for lack of informed
consent, specifically:
(1) the scope of the duty to disclose and the violation of this
duty, i.e., the failure to define what should be disclosed
and to disclose the required material risks or side effects
of the chemotherapy that allow the patient (and/or her
parents) to properly decide whether to undergo
chemotherapy; and
(2) that the chemotherapy administered by the petitioner
proximately caused the death of Angelica Soliman.
II. Background
On July 7, 1993, the respondents Spouses Reynaldo and Lina Soliman's (respondents) 11 year
old daughter, Angelica Soliman (Angelica), was diagnosed with osteosarcoma, osteoblastic
type (cancer of the bone) after a biopsy of the mass in her lower extremity showed a
malignancy. Following this diagnosis, Dr. Jaime Tamayo (Dr. Tamayo) of the St. Luke's Medical
Center (SLMC) amputated Angelica's right leg to remove the tumor. Dr. Tamayo also
recommended adjuvant chemotherapy to eliminate any remaining cancer cells and prevent its
spread to the other parts of the body, and referred Angelica to the petitioner Dr. Rubi
Li (petitioner), an oncologist. 5
On July 23, 1993, the petitioner saw the respondents and discussed with them Angelica's
condition. 6 The petitioner claims that she did not then give the respondents any assurance that
chemotherapy would cure Angelica's cancer considering that "a cure for cancer has not been
discovered" and "its exact cause is not known up to the present"; she merely told them that
there is 80% chance that the cancer [of Angelica] could be controlled [by
chemotherapy]. 7 In her Answer, the petitioner alleges that she informed the respondents that
chemotherapy will be administered intravenously; the chemotherapy will flow throughout
Angelica's body and will affect not only the cancer cells but also the fast growing "normal"
parts of her body. She also then disclosed and explained to the respondents the following side
effects of chemotherapy:
(1) Falling hair;
(2) Nausea and vomiting;
(3) Loss of appetite considering that there will be changes in the taste
buds of the tongue and lead to body weakness and this defendant
119
therefore, in anticipation of the changes in the taste buds, instructed the
plaintiffs to teach and encourage the deceased patient to eat even
though she has no normal taste;
(4) Low count of white blood cells (WBC count), red blood cells (RBC
count), and platelets as these would be lowered by the chemotherapy
and therefore this defendant had to check these counts before starting
the chemotherapy (it is important to note at this point that white blood
cells [WBC] are the cells that defend the body against infection);
(5) The deceased patient's ovaries may be affected resulting to sterility;
(6) The kidneys and the heart might be affected so that this defendant
had to check the status of these organs before starting
chemotherapy; cSCADE
(7) There will be darkening of the skin especially when the skin is
exposed to sunlight. 8
The respondents, however, disputed this claim and countered that the petitioner gave
them an assurance that there was a 95% chance of healing if Angelica would undergo
chemotherapy "Magiging normal na ang anak nyo basta ma-chemo. 95 % ang healing.
and that the side effects were only hair loss, vomiting and weakness "Magsusuka
ng kaunti. Malulugas ang buhok. Manghihina." 9
On August 18, 1993, Angelica was readmitted to the SLMC for chemotherapy. Upon admission,
Angelica's mother, respondent Lina Soliman, signed the Consent for Hospital Care, which
pertinently stated: 10
Permission is hereby given to the medical, nursing and laboratory staff of
St. Luke's Medical Center to perform such diagnostic procedures and
administer such medications and treatments as may be deemed
necessary or advisable by the Physicians of this hospital [for my
daughter] during this confinement. It is understood that such procedures
may include blood transfusions, intravenous or other injections and
infusions[,] administrations of serums, antitoxins and toxoids for
treatment or prophylaxis, local of (sic) general anesthesia, spinal
puncture, bone marrow puncture, venessection, thoracentesis,
paracenthesis, physiotherapy and laboratory test.
The following day, the petitioner intravenously administered three chemotherapy drugs, namely:
Cisplatin, Doxorubicin and Cosmegen. On September 1, 1993, or thirteen days after the
induction of the first cycle of chemotherapy, Angelica died. 11 The autopsy conducted by the
Philippine National Police (PNP) Crime Laboratory indicated the cause of death as
"Hypovolemic shock secondary to multiple organ hemorrhages and Disseminated
Intravascular Coagulation." 12
On February 21, 1994, the respondents filed a case for damages against the petitioner, Dr. Leo
Marbella, a certain Dr. Arriete and SLMC. The respondents raised two causes of action;
the first cause of action was based on the petitioner's negligence in the administration of the
chemotherapy, and the second cause of action was based on the petitioner's negligence in
failing to disclose the risks or side effects of chemotherapy so that they could give a valid
informed consent. 13 In her Answer, the petitioner countered that she was not negligent and
that the massive bleeding that caused Angelica's death was brought about by her underlying
condition and the sepsis that resulted from her weakened immune system. 14
a. The RTC Ruling

The trial court dismissed the complaint and held that the petitioner was not negligent since she
observed the best known procedures and employed her highest skill and knowledge in the
administration of the chemotherapy to Angelica. It cited Dr. Tamayo's testimony that he knew
the petitioner as one of the most proficient in the treatment of cancer and that Angelica was
afflicted with a very aggressive type of cancer that necessitated adjuvant chemotherapy. 15
b. The CA Ruling
On appeal, the Court of Appeals (CA) while concurring with the trial court's finding that the
petitioner was not negligent in the administration of the chemotherapy to Angelica found the
petitioner negligent in failing to explain fully to the respondents all the known side effects of the
chemotherapy. The CA gave credence to the respondents' testimony that the petitioner merely
told them of only three side effects of chemotherapy, which prompted them to readily give their
consent. The CA stressed that had the petitioner made known to the respondents the other
side effects (carpo-pedal spasm, sepsis, decrease in platelet counts, bleeding, infection and
death), which gravely affected Angelica, they could have decided differently or took a different
course of action, which could have delayed or prevented the early death of their child. 16
c. The Respondents' Supporting Testimonies
Angelica's medical records were not submitted in evidence; instead, the Regional Trial Court
(RTC) and the CA solely relied on the testimonial evidence of the petitioner and the
respondents. aSEHDA
In support of her Complaint, the respondent Lina Soliman testified on direct examination that
on August 18, 1993, Angelica was admitted to the SLMC for chemotherapy. She declared that
the petitioner examined Angelica on that same day and administered dextrose on her. The
petitioner assured them that if Angelica is subjected to chemotherapy, there will be a "95%
chance" that "she will be normal" and that the "possible side effects of
chemotherapy" are "falling of the hair, vomiting and weakness (manghihina)." 17 On cross
examination, the respondent Lina Soliman clarified that "when she insisted on some other
possible side effect," the petitioner said that those three she mentioned "were the only [side]
effects." 18 During rebuttal, the respondent Lina Soliman testified that the petitioner gave them
a "90% guarantee that if [her] daughter will be subjected to chemotherapy, [her] child will
recover completely." 19 Finally, she declared that she was only aware of the three side effects
and had she known all the side effects of chemotherapy that the petitioner should have
mentioned, she would not have subjected Angelica to the chemotherapy. 20
The respondent Reynaldo Soliman was also presented to corroborate the testimony of his wife
Lina Soliman. He declared that he asked the petitioner about the side effects of chemotherapy
and that the petitioner mentioned of only "falling hair, weakness and vomiting" to him. 21
During the trial, the respondents also presented two expert witnesses: Dr. Jesusa Vergara, a
Medico-Legal Officer of the PNP Crime Laboratory, and Dr. Melinda Balmaceda, a Medical
Specialist employed at the Department of Health (DOH). 22
Dr. Vergara declared that she has been a physician since 1989; she did not undergo medical
resident physician training and only practiced as a general practitioner at Andamon General
Hospital in Lucena City for six months. She testified further that she has been employed as a
Medico-Legal Officer at the PNP Crime Laboratory since January 1990. In this capacity, she
declared that she performs autopsy to determine the cause of death of victims; conducts
examinations of rape victims, victims of other sex crimes and physical injuries; examines and
identifies skeletal remains; attends court hearings on cases she has examined; and gives
lectures to students and medico-legal opinion on cases referred to her. 23 TcAECH
Dr. Vergara testified that she conducted the autopsy on Angelica's body on September 2, 1993.
She explained that the extensive multiple organ hemorrhages and disseminated intravascular
120
coagulation that caused Angelica's demise can be attributed to the chemical agents given
to her; these agents caused platelet reduction resulting in massive bleeding and, eventually, in
her death. She further noted that Angelica would have also died of osteosarcoma even with
amputation and chemotherapy; in this case, her death was not caused by osteosarcoma as it
has a survival period of three years. 24 Dr. Vergara admitted that she is not a
pathologist; 25 also, her statements were based on the opinion of an oncologist she had
previously interviewed. 26
Dr. Balmaceda, for her part, declared that she is a Medical Specialist working at the DOH
Operations and Management Service; her work encompasses the administration and
management of medical hospitals; her office receives complaints against hospitals for
mismanagement of admissions and medical health. Dr. Balmaceda also stated that she
obtained a Masters of Hospital Administration from the Ateneo de Manila University, and took
special courses on medical and pediatric training at the Philippine General Hospital and
Children's Medical Center in 1979. 27
Dr. Balmaceda testified that it is a physician's duty to inform and explain to the patient or his
family every known side effect of the therapeutic agents to be administered, before securing
their consent. She stressed that the patient or his family must be informed of all known side
effects based on studies and observations, even if this disclosure will have the effect of
aggravating the patient's condition. 28 On cross-examination, Dr. Balmaceda admitted that
she is not an oncologist. 29
Despite their counsel's representation during the trial, the respondents failed to present
expert testimony from an oncologist or a physician who specializes in the diagnosis and
treatment of cancers. 30
d. The Petitioner's Supporting Expert Testimonies
The petitioner testified that she is a licensed physician and a board certified medical oncologist;
she underwent sub-specialty training in medical oncology where she dealt with different types
of cancers, including bone cancers. She also declared that she is a member of the Philippine
Society of Medical Oncologists; has written and co-authored various medical papers on cancer;
and has attended yearly conventions of the American Society of Clinical Oncology and the
Philippine Society of Medical Oncologists where she was updated with the latest advances in
cancer treatment and management. The petitioner also declared that she has been engaged in
the treatment and management of bone cancers for almost thirteen years, and has seen more
than 5,000 patients. 31
On direct examination, the petitioner testified that she met and discussed the side effects of
chemotherapy with the respondents three times; she mentioned that the side effects of
chemotherapy may consist of hair loss, nausea, vomiting, sterility, and low white and red
blood cells and platelet count. She declared that the respondents consented to the
chemotherapy when they signed the hospital's consent form. 32
The petitioner also declared that Angelica died not because of the chemotherapy but because
of sepsis an overwhelming infection that caused her organs to fail. She testified that the
cancer brought on the sepsis because of her poor defense mechanism. 33 On cross-
examination, the petitioner clarified that the sepsis also triggered the platelet reduction; the
bleeding was, in fact, controlled by the blood transfusion but the infection was so prevalent it
was hard to control. The petitioner also added that the three drugs administered to Angelica
could theoretically cause platelet reduction, but a decrease in platelets is usually seen only after
three cycles of chemotherapy and not in the initial administration. 34
Dr. Tamayo, the orthopedic surgeon who amputated Angelica's right leg, testified for the
petitioner. He explained that the modes of therapy for Angelica's cancer are the surgical

removal of the primary source of the cancerous growth and, subsequently, the treatment of the
residual cancer (metastatic) cells with chemotherapy. 35 He further explained that patients
with osteosarcoma have a poor defense mechanism due to the cancer cells in the bloodstream.
In Angelica's case, he explained to the parents that chemotherapy was imperative to address
metastasis of cancerous cells since osteosarcoma is a very aggressive type of cancer requiring
equally aggressive treatment. He declared that the mortality rate for osteosarcoma remains at
80% to 90% despite the advent of modern chemotherapy. Finally, Dr. Tamayo testified that he
refers most of his cancer patients to the petitioner since he personally knows her to be a very
competent oncologist. 36 caADIC
III. The Ponencia
The ponencia cites two grounds for granting the petition. First, there was adequate disclosure
of the side effects of chemotherapy on the part of the petitioner. Second, the respondents
failed to present expert testimony to establish the standard of care in obtaining consent prior to
chemotherapy.
a. Adequate Disclosure of Material Risks
The ponencia finds "that there was adequate disclosure of material risks inherent in the
chemotherapy [administered] with the consent of Angelica's parents."
The ponencia emphasizes that when the petitioner informed the respondents of the side effects
of chemotherapy (i.e., low white and red blood cell and platelet count, kidney or heart damage
and skin darkening), it was reasonable for the former to expect that the latter understood very
well the side effects are not be the same for all patients undergoing the procedure. Given this
scenario, the ponencia notes that the "respondents could not have been unaware in the course
of initial treatment . . . that [Angelica's] immune system was already weak on account of the
malignant tumor in her knee." The ponencia also implies that death as a result of complications
of the chemotherapy or the underlying cancer is a risk that can be reasonably inferred by the
respondents from the general side effects disclosed by the petitioner. Finally,
the ponencia disregarded the respondents' claim that the petitioner assured them of 95%
chance of recovery for Angelica as it is unlikely for doctors (like the petitioner) who are dealing
with grave illnesses to falsely assure patients of the chemotherapy's success rate; at any rate,
specific disclosures such as statistical data are not legally necessary. 37
b. Failure to Present Expert Testimony
The ponencia holds that in a medical malpractice action based on lack of informed consent, the
plaintiff must prove both the duty to disclose material risks and the breach of that duty through
expert testimony. The expert testimony must show the customary standard of care of
physicians in the same practice as that of the defendant doctor. In the present case,
the ponencia notes that Dr. Balmaceda's expert testimony is not competent to establish the
standard of care in obtaining consent for chemotherapy treatment. 38
IV. The Doctrine of Informed Consent
The present case is one of first impression in this jurisdiction in the application of the
doctrine of informed consent in a medical negligence case. For a deeper appreciation of the
application of this novel doctrine, a brief look at the historical context, the different approaches
underlying informed consent, and the standards of disclosure would be very helpful.
a. Battery v. Negligence Approaches
The doctrine of informed consent first appeared in American jurisprudence in cases involving
unconsented surgeries which fit the analytical framework of traditional battery. 39 Most
commentators begin their discussions of the legal doctrine of informed consent with the
"famous 1914 opinion of Associate Justice Benjamin Cardozo in Schloendorff v. Society of New
York Hospitals" 40 where he wrote:
121
Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon who
performs an operation without the patient's consent commits an assault,
for which he is liable in damages. This is true, except in cases of medical
emergency, where the patient is unconscious, and where it is necessary
to operate before consent can be obtained. 41
Scholendorff is significant because it "characterized the wrong [committed by the physician] as
a trespass, and not [as] a negligent act." It illustrated the concept of medical battery "[where] a
patient is subjected to an examination or treatment without express or implied consent." Thus,
"[this] battery approach to informed consent seeks to protect the patient's physical integrity
and personal dignity from harmful and unwanted contact." 42
"[A]s the century progressed and the practice of medicine became more sophisticated, courts
began to consider whether the patient had been given sufficient information to give true
consent." 43 One commentator notes that in the mid-1950s, the courts had shifted their focus
from the issue of whether the patient gave consent, to whether adequate information was given
for the patient to have made an informed consent. Thus, the quantity of information provided to
the patient in making decisions regarding medical treatment was given greater scrutiny and the
physician's duty to disclose assumed a primary role. 44 ADCEcI
The 1957 case of Salgo v. Leland Stanford, Jr. University of Board of Trustees 45 first
"established the modern view of the doctrine of informed consent," declaring "that the
physician violates his duty to his patient if he fails to provide information necessary for the
patient to form intelligent consent to the proposed treatment." 46 Although Salgo held that the
physician was under a duty to disclose, this duty remained unclear; it did not answer the critical
question of "what constituted 'full disclosure' sufficient for the patient to make an informed
consent." 47
In the 1960s, "[c]ourts and commentators began to understand [and realize] that actions for
battery an intentional tort made little sense when couched in negligence
terminology." 48 Thus, in 1960, the Kansas Supreme Court explicitly rejected the battery
approach in Natanson v. Kline 49 where it held that the "failure to disclose to the patient
sufficient information to allow informed consent to the procedure was an action based in
negligence and not on an unconsented . . . touching [or] battery." 50 The courts in Natanson v.
Kline 51 and Mitchell v. Robinson 52 clarified as well the scope of the physician's duty to
disclose and held that the "central information needed in making an informed consent was a
disclosure of the material risks involved in a medical procedure." 53 Natanson went on to
require the physician to provide "in addition to risk information, disclosure of the ailment, the
nature of the proposed treatment, the probability of success, and possible alternative
treatments." 54
Finally, in 1972, the California Supreme Court in Cobbs v. Grant 55 articulated "the rationale
behind abandoning the battery approach to informed consent in favor of [a] negligence
approach." It held that "it was inappropriate to use intentional tort of battery when the actual
wrong was an omission, and the physician acted without intent to injure the patient." 56
b. Standards of Disclosure: Professional Disclosure
Standard v. Reasonable Patient Standard
A significant development in the evolution of the doctrine of informed consent in the United
States is the standard by which the adequacy of disclosure is judged. 57 In Natanson, 58the
Court examined the adequacy of the physician's disclosure by looking at accepted medical
practices and held that a charge of failure to disclose should be judged by the standards of the
reasonable medical practitioner. This came to be known as the "professional disclosure
standard." 59 The question under the standard is: did the doctor disclose the information

that, by established medical practice, is required to be disclosed? Under this standard, "a
patient claiming a breach of the duty was required to produce expert medical testimony as to
what the standard practice would be in [the medical community in a particular case] and how
the physician deviated from the practice." 60 This requirement, however, came under harsh
criticism as one commentator noted: acEHSI
The fulfillment of this requirement often precluded a finding of liability not
only because of the difficulty in obtaining expert testimony, and breaking
through the medical community's so-called "conspiracy of silence," but
also because there was no real community standard of disclosure.
Establishing community custom through expert testimony is perfectly
acceptable where such custom exists. However, because a physician
supposedly considers his patient's emotional, mental, and physical
condition in deciding whether to disclose, and because each patient is
mentally and emotionally unique, there can be no single established
custom concerning disclosure; if there is one, it is so general that it is of
little value. Requiring the plaintiff to present expert testimony that a
standard does exist and was breached may well impose an insuperable
burden. 61
In the early 1970s, the courts and legislature in the United States realized that "the professional
community standard of disclosure was inconsistent with patients' rights to make their own
health care decisions." 62 In 1972, a new standard was established in the landmark case
of Canterbury v. Spence. 63 This standard later became known as the "reasonable patient
standard." It required the doctor "to disclose all material risks incident to the proposed therapy
in order to secure an informed consent," 64 and gave rise to a new disclosure test: "the test
for determining whether a particular peril must be divulged is its materiality to the
patient's decision: all risks potentially affecting the decision must be
unmasked." 65 Under this standard, adequate disclosure "required the physician to discuss
the nature of the proposed treatment, whether it was necessary or merely elective, the risks,
and the available alternatives and their risks and benefits." 66
The Canterbury court, however, warned that the standard does not mean "full disclosure" of
all known risks. One commentator emphasized: 67
Thus, the reasonable patient standard included more information than a
professional community standard, but did not require the doctor to tell
the patient all information about risks, benefits, alternatives,
diagnosis, and the nature of the treatment. To do so would require the
patient first to undergo complete medical training himself. "The patient's
interest in information does not extend to a lengthy polysyllabic
discourse on all possible complications. A mini-course in medical
science is not required. . . ." [emphasis supplied]
In Sard v. Hardy, 68 the Maryland Court of Appeals succinctly explained the rationale in
adopting the reasonable patient standard first established in Cantebury v. Spence, 69 as
follows:
In recent years, however, an ever-expanding number of courts have
declined to apply a professional standard of care in informed consent
cases, employing instead a general or lay standard of reasonableness
set by law and independent of medical custom. These decisions
recognize that protection of the patient's fundamental right of physical
self-determination the very cornerstone of the informed consent doctrine
mandates that the scope of a physician's duty to disclose therapeutic
risks and alternatives be governed by the patient's informational needs.
122
Thus, the appropriate test is not what the physician in the exercise of his
medical judgment thinks a patient should know before acquiescing in a
proposed course of treatment; rather, the focus is on what data the
patient requires in order to make an intelligent decision. [Citations
omitted]
Since then, this line of ruling has prevailed, as shown by the rulings discussed below on the
need for expert evidence in the application of the preferred reasonable patient standard.
c. Expert Testimony in Ordinary Medical Negligence Cases
Philippine jurisprudence tells us that expert testimony is crucial, if not determinative of a
physician's liability in a medical negligence case. 70 In litigations involving medical negligence
as in any civil action, we have consistently ruled that the burden to prove by preponderance of
evidence the essential elements i.e., duty, breach, injury and proximate causation rests
with the plaintiff. Expert testimony is, therefore, essential since the factual issue of whether a
physician or surgeon exercised the requisite degree of skill and care in the treatment of his
patient is generally a matter of expert opinion. 71
Cruz v. Court of Appeals, 72 a 1997 case, provided the first instance for the Court to elaborate
on the crucial significance of expert testimony to show that a physician fell below the requisite
standard of care. In acquitting the petitioner of the crime of reckless imprudence resulting in
homicide because of a complete absence of any expert testimony of the matter of the
standard of care employed by other physicians of good standing in the conduct of similar
operations, the Court emphasized: DCaEAS
In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et
al., this Court stated that in accepting a case, a doctor in effect
represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ
such training, care and skill in the treatment of his patients. He therefore
has a duty to use at least the same level of care that any other
reasonably competent doctor would use to treat a condition under the
same circumstances. It is in this aspect of medical malpractice that
expert testimony is essential to establish not only the standard of
care of the profession but also that the physician's conduct in the
treatment and care falls below such standard. Further, inasmuch as
the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been
recognized that expert testimony is usually necessary to support the
conclusion as to causation.
. . . The deference of courts to the expert opinion of qualified
physicians stems from its realization that the latter possess unusual
technical skills which laymen in most instances are incapable of
intelligently evaluating. Expert testimony should have been offered
to prove that the circumstances cited by the courts below are
constitutive of conduct falling below the standard of care employed
by other physicians in good standing when performing the same
operation. It must be remembered that when the qualifications of a
physician are admitted, as in the instant case, there is an inevitable
presumption that in proper cases he takes the necessary precaution and
employs the best of his knowledge and skill in attending to his clients,
unless the contrary is sufficiently established. This presumption is
rebuttable by expert opinion which is so sadly lacking in the case at
bench. [Emphasis supplied]

Ramos v. Court of Appeals 73 meanwhile illustrates that in cases where the doctrine of res ipsa
loquitur 74 is applicable, the requirement for expert testimony may be dispensed with. Thus, in
finding that the respondent was negligent in the administration of anesthesia on the basis of the
testimony of a dean of a nursing school and not of an anesthesiologist, the Court held:
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.
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. 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. 75
d. The Limited but Critical Role of Expert
Testimony in Informed Consent Litigation
One of the major and fiercely contested issues in the growing number of informed consent
cases in the United States is "whether it is necessary for the plaintiff to produce expert medical
testimony to establish the existence and scope of a physician's duty to disclose risks of a
proposed treatment." 76 A majority of legal commentators on the subject agree that "most
courts will continue to require expert testimony to establish the existence and extent of a
physician's duty to disclose risks of a proposed treatment, in view of the rule that expert
testimony usually is necessary in medical malpractice cases generally." 77
In informed consent cases (unlike in ordinary medical negligence cases), however, many issues
do not necessarily involve medical science. In the landmark case of Canterbury v.
Spence, 78 the United States Court of Appeals for the District Columbia Circuit defined the
limited role of expert testimony in informed consent cases and provided examples of situations
appropriate for non-expert testimony:
There are obviously important roles for medical testimony in such cases,
and some roles which only medical evidence can fill. Experts are
ordinarily indispensible to identify and elucidate for the fact finder
the risks of therapy and the consequences of leaving existing maladies
untreated. They are normally needed on issues as to the cause of any
injury or disability suffered by the patient and, where privileges are
asserted, as to the existence of any emergency claimed and the nature
and seriousness of any impact upon the patient from risk-disclosure.
Save for relative infrequent instances where questions of this type are
resolvable wholly within the realm of ordinary human knowledge and
experience, the need for the expert is clear. ITCHSa
The guiding consideration our decisions distill, however, is that medical
facts are for medical experts and other facts are for any witnesses-
expert or not-having sufficient knowledge and capacity to testify to
them. It is evident that many of the issues typically involved in
nondisclosure cases do not reside peculiarly within the medical domain.
123
Lay witness testimony can competently establish a physician's failure to
disclose particular risk information, the patient's lack of knowledge of the
risk, and the adverse consequences following the treatment. Experts are
unnecessary to a showing of the materiality of a risk to a patient's
decision on treatment, or to the reasonably, expectable effect of risk
disclosure on the decision. These conspicuous examples of permissible
uses of nonexpert testimony illustrate the relative freedom of broad
areas of the legal problem of risk nondisclosure from the demands for
expert testimony that shackle plaintiffs' other types of medical
malpractice litigation. [Citations omitted; emphasis supplied]
This ruling underwent refinements in subsequent applications. The 1983 case of Smith v.
Shannon, 79 where the Supreme Court of Washington held that an expert testimony is
required to establish initially the existence of the risk of the proposed treatment is particularly
instructive in its two-step discussion in the use of expert testimony in the application of the
reasonable patient test. To quote from this case:
The determination of materiality is a 2-step process. Initially, the
scientific nature of the risk must be ascertained, i.e., the nature of
the harm which may result and the probability of its occurrence. The
trier of fact must then decide whether that probability of that type of
harm is a risk which a reasonable patient would consider in deciding on
treatment.
While the second step of this determination of materiality clearly
does not require expert testimony, the first step almost as clearly
does. Only a physician (or other qualified expert) is capable of
judging what risks exist and their likelihood of occurrence. The
central reason for requiring physicians to disclose risks to their patients
is that patients are unable to recognize the risks by themselves. Just as
patients require disclosure of risks by their physicians to give an
informed consent, a trier of fact requires description of risks by an
expert to make an informed decision.
Some expert testimony is thus necessary to prove
materiality. Specifically, expert testimony is necessary to prove the
existence of a risk, its likelihood of occurrence, and the type of harm
in question. Once those facts are shown, expert testimony is
unnecessary. [Citations omitted, emphasis supplied] STIcEA
In Jambazian v. Borden, 80 a 1994 case, the California Court of Appeals held that in proving his
informed consent claim, the plaintiff was required "to present properly qualified medical opinion
evidence that his alleged diabetic condition created surgical risks other than those related by
defendant prior to the procedure." The Court held further:
In every case the court must be guided by the general rules governing
the use of expert testimony. If the fact sought to be proved is one within
the general knowledge of laymen, expert testimony is not required;
otherwise the fact can be proved only by the opinions of experts." The
diagnosis of diabetes, its magnitude, scientific characteristics, and the
inherent risks associated with the condition are not matters of such
common knowledge that opinion testimony is unnecessary in informed
consent litigation to establish defendant should have disclosed the risks
of surgery on a diabetic to plaintiff when there is no medical evidence
that the illness exists.[Citations omitted.]

Betterton v. Leichtling, 81 another California Court of Appeals ruling, distinguished "between
the use of expert testimony to prove the duty to disclose a known risk and the use of expert
testimony to prove the existence of the risk itself" 82 and held that the effect of Betterton's
aspirin use on the risk of surgical complications is subject to proof only by expert
witnesses, viz.:
Whether to disclose a significant risk is not a matter reserved for expert
opinion. Whether a particular risk exists, however, may be a matter
beyond the knowledge of lay witnesses, and therefore appropriate
for determination based on the testimony of experts. Here, the effect
of Betterton's aspirin use on the risk of surgical complications was a
subject beyond the general knowledge of lay people. Therefore, the jury
should have relied only on expert testimony when it determined whether
the use of aspirin causes significant risks in surgery. [Citations omitted,
emphasis supplied]
In Morhaim v. Scripps Clinic Medical Group, Inc. 83 that followed, the Court dismissed
Morhaim's informed consent claim based on his failure to present expert testimony that
diabetes is a risk of the Kenalog injections. The California Court of Appeals held:
Betterton and Jambazian make clear that while no expert testimony is
required to establish a doctor's duty to disclose a "known risk of death
or serious bodily harm," expert testimony is required to establish
whether a risk exists in the first instance where the matter is beyond the
knowledge of a lay person.
In this case, whether diabetes is a risk of the Kenalog injections Morhaim
received is clearly a matter beyond the knowledge of a layperson.
Therefore, Morhaim would have to present expert testimony regarding
the existence of that risk in order to prevail on his informed consent
claim. Once Morhaim's counsel conceded in his opening statement that
Morhaim could not present such testimony, the trial court properly
granted Scripps's motion for nonsuit.
All these, Canterbury v. Spence 84 best summed up when it observed that "medical facts are
for medical experts and other facts are for any witness expert or not having sufficient
knowledge and capacity to testify to them." 85
V. Application to the Present Case
The issue in the present case is: Did the respondents prove by preponderance of evidence
all the elements of a cause of action for medical negligence under the doctrine of
informed consent?
As stated above, the plaintiff as in any ordinary medical negligence action bears the
burden of proving the necessary elements of his or her cause of action. Canterbury v.
Spence 86 tells us that informed consent plaintiffs also share this burden, viz.:
In the context of trial of a suit claiming inadequate disclosure of risk
information by a physician, the patient has the burden of going forward
with evidence tending to establishprima facie the essential elements of
the cause of action, and ultimately the burden of proof the risk of
nonpersuasion on those elements. These are normal impositions upon
moving litigants, and no reason why they should not attach in
nondisclosure cases is apparent. [Citations omitted.]
124
In the present case, I find that the plaintiffs (the present respondents) utterly failed to
establish their cause of action. They failed to establish their claim of lack of informed
consent, particularly on the first and fourth elements. aESTAI
a. First Element: Duty to Disclose Material Risks
As discussed, two competing standards are available to determine the scope and adequacy of
a physician's disclosure the professional disclosure standard or the reasonable patient
standard.
While I concur with the results of the ponencia, I find its approach and reasoning in its use of
the standards to be confused. The ponencia claims that "expert testimony must show the
customary standard of care of physicians in the same practice as that of the defendant
doctor," 87 thereby indicating its partiality to the use of the professional disclosure standard. At
the same time, the ponencia felt "hesitant in defining the scope of mandatory disclosure in
cases based on lack of informed consent, much less set a standard of disclosure," 88 citing
lack of expert testimony in this regard. In plainer terms, it effectively said that the respondents
failed to prove what must be disclosed. Yet, it also concluded that "there was adequate
disclosure of material risks inherent in the chemotherapy procedure performed with the consent
of Angelica's parents." 89
After considering the American experience in informed consent cases, I opt to use the
reasonable patient standard which focuses "on the informational needs of an average
reasonable patient, rather than on professionally-established norms." 90 In the doctor-patient
relationship, it is the patient who is subjected to medical intervention and who gets well or
suffers as a result of this intervention. It is thus for the patient to decide what type of medical
intervention he would accept or reject; it is his or her health and life that are on the line. To
arrive at a reasonable decision, the patient must have sufficient advice and information; this is
the reason he or she consults a doctor, while the role of the doctor is to provide the medical
advice and services the patient asks for or chooses after informed consideration. 91
In this kind of relationship, the doctor carries the obligation to determine and disclose all the
risks and probabilities that will assist the patient in arriving at a decision on whether to accept
the doctor's advice or recommended intervention. 92 While the disclosure need not be an
encyclopedic statement bearing on the patient's illness or condition, the doctor must disclose
enough information to reasonably allow the patient to decide.
In an informed consent litigation, American experiences documented through the decided
cases, as well as our own common empirical knowledge and limited line of cases on medical
negligence, tell us that at least the testimony on the determination of the attendant risks and the
probabilities of the proposed treatment or procedure is a matter for a medical expert, not for a
layperson, to provide. This is generally the first of the two-step process that Smith v.
Shannon, cited above, speaks of 93 in describing the reasonable patient standard and its
application.
The second step relates to testimony on the determination of the adequacy of the disclosure
based on the materiality of the disclosed information to the patient's decision-making. In this
regard, Canterbury v. Spence 94 again offers some help when it states:
Once the circumstances give rise to a duty on the physician's part to
inform his patient, the next inquiry is the scope of the disclosure the
physician is legally obliged to make. The courts have frequently
confronted this problem but no uniform standard defining the adequacy
of the divulgence emerges from the decisions. Some have said "full"
disclosure, a norm we are unwilling to adopt literally. It seems
obviously prohibitive and unrealistic to expect physicians to discuss

with their patients every risk of proposed treatment no matter
how small or remote and generally unnecessary from the
patient's viewpoint as well. Indeed, the cases speaking in terms of
"full" disclosure appear to envision something less than total disclosure,
leaving unanswered the question of just how much. 95
To my mind, the scope that this ruling describes, while not given with mathematical
precision, is still a good rule to keep in mind in balancing the interests of the physician and
the patient; the disclosure is not total by reason of practicality, but must be adequate to be
a reasonable basis for an informed decision. For this aspect of the process, non-expert
testimony may be used on non-technical detail so that the testimony may dwell on "a
physician's failure to disclose risk information, the patient's lack of knowledge of the risk,
and adverse consequences following the treatment." 96 cEATSI
In the present case, expert testimony is required in determining the risks and or side effects of
chemotherapy that the attending physician should have considered and disclosed as these are
clearly beyond the knowledge of a layperson to testify on. In other words, to prevail in their
claim of lack of informed consent, the respondents must present expert supporting testimony
to establish the scope of what should be disclosed and the significant risks attendant to
chemotherapy that the petitioner should have considered and disclosed; the determination of
the scope of disclosure, and the risks and their probability are matters a medical expert must
determine and testify on since these are beyond the knowledge of laypersons. 97
As expert witness, the respondents presented Dr. Balmaceda who testified on the physician's
general duty to explain to the patient or to his relatives all the known side effects of the medical
procedure or treatment. Specifically, Dr. Balmaceda gave the following expert opinion:
ATTY. NEPOMUCENO
Q: Madam Witness, what is the standard operating procedure before a
patient can be subjected to procedures like surgery or
administration of chemotheraphic (sic)drugs?
A: Generally, every physician base (sic) her or his assurance on the
patient, on the mode of recovery by her or his personal
assessment of the patient's condition and his knowledge of
the general effects of the agent or procedure that will be
allowed to the patient.
Q: What is the duty of the physician in explaining the side effects of
medicines to the patient?
A: Every known side effects of the procedure or the therapeutic agents
should really be explained to the relatives of the patient if not
the patient.
Q: Right, what could be the extent of the side effect to the patient?
A: I said, all known side effects based on studies and observations.
Q: Should be?
A: Made known to the relatives of the patient or the patient.
Q: Then, after informing the relatives of the patient about [all the] side
effects, what should be the next procedure?
WITNESS
125
A: The physician should secure consent from the relatives or the patient
himself for the procedure for the administration of the
procedure, the therapeutic agents.
ATTY. NEPOMUCENO
Q: Now, should the physician ask the patient's relatives whether they
under[stood] the explanation?
A: Yes, generally, they (sic) should. 98
On cross-examination, Dr. Balmaceda only clarified that all known side-effects of the treatment,
including those that may aggravate the patient's condition, should be disclosed, viz.:
ATTY. CASTRO
Q: And you mentioned a while ago, Madam Witness that all known side
effects of drugs should be made known to the patient to the
extent that even he dies because of making known the side
effect, you will tell him? acHCSD
A: I said, all known side effect[s] should be made known to the relatives
or to the patient so that consent and the responsibility there
lies on the patient and the patient's relatives.
Q: So, even that information will aggravate his present condition?
A: Making known the side effect?
A: Yes.
A: In my practice, I did not encounter any case that will aggravate it. I
make him know of the side effect[s] and if indeed there is, I
think the person that should approve on this matter should be
the relatives and not the patient. It is always the patient that
become (sic) aggravated of the side effects of the procedure in
my experience. 99
Unfortunately for the respondents, Dr. Balmaceda's testimony failed to establish the
existence of the risks or side-effects the petitioner should have disclosed to them in the
use of chemotherapy in the treatment of osteosarcoma; the witness, although a medical
doctor, could not have testified as an expert on these points for the simple reason that she is
not an oncologist nor a qualified expert on the diagnosis and treatment of cancers. 100 Neither
is she a pharmacologist who can properly advance an opinion on the toxic side effects of
chemotherapy, particularly the effects of Cisplatin, Doxorubicin and Cosmegen the drugs
administered to Angelica. As a doctor whose specialty encompasses hospital management and
administration, she is no different from a layperson for purposes of testifying on the risks and
probabilities that arise from chemotherapy.
In the analogous case of Ramos v. Court of Appeals 101 that dwelt on the medical expertise of
a witness, we held that a pulmonologist cannot be considered an expert in the field of
anesthesiology simply because he is not an anesthesiologist:
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).
xxx xxx xxx
An anesthetic accident caused by a rare drug-induced bronchospasm
properly falls within the fields of anesthesia, internal medicine-allergy,
and clinical pharmacology. The resulting anoxic encephalopathy belongs
to the field of neurology. While admittedly, many bronchospastic-
mediated pulmonary diseases are within the expertise of pulmonary
medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this case is within the disciplines of
anesthesiology, allergology and pharmacology. On the basis of the
foregoing transcript, in which the pulmonologist himself admitted that he
could not testify about the drug with medical authority, it is clear that the
appellate court erred in giving weight to Dr. Jamora's testimony as an
expert in the administration of Thiopental Sodium.
xxx xxx xxx
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. 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. 102
At best, Dr. Balmaceda's testimony only established generally the petitioner's duty to
disclose all the known risks of the proposed treatment and nothing more. Even if this
testimony is deemed competent, its probative value on the risks attendant to chemotherapy
and the probabilities that the attending chemotherapy specialist should have considered and
disclosed to the patient and her parents cannot but be negligible for lack of the required
capability to speak on the subject of the testimony. HcTEaA
In this regard, Justice Carpio proffers the view that the petitioner "as an expert in oncology
identified [in the present case] the material risks and side effects of chemotherapy." 103 To
support his conclusion, Justice Carpio cites jurisprudence which allowed the use of the
defendant-physician's expert testimony to prove the medical disclosure standard in the
community. 104 I cannot subscribe to this point of view.
Arguably, the medical disclosure standard can be established through the petitioner's own
expert testimony, as has been done in some courts in the United States in cases where the
defendant physician testified that he did disclose the risks, but the plaintiff denied it. 105 In
these cases, the defendant physicians are qualified as expert witnesses and their testimonies
are considered expert medical testimony insofar as they disclose the practice of competent and
responsible medical practitioners in a particular medical situation. 106
Reliance on this line of cases for purposes of the present case is however, inapt.
First, these cases are appropriate only if we are to adopt the professional disclosure or the
"physician standard" a standard that Justice Carpio himself admits "is not the modern and
126
prevailing standard among United States courts." Citing Cantebury v. Spence, 107 Justice
Carpio declares that the "prevailing trend among courts is to use the patient standard of
materiality." As held in Febud v. Barot: 108
Sufficiency of disclosure under the prudent patient standard requires
that disclosure be viewed through the mind of [the] patient, not [the]
physician. Implicit in this shift of emphasis is recognition that expert
testimony is no longer required in order to establish the medical
community's standard for disclosure and whether the physician failed to
meet that standard.
Second, this line of cases also cannot apply to the present case since the petitioner's
testimony, on its own, did not establish the medical standard in obtaining consent for
chemotherapy treatment. Stated differently, the petitioner's testimony did not specifically refer
to the prevailing medical practice insofar as what risks or side-effects of chemotherapy should
be disclosed to the respondents. In fact, during the trial, the respondents failed to elicit any
expert testimony from the petitioner regarding the recognized standard of care in the medical
community about what risks of chemotherapy should have been disclosed to them.
b. Second Element: Adequacy of Disclosure of Risks
The ponencia concludes that "there was adequate disclosure of material risks of the
[chemotherapy administered] with the consent of Angelica's parents" in view of the fact that the
petitioner informed the respondents of the side effects of chemotherapy, such as low white and
red blood cell and platelet count, kidney or heart damage and skin darkening. cAEDTa
I cannot agree with this conclusion because it was made without the requisite premises. As
heretofore discussed, sufficiency of disclosure can be made only after a determination and
assessment of risks have been made. As discussed above, no evidence exists showing that
these premises have been properly laid and proven. Hence, for lack of basis, no conclusion can
be made on whether sufficient disclosure followed. In other words, the disclosure cannot be
said to be sufficient in the absence of evidence of what, in the first place, should be disclosed.
Even assuming that the ponencia used the professional disclosure standard in considering the
material risks to be disclosed, the existing evidence still does not support the conclusion
arrived at. The reason again is the respondent's failure to establish a baseline to determine
adequacy of disclosure; in the case of the professional disclosure standard, determination of
adequacy requires expert medical testimony on the standard medical practice that prevails in
the community. Thus, it has been held that "[e]xpert testimony is required in an informed
consent case to establish what the practice is in the general community with respect to
disclosure of risks that the defendant physician allegedly failed to disclose." 109
Lastly, the respondent Lina Soliman's testimony on this point bears close examination in light of
the totality of the evidence adduced. A first consideration is the nature of the illness of the
deceased osteosarcoma that according to the undisputed expert testimony of Dr. Tamayo
is a "very aggressive type of cancer that requires adjuvant chemotherapy." In plainer terms, the
amputation of Angelica's right leg was not sufficient, chemotherapy must follow; despite
modern chemotherapy, the mortality rate of osteosarcoma is 80 to 90%. 110 In light of this
expert testimony, the respondent Lina Soliman's testimony that she was assured of a 95%
chance of healing (should Angelica undergo chemotherapy) by the petitioner cannot be
accepted at face value.
A second consideration is that the claim of a 95% chance of healing cannot also be given any
credence considering the respondent Lina Soliman's inconsistent testimony on this point. In
fact, the record bears out that the respondent Lina Soliman testified on direct examination that
the petitioner assured her of a 95% chance of healing. However, she contradicted her earlier
 127
testimony, when on rebuttal, she declared that the petitioner gave her a 90% guarantee of full In the present case, respondent Lina Soliman's lay testimony at best only satisfied the
recovery should Angelica undergo chemotherapy. first type of causation that adequate disclosure by the petitioner of all the side effects of
chemotherapy would have caused them to decline treatment. The respondents in this case
A third consideration is that specific disclosures such as life expectancy probabilities" 111 are must still show by competent expert testimony that the chemotherapy administered by the
not legally necessary or "required to be disclosed in informed consent situations," 112thus the petitioner proximately caused Angelica's death.
respondent Lina Soliman's testimony on this point cannot be given any probative value. Thus,
in the landmark case of Arato v. Avedon 113 where family members of a patient who died of In this regard, the respondents presented Dr. Vergara as an expert witness, who gave the
pancreatic cancer brought an informed consent action against defendant physicians who failed following opinion:
to provide the patient material information (statistical life expectancy) necessary for his
informed consent to undergo chemotherapy and radiation treatment 114 the Supreme Court ATTY. NEPOMUCENO
of California "rejected the mandatory disclosure of life expectancy probabilities" 115 on
Q: Under the word conclusions are contained the following words:
account "of the variations among doctor-patient interactions and the intimacy of the
"Cause of death is hypovolemic shock secondary to multiple
relationship itself." 116
organ hemorrhages and disseminated Intravascular
Likewise, the statement that the side effects were confined to hair loss, vomiting and weakness Coagulation," in layman's term, what is the meaning of that?
can hardly be given full credit, given the petitioner's own testimony of what she actually
WITNESS
disclosed. Respondent Lina Soliman's testimony, tailor-fitted as it is to an informed consent
issue, should alert the Court to its unreliability. Even if given in good faith, it should, at best A: The victim died of hemorrhages in different organs and disseminated
reflect what the respondents heard (or chose to hear), not what the petitioner disclosed to intravascular coagulation is just a complication.
them a common enough phenomenon in high-stress situations where denial of an
unacceptable consequence is a first natural response. That death may occur is a given in ATTY. NEPOMUCENO
an osteosarcoma case where the most drastic intervention amputation has been made.
That death was not proximately caused by the chemotherapy (as testified to by experts and as Q: Madam Witness, what could have caused this organ hemorrhages
discussed below) demonstrates its particular relevance as a consequence that the doctor and disseminated intravascular coagulation?
administering the chemotherapy must disclose.
A: The only thing I could think of, sir, was the drugs given to the victim,
c. Fourth Element: Causation the chemical agents or this anti-plastic drugs can cause . . .
the reduction in the platelet counts and this could be the only
In addition to the failure to prove the first element, I also submit that the respondents failed to cause of the bleeding.
prove that the chemotherapy administered by the petitioner proximately caused the death of
Angelica Soliman. Q: And that bleeding could have been sufficient to cause the death of
Angelica Soliman?
Traditionally, plaintiffs alleging lack of informed consent must show two types of causation: 1)
adequate disclosure would have caused the plaintiff to decline the treatment, and 2) the A: Yes, Sir. 119
treatment proximately caused injury to the plaintiff. The second causation requirement is
On cross-examination, Dr. Vergara admitted that the opinions she advanced to the court were
critical since a medical procedure performed without informed consent does not, in itself,
not based on her opinion as an expert witness but on the interview she had previously
proximately cause an actionable injury to a plaintiff; a plaintiff must show that he or she has
conducted with an oncologist, viz.:
suffered some injury as a result of the undisclosed risk to present a complete cause of
action. 117 DCHIAS ATTY. CASTRO
In the recent case of Gorney v. Meaney, 118 the Arizona Court of Appeals held that expert Q: Now, you mentioned chemotherapy, Madam Witness, that it is not a
testimony is essential to demonstrate that the treatment proximately caused the injury to the treatment really, are you initiating that?
plaintiff, viz.:
A: Sir, I asked for an opinion from an Oncologist, and she said that only
Expert testimony is not required for the first type of causation because it one person really survived the 5-year survival rate. Only one
is plainly a matter to which plaintiffs themselves could testify and is person. ICaDHT
within the knowledge of the average layperson.
Q: That is, are you referring to malignant osteosarcoma?
Expert testimony is required, however, to demonstrate that the
treatment proximately caused injury to the plaintiff. Such testimony A: Yes, sir. 120
helps to ensure that the plaintiff's alleged injury was not caused by
the progression of a pre-existing condition or was the result of xxx xxx xxx
some other cause, such as natural aging or a subsequent injury . . .
ATTY. AYSON
. Thus, Gorney's expert opinion affidavit should have stated that the
surgery proximately caused an injury to Gorney, e.g., the "worsen[ed]" Q: Madam Witness, you said a while ago that you are not a pathologist?
condition in Gorney's knee. [Citations omitted, emphasis supplied]

A: Yes, sir.
Q: And during the cross-examination and the re-direct, you admitted
that you have had to refer or interview an oncologist?
A: Yes, sir.
Q: What is an oncologist Madam?
A: She is a doctor in cancers.
Q: So, whatever opinion you have stated before this Honorable Court [is]
based on the statement made by the oncologist you have
interviewed?
A: Only for the disease osteosarcoma.
xxx xxx xxx
COURT
Q: So then, the opinion you gave us that the patient afflicted with cancer
of the bone, osteosarcoma that she will live for 5 years is not
of your own opinion but that of the oncologist?
A: Yes, your Honor, but that 5 years survival is only for patients
undergoing chemotherapy but actually it is less than 5 years.
Q: You mean to tell the Court Mrs. Witness that the patient has been
diagnosed [with] cancer, may still have a life span of five (5)
years after examination having been found to have cancer?
A: No, sir. Less than five (5) years.
Q: In this particular case, what was the information given you by the
Oncologist you consulted?
A: Only one person lived after she was given chemotherapy, five years
sir.
Q: In this particular case, the Oncologist you consulted also told you
that the patient Soliman did not die of cancer but died of
complication, is that correct?
A: Yes, sir.
Q: So, it was not actually your own observation?
A: Sir, considering my findings at the body or the different organs, of the
victim, I have said I found hemorrhages, so I think that is
enough to have caused the death of the victim. 121
Under these terms, Dr. Vergara's expert testimony was clearly incompetent to prove that the
chemotherapy proximately caused Angelica's demise for two reasons.
First, Dr. Vergara, who is an autopsy expert, is not qualified to be an expert witness in
an osteosarcoma case involving chemotherapy. Her admission that she consulted an oncologist
prior to her testimony in court confirms this. Dr. Vergara is also not a pharmacologist who can
competently give expert opinion on the factual issue of whether the toxic nature of the
128
chemotherapy proximately caused Angelica's death. As previously stated, the
respondents failed to present competent experts in the field of oncology despite their
representation to do so during trial. AIaHES
Second, Dr. Vergara's testimony is doubly incompetent as it is hearsay; her opinions were not
based on her own knowledge but based on the opinion of another oncologist she previously
interviewed.
Additionally, I cannot help but note that Dr. Vergara could not have adequately testified
regarding the medical condition and the cause of death of Angelica without referring to her
medical records. As the records of the case show, these medical records were never
introduced into evidence by either party to the case. The absence of these medical records
significantly lessened the probative value of Dr. Vergara's testimony regarding the causation of
Angelica's death.
Thus, in the absence of competent evidence that the chemotherapy proximately caused
Angelica's death, what stands in the record in this case is the petitioner's uncontroverted
and competent expert testimony that Angelica died of sepsis brought about by the
progression of her osteosarcoma an aggressive and deadly type of bone cancer. That
the petitioner is a competent expert witness cannot be questioned since she was properly
qualified to be an expert in medical oncology.
In this respect, the petitioner who is a board certified medical oncologist with thirteen (13)
years of experience in the treatment of osteosarcoma testified that Angelica died of
sepsis, viz.: STECAc
Q: Now, despite all these medications, the patient has been deceased
on September 1, 1993, what do you think can be the cause of .
. . death of the patient?
A: This is probably the cause of death[-]overwhelming infection that has
gone through her body that has also caused her other organs
or systems to fail and this is also because of poor defense
mechanism brought about from the cancer per se. 122
On cross-examination, the petitioner rebutted the respondents' theory that the chemotherapy
caused platelet reduction and the massive bleeding that ultimately caused Angelica's
death, viz.:
Q: Would you agree with me if I say that the platelet reduction triggered
a chain of physiological pathological mechanism in the body of
Angelica Soliman which eventually triggered her death?
A: No, sir.
Q: Why not?
A: Because the platelet decrease was not the main cause of death of
Angelica Soliman, it was an overwhelming infection which also
triggered the reduction of platelets.
Q: So, which came ahead, the overwhelming infection or the platelet
reduction?
A: The infection, sir.
Q: And you said overwhelming?

A: Because we were talking about the death.
Q: No, no, no. You said that the infection that attacked Angelica
Soliman was overwhelming, will you define what you mean by
overwhelming?
A: Overwhelming is a condition wherein the infection has already gone
to other parts of the body and caused the decrease in the
function of the organs and systems.
xxx xxx xxx
Q: And you are saying that the platelet reduction eventually led to
the bleeding and the bleeding led to the death?
A: No, sir.
Q: Why not?
A: Because we were able to control the bleeding of Angelica
Soliman because of the transfusion that we were giving
her with platelets. We were able to stall the bleeding but
the infection was there and it was the infection that was
hard to control.
xxx xxx xxx
Q: Now, would I be correct if I say that any or all of these three drugs
could cause the platelet reduction in the body of Angelica
Soliman?
A: Theoretically, yes, sir.
Q: Practically, what do you mean?
A: Practically, we see usually a decrease in platelets, usually after three
cycles of chemotherapy but not on the initial chemotherapy. In
the initial chemotherapy the usual blood elements which is
decreased is in the white cells of the body. 123
Q: Alright, at what point and time did it ever occur to your mind that said
infection would develop into sepsis?
A: I think it changed the following day. TDCcAE
Q: It was the fifth day already?
A: Yes, sir.
Q: And you changed [the] antibiotic?
A: [I] changed it into something stronger, sir.
Q: What transpired?
A: She was given Fortum intravenously.
xxx xxx xxx
129
Q: By sepsis, meaning that the germs, the bacteria were already in the
blood system, is that correct?
A: Yes, beginning.
xxx xxx xxx
Q: What about Fortum did it take effect?
A: No, sir.
Q: Why not?
A: The patient has been going down ever since and the white cells were
down for it was not enough to control the infection because
there was nothing in her body to fight and help Fortum fight
the infection, that is why, we also add (sic) another medicine
that would increase her white cell count called Leucomax.
Q: And did Leucomax help?
A: No, sir. 124
Q: Of the 500 patients, you said you treated before, how may developed
sepsis?
A: I will say 1/5 developed sepsis.
Q: And of the 1/5 that developed sepsis before Angelica Soliman,
how many died?
A: Seventy percent (70%).
Q: Died?
A: Yes, sir. 125
Justice Carpio is of the view that the facts as stated by the RTC and the Court of Appeals
clearly show that the chemotherapy caused Angelica's death. 126
I disagree. As heretofore discussed, in the absence of competent expert testimony, the Court
has no factual basis to declare that the chemotherapy administered by the petitioner
proximately caused Angelica's death. Our ruling in Cruz v. Court of Appeals is instructive: 127
But while it may be true that the circumstances pointed out by the
courts below seemed beyond cavil to constitute reckless
imprudence on the part of the surgeon, this conclusion is still best
arrived at not through the educated surmises nor conjectures of
laymen, including judges, but by the unquestionable knowledge of
expert witnesses. For whether a physician or surgeon has exercised the
requisite degree of skill and care in the treatment of his patient is, in the
generality of cases, a matter of expert opinion. [Emphasis
supplied] EHSCcT
In sum, the respondents failed to prove by appropriate evidence i.e., by expert testimony
that Angelica's death was caused by the chemotherapy the petitioner administered. This failure
in establishing the fourth requisite of the respondents' cause of action fatally seals the fate of
the respondent's claim of medical negligence due to lack of informed consent.

On the basis of the foregoing, I vote to grant the petition.
ABAD, J., concurring:
I join the opinion of the majority of my colleagues as well as that of Justice Arturo D. Brion. I
write this concurring opinion out of the belief that, ultimately, the issue in this case rests on a
question of fact.
Plaintiffs Reynaldo and Lina Soliman claim damages against defendant Dr. Rubi Li for her
failure to sufficiently inform them before hand of the risks of complications, pains, and quick
death that their sick daughter, Angelica, faced when placed under chemotherapy.
As the majority points out, the Solimans had the burden of proving the following to be entitled
to damages: 1) that Dr. Li had a duty to disclose the material risks of placing Angela under
chemotherapy; 2) that the doctor failed to disclose or inadequately disclosed those risks; 3) that
as a direct and proximate result of the failure to disclose, the Solimans consented to have
Angela undergo such therapy that they otherwise would not have consented to; and 4) that
Angela suffered injury on account of the chemotherapy.
The Key Issue of Fact
The key issue in this controversy, to my mind, is whether or not Dr. Li failed to disclose or
inadequately disclosed to the Solimans the risks of chemotherapy for their daughter since Dr. Li
and the Solimans gave opposing versions of what were disclosed. THIcCA
The Plaintiffs' evidence
Lina Soliman (Lina) testified that in the summer of 1993 she noticed her daughter Angelica
walking with some difficulty. She brought her to a hospital in Bicol where she was diagnosed
with a malignant tumor in her right knee. They then went to the National Children's Medical
Center in Manila for a second opinion but the doctor who attended her gave the same view.
On July 7, 1993 Lina brought Angelica to St. Luke's Medical Center for a biopsy of tissues
taken from her ailing leg. Dr. Tamayo, whom the Solimans consulted, later told them that their
daughter had cancer and her leg had to be severed to prevent the disease from spreading. Still,
the procedure, he said, offered only a 50% chance that it would contain the spread of the
malignant cells. With the Solimans' consent, the doctor amputated the affected leg from above
the knee on July 23, 1993. Dr. Tamayo then referred Angela to Dr. Li for chemotherapy.
Before starting the chemotherapy, Dr. Li told Lina when they met its three possible side-effects:
vomiting, hair loss, and weakening. When Lina asked Dr. Li if the chemotherapy had any other
possible effects, she replied in the negative. The chemotherapy was originally set for August 12,
1993 but had to be reset because the Solimans returned to Bicol for a rest. Lina called up Dr. Li
about the deferment and during that call she asked the doctor anew about the effects of the
drugs that she would use on Angelica. Dr. Li repeated the three side effects she earlier
mentioned.
When Angelica checked in at St. Luke's on August 18, Dr. Li came to administer dextrose to
her. On this occasion, Dr. Li told the Solimans that Angela had a 95% chance of becoming
normal again after the chemotherapy. Lina asked the doctor anew about the side-effects and
the latter said the same thing: falling hair, vomiting, and weakness.
Dr. Li first administered the drugs for chemotherapy to Angela on August 19. That night,
Angelica started vomiting. Lina asked the attending nurse about it but the latter said that it was
just an effect of the drugs. The treatment continued on the second day and so did the vomiting.
On the third day of chemotherapy, Lina observed redness all over Angelica's face. She asked
Dr. Li about this but the doctor told her that it was only a reaction to the drugs. TaDCEc
130
On the fourth day, the discoloration on Angela's face grew darker and spread to the neck
and chest. Dr. Li assured Lina that this was an effect of the drugs. During the following days,
Angelica complained of chest pains and difficulty in breathing, prompting Dr. Li to administer
oxygen to her. As Lina saw that her daughter could not bear it anymore, she asked Dr. Li to
stop the chemotherapy. Angelica passed black stool and had reddish urine. Dr. Li explained
that this, too, was a reaction to the drugs. Lina wanted Angelica discharged but she had to be
confined because of convulsion, which Dr. Li treated by giving her calcium.
Afterwards, when Angelica's nose and mouth secreted blood, Dr. Li attributed this to the
lowering of her platelet count. They decided to move her to the hospital's intensive care unit for
closer monitoring. After getting blood transfusion, Angelica's vomiting lessened but the color of
her skin darkened. Later, her skin "shredded by just rubbing cotton on it." She vomited blood
and her convulsions resumed to the point that she became hysterical and said "ayaw ko
na." She passed away soon after.
Reynaldo Soliman (Reynaldo), Angelica's father, testified that they consulted with a number of
doctors from the Ago Medical and Educational Center, the UERM Medical Center, and the
National Children's Hospital regarding Angelica's case. After her amputation at St. Luke's
hospital, they returned to Bicol but, on Dr. Tamayo's advice, Reynaldo decided to have
Angelica undergo chemotherapy. She was readmitted at St. Luke on August 18, 1993. When
Reynaldo met Dr. Li on August 19, he asked her about the effects of chemotherapy on his
daughter. She replied that Angelica would manifest falling hair, vomiting, and weakness.
Angelica showed no reaction to the chemotherapy on its first day. On the next day, however,
redness appeared on her face and she started vomiting. Upon inquiry from Dr. Li, she told them
that this was normal. On August 23 Angelica appeared very weak. When asked about this, Dr.
Li said that it was a normal reaction. Seeing the effects of chemotherapy, Reynaldo advised the
doctor to stop the treatment. As they were settling the bills the next day, Angelica had an
epileptic fit. It took a while for a doctor to come and give her calcium injection to calm her
down. Angelica had another convulsion the next day. They again gave her calcium. CETDHA
Dr. Li moved Angelica to another room to ward off infection. But she bled through her mouth.
As Dr. Li could not be located, a certain Dr. Marbella came and told him that Angelica's blood
platelets had gone down. They gave her continuous blood transfusions but the bleeding did not
stop. Dr. Li called Dr. Abesamis, an oncologist-pediatrician, to assist in the case. When
Angelica had another attack, Dr. Abesamis pumped her chest to revive her. They strapped her
hands to the bed and attached instruments to her to provide her oxygen and suction blood
from her stomach. She later became hysterical and tried to remove the instruments attached to
her. Angelica died at 3:00 a.m. When Dr. Li came by, she said that a malfunction occurred.
When Reynaldo asked Dr. Li for a death certificate, she became arrogant, calling him names.
Dr. Li even asked him to sign a promissory note as he did not have enough cash on him to
settle the hospital bill.
For her part, Dr. Li testified that Dr. Tamayo referred Angelica to her after he operated on the
patient. Angelica suffered from a highly malignant, highly aggressive type of cancer known as
osteosarcoma. Less than 20% of patients who were operated on for this type of cancer
survived the first year. It usually came back within six months. There has been no known cure
for cancer as even its causes have not been ascertained.
Dr. Tamayo referred the case to Dr. Li because he found during the surgery that the cancer
could have already spread from the bone to the soft tissue and the surrounding area. Dr.
Tamayo asked Dr. Li if she could give Angelica adjuvant chemotherapy. When she met the
Solimans, Dr. Li told them what adjuvant chemotherapy was about, why it would be given, how
it would be given, and how chemotherapy works. Surgery, she told them, was not enough for,
while the tumor had been removed, it left small lesions that could not be seen by the eyes.
Chemotherapy would clean out the small lesions to lower the chances of the cancer recurring.

Dr. Li gave no guarantee of a cure. She merely told the Solimans that, if adjuvant chemotherapy
was to be given, the chances of their daughter's survival would increase and the chances of the
cancer returning would lower.
Dr. Li met the Solimans following Angelica's amputation and they discussed the side-effects of
chemotherapy. Dr. Li told the Solimans that, since it could not be helped that the drugs would
get into the other parts of Angelica's body, those parts could also be affected. Angelica might
lose hair and experience nausea and vomiting (which may be controlled by medicines). She
could become infertile or sterile. Blood elements, such as the red and white blood cells, might
also be affected and so had to be monitored. She also explained to the Solimans other side-
effects, including loss of appetite and darkening of skin when exposed to sunlight. The kidneys
and heart could also be affected which was the reason for monitoring these organs as
well. TAIcaD
Dr. Li met the Solimans again sometime in the first week of August at which meeting they again
discussed the chemotherapy procedure and its side-effects. When Dr. Li met Lina about a
week later to once more discuss the treatment, the latter wanted to be told again about the
side-effects of chemotherapy. Before Angelica was admitted to the hospital, Lina called up Dr.
Li at her house and they discussed the same things.
On August 18 St. Luke's hospital readmitted Angelica for the chemotherapy. On the first day,
they gave her fluids to make sure that her kidney functioned well and that she was hydrated.
Seeing no problem, Dr. Li started Angelica's chemotherapy on August 19.
Regarding the redness on Angelica's face, Dr. Li explained that these were rashes. To make
sure, Dr. Li consulted Dr. Abesamis because the rashes could also possibly mean that the
patient had systemic lupus. Regarding Angelica's convulsions or epileptic attacks, these were
actually carpo-petal spasms, a twitching of a group of muscles of the hands and legs. Dr. Li
checked Angelica's calcium levels, which turned out low, so she gave her supplemental
calcium. Regarding the vomiting of blood, Dr. Li explained that she did not actually vomit blood
but that her gums began bleeding. She just had to spit it out.
According to Dr. Li, Angelica died due to overwhelming infection which had spread throughout
her body, causing multiple organ failures and platelet reduction. Dr. Li insisted that the
reduction in platelet count was due to infection although she conceded on cross-examination
that, theoretically, the chemotherapy could have reduced the platelets as well. Dr. Li also
alleged that Angelica had a poor defense mechanism because of her cancer.
Dr. Jaime Tamayo testified for Dr. Li. He recalled treating the cancerous growth in Angelica's
lower left leg. The doctor amputated the leg to remove the source of the tumor. Residual tumor
cells had to be treated, however, by chemotherapy. Even before the amputation, the Solimans
knew of the possibility that Angelica would have to undergo chemotherapy after surgery. The
Soliman's consultation with other doctors, including the doctor who performed the biopsy and
confirmed the diagnosis for osteosarcoma, made them aware of that possibility. EcHTCD
After the surgery, Dr. Tamayo explained to the Solimans that the amputation was not enough
and that chemotherapy was needed to go after the malignant cells that might have
metastasized. He told the Solimans that their daughter's condition was grave and that her
chances would improve with chemotherapy. Dr. Tamayo knew that even with surgery and
chemotherapy, very few patients lived beyond five years, as the mortality rate was between 80
to 90%. He did not, however, consider it necessary to tell the Solimans this.
In sum, the Solimans claim that Dr. Li informed them of only three possible side-effects of
chemotherapy: falling hair, vomiting, and weakness. Dr. Li, on the other hand, testified that she
was more thorough than this, apprising the Solimans of the following side-effects of
chemotherapy: hair loss, nausea, vomiting, possible infertility or sterility, lowering of red and
131
white blood cells, adverse effects on platelets, loss of appetite, darkening of the skin, and
possible adverse effects on the heart and kidneys.
The question now is who to believe.
First. The burden is of course on the Solimans to prove their allegations of wrong-doing on Dr.
Li's part. Quite importantly, the trial court which had the benefit of perceiving not only the
witnesses' utterances but what the movements of their eyes and mouths said, gave credence
to Dr. Li's testimony over that of the Solimans. The trial court held that Dr. Li in fact explained
the effects of the chemotherapy to them prior to the procedure.
Second. The Court of Appeals (CA) of course found otherwise. It believed the Solimans' version
that Dr. Li warned them only of the three side effects, given that every time Angelica's condition
appeared to worsen, they would seek an explanation from Dr. Li. This, said the CA, tended to
show that they were unaware of the other side-effects of the treatment.
But if it were true that Dr. Li assured Lina no less than three times that her daughter would
suffer only three bearable side effects, why did Lina not confront the doctor when other side
effects, which caused Angelica greater pains, began to surface? DCSETa
Besides, the fact that the Solimans, especially Lina, still sought explanations from Dr. Li for her
daughter's new pains and distress is understandable. Lina had a clear tendency to repeatedly
inquire about matters of which she had been previously informed. By her own admission, she
asked Dr. Li to tell her of the side effects of chemotherapy no less than three times: a) when
they first met after the amputation; b) on the phone while she discussed the rescheduling of the
chemotherapy with Dr. Li; and c) when the latter came to administer dextrose to Angelica
before the chemotherapy. It should not, therefore, be surprising for Lina to want to hear the
doctor's explanation about those side effects even when the latter had previously done so.
What is more, it would be quite natural for parents, watching their daughter's deteriorating
condition, to want to know the doctor's explanation for it. The previous explanations did not
have the benefit of the real thing occurring in their sight. The Solimans needed assurances that
these manifestations, now come to pass, were to be expected. In fact, when Angelica began
vomiting, the first anticipated side effect, the Solimans still anxiously queried the attending
medical staff the reason for it. 1
Third. The claim that Dr. Li gave assurance that Angelica had a 95% chance of recovery after
chemotherapy cannot be believed. The Solimans knew that their daughter had bone cancer.
Having consulted with other doctors from four medical institutions, the Ago Medical and
Educational Center in Bicol, the UERM Medical Center in Manila, the National Children's
Hospital in Quezon City, and finally the St. Luke's hospital, all of whom gave the same dire
opinion, it would be quite unlikely for the Solimans to accept Dr. Li's supposed assurance that
their daughter had 95% chance of returning to normal health after chemotherapy. In fact, it
would be most unlikely for someone of Dr. Li's expertise to make such a grossly reckless claim
to a patient who actually had only a 20% chance of surviving the first year. She would literary
be inviting a malpractice suit.
Fourth. At the heart of the Solimans' claim for damages is the proposition that they would not
have agreed to submit their daughter to chemotherapy had they known that the side effects she
faced were more than just hair loss, vomiting, and weakness. They would not have agreed if
they had known that she would suffer greater distress and soon die. IaSAHC
But the Solimans are arguing from hindsight. The fact is that they were willing to assume huge
risks on the chance that their daughter could cheat death. They did not mind that their young
daughter's left leg would be amputated from above the knee for a 50% chance of preventing
the spread of the cancer. There is probably no person on this planet whose family members,
relatives, or close friends have not been touched by cancer. Every one knows of the travails

and agonies of chemotherapy, yet it is rare indeed for a cancer patient or his relatives not to
take a chance with this treatment, which had proved successful in extending the lives of some.
Unfortunately for the Solimans, their daughter did not number among the successful cases.
Fifth. The Solimans accepted the risks that chemotherapy offered with full knowledge of its
effects on their daughter. It is not fair that they should blame Dr. Li for Angelica's suffering and
death brought about by a decease n that she did not wish upon her. Indeed, it was not Dr. Li,
according to Reynaldo, who convinced him to agree to submit his daughter to chemotherapy
but Dr. Tamayo. The latter explained to him the need for her daughter to undergo
chemotherapy to increase the chance of containing her cancer. This consultation took place
even before the Solimans met Dr. Li.
It is a mark of their insensitivity that the Solimans included as proof of the damages they
suffered, the expenses they incurred for the surgical procedure performed by Dr. Tamayo,
including the latter's professional fees. The amputation that Dr. Tamayo performed took place
before the chemotherapy and before the Solimans met Dr. Li. The Solimans cannot be trusted
to make an appropriate claim.
||| (Li v. Spouses Soliman, G.R. No. 165279, [June 7, 2011], 666 PHIL 29-121)
SECOND DIVISION
[G.R. No. 148496. March 19, 2002.]
VIRGINES CALVO doing business under the name and style
TRANSORIENT CONTAINER TERMINAL SERVICES,
INC., petitioner, vs. UCPB GENERAL INSURANCE CO., INC. (formerly
Allied Guarantee Ins. Co., Inc.) respondent.
Montilla Law Office for petitioner.
Leano and Leano Law Office for respondent.
SYNOPSIS
Petitioner, Virgines Calvo is the owner of Transorient Container Terminal Services, Inc., a sole
proprietorship customs broker, was held liable by the RTC and the CA for damages to the
cargo handled by petitioner. On appeal, petitioner contended that: she is not liable beyond
what ordinary diligence in the vigilance over the goods transported by her would require
because her company is not a common carrier but a private or special carrier; and that the
cargo could not have been damaged while in her custody as she immediately delivered the
containers to SMC's compound. DHITcS
The Supreme Court upheld the assailed decision on appeal, ruling: that petitioner is a common
carrier because the transportation of goods is an integral part of her business: that as such, she
is bound to observe extraordinary diligence in the carriage of goods; that to prove extraordinary
diligence, petitioner must do more than merely show the possibility that some other party could
132
be responsible for the damage; and that improper packing of the goods could be a basis
to exempt petitioner from liability, but petitioner accepted the cargo without exception despite
the apparent defects in some of the container vans.
SYLLABUS
1. CIVIL LAW; COMMON CARRIERS; CUSTOMS BROKER AND WAREHOUSEMAN AS
COMMON CARRIER; CASE AT BAR. Petitioner contends that contrary to the findings of the
trial court and the Court of Appeals, she is not a common carrier but a private carrier because,
as a customs broker and warehouseman, she does not indiscriminately hold her services out to
the public but only offers the same to select parties with whom she may contract in the conduct
of her business. The contention has no merit. In De Guzman v. Court of Appeals, the Court
dismissed a similar contention and held the party to be a common carrier, . . . as defined in
Article 1732 of the Civil Code. . . . There is greater reason for holding petitioner to be a common
carrier because the transportation of goods is an integral part of her business. To uphold
petitioners' contention would be to deprive those with whom she contracts the protection
which the law affords them notwithstanding the fact that the obligation to carry goods for her
customers, as already noted, is part and parcel of petitioner's business.
2. ID.; ID.; ID.; PROOF OF THE EXERCISE OF EXTRAORDINARY DILIGENCE IN THE
CARRIAGE OF GOODS; CASE AT BAR. Anent petitioner's insistence that the cargo could
not have been damaged while in her custody as she immediately delivered the containers to
SMC's compound, suffice it to say that to prove the exercise of extraordinary diligence,
petitioner must do more than merely show the possibility that some other party could be
responsible for the damage. It must prove that it used "all reasonable means to ascertain the
nature and characteristic of goods tendered for [transport] and that [it] exercise[d] due care in
the handling [thereof]." Petitioner failed to do this. Nor is there basis to exempt petitioner from
liability under Art. 1734(4), . . . For this provision to apply, the rule is that if the improper packing
or, in this case, the defect/s in the container, is/are known to the carrier or his employees or
apparent upon ordinary observation, but he nevertheless accepts the same without protest or
exception notwithstanding such condition, he is not relieved of liability for damage resulting
therefrom. In this case, petitioner accepted the cargo without exception despite the apparent
defects in some of the container vans. Hence, for failure of petitioner to prove that she
exercised extraordinary diligence in the carriage of goods in this case or that she is exempt
from liability, the presumption of negligence as provided under Art. 1735 holds. EDISaA
DECISION
MENDOZA, J p:
This is a petition for review of the decision, 1 dated May 31, 2001, of the Court of Appeals,
affirming the decision 2 of the Regional Trial Court, Makati City, Branch 148, which ordered
petitioner to pay respondent, as subrogee, the amount of P93,112.00 with legal interest,
representing the value of damaged cargo handled by petitioner, 25% thereof as attorney's fees,
and the cost of the suit.
The facts are as follows:

Petitioner Virgines Calvo is the owner of Transorient Container Terminal Services, Inc. (TCTSI),
a sole proprietorship customs broker. At the time material to this case, petitioner entered into a
contract with San Miguel Corporation (SMC) for the transfer of 114 reels of semi-chemical
fluting paper and 124 reels of kraft liner board from the Port Area in Manila to SMC's
warehouse at the Tabacalera Compound, Romualdez St., Ermita, Manila. The cargo was
insured by respondent UCPB General Insurance Co., Inc.
On July 14, 1990, the shipment in question, contained in 30 metal vans, arrived in Manila on
board "M/V Hayakawa Maru" and, after 24 hours, were unloaded from the vessel to the custody
of the arrastre operator, Manila Port Services, Inc. From July 23 to July 25, 1990, petitioner,
pursuant to her contract with SMC, withdrew the cargo from the arrastre operator and delivered
it to SMC's warehouse in Ermita, Manila. On July 25, 1990, the goods were inspected by
Marine Cargo Surveyors, who found that 15 reels of the semi-chemical fluting paper were
"wet/stained/torn" and 3 reels of kraft liner board were likewise torn. The damage was placed at
P93,112.00.
SMC collected payment from respondent UCPB under its insurance contract for the
aforementioned amount. In turn, respondent, as subrogee of SMC, brought suit against
petitioner in the Regional Trial Court, Branch 148, Makati City, which, on December 20, 1995,
rendered judgment finding petitioner liable to respondent for the damage to the shipment.
The trial court held:
It cannot be denied . . . that the subject cargoes sustained damage while
in the custody of defendants. Evidence such as the Warehouse Entry
Slip (Exh. "E"); the Damage Report (Exh. "F") with entries appearing
therein, classified as "TED" and "TSN", which the claims processor, Ms.
Agrifina De Luna, claimed to be tearrage at the end and tearrage at the
middle of the subject damaged cargoes respectively, coupled with the
Marine Cargo Survey Report (Exh. "H" "H-4-A") confirms the fact of
the damaged condition of the subject cargoes. The surveyor[s'] report
(Exh. "H-4-A") in particular, which provides among others that:
" . . . we opine that damages sustained by
shipment is attributable to improper handling in
transit presumably whilst in the custody of the
broker . . . ."
is a finding which cannot be traversed and overturned.
The evidence adduced by the defendants is not enough to sustain [her]
defense that [she is] are not liable. Defendant by reason of the nature of
[her] business should have devised ways and means in order to prevent
the damage to the cargoes which it is under obligation to take custody of
and to forthwith deliver to the consignee. Defendant did not present any
evidence on what precaution [she] performed to prevent [the] said
incident, hence the presumption is that the moment the defendant
accepts the cargo [she] shall perform such extraordinary diligence
because of the nature of the cargo.
xxx xxx xxx
Generally speaking under Article 1735 of the Civil Code, if the goods are
proved to have been lost, destroyed or deteriorated, common carriers
are presumed to have been at fault or to have acted negligently, unless
they prove that they have observed the extraordinary diligence required
by law. The burden of the plaintiff, therefore, is to prove merely that the
133
goods he transported have been lost, destroyed or deteriorated.
Thereafter, the burden is shifted to the carrier to prove that he has
exercised the extraordinary diligence required by law. Thus, it has been
held that the mere proof of delivery of goods in good order to a carrier,
and of their arrival at the place of destination in bad order, makes out
a prima facie case against the carrier, so that if no explanation is given
as to how the injury occurred, the carrier must be held responsible. It is
incumbent upon the carrier to prove that the loss was due to accident or
some other circumstances inconsistent with its liability." (cited
in Commercial Laws of the Philippines by Agbayani, p. 31, Vol. IV, 1989
Ed.)
Defendant, being a customs brother, warehouseman and at the same
time a common carrier is supposed [to] exercise [the] extraordinary
diligence required by law, hence the extraordinary responsibility lasts
from the time the goods are unconditionally placed in the possession of
and received by the carrier for transportation until the same are delivered
actually or constructively by the carrier to the consignee or to the person
who has the right to receive the same. 3
Accordingly, the trial court ordered petitioner to pay the following
amounts
1. The sum of P93,112.00 plus interest;
2. 25% thereof as lawyer's fee;
3. Costs of suit. 4
The decision was affirmed by the Court of Appeals on appeal. Hence this petition for review
on certiorari.
Petitioner contends that:
I. THE COURT OF APPEALS COMMITTED SERIOUS AND REVERSIBLE
ERROR [IN] DECIDING THE CASE NOT ON THE EVIDENCE
PRESENTED BUT ON PURE SURMISES, SPECULATIONS
AND MANIFESTLY MISTAKEN INFERENCE.
II. THE COURT OF APPEALS COMMITTED SERIOUS AND REVERSIBLE
ERROR IN CLASSIFYING THE PETITIONER AS A COMMON
CARRIER AND NOT AS PRIVATE OR SPECIAL CARRIER
WHO DID NOT HOLD ITS SERVICES TO THE PUBLIC. 5
It will be convenient to deal with these contentions in the inverse order, for if petitioner is not a
common carrier, although both the trial court and the Court of Appeals held otherwise, then she
is indeed not liable beyond what ordinary diligence in the vigilance over the goods transported
by her, would require. 6 Consequently, any damage to the cargo she agrees to transport cannot
be presumed to have been due to her fault or negligence.
Petitioner contends that contrary to the findings of the trial court and the Court of Appeals, she
is not a common carrier but a private carrier because, as a customs broker and warehouseman,
she does not indiscriminately hold her services out to the public but only offers the same to
select parties with whom she may contract in the conduct of her business.

The contention has no merit. In De Guzman v. Court of Appeals, 7 the Court dismissed a similar
contention and held the party to be a common carrier, thus
The Civil Code defines "common carriers" in the following terms:
"Article 1732. Common carriers are persons, corporations,
firms or associations engaged in the business of carrying or
transporting passengers or goods or both, by land, water, or
air for compensation, offering their services to the public."
The above article makes no distinction between one
whose principal business activity is the carrying of persons or goods or
both, and one who does such carrying only as an ancillary activity . . .
Article 1732 also carefully avoids making any distinction between a
person or enterprise offering transportation service on a regular or
scheduled basis and one offering such service on an occasional,
episodic or unscheduled basis. Neither does Article 1732 distinguish
between a carrier offering its services to the "general public," i.e.,the
general community or population, and one who offers services or solicits
business only from a narrow segment of the general population. We think
that Article 1732 deliberately refrained from making such distinctions.
So understood, the concept of "common carrier" under Article 1732 may
be seen to coincide neatly with the notion of "public service," under the
Public Service Act (Commonwealth Act No. 1416, as amended) which at
least partially supplements the law on common carriers set forth in the
Civil Code. Under Section 13, paragraph (b) of the Public Service Act,
"public service" includes:
". . . every person that now or hereafter may own, operate,
manage, or control in the Philippines, for hire or
compensation, with general or limited clientele, whether
permanent, occasional or accidental, and done for general
business purposes, any common carrier, railroad, street
railway, traction railway, subway motor vehicle, either for
freight or passenger, or both, with or without fixed route and
whatever may be its classification, freight or carrier service of
any class, express service, steamboat, or steamship line,
pontines, ferries and water craft, engaged in the transportation
of passengers or freight or both, shipyard, marine repair shop,
wharf or dock, ice plant, ice-refrigeration plant, canal, irrigation
system, gas, electric light, heat and power, water supply and
power petroleum, sewerage system, wire or wireless
communications systems, wire or wireless broadcasting
stations and other similar public services. . . . " 8
There is greater reason for holding petitioner to be a common carrier because the
transportation of goods is an integral part of her business. To uphold petitioner's contention
would be to deprive those with whom she contracts the protection which the law affords them
notwithstanding the fact that the obligation to carry goods for her customers, as already noted,
is part and parcel of petitioner's business.
Now, as to petitioner's liability, Art. 1733 of the Civil Code provides:
Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extraordinary diligence in the
vigilance over the goods and for the safety of the passengers
134
transported by them, according to all the circumstances of each case. . .
.
In Compania Maritima v. Court of Appeals, 9 the meaning of "extraordinary diligence in the
vigilance over goods" was explained thus:
The extraordinary diligence in the vigilance over the goods tendered for
shipment requires the common carrier to know and to follow the required
precaution for avoiding damage to, or destruction of the goods entrusted
to it for sale, carriage and delivery. It requires common carriers to render
service with the greatest skill and foresight and "to use all reasonable
means to ascertain the nature and characteristic of goods tendered for
shipment, and to exercise due care in the handling and stowage,
including such methods as their nature requires."
In the case at bar, petitioner denies liability for the damage to the cargo. She claims that the
"spoilage or wettage" took place while the goods were in the custody of either the carrying
vessel "M/V Hayakawa Maru," which transported the cargo to Manila, or the arrastre operator,
to whom the goods were unloaded and who allegedly kept them in open air for nine days from
July 14 to July 23, 1998 notwithstanding the fact that some of the containers were deformed,
cracked, or otherwise damaged, as noted in the Marine Survey Report (Exh. H), to wit:
MAXU-2062880 - rain gutter deformed/cracked
ICSU-363461-3 - left side rubber gasket on door distorted/partly loose
PERU-204209-4 - with pinholes on roof panel right portion
TOLU-213674-3 - wood flooring we[t] and/or with signs of water soaked
MAXU-201406-0 - with dent/crack on roof panel
ICSU-412105-0 - rubber gasket on left side/door panel partly detached
loosened. 10
In addition, petitioner claims that Marine Cargo Surveyor Ernesto Tolentino testified that he has
no personal knowledge on whether the container vans were first stored in petitioner's
warehouse prior to their delivery to the consignee. She likewise claims that after withdrawing
the container vans from the arrastre operator, her driver, Ricardo Nazarro, immediately
delivered the cargo to SMC's warehouse in Ermita, Manila, which is a mere thirty-minute drive
from the Port Area where the cargo came from. Thus, the damage to the cargo could not have
taken place while these were in her custody. 11
Contrary to petitioner's assertion, the Survey Report (Exh. H) of the Marine Cargo Surveyors
indicates that when the shipper transferred the cargo in question to the arrastre operator, these
were covered by clean Equipment Interchange Report (EIR) and, when petitioner's employees
withdrew the cargo from the arrastre operator, they did so without exception or protest either
with regard to the condition of container vans or their contents. The Survey Report pertinently
reads
Details of Discharge:
Shipment, provided with our protective supervision was noted
discharged ex vessel to dock of Pier #13 South Harbor, Manila on 14
July 1990, containerized onto 30' x 20' secure metal vans, covered by
clean EIRs. Except for slight dents and paint scratches on side and roof
panels, these containers were deemed to have [been] received in good
condition.

xxx xxx xxx
Transfer/Delivery:
On July 23, 1990, shipment housed onto 30' x 20' cargo containers was
[withdrawn] by Transorient Container Services, Inc. . . . without
exception.
[The cargo] was finally delivered to the consignee's storage warehouse
located at Tabacalera Compound, Romualdez Street, Ermita, Manila
from July 23/25, 1990. 12
As found by the Court of Appeals:
From the [Survey Report], it [is] clear that the shipment was discharged
from the vessel to the arrastre, Marina Port Services Inc., in good order
and condition as evidenced by clean Equipment Interchange Reports
(EIRs). Had there been any damage to the shipment, there would have
been a report to that effect made by the arrastre operator. The cargoes
were withdrawn by the defendant-appellant from the arrastre still in good
order and condition as the same were received by the former without
exception, that is, without any report of damage or loss. Surely, if the
container vans were deformed, cracked, distorted or dented, the
defendant-appellant would report it immediately to the consignee or
make an exception on the delivery receipt or note the same in the
Warehouse Entry Slip (WES). None of these took place. To put it simply,
the defendant-appellant received the shipment in good order and
condition and delivered the same to the consignee damaged. We can
only conclude that the damages to the cargo occurred while it was in the
possession of the defendant-appellant. Whenever the thing is lost (or
damaged) in the possession of the debtor (or obligor), it shall be
presumed that the loss (or damage) was due to his fault, unless there is
proof to the contrary. No proof was proffered to rebut this legal
presumption and the presumption of negligence attached to a common
carrier in case of loss or damage to the goods. 13
Anent petitioner's insistence that the cargo could not have been damaged while in her custody
as she immediately delivered the containers to SMC's compound, suffice it to say that to prove
the exercise of extraordinary diligence, petitioner must do more than merely show the
possibility that some other party could be responsible for the damage. It must prove that it used
"all reasonable means to ascertain the nature and characteristic of goods tendered for
[transport] and that [it] exercise[d] due care in the handling [thereof]." Petitioner failed to do this.
Nor is there basis to exempt petitioner from liability under Art. 1734(4), which provides
Common carriers are responsible for the loss, destruction, or
deterioration of the goods, unless the same is due to any of the following
causes only:
xxx xxx xxx
(4) The character of the goods or defects in the packing or in the
containers.
xxx xxx xxx
For this provision to apply, the rule is that if the improper packing or, in this case, the defect/s
in the container, is/are known to the carrier or his employees or apparent upon ordinary
135
observation, but he nevertheless accepts the same without protest or exception
notwithstanding such condition, he is not relieved of liability for damage resulting
therefrom. 14 In this case, petitioner accepted the cargo without exception despite the
apparent defects in some of the container vans. Hence, for failure of petitioner to prove that she
exercised extraordinary diligence in the carriage of goods in this case or that she is exempt
from liability, the presumption of negligence as provided under Art. 1735 15 holds.
WHEREFORE, the decision of the Court of Appeals, dated May 31, 2001, is
AFFIRMED. aDcTHE
SO ORDERED.
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.
||| (Calvo v. UCPB General Insurance Co., Inc., G.R. No. 148496, [March 19, 2002], 429 PHIL
244-255)
THIRD DIVISION
[G.R. No. 126074. February 24, 1998.]
RIDJO TAPE & CHEMICAL CORP. and RIDJO PAPER
CORPORATION, petitioners, vs. HON. COURT OF APPEALS, MANILA
ELECTRIC CO., HON. PRESIDING JUDGE, Branch 104-REGIONAL
TRIAL COURT OF QUEZON CITY, respondents.
Oscar I. Mercado for petitioners.
Atilano S. Guevarra, Jr., Nicolas P. Veloso, Jr. and Alfons U. Lacap for private respondent.
SYNOPSIS
Petitioners applied for and was granted electric service by respondent Manila Electric Co.,
(MERALCO). Ten months later, petitioners received a letter from MERALCO demanding
payment of P415,317.66, allegedly representing unregistered electric consumption for the
period of November 7, 1990, to February 13, 1991. Meralco justified its demand on the ground
that the unregistered electric consumption was due to the defects of the electric meter located
in the premises of petitioners. Since petitioners refused to pay the amount, MERALCO notified
them that in the event the overdue account remained unpaid, it would be forced to disconnect
their electricity. Alarmed by the notice, petitioners, instead of settling the amount, filed a case
before Branch 98 of the Quezon City RTC for the issuance of a writ of preliminary injunction
and/or temporary restraining order to forestall any planned disconnection by MERALCO. The
trial court granted the prayer. On July 30, 1992, petitioners received another demand letter from
MERALCO, requiring them to pay the amount of P89,710.58 representing unregistered electric
consumption for the period of July 15, 1991 to April 13, 1992, the deficiency again due to the
defective meter installed in the petitioners' compound. MERALCO's demand having remained

unheeded, petitioners were advised that their electric service would be disconnected without
further notice. Petitioners then filed a case before Branch 104 of the Quezon City RTC, seeking
to enjoin MERALCO from implementing the suspension of electric service. Thereafter,
petitioners filed a motion for the consolidation of the two cases, which was granted, resulting in
the joint trial of said cases before Branch 104 of the Quezon City RTC. The trial court granted
the preliminary injunction. Trial ensued and the trial court rendered a decision in favor of the
petitioners. MERALCO appealed to the Court of Appeals which reversed the trial court's
findings. Aggrieved, petitioners filed a motion for reconsideration, which was denied by the
appellate court. Hence, this petition. The only issue to be resolved is whether petitioners,
despite the absence of evidence of tampering, are liable to pay for the unregistered electrical
service. CDHSac
The Supreme Court upheld the decision of the Court of Appeals but limited the liability of
petitioners for consumed but unrecorded electricity by reason of MERALCO's negligence.
MERALCO's failure to discover the defect, if any, considering the length of time, amounts to
inexcusable negligence. Its failure to make the necessary repairs and replacement of the
defective electric meter installed within the premises of petitioners was obviously the proximate
cause of the instant dispute between the parties. The Court stressed that, being a public utility
vested with vital public interest, MERALCO is impressed with certain obligations towards its
customers and any omission on its part to perform such duties would be prejudicial to its
interest. EcATDH
SYLLABUS
1. CIVIL LAW; CONTRACTS; INTERPRETATION OF CONTRACTS; CONSTRUCTION OF THE
TERMS OF A CONTRACT WHICH WOULD AMOUNT TO IMPAIRMENT OR LOSS OF A RIGHT
IS NOT FAVORED; CONSERVATION AND PRESERVATION, NOT WAIVER, ABANDONMENT
OR FORFEITURE OF A RIGHT IS THE RULE. The Service Contract between petitioners and
MERALCO partakes of the nature of a contract of adhesion as it was prepared solely by the
latter, the only participation of the former being that they affixed or "adhered" their signature
thereto, thus, leaving no room for negotiation and depriving petitioners of the opportunity to
bargain on equal footing. Nevertheless, these types of contracts have been declared to be
binding as ordinary contracts because the party adhering thereto is free to reject it in its
entirety. Being an ordinary contract, therefore, the principle that contracting parties can make
stipulations in their contract provided they are not contrary to law, morals, good customs,
public order or public policy, stands strong and true. To be sure, contracts are respected as
laws between the contracting parties, and they may establish such stipulations, clauses, terms
and conditions as they may want to include. Since both parties offered conflicting
interpretations of the stipulation, however, then judicial determination of the parties' intention is
mandated. In this regard, it must be stressed that in construing a written contract, the reason
behind and the circumstances surrounding its execution are of paramount importance to place
the interpreter in the situation occupied by the parties concerned at the time the writing was
executed. With these pronouncement as parameters, and considering the circumstances of the
parties, we are constrained to uphold MERALCO's interpretation. At this juncture, we hasten to
point out that the production and distribution of electricity is a highly technical business
undertaking, and in conducting its operation, it is only logical for public utilities, such as
MERALCO, to employ mechanical devices and equipment for the orderly pursuit of its
business. It is to be expected that the parties were consciously aware that these devices or
equipment are susceptible to defects and mechanical failure. Hence, we are not prepared to
believe that petitioners were ignorant of the fact that stoppages in electric meters can also
result from inherent defects or flaws and not only from tampering or intentional mishandling.
Clearly, therefore, the rationale of the provision in the Service Agreement was primarily to cover
situations similar to the instant case, for there are instances when electric meters do fail to
136
record the quantity of the current used for whatever reason. It is precisely this kind of
predicament that MERALCO seeks to protect itself from so as to avert business losses or
reverses. It must be borne in mind that construction of the terms of a contract which would
amount to impairment or loss of right is favored; conservation and preservation, not waiver
abandonment or forfeiture of a right, is the rule. Since MERALCO supplied electricity to
petitioners for a fee, no intent to donate the same can be gleaned from the terms of the
Agreement. Hence, the stipulation must be upheld. HCacDE
2. ID.; OBLIGATIONS; MERALCO'S FAILURE TO DISCOVER THE DEFECT, IF ANY,
CONSIDERING THE LENGTH OF TIME, AMOUNTS TO INEXCUSABLE NEGLIGENCE. A
review of the records discloses that the unpaid charges covered the periods from November 7,
1990 to February 13, 1991 for Civil Case No. Q-92-13045 and from July 15, 1991 to April 13,
1992 for Civil Case No. 13879, approximately three months and nine months, respectively. On
such basis, we take judicial notice that during those periods, personnel representing MERALCO
inspected and examined the electric meters of petitioners regularly for the purpose of
determining the monthly dues payable. So, why were these defects not detected and reported
on time? It has been held that notice of a defect need not be direct and express, it is enough
that the same had existed for such a length of time that it is reasonable to presume that it had
been detected, and the presence of a conspicuous defect which has existed for a considerable
length of time will create a presumption of constructive notice thereof. Hence, MERALCO's
failure to discover the defect, if any, considering the length of time, amount to inexcusable
negligence. Furthermore, we need not belabor the point that as a public utility, MERALCO has
the obligation to discharge its functions with utmost care and diligence. Accordingly, we are left
with no recourse but to conclude that this is a case of negligence on the part of MERALCO for
which it must bear the consequences. Its failure to make the necessary repairs and
replacement of the defective electric meter installed within the premises of petitioners was
obviously the proximate cause of the instant dispute between the parties.
3. ID.; ID.; ID.; LIABILITY OF PETITIONERS FOR CONSUMED BUT UNRECORDED
ELECTRICITY MUST BE LIMITED BY REASON OF MERALCO'S NEGLIGENCE. If an unusual
electricity consumption was not reflected in the statements of account of petitioners,
MERALCO, considering its technical knowledge and vast experience in providing electric
service, could have easily verified any possible error in the meter reading. In the absence of
such a mistake, the electric meters themselves should be inspected for possible defects or
breakdowns and forthwith repaired and, if necessary, replaced. Furthermore, if MERALCO
discovered that contraptions or illegal devices were installed which would alter the result of the
meter reading, then it should have filed the appropriate criminal complaint against petitioners
under Presidential Decree No. 401. The rationale behind this ruling is that public utilities should
be put on notice, as a deterrent, that if they completely disregard their duty of keeping their
electric meters in serviceable condition, they run the risk of forfeiting, by reason of their
negligence, amounts originally due from their customers. Certainly, we cannot sanction a
situation wherein the defects in the electric meters are allowed to continue indefinitely until
suddenly the public utilities concerned demand payment for the unrecovered electricity utilized
when, in the first place, they should have remedied the situation immediately. If we turn a blind
eye on MERALCO's omission, it may encourage negligence on the part of public utilities, to the
detriment of the consuming public. In view of the foregoing discussion, the liability of petitioners
for consumed but unrecovered electricity must be limited by reason of MERALCO's negligence.
Hence, an equitable solution would be for petitioners to pay only the estimated consumption on
a three-month average before the period in controversy. To hold otherwise would unjustly
enrich petitioners who would be allowed to utilize additional electricity, albeit unrecorded, at no
extra cost.
DECISION

ROMERO, J p:
Before us is a petition to review the decision 1 of the Court of Appeals which reversed that of
the Regional Trial Court of Quezon City, Branch 104 in Civil Case Nos. Q-92-13845 and Q-92-
13879 ordering petitioners to pay private respondent Manila Electric Co. (MERALCO) the
amount of P415,317.66 and P89,710.58 plus the costs of suit. This petition involves the two
cases filed by petitioners which were eventually consolidated.
Civil Case No. Q-92-13845:
On November 16, 1990, petitioners applied for and was granted electric service by MERALCO.
Ten months later, however, or on September 4, 1991, petitioners received a letter from
MERALCO demanding payment of P415,317.66, allegedly representing unregistered electric
consumption for the period November 7, 1990, to February 13, 1991. MERALCO justified its
demand on the ground that the unregistered electric consumption was due to the defects of the
electric meter located in the premises of petitioners.
Since petitioners refused to pay the amount, MERALCO notified them that in the event the
overdue account remained unpaid, it would be forced to disconnect their electricity. Alarmed by
this development, petitioners, instead of settling the amount, filed on October 29, 1992 a case
before Branch 98 of the Quezon City RTC for the issuance of a writ of preliminary injunction
and/or temporary restraining order to forestall any planned disconnection by MERALCO.
On November 19, 1992, the trial court granted the prayer for preliminary injunction. prcd
Civil Case No. 13879:
On July 30, 1992, petitioners received another demand letter from MERALCO, this time
requiring them to pay the amount of P89,710.58 representing the unregistered electric
consumption for the period July 15, 1991 to April 13, 1992, the deficiency again due to the
defective meter installed in petitioners' compound.
MERALCO's demand having remained unheeded, petitioners were advised that their electric
service would be disconnected without further notice. Hence, on November 5, 1992, petitioners
filed a case before Branch 104 of the Quezon City RTC, seeking to enjoin MERALCO from
implementing the suspension of electric service.
Thereafter, on November 9, 1992, petitioners filed a motion for the consolidation of the two
cases, which was granted, resulting in the joint trial of said cases before Branch 104 of the
Quezon City RTC.
On November 27, 1992, the trial court issued the corresponding preliminary injunction.
After due trial, the lower court rendered a decision, the dispositive portion of which reads:
"WHEREFORE, judgment is hereby rendered in this case in favor of the
plaintiff(s) and against the defendants:
1. Making the Injunction permanent, enjoining the defendants in both
cases, and all their subordinates, legal representatives, electric meter
readers and technicians from committing acts of
dispossession/disruption of electric power on the subject premises
located at the compound of Ridjo Tape and Chemical Corporation and
Ridjo Paper Corporation located at 64 and 68 Judge Juan Luna St., San
Francisco del Monte, Quezon City.
2. Ordering defendants to pay the cost of suit.
137
Defendants' counterclaim on (the) two cases are (sic) denied for lack of
merit."
MERALCO appealed to the Court of Appeals which, on January 22, 1996, reversed the trial
court's finding, to wit:
"WHEREFORE, the appealed judgment is REVERSED; and appellees
Ridjo Tape and Chemical Corporation and Ridjo Paper Corporation are
hereby ordered to pay subject differential billings of P415,317.66 and
P89,710.58, respectively. Costs against the appellees." 2
Aggrieved, petitioners filed a motion for reconsideration, which was denied by the Court of
Appeals in a resolution dated August 14, 1996. 3 Hence, this petition. LLphil
From the pleadings filed by the parties, it can be deduced that the only issue to be resolved is
whether petitioners, despite the absence of evidence of tampering, are liable to pay for the
unregistered electrical service.
For a better understanding of the two cases, the terms and conditions of the Service
Agreement regarding payments are reproduced:
"PAYMENTS
Bills will be rendered by the Company to the Customer monthly in
accordance with the applicable rate schedule. Said Bills are payable to
collectors or at the main or branch offices of the Company or at its
authorized banks within ten (10) days after the regular reading date of
the electric meters. The word 'month' as used herein and in the rate
schedule is hereby defined to be the elapsed time between two
succeeding meter readings approximately thirty (30) days apart. In the
event of the stoppage or the failure by any meter to register the full
amount of energy consumed, the Customer shall be billed for such
period on an estimated consumption based upon his use of energy in a
similar period of like use." (Emphasis supplied)
In disclaiming any liability, petitioners assert that the phrase "stoppage or failure by any meter
to register the full amount of energy consumed" can only refer to tampering on the part of the
customer and not mechanical failure or defects. 4 MERALCO, on the other hand, argues that to
follow the interpretation advanced by petitioners would constitute an unjust enrichment in favor
of its customers. 5
Evidently, the Service Contract between petitioners and MERALCO partakes of the nature of a
contract of adhesion as it was prepared solely by the latter, the only participation of the former
being that they affixed or "adhered" their signature thereto, 6 thus, leaving no room for
negotiation and depriving petitioners of the opportunity to bargain on equal
footing. 7Nevertheless, these types of contracts have been declared to be binding as ordinary
contracts because the party adhering thereto is free to reject it in its entirety. 8
Being an ordinary contract, therefore, the principle that contracting parties can make
stipulations in their contract provided they are not contrary to law, morals, good customs,
public order or public policy, stands strong and true. 9 To be sure, contracts are respected as
laws between the contracting parties, and they may establish such stipulations, clauses, terms
and conditions as they may want to include. 10 Since both parties offered conflicting
interpretations of the stipulation, however, then judicial determination of the parties' intention is
mandated. 11 In this regard, it must be stressed that in construing a written contract, the
reason behind and the circumstances surrounding its execution are of paramount importance

to place the interpreter in the situation occupied by the parties concerned at the time the writing
was executed. 12
With these pronouncement as parameters, and considering the circumstances of the parties,
we are constrained to uphold MERALCO's interpretation.
At this juncture, we hasten to point out that the production and distribution of electricity is a
highly technical business undertaking, 13 and in conducting its operation, it is only logical for
public utilities, such as MERALCO, to employ mechanical devices and equipment for the
orderly pursuit of its business. cdrep
It is to be expected that the parties were consciously aware that these devices or equipment
are susceptible to defects and mechanical failure. Hence, we are not prepared to believe that
petitioners were ignorant of the fact that stoppages in electric meters can also result from
inherent defects or flaws and not only from tampering or intentional mishandling.
Clearly, therefore, the rationale of the provision in the Service Agreement was primarily to cover
situations similar to the instant case, for there are instances when electric meters do fail to
record the quantity of the current used for whatever reason. 14 It is precisely this kind of
predicament that MERALCO seeks to protect itself from so as to avert business losses or
reverses. It must be borne in mind that construction of the terms of a contract which would
amount to impairment or loss of right is not favored; conservation and preservation, not waiver,
abandonment or forfeiture of a right, is the rule. 15 Since MERALCO supplied electricity to
petitioners for a fee, no intent to donate the same can be gleaned from the terms of the
Agreement. Hence, the stipulation must be upheld.
Corollarily, it must be underscored that MERALCO has the imperative duty to make a
reasonable and proper inspection of its apparatus and equipment to ensure that they do not
malfunction, 16 and the due diligence to discover and repair defects therein. Failure to perform
such duties constitutes negligence. 17
A review of the records, however, discloses that the unpaid charges covered the periods from
November 7, 1990 to February 13, 1991 for Civil Case No. Q-92-13045 and from July 15, 1991
to April 13, 1992 for Civil Case No. 13879, approximately three months and nine months,
respectively. On such basis, we take judicial notice that during those periods, personnel
representing MERALCO inspected and examined the electric meters of petitioners regularly for
the purpose of determining the monthly dues payable. So, why were these defects not detected
and reported on time?
It has been held that notice of a defect need not be direct and express; it is enough that the
same had existed for such a length of time that it is reasonable to presume that it had been
detected, 18 and the presence of a conspicuous defect which has existed for a considerable
length of time will create a presumption of constructive notice thereof. 19 Hence, MERALCO's
failure to discover the defect, if any, considering the length of time, amounts to inexcusable
negligence. Furthermore, we need not belabor the point that as a public utility, MERALCO has
the obligation to discharge its functions with utmost care and diligence. LLphil
Accordingly, we are left with no recourse but to conclude that this is a case of negligence on
the part of MERALCO for which it must bear the consequences. Its failure to make the
necessary repairs and replacement of the defective electric meter installed within the premises
of petitioners was obviously the proximate cause of the instant dispute between the parties.
Indeed, if an unusual electric consumption was not reflected in the statements of account of
petitioners, MERALCO, considering its technical knowledge and vast experience in providing
electric service, could have easily verified any possible error in the meter reading. In the
absence of such a mistake, the electric meters themselves should be inspected for possible
defects or breakdowns and forthwith repaired and, if necessary, replaced. Furthermore, if
138
MERALCO discovered that contraptions or illegal devices were installed which would alter
the result of the meter reading, then it should have filed the appropriate criminal complaint
against petitioners under Presidential Decree No. 401. 20
The rationale behind this ruling is that public utilities should be put on notice, as a deterrent,
that if they completely disregard their duty of keeping their electric meters in serviceable
condition, they run the risk of forfeiting, by reason of their negligence, amounts originally due
from their customers. Certainly, we cannot sanction a situation wherein the defects in the
electric meter are allowed to continue indefinitely until suddenly the public utilities concerned
demand payment for the unrecorded electricity utilized when, in the first place, they should
have remedied the situation immediately. If we turn a blind eye on MERALCO's omission, it may
encourage negligence on the part of public utilities, to the detriment of the consuming public.
In view of the foregoing discussion, the liability of petitioners for consumed but unrecorded
electricity must be limited by reason of MERALCO's negligence. Hence, an equitable solution
would be for petitioners to pay only the estimated consumption on a three-month average
before the period in controversy. To hold otherwise would unjustly enrich petitioners who would
be allowed to utilize additional electricity, albeit unrecorded, at no extra cost. cdphil
To summarize, it is worth emphasizing that it is not our intention to impede or diminish the
business viability of MERALCO, or any public utility company for that matter. On the contrary,
we would like to stress that, being a public utility vested with vital public interest, MERALCO is
impressed with certain obligations towards its customers and any omission on its part to
perform such duties would be prejudicial to its interest. For in the final analysis, the bottom line
is that those who do not exercise such prudence in the discharge of their duties shall be made
to bear the consequences of such oversight.
WHEREFORE, in view of the foregoing, the decision of the Court of Appeals in CA-G.R. CV No.
44010 is hereby MODIFIED. Petitioners are ordered to pay MERALCO the amount P168,342.75,
representing its average electric consumption three months prior to the period in
controversy. 21 No costs. cdphil
SO ORDERED.
Narvasa, C .J . and Kapunan, JJ ., concur.
Purisima, J ., took no part; being ponente below.
||| (Tape v. Court of Appeals, G.R. No. 126074, [February 24, 1998], 350 PHIL 184-196)
SECOND DIVISION
[G.R. No. 172200. July 6, 2010.]
THE HEIRS OF REDENTOR COMPLETO and ELPIDIO
ABIAD, petitioners, vs. SGT. AMANDO C. ALBAYDA, JR., respondent.
DECISION

NACHURA, J p:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules
of Court, assailing the Decision 1 dated January 2, 2006 and the Resolution 2 dated March
30, 2006 of the Court of Appeals (CA) in CA-G.R. CV No. 68405.
The Facts
The facts of the case are as follows:
Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of the
Philippine Air Force, 527th Base Security Squadron, 520th Airbase, Philippine Air Force,
located at Villamor Air Base (VAB), Pasay City. Petitioner Redentor Completo (Completo),
now represented by his heirs, was the taxi driver of a Toyota Corolla, bearing Plate No.
PYD-128, owned and operated by co-petitioner Elpidio Abiad (Abiad). 3 Albayda and
Completo figured in an accident along the intersection of 8th and 11th Streets, VAB.
Albayda filed a complaint for damages before the Regional Trial Court (RTC) of Pasay City.
The case was docketed as Civil Case No. 98-1333. 4
The amended complaint alleged that, on August 27, 1997, while Albayda was on
his way to the office to report for duty, riding a bicycle along 11th Street, the taxi driven by
Completo bumped and sideswiped him, causing serious physical injuries. Albayda was
brought to the Philippine Air Force General Hospital (PAFGH) inside VAB. However, he
was immediately transferred to the Armed Forces of the Philippines Medical Center
(AFPMC) on V. Luna Road, Quezon City, because there was a fracture in his left knee and
there was no orthopedic doctor available at PAFGH. From August 27, 1997 until February
11, 1998, he was confined therein. He was again hospitalized at PAFGH from February 23,
1998 until March 22, 1998. 5
Conciliation between the parties before the barangay failed. Thus, Albayda filed
a complaint for physical injuries through reckless imprudence against Completo before the
Office of the City Prosecutor of Pasay City. On the other hand, Completo filed a counter-
charge of damage to property through reckless imprudence against Albayda. On January
13, 1998, the Office of the City Prosecutor issued a resolution, 6 recommending the filing
of an information for reckless imprudence resulting in physical injuries against Completo.
The counter-charge of damage to property was recommended dismissed. 7 cdphil
The case was raffled to the Metropolitan Trial Court of Pasay City, Branch 45,
where Albayda manifested his reservation to file a separate civil action for damages
against petitioners Completo and Abiad. 8
Albayda alleged that the proximate cause of the incident which necessitated his
stay in the hospital for approximately seven (7) months was the negligence of Completo
who, at the time of the accident, was in the employ of Abiad. The pain he suffered required
him to undergo medical physiotherapy for a number of years to regain normality of his left
knee joint, and he claimed that he incurred actual damages totaling Two Hundred
Seventy-Six Thousand Five Hundred Fifty Pesos (P276,550.00), inclusive of his anticipated
operations. 9
He further stated that aggravating the physical sufferings, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, and social
humiliation resulting from his injuries, his wife abandoned him in May 1998, and left their
children in his custody. He thus demanded the amount of Six Hundred Thousand Pesos
(P600,000.00) as moral damages. He likewise asked for exemplary damages in the amount
of Two Hundred Thousand Pesos (P200,000.00) and attorney's fees of Twenty-Five
Thousand Pesos (P25,000.00), plus One Thousand Pesos (P1,000.00) per court
appearance. 10
139
In his answer to the amended complaint, Completo alleged that, on August
27, 1997, he was carefully driving the taxicab along 8th Street, VAB, when suddenly he
heard a strange sound from the rear right side of the taxicab. When he stopped to
investigate, he found Albayda lying on the road and holding his left leg. He immediately
rendered assistance and brought Albayda to PAFGH for emergency treatment. 11
Completo also asserted that he was an experienced driver who, in accordance
with traffic rules and regulations and common courtesy to his fellow motorists, had already
reduced his speed to twenty (20) kilometers per hour even before reaching the intersection
of 8th and 11th Streets. In contrast, Albayda rode his bicycle at a very high speed, causing
him to suddenly lose control of the bicycle and hit the rear door on the right side of the
taxicab. 12
The deep indentation on the rear right door of the taxicab was caused by the
impact of Albayda's body that hit the taxicab after he had lost control of the bicycle; while
the slight indentation on the right front door of the taxicab was caused by the impact of
the bike that hit the taxicab after Albayda let go of its handles when he had lost control of
it. 13
Completo maintained that Albayda had no cause of action. The accident and the
physical injuries suffered by Albayda were caused by his own negligence, and his purpose
in filing the complaint was to harass petitioners and unjustly enrich himself at their
expense. 14
After submission of the parties' respective pleadings, a pretrial conference was
held. On December 8, 1998, the RTC issued a pretrial order. Thereafter, trial on the merits
ensued. 15
Albayda presented himself, Michael Navarro (Navarro), Dr. Rito Barrosa, Jr. (Dr.
Barrosa), Dr. Armando Sta. Ana, Jr., Dr. Ranny Santiago, (Dr. Santiago), and Dr. Manuel
Fidel Magtira (Dr. Magtira) as witnesses in open court. 16
On direct examination, Navarro testified that, on August 27, 1997, at around
1:45 p.m., he saw a taxicab, with Plate No. PYD-128, coming from 11th Street, running at
an unusual speed. The normal speed should have been twenty-five (25) kilometers per
hour. He was at the corner of 9th and 8th Streets when the taxicab passed by him. The
side of the bicycle was hit by the taxicab at the intersection of 11th and 8th Streets. He
saw Albayda fall to the ground, grimacing in pain. The taxicab at that moment was about
ten (10) meters away from Albayda. On cross-examination, Navarro reiterated that the
taxicab was running quite fast. The bicycle ridden by Albayda reached the intersection of
8th and 11th Streets before the taxicab hit it. 17
Dr. Santiago, the orthopedic surgeon who treated Albayda when the latter was
admitted at AFPMC, testified that the cause of the injury was "hard impact," and
recommended an operation to alleviate the suffering. On cross-examination, he said that
there was a separation of the fragments of the proximal leg, the injured extremity, called
levia. They placed the victim on knee traction or calcaneal traction, 18 in order to avoid
further swelling. They bore the calcanean bone with a stainless steel pin so that they could
put five percent (5%) of the body weight of the patient to cool down the leg. He treated
Albayda for three (3) months. He recommended surgery, but the victim had other medical
problems, like an increase in sugar level, and they were waiting for the availability of the
implant. The implant was supposed to be placed on the lateral aspect of the proximal leg
or the levia, the part with the separation. It was a long implant with screws. 19 DEICaA
Dr. Magtira testified that Albayda was readmitted at AFPMC on January 25,
1999 because of complaints of pain and limitation of motion on the knee joint. Upon
evaluation, the pain was caused by traumatic arthritis brought about by malunion of the
lateral trivial condial. An operation of the soft tissue release was conducted for him to

mobilize his knee joint and attain proper range of motion. After the operation, Albayda
attained functional range of motion, but because of subsisting pain, they had to do
osteoplasty 20 of the malunion, which was another operation. On cross-examination, Dr.
Magtira testified that he rendered free medical service at AFPMC. 21
Albayda testified that he was thirty-six (36) years old and a soldier of the Armed
Forces of the Philippines. On August 27, 1997, at around 1:40 p.m., he was riding his bike
on his way to the office, located on 916 Street, VAB. He had to stop at the corner of 11th
and 8th Streets because an oncoming taxicab was moving fast. However, the taxicab still
bumped the front tire of his bike, hit his left knee and threw him off until he fell down on
the road. The taxicab stopped about ten meters away, and then moved backwards. Its
driver, Completo, just stared at him. When somebody shouted to bring him to the hospital,
two (2) persons, one of whom was Dr. Barrosa, helped him and carried him into the
taxicab driven by Completo, who brought him to PAFGH. 22
Upon examination, it was found that Albayda suffered fracture in his left knee
and that it required an operation. No orthopedic doctor was available at PAFGH. Thus, he
was transferred that same afternoon to AFPMC, where he was confined until February 11,
1998. 23
At AFPMC, Albayda's left leg was drilled on and attached to traction. When his
leg was drilled, it was so painful that he had to shout. After his release from the hospital,
he continued to suffer pain in his leg. He underwent reflexology and therapy which offered
temporary relief from pain. But after some time, he had to undergo therapy and reflexology
again. 24
On January 25, 1999, Albayda was readmitted at AFPMC and operated on. On
June 24, 1999, he was operated on again. Wire and screw were installed so that he could
bend his knee. Nonetheless, he continued to suffer pain. As of the date of his testimony in
court, he was scheduled for another operation in January 2000, when the steel that would
be installed in his leg arrives. 25
For his food, Albayda spent Thirty Pesos (P30.00) each day during his six (6)
months of confinement; for his bed pan, One Thousand Pesos (P1,000.00); for his twice
weekly reflexology, Three Hundred Pesos (P300.00) every session since April 1997; for his
caretaker, P300.00 per day for six months. He also asked for P600,000.00 in moral
damages because Completo did not lend him a helping hand, and he would be suffering
deformity for the rest of his life. He demanded P25,000.00 as attorney's fees and
P1,000.00 for every court appearance of his lawyer. 26
On cross-examination, Albayda testified that, on the date of the incident, he was
the base guard at VAB, and his duty was from 2 p.m. to 8 p.m. That afternoon, he was not
in a hurry to go to his place of work because it was only about 1:45 p.m., and his place of
work was only six (6) meters away. After the accident, he was brought to PAFGH, and at
3:00 p.m., he was brought to the AFPMC. When he was discharged from the hospital, he
could no longer walk. 27
Dr. Barrosa's testimony during cross-examination emphasized that he was with
2 other persons when he carried Albayda into the taxicab driven by Completo. He was
certain that it was not Completo who carried the victim into the taxicab. It was only a
matter of seconds when he rushed to the scene of the accident. The taxicab backed up
fifteen (15) seconds later. Albayda lay 2 meters away from the corner of 8th and 11th
Streets. 28
Completo, Abiad, and Benjamin Panican (Panican) testified for the defense. 29
Completo alleged that he had been employed as taxi driver of FOJS Transport,
owned by Abiad, since February 1997. On August 27, 1997, he was driving the taxicab,
140
with Plate No. PYD-128, from 10:00 a.m. At around 1:45 p.m., he was on his way home
when a bicycle bumped his taxicab at the intersection of 8th and 11th Streets, VAB. The
bicycle was travelling from south to north, and he was going east coming from the west.
The bicycle was coming from 11th Street, while he was travelling along 8th Street. 30
On cross-examination, Completo testified that when Albayda hit the rear right
door of the taxicab, the latter fell to the ground. When he heard a noise, he immediately
alighted from the taxicab. He denied that he stopped about 10 meters away from the place
where Albayda fell. He carried Albayda and drove him to the hospital. 31
Panican testified that he worked as an airconditioner technician in a shop
located on 8th Street corner 11th Street. On the date and time of the incident, he was
working in front of the shop near the roadside. He saw a bicycle bump the rear right side
of the taxicab. Then, the driver of the taxicab alighted, carried Albayda, and brought him to
the hospital. 32
When questioned by the trial court, Panican testified that the bicycle was
running fast and that he saw it bump the taxicab. The taxicab already passed the
intersection of 11th and 8th Streets when the bicycle arrived. 33
Abiad testified that, aside from being a soldier, he was also a franchise holder of
taxicabs and passenger jeepneys. When Completo applied as a driver of the taxicab,
Abiad required the former to show his bio-data, NBI clearance, and driver's license.
Completo never figured in a vehicular accident since the time he was employed in
February 1997. Abiad averred that Completo was a good driver and a good man. Being
the operator of taxicab, Abiad would wake up early and personally check all the
taxicabs. 34 ASaTCE
On July 31, 2000, the trial court rendered a decision, 35 the dispositive portion
of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff
[Albayda] and against the defendants [Completo and Abiad].
Accordingly, the defendants [Completo and Abiad] are hereby ordered to
pay the plaintiff [Albayda] the following sum:
1. P46,000.00 as actual damages;
2. P400,000.00 as moral damages; [and]
3. P25,000.00 as attorney's fees.
Costs against the defendants [Completo and Abiad].
SO ORDERED. 36
Completo and Abiad filed an appeal. The CA affirmed the trial court with modification in a
Decision 37 dated January 2, 2006, viz.:
WHEREFORE, premises considered, the appeal is DENIED for lack of
merit. The assailed Decision dated 31 July 2000 rendered by the
Regional Trial Court of Pasay City, Branch 117, in Civil Case No. 98-
1333 is hereby AFFIRMED with the following MODIFICATIONS:
1. the award of Php 46,000.00 as actual damages
is DELETED;
2. temperate damages in the amount of Php 40,000.00 is
awarded in favor of appellee;

3. moral damages in favor of appellee is REDUCED to Php
200,000.00;
4. appellants Redentor Completo and Elpidio Abiad are
solidarily liable to pay appellee Amando C. Albayda, Jr. said
temperate and moral damages, as well as the attorney's fees
in the amount of Php 25,000.00 awarded by the trial court;
5. the temperate and moral damages shall earn legal interest
at 6% per annum computed from the date of promulgation of
Our Decision;
6. upon finality of Our Decision, said moral and temperate
damages shall earn legal interest at the rate of 12% per
annum, in lieu of 6% per annum, until full payment. Costs
against appellants.
SO ORDERED. 38
Hence, this petition.
The Issues
Petitioners presented the following issues for resolution: (1) whether the CA
erred in finding that Completo was the one who caused the collision; (2) whether Abiad
failed to prove that he observed the diligence of a good father of the family; and (3)
whether the award of moral and temperate damages and attorney's fees to Albayda had
no basis. 39
The Ruling of the Court
The petition is bereft of merit.
I. On Negligence
The issues raised by petitioners essentially delve into factual matters which were
already passed upon by the RTC and the CA. Conclusions and findings of fact of the trial
court are entitled to great weight on appeal and should not be disturbed unless for strong
and cogent reasons, because the trial court is in a better position to examine real
evidence, as well as to observe the demeanor of the witnesses while testifying in the case.
The fact that the CA adopted the findings of fact of the trial court makes the same binding
upon this Court. Well-settled is the rule that the Supreme Court is not a trier of facts. 40 To
be sure, findings of fact of lower courts are deemed conclusive and binding upon the
Supreme Court, save only for clear and exceptional reasons, 41 none of which is present
in the case at bar.
The instant case involved a collision between a taxicab and a bicycle which
resulted in serious physical injuries to the bicycle rider, Albayda. It is a rule in negligence
suits that the plaintiff has the burden of proving by a preponderance of evidence the
motorist's breach in his duty of care owed to the plaintiff, that the motorist was negligent
in failing to exercise the diligence required to avoid injury to the plaintiff, and that such
negligence was the proximate cause of the injury suffered. 42
Article 2176 of the Civil Code provides that whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no preexisting contractual relation between the parties,
is called a quasi-delict. In this regard, the question of the motorist's negligence is a
question of fact.
141
It was proven by a preponderance of evidence that Completo failed to
exercise reasonable diligence in driving the taxicab because he was over-speeding at the
time he hit the bicycle ridden by Albayda. Such negligence was the sole and proximate
cause of the serious physical injuries sustained by Albayda. Completo did not slow down
even when he approached the intersection of 8th and 11th Streets of VAB. It was also
proven that Albayda had the right of way, considering that he reached the intersection
ahead of Completo.
The bicycle occupies a legal position that is at least equal to that of other
vehicles lawfully on the highway, and it is fortified by the fact that usually more will be
required of a motorist than a bicyclist in discharging his duty of care to the other because
of the physical advantages the automobile has over the bicycle. 43 aEcDTC
At the slow speed of ten miles per hour, a bicyclist travels almost fifteen feet per
second, while a car traveling at only twenty-five miles per hour covers almost thirty-seven
feet per second, and split-second action may be insufficient to avoid an accident. It is
obvious that a motor vehicle poses a greater danger of harm to a bicyclist than vice versa.
Accordingly, while the duty of using reasonable care falls alike on a motorist and a
bicyclist, due to the inherent differences in the two vehicles, more care is required from the
motorist to fully discharge the duty than from the bicyclist. 44 Simply stated, the physical
advantages that the motor vehicle has over the bicycle make it more dangerous to the
bicyclist than vice versa. 45
Under Article 2180 of the Civil Code, the obligation imposed by Article 2176 is
demandable not only for one's own acts or omissions, but also for those persons for
whom one is responsible. Employers shall be liable for the damages caused by their
employees, but the employers' responsibility shall cease upon proof that they observed all
the diligence of a good father of the family in the selection and supervision of their
employees.
When an injury is caused by the negligence of an employee, a legal presumption
instantly arises that the employer was negligent. This presumption may be rebutted only
by a clear showing on the part of the employer that he exercised the diligence of a good
father of a family in the selection and supervision of his employee. If the employer
successfully overcomes the legal presumption of negligence, he is relieved of liability. In
other words, the burden of proof is on the employer. 46
The trial court's finding that Completo failed to exercise reasonable care to
avoid collision with Albayda at the intersection of 11th and 8th Streets of VAB gives rise to
liability on the part of Completo, as driver, and his employer Abiad. The responsibility of
two or more persons who are liable for quasi-delict is solidary. 47 The civil liability of the
employer for the negligent acts of his employee is also primary and direct, owing to his
own negligence in selecting and supervising his employee. 48 The civil liability of the
employer attaches even if the employer is not inside the vehicle at the time of the
collision. 49
In the selection of prospective employees, employers are required to examine
them as to their qualifications, experience, and service records. On the other hand, with
respect to the supervision of employees, employers should formulate standard operating
procedures, monitor their implementation, and impose disciplinary measures for breaches
thereof. To establish these factors in a trial involving the issue of vicarious liability,
employers must submit concrete proof, including documentary evidence. 50
Abiad testified that before he hired Completo, he required the latter to show his
bio-data, NBI clearance, and driver's license. Abiad likewise stressed that Completo was
never involved in a vehicular accident prior to the instant case, and that, as operator of the

taxicab, he would wake up early to personally check the condition of the vehicle before it
is used.
The protestation of Abiad to escape liability is short of the diligence required
under the law. Abiad's evidence consisted entirely of testimonial evidence, and the
unsubstantiated and self-serving testimony of Abiad was insufficient to overcome the legal
presumption that he was negligent in the selection and supervision of his driver.
II. On Damages
The CA rightfully deleted the award of actual damages by the RTC because
Albayda failed to present documentary evidence to establish with certainty the amount
that he incurred during his hospitalization and treatment for the injuries he suffered. In the
absence of stipulation, actual damages are awarded only for such pecuniary loss suffered
that was duly proved. 51
142
(1) The estate of the late Redentor Completo and Elpidio Abiad are solidarily
liable to pay One Hundred Thousand Pesos (P100,000.00), as temperate damages, and
Five Hundred Thousand Pesos (P500,000.00), as moral damages;
(2) The temperate and moral damages hereby awarded shall earn legal interest
at the rate of six percent (6%) per annum from the date of the promulgation of this
Decision. Upon finality of this Decision, an interest rate of twelve percent (12%) per annum
shall be imposed on the amount of the temperate and moral damages until full payment
thereof.
Costs against petitioners.
SO ORDERED.
Carpio, Peralta, Abad and Mendoza, JJ., concur.

While the amount of actual damages was not duly established with certainty, the ||| (Heirs of Completo v. Abayda, Jr., G.R. No. 172200, [July 6, 2010], 638 PHIL 94-112)
Court recognizes the fact that, indeed, Albayda incurred a considerable amount for the
necessary and reasonable medical expenses, loss of salary and wages, loss of capacity to
earn increased wages, cost of occupational therapy, and harm from conditions caused by
prolonged immobilization. Temperate damages, more than nominal but less than
EN BANC
compensatory damages, may be recovered when the court finds that some pecuniary loss
has been suffered but its amount cannot, from the nature of the case, be proved with
certainty. 52 Temperate damages must be reasonable under the circumstances. 53 Thus, [G.R. No. L-3422. June 13, 1952.]
the Court finds the award of One Hundred Thousand Pesos (P100,000.00) as temperate
damages reasonable under the circumstances. HEScID
Doubtless, Albayda suffered immeasurable pain because of the incident caused HIDALGO ENTERPRISES, INC., petitioner, vs. GUILLERMO
by petitioners' negligence. The CA explained: BALANDAN, ANSELMA ANILA and THE COURT OF
APPEALS, respondents.
The court vicariously feels the pain the plaintiff [Albayda] suffered a
number of times. After he was bumped by defendants' cab, he cried in
pain. When the doctors bore holes into his left knee, he cried in pain.
Quisumbing, Sycip, Quisumbing & Salazar for petitioner.
When he was tractioned, when he was subjected to an operation after
operation he suffered pain. When he took the witness stand to testify, he Antonio M. Moncado for respondents.
walked with crutches, his left knee in bandage, stiff and unfuctional. Pain
was written [on] his face. He does deserve moral damages. 54

Moral damages are awarded in quasi-delicts causing physical injuries. The
permanent deformity and the scar left by the wounds suffered by Albayba will forever be a
reminder of the pain and suffering that he had endured and continues to endure because
of petitioners' negligence. Thus, the award of moral damages in the amount of Five
Hundred Thousand Pesos (P500,000.00) is proper.
Finally, an interest rate of six percent (6%) per annum is due on the amount of
P100,000.00, as temperate damages, and P500,000.00, as moral damages, which we
have awarded. The 6% per annum interest rate on the temperate and moral damages shall
commence to run from the date of the promulgation of this Decision. Upon finality of the
Decision, an interest rate of twelve percent (12%) per annum shall be imposed on the
amount of the temperate and moral damages until full payment thereof. 55
The award of attorney's fees is hereby deleted for failure to prove that
petitioners acted in bad faith in refusing to satisfy respondent's just and valid claim.
SYLLABUS
1. ATTRACTIVE NUISANCE, WHAT CONSTITUTES; MAINTAINER LIABLE FOR
INJURIES CAUSED TO CHILD. One who maintains on his premises dangerous
instrumentalities or appliances of a character likely to attract children in play, and who fails
to exercise ordinary care to prevent children from playing therewith or resorting thereto, is
liable to a child of tender years who is injured thereby, even if the child is technically a
trespasser in the premises.
2. ID.; DOCTRINE NOT APPLICABLE TO SWIMMING POOL OR WATER TANK.
The attractive nuisance doctrine generally is not applicable to bodies of water, artificial
as well as natural, in the absence of some unusual condition or artificial feature other than
the mere water and its location.

WHEREFORE, in view of the foregoing, the Decision dated January 2, 2006 and
the Resolution dated March 30, 2006 of the Court of Appeals in CA-G.R. CV No. 68405 are
hereby AFFIRMED with MODIFICATION, viz.: DECISION

BENGZON, J p:
This is an appeal by certiorari, from a decision of the Court of Appeals requiring
Hidalgo Enterprises, Inc. to pay Guillermo Balandan and his wife, damages in the sum of
P2,000 for the death of their son Mario.
It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-
plant factory in the City of San Pablo, Laguna, in whose premises were installed two tanks
full of water, nine feet deep, for cooling purposes of its engine. While the factory
compound was surrounded with fence, the tanks themselves were not provided with any
kind of fence or top covers. The edges of the tank were barely a foot high from the surface
of the ground. Through the wide gate entrance, which was continually open, motor
vehicles hauling ice and persons buying said commodity passed, and any one could easily
enter the said factory, as he pleased. There was no guard assigned on the gate. At about
noon of April 16, 1948, plaintiffs' son, Mario Balandan, a boy barely 8 years old, while
playing with and in company of other boys of his age, entered the factory premises
through the gate, to take a bath in one of said tanks; and while thus bathing, Mario sank to
the bottom of the tank, only to be fished out later, already a cadaver, having died of
'asphyxia secondary to drowning.'".
The Court of Appeals, and the Court of First Instance of Laguna, took the view
that the petitioner maintained an attractive nuisance (the tanks), and neglected to adopt
the necessary precautions to avoid accident to persons entering its premises. It applied
the doctrine of attractive nuisance, of American origin, recognized in this jurisdiction in
Taylor vs. Manila Electric 16 Phil., 8.
The doctrine may be stated, in short, as follows: One who maintains on his
premises dangerous instrumentalities or appliances of a character likely to attract children
in play, and who fails to exercise ordinary care to prevent children from playing therewith
or resorting thereto, is liable to a child of tender years who is injured thereby, even if the
child is technically a trespasser in the premises. (See 65 C. J. S., p. 455.)
The principal reason for the doctrine is that the condition or appliance in
question although its danger is apparent to those of age, is so enticing or alluring to
children of tender years as to induce them to approach, get on or use it, and this
attractiveness is an implied invitation to such children (65 C. J. S., p. 458).
Now, is a swimming pool or water tank an instrumentality or appliance likely to
attract little children in play? In other words is the body of water an attractive nuisance?
The great majority of American decisions say no.
"The attractive nuisance doctrine generally is not applicable to
bodies of water, artificial as well as natural, in the absence of some
unusual condition or artificial feature other than the mere water and its
location."
"There are numerous cases in which the attractive nuisance
doctrine has been held not to be applicable to ponds or reservoirs, pools
of water, streams, canals, dams, ditches, culverts, drains, cesspools or
sewer pools, . . . ." (65 C. J. S., p. 476 et seg. citing decisions of
California, Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss.,
Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas,
Nebraska, Wisconsin.)
In fairness to the Court of Appeals it should be stated that the above volume of
Corpus Juris Secundum was published in 1950, whereas its decision was promulgated on
September 30, 1949.
143
The reason why a swimming pool or pond or reservoir of water is not
considered an attractive nuisance was lucidly explained by the Indiana Appellate Court as
follows:
"Nature has created streams, lakes and pools which attract
children. Lurking in their waters is always the danger of drowning.
Against this danger children are early instructed so that they are
sufficiently presumed to know the danger; and if the owner of private
property creates an artificial pool on his own property, merely duplicating
the work of nature without adding any new danger, . . . (he) is not liable
because of having created an 'attractive nuisance.' Anderson vs. Reith-
Riley Const. Co., N. E., 2nd, 184, 185; 184, 185; 112 Ind. App., 170.
Therefore, as petitioner's tanks are not classified as attractive nuisance, the
question whether the petitioner had taken reasonable precautions becomes immaterial.
And the other issue submitted by petitioner - that the parents of the boy were guilty of
contributory negligence precluding recovery, because they left for Manila on that unlucky
day leaving their son under the care of no responsible individual needs no further
discussion.
The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved
from liability. No costs.
Feria, Padilla, Tuason, Montemayor and Bautista Angelo, JJ., concur.
Separate Opinions
PABLO, M., disidente:
La recurrente tiene dos estanques de agua, de nueve pies de profundidad,
como anexos indispensables a su fabrica de hielo; estan construidos dentro de un solar
que esta cercado pero con una puerta de entrada siempre abierta en donde pasan
libremente los coches que distribuyen hielo y las personas que lo compran de la fabrica;
cualquiera puede entrar sin distincion alguna, no hay ningun guardia en la puerta que
impida la entrada de cualquiera persona. A dichos dos estanques tiene libre acceso el
publico.
Es evidente que la recurrente debio haber cercado dichos estanques como
medida ordinaria de precaucion para que los nios de corta edad no puedan entrar, tanto
mas cuanto que los bordes de esos estanques solo tienen un pie de altura sobre la
superficie del terreno. El cerco puesto en el perimetro del solar, con puerta continuamente
abierta, no es suficiente medida para impedir que los nios puedan meterse en los
estanques. Ese cerco con su puerta abierta es como un velo transparente con que se
cubre una mujer semidesnuda en un teatro, pica la curiosidad y atrae la atencion del
publico.
Los nios son curiosos por naturaleza y los de ocho aos no tienen perfecto
conocimiento de las cosas. Alucinados por la natural atraccion de las aguas, se meteran
en ellas con peligro de sus vidas, a menos que exista algo que les impida.
Voto por la confirmacion de la decision apelada.
||| (Hidalgo Enterprises, Inc. v. Balandan, G.R. No. L-3422, [June 13, 1952], 91 PHIL 488-492)

FIRST DIVISION
[G.R. No. L-7763. December 2, 1957.]
HONORIA DELGADO VDA. DE GREGORIO, ET AL., plaintiffs-
appellants, vs. GO CHONG BING, defendant-appellee.
Pedro P. Surez and Sabina Agcaoili Surez for appellants.
Castillo, Cervantes, Occena, Lozano, Montana, Cunanan & Sison for appellee.
SYLLABUS
DAMAGES; NEGLIGENCE; LIABILITY OF OWNER OF VEHICLE; PROXIMATE
CAUSE OF ACCIDENT; ACT OF PERSON NOT RELATED TO DEFENDANT. The
defendant a truck owner ordered FR his driver but had only a student's permit to drive
said truck. Some persons boarded the truck and among them was one policeman by the
name of VO. While the truck was on the way, it made a stop and then VO the policeman
took the wheel from FR who gave the wheel for fear of, or out of respect for the uniformed
policeman and because FR believed that the former had both the ability and authority to
drive the truck, especially as he himself had only a student's permit and not a driver's
license. While the truck was being driven by VO, it so happened that they came to a truck
that was trying to park on the left side of the road. But as they approached the parking
truck, and in order to avoid colliding with it, VO swerve the truck towards the right
proceeding to hit two pedestrian and instead of applying the brake put his foot on the
gasoline and the truck did not stop but went on and hit and ran over one of the
pedestrians. Because of the accident, the policeman was prosecuted for homicide with
reckless imprudence to which he pleaded guilty and was sentenced accordingly. The heirs
of the victim brought the present action for damages against the defendant. owner of the
truck but was dismissed by the trial court on the ground that the death or accident was
accused by an act or omission of a person who is not in any way related to the defendant.
Plaintiffs appealed contending that when the defendant permitted his cargador who was
not provided with driver's license, to drive the truck, he thereby violated the provisions of
the Revised Motor Vehicle Law (Section 28, Act No. 3992), and this constitutes
negligence per se. Held: Where the death or accident is caused by an act or omission of a
person who is not in any way related to the defendant and the said act is the proximate,
immediate and direct cause of the death of the victim or accident which is punishable by
law, defendant should be absolved from any civil liability. The reason is not because one
responsible for the accident had already received indemnification therefor, but because
there is no direct and proximate causal connection between the negligence or violation of
the law by the defendant to the death of the victim.
DECISION
LABRADOR, J p:
144
Appeal from a judgment of the Court of First Instance of Davao absolving
defendant from liability for the accidental death of Quirico Gregorio. It came to this Court
as the amount demanded in the complaint is more than P50,000.
On or before June 2, 1952, defendant was the owner of a truck. He had a driver
and a cargador or driver's helper by the name of Francisco Romera. In the afternoon of
June 2, 1952, defendant ordered Romera to drive his truck, with instructions to follow
another truck driven by his driver and help the latter in crossing Sumlog river which was
then flooded, should it be unable to cross the river because of the flood. Romera at that
time was not a licensed driver. He only had a student's permit, issued to him on March 31,
1952 (Exhibit "1"). The truck started from the town of Lupon at about 5:30 o'clock in the
afternoon, driven by Romera. Some persons boarded the truck and among them was one
policeman by the name of Venancio Orfanel. While the truck was on the way, it made a
stop and then Orfanel took the wheel from Romera, while the latter stayed on the driver's
left, reclined on a spare tire inside of the truck. As to the circumstances under which
Orfanel was able to take hold of and drive the truck, there is some dispute and this matter
will be taken up later in the decision.
While the truck was being driven by Orfanel, with another truck ahead of it
driven by defendant's driver, it so happened that they came to a truck that was trying to
park on the left side of the road. Romera suggested to Orfanel that he shift to low gear and
Orfanel did so. But as they approached the parking truck, and in order to avoid colliding
with it, Orfanel swerved the truck towards the right. It so happened that at that time two
pedestrians were on the right side of the road. As the truck had swerved to the right and
was proceeding to hit the said pedestrians, Romera told Orfanel to apply the brake, but
Orfanel instead of doing so put his foot on the gasoline and the truck did not stop but
went on and hit and ran over one of the pedestrians, by the name of Quirico Gregorio. The
plaintiffs-appellants in this action are Gregorio's widow and his children and heirs.
Because of the accident, Orfanel was prosecuted for homicide with reckless imprudence.
He pleaded guilty to the charge and was sentenced accordingly.
As hinted above, an important issue in the case has relation to the
circumstances under which Orfanel was able to take hold of the wheel and drive the truck.
To sustain the theory that defendant's cargador Francisco Romera was negligent, plaintiffs
introduced one Javier A. Dayo as a witness. According to this witness the truck was
speeding at the rate of 20 miles an hour. According to him also, while the truck was about
to pass by the house of one Lucio, running at a speed of 20 miles per hour, he heard
Romera shouting "hand brake! hand brake!"; that both Orfanel and Romera tried to turn
the driver's wheel to the left and direct the truck towards the left to avoid the collision.
According to this witness also, Romera gave the wheel to Orfanel voluntarily upon the
request of the latter.
Plaintiffs also sought to prove that Romera gave the truck voluntarily to the
policeman by presenting the affidavit of Romera made on June 3, 1952 (Exhibit "1"). This
affidavit, however, is inadmissible as evidence against the defendant because it is hearsay
with respect to him. It may not be considered as part of the res gestae either, because the
affidavit was taken one day after the incident.
Against the above evidence, the defendant testified that he gave positive
instructions to Romera not to allow anybody to drive the truck, and Romera himself
testified that he had warned Orfanel that his master prohibited him from allowing anybody
to drive the truck, but that as Orfanel was a uniformed policeman and insisted that he
drive the truck, and that as he believed that the policeman knew how to drive, he let him
drive the truck.
We are of the belief that defendant's claim that Romera gave the wheel to the
policeman for fear of, or out of respect for, the latter, has been proved by a preponderance
of the evidence. The testimony of witness Dayo is not corroborated by any other
 145
testimony. As he testified that he was two meters behind Romera, he could not have March 22, 1881, said, it is necessary that the damages result
noticed with exactness the circumstances under which the policeman was able to get hold immediately and directly from an act performed culpably and wrongfully;
of the wheel and drive the truck and his testimony in that respect cannot be believed. We 'necessarily presupposing a legal ground for imputability.'" (Taylor vs.
are, therefore, forced to the conclusion that the defendant's cargador, or Francisco Manila Electric Railroad and Light Co., supra, p. 28.)
Romera, gave the wheel to Orfanel out of respect for the latter, who was a uniformed
It is evident that the proximate, immediate and direct cause of the death of the
policeman and because he believed that the latter had both the ability and the authority to
plaintiffs' intestate was the negligence of Orfanel, a uniformed policeman, who took the
drive the truck, especially as he himself had only a student's permit and not a driver's
wheel of the truck from defendant's cargador, in spite of the protest of the latter. The
license.
reason for absolving the defendant therefor is not because the one responsible for the
The court a quo dismissed the action on the ground that as the death or accident had already received indemnification for the accident, but because there is no
accident was caused by an act or omission of a person who is not in any way related to direct and proximate causal connection between the negligence or violation of the law by
the defendant, and as such act or omission was punishable by law, and as a matter of fact the defendant to the death of the plaintiffs' intestate.
he had already been punished therefor, no civil liability should be imposed upon the
For the foregoing considerations, the judgment appealed from is hereby
defendant. Against this decision the plaintiffs have appealed to this Court, contending that
affirmed, without costs.
when defendant permitted his cargador, who was not provided with a driver's license, to
drive the truck, he thereby violated the provisions of the Revised Motor Vehicle Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Reyes,
Law (section 28, Act No. 3992), and that this constitutes negligence per se. J. B. L., Endencia and Felix, JJ., concur.
(People vs. Santos, et al., CA-G. R. No. 1088-1089R.) But admitting for the sake of
||| (Vda. de Gregorio v. Go Chong Bing, G.R. No. L-7763, [December 2, 1957], 102 PHIL 556-
argument that the defendant had so violated the law, or may be deemed negligent in
561)
entrusting the truck to one who is not provided with a driver's license, it is clear that he
may not be declared liable for the accident because his negligence was not the direct and
proximate cause thereof. The leading case in this jurisdiction on negligence is that of
Taylor vs. Manila Electric Railroad and Light Company, 16 Phil. 8. Negligence as a source
of obligation both under the civil law and in American cases was carefully considered and EN BANC
it was held:
"We agree with counsel for appellant that under the Civil Code, [G.R. No. L-10126. October 22, 1957.]
as under the generally accepted doctrine in the United States, the
plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent evidence: SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA,
"(1) Damages to the plaintiff. LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN,
represented by their Natural guardian, SALUD VILLANUEVA VDA.
"(2) Negligence by act or omission of which defendant DE BATACLAN, plaintiffs-appellants, vs.
personally, or some person for whose acts it must respond, was guilty. MARIANO MEDINA, defendant-appellant.
"(3) The connection of cause and effect between the
negligence and the damage." (Taylor vs. Manila Electric Railroad and
Light Co., supra, p. 15.) Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-
In accordance with the decision of the Supreme Court of Spain, in order that a appellants.
person may be held guilty for damage through negligence, it is necessary that there be an
Fortunato Jose for defendant-appellant.
act or omission on the part of the person who is to be charged with the liability and that
damage is produced by the said act or omission.
"In accordance with the fundamental principle of proof, that SYLLABUS
the burden thereof is upon the plaintiff, it is apparent that it is the duty of
him who shall claim damages to establish their existence. The decisions
of April 9, 1896, and March 18, July 6, and September 27, 1898, have 1. DAMAGES; CARRIER'S LIABILITY; WORDS AND PHRASES; PROXIMATE
especially supported the principle, the first setting forth in detail the CAUSE DEFINED. "The proximate legal cause is that the acting first and producing the
necessary points of the proof, which are two: An Act or omission on the injury, either immediately or by setting other events in motion., all constituting a natural
part of the person who is to be charged with the liability, and the and continuous chain of events, each having a close causal connection with its immediate
production of the damage by said act or omission. predecessor, the final event in the chain immediately affecting the injury as a natural and
probable result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as ordinarily prudent and intelligent person, have
"This includes, by inference, the establishment of s relation of reasonable ground to expect at the moment of his act or default that an injury to some
cause or effect between the act or the omission and the damage; the person might be probably result therefrom."
latter must be the direct result of one of the first two. As the decision of

2. ID.; ID.; OVERTURNING OF BUS; PROXIMATE CAUSE OF DEATH. When a
vehicle turned not only on its side but completely on its back, the leaking of the gasoline
from the tank was not unnatural or unexpected; that the coming of the men with the
lighted torch was in response to the call for help, made not only by the passengers, but
most probably by the driver and the conductor themselves, and that because it was very
dark (about 2:30 in the morning), the rescuers had to carry a light with them; and coming
as they did from a rural area where the lanterns and flashlights were not available, they
had to use a torch the most handy and available; and what was more natural, that said
rescuers should innocently approached the overtuned vehicle to extend the aid and effect
the rescue requested from them. Held: That the proximate cause of the death of B was
overturning of the vehicle thru the negligence of defendant and his agent.
3. ID.; ID.; CARRIER'S NEGLIGENCE; BURNING OF THE BUS. The burning
of the bus wherein some of the passengers were trapped can also be attributed to the
negligence of the carrier, through the driver and conductor who were on the road walking
back and forth. They should and must have known that in the position in which the
overtuned bus was, gasoline could and must have leaked from the gasoline tank and
soaked the area in and around the bus, this aside from the fact that gasoline when spilled,
especially over a large area, can be smelt and detected even from a distance, Held: That
the failure of the driver and the conductor to have cautioned or taken steps to warn the
rescuers not to bring the lighted torch too near the bus, constitute negligence on the part
of the agents of the carrier under the provisions of the Civil Code, particularly, Article 1733,
1759 and 1763 thereof.
DECISION
MONTEMAYOR, J p:
Shortly after midnight, on September 13, 1952, bus No. 30 of
the Medina Transportation, operated by its owner, defendant Mariano Medina, under a
certificate of public convenience, left the town of Amadeo, Cavite, on its way to Pasay
City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen
passengers, including the driver and conductor. Among the passengers were
Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, seated to the right
of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses
just called Visaya, apparently not knowing his name, seated on the left side of the driver,
and a woman named Natalia Villanueva, seated just behind the four last mentioned. At
about 2 :00 o'clock that same morning, while the bus was running within the jurisdiction of
Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a
canal or ditch on the right side of the road and turned turtle. Some of the passengers
managed to leave the bus the best way they could, others had to be helped or pulled out,
while the three passengers seated beside the driver, named Bataclan, Lara and the
Visayan and the woman behind them named Natalia Villanueva, could not get out of the
overturned bus. Some of the passengers, after they had clambered up to the road, heard
groans and moans from inside the bus, particularly, shouts for help from Bataclan and
Lara, who said that they could not get out of the bus. There, is nothing in the evidence to
show whether or not the passengers already free from the wreck, including the driver and
the conductor, made any attempt to pull out or extricate and rescue the four passengers
trapped inside the vehicle, but calls or shouts for help were made to the houses in the
neighborhood. After half an hour, came about ten men, one of them carrying a lighted
146
torch made of bamboo with a wick on one end, evidently fueled with petroleum. These
men presumably approached the overturned bus, and almost immediately, a fierce fire
started, burning and all but consuming the bus, including the four passengers trapped
inside it. It would appear that as the bus overturned, gasoline began to leak and escape
from the gasoline tank on the side of the chassis, spreading over and permeating the body
of the bus and the ground under and around it, and that the lighted torch brought by one
of the men who answered the call for help set it on fire.
That same day, the charred bodies of the four doomed passengers inside the
bus were removed and duly identified, specially that of Juan Bataclan. By reason of his
death, his widow, Salud Villanueva, in her name and in behalf of her five minor children,
brought the present suit to recover from Mariano Medina compensatory, moral, and
exemplary damages and attorney's fees in the total amount of P87,150. After trial, the
Court of First Instance of Cavite awarded P1,000 to the plaintiffs, plus P600 as attorney's
fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for
sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision
to the Court of Appeals, but the latter court endorsed the appeal to us because of the
value involved in the claim in the complaint.
Our New Civil Code amply provides for the responsibility of a common carrier to
its passengers and their goods. For purposes of reference, we are reproducing the
pertinent codal provisions:
"ART. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the safety
of the passengers transported by them, according to all the
circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7 while
the extraordinary diligence for the safety of the passengers is further set
forth in articles 1755 and 1756."
"ART. 1755. A common carrier is bound to carry the
passengers safely as far as human care and foresight can provide, using
the utmost diligence of very cautious persons, with a due regard for all
the circumstances."
"ART. 1756. In case of death of or injuries to passengers,
common carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary diligence
as prescribed in articles 1733 and 1755."
"ART. 1759. Common carriers are liable for the death of or
injuries to passengers through the negligence or wilful acts of the
former's 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."
"ART. 1763. A common carrier is responsible for injuries
suffered by a passenger on account of the wilful acts or negligence of
other passengers or of strangers, if the common carrier's employees
through the exercise of the diligence of a good father of a family could
have prevented or stopped the act or omission."

We agree with the trial court that the case involves a breach of contract of
transportation for hire, the Medina Transportation having undertaken to
carry Bataclan safely to his destination, Pasay City. We also agree with the trial court that
there was negligence on the part of the defendant, through his agent, the driver Saylon.
There is evidence to show that at the time of the blow out, the bus was speeding, as
testified to by one of the passengers, and as shown by the fact that according to the
testimony of the witnesses, including that of the defense, from the point where one of the
front tires burst up to the canal where the bus overturned after zig-zagging, there was a
distance of about 150 meters. The chauffeur, after the blow-out, must have applied the
brakes in order to stop the bus, but because of the velocity at which the bus must have
been running, its momentum carried it over a distance of 150 meters before it fell into the
canal and turned turtle.
There is no question that under the circumstances, the defendant carrier is
liable. The only question is to what degree. The trial court was of the opinion that the
proximate cause of the death of Bataclan was not the overturning of the bus, but rather,
the fire that burned the bus, including himself and his co-passengers who were unable to
leave it; that at the time the fire started, Bataclan, though he must have suffered physical
injuries, perhaps serious, was still alive, and so damages were awarded, not for his death,
but for the physical injuries suffered by him. We disagree. A satisfactory definition of
proximate cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:
". . . 'that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in
motion, all constituting a natural and continuous chain of events, each
having a close causal connection with its immediate predecessor, the
final event in the chain immediately effecting the injury as a natural and
probable result of the cause which first acted, under such circumstances
that the person responsible for the first event should, as an ordinarily
prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might
probably result therefrom."
It may be that ordinarily, when a passenger bus overturns, and pins down a passenger,
merely causing him physical injuries, if through some event, unexpected and
extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen
after looting the vehicle sets it on fire, and the passenger is burned to death, one might still
contend that the proximate cause of his death was the fire and not the overturning of the
vehicle. But in the present case and under the circumstances obtaining in the same, we do
not hesitate to hold that the proximate cause of the death of Bataclan was the overturning
of the bus, this for the reason that when the vehicle turned not only on its side but
completely on its back, the leaking of the gasoline from the tank was not unnatural or
unexpected; that the coming of the men with a lighted torch was in response to the call for
help, made not only by the passengers, but most probably, by the driver and the
conductor themselves, and that because it was very dark (about 2:30 in the morning), the
rescuers had to carry a light with them; and coming as they did from a rural area where
lanterns and flashlights were not available, they had to use a torch, the most handy and
available; and what was more natural than that said rescuers should innocently approach
the overturned vehicle to extend the aid and effect the rescue requested from them. In
||| (Vda. de Bataclan v. Medina, G.R. No. L-10126, [October 22, 1957], 102 PHIL 181-189)
other words, the coming of the men with the torch was to be expected and was a natural
sequence of the overturning of the bus, the trapping of some of its passengers and the call
147
for outside help. What is more, the burning of the bus can also in part be attributed to
the negligence of the carrier, through its driver and its conductor. According to the
witnesses, the driver and the conductor were on the road walking back and forth. They, or
at least, the driver should and must have known that in the position in which the
overturned bus was, gasoline could and must have leaked from the gasoline tank and
soaked the area in and around the bus, this aside from the fact that gasoline when spilled,
specially over a large area, can be smelt and detected even from a distance, and yet
neither the driver nor the conductor would appear to have cautioned or taken steps to
warn the rescuers not to bring the lighted torch too near the bus. Said negligence on the
part of the agents of the carrier come under the codal provisions above- reproduced,
particularly, Articles 1733, 1759 and 1763.
As regards the damages to which plaintiffs are entitled, considering the earning
capacity of the deceased, as well as the other elements entering into a damage award, we
are satisfied that the amount of SIX THOUSAND (P6,000) PESOS would constitute
satisfactory compensation, this to include compensatory, moral, and other damages. We
also believe that plaintiffs are entitled to attorney's fees, and assessing the legal services
rendered by plaintiffs' attorneys not only in the trial court, but also in the course of the
appeal, and not losing sight of the able briefs prepared by them, the attorney's fees may
well be fixed at EIGHT HUNDRED (P800) PESOS. The award made by the trial court of
ONE HUNDRED (P100) PESOS for the loss of the merchandise carried by the deceased in
the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us. According
to the evidence, one of the passengers who, because of the injuries suffered by her, was
hospitalized, and while in the hospital, she was visited by the defendant Mariano Medina,
and in the course of his visit, she overheard him speaking to one of his bus inspectors,
telling said inspector to have the tires of the bus changed immediately because they were
already old, and that as a matter of fact, he had been telling the driver to change the said
tires, but that the driver did not follow his instructions. If this be true, it goes to prove that
the driver had not been diligent and had not taken the necessary precautions to insure the
safety of his passengers. Had he changed the tires, specially those in front, with new ones,
as he had been instructed to do, probably, despite his speeding, as we have already
stated, the blow out would not have occurred. All in all, there is reason to believe that the
driver operated and drove his vehicle negligently, resulting in the death of four of his
passengers, physical injuries to others, and the complete loss and destruction of their
goods, and yet the criminal case against him, on motion of the fiscal and with his consent,
was provisionally dismissed, because according to the fiscal, the witnesses on whose
testimony he was banking to support the complaint, either failed to appear or were
reluctant to testify. But the record of the case before us shows that several witnesses,
passengers in that bus, willingly and unhesitatingly testified in court to the effect that the
said driver was negligent. In the public interest, the prosecution of said erring driver should
be pursued, this, not only as a matter of justice, but for the promotion of the safety of
passengers on public utility buses. Let a copy of this decision be furnished the
Department of Justice and the Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages awarded by the
trial court are increased from ONE THOUSAND (P1,000) PESOS to SIX THOUSAND
(P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS,
for the death of Bataclan and for attorney's fees, respectively, the decision appealed from
is hereby affirmed, with costs.
Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador,
Concepcion., Reyes, J. B. L., Endencia and Felix, JJ., concur.

FIRST DIVISION
[G.R. No. 92087. May 8, 1992.]
SOFIA FERNANDO, in her behalf and as the legal guardian of her
minor children, namely: ALBERTO & ROBERTO, all
surnamed FERNANDO, ANITA GARCIA, NICOLAS LIAGOSO,
ROSALIA BERTULANO, in her behalf and as the legal
guardian of her minor children, namely: EDUARDO, ROLANDO,
DANIEL, AND JOCELYN, all surnamed BERTULANO, PRIMITIVA
FAJARDO in her behalf and as legal guardian of her minor children,
namely: GILBERT, GLEN, JOCELYN AND JOSELITO, all surnamed
FAJARDO, and EMETERIA LIAGOSO, in her behalf and as guardian
ad litem, of her minor grandchildren, namely: NOEL, WILLIAM,
GENEVIEVE and GERRY, all surnamed LIAGOSO, petitioners, vs. THE
HONORABLE COURT OF APPEALS AND
CITY OF DAVAO, respondents.
SYLLABUS
1. CIVIL LAW; DAMAGES; NEGLIGENCE; TEST TO DETERMINE
EXISTENCE OF NEGLIGENCE. Negligence has been defined as the failure to observe for the
protection of the interests of another person that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such other person suffers injury (Corliss v.
Manila Railroad Company, L-21291, March 28, 1969, 27 SCRA 674, 680). Under the law, a
person who by his omission causes damage to another, there being negligence, is obliged to
pay for the damage done (Article 2176, New Civil Code). As to what would constitute a
negligent act in a given situation, the case of Picart v. Smith (37 Phil. 809, 813) provides Us the
answer, to wit: "The test by which to determine the existence or negligence in a particular case
may be stated as follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinary person would have used in the same situation? If
not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be
supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence and determines
liability by that."
2. ID.; ID.; ID.; DEFENDANT'S NEGLIGENCE MUST BE THE IMMEDIATE AND PROXIMATE
CAUSE OF INJURY. To be entitled to damages for an injury resulting from the
negligence of another, a claimant must establish the relation between the omission and the
damage. He must prove under Article 2179 of the New Civil Code that the defendant's
negligence was the immediate and proximate cause of his injury. Proximate cause has been
defined as that cause, which, in natural and continuous sequence unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have occurred
(Vda. de Bataclan, et al. v. Medina, 102 Phil. 181, 186). Proof of such relation of cause and
effect is not an arduous one if the claimant did not in any way contribute to the
negligence of the defendant.
3. ID.; ID.; ID.; GUIDELINES FOR ASSESSMENT OF SITUATION WHERE INJURY RESULTS
FROM NEGLIGENCE OF BOTH PARTIES. where the resulting injury was the product of the
148
negligence of both parties, there exists a difficulty to discern which acts shall be
considered the proximate cause of the accident. In Taylor v. Manila Electric Railroad and Light
Co. (16 Phil. 8, 29-30), this Court set a guideline for a judicious assessment of the situation:
"Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be made
between the accident and the injury, between the event itself, without which there could have
been no accident, and those acts of the victim not entering into it, independent of it, but
contributing to his own proper hurt. For instance, the cause of the accident under review was
the displacement of the crosspiece or the failure to replace it. This produced the event giving
occasion for damages that is, the sinking of the track and the sliding ofthe iron rails. To this
event, the act of the plaintiff in walking by the side of the car did not contribute, although it was
an element of the damage which came to himself. Had the crosspiece been out of place wholly
or partly through his act or omission of duty, that would have been one of the determining
causes of the event or accident, for which he would have been responsible. Where he
contributes to the principal occurrence, as one of its determining factors, he can not recover.
Where, in conjunction with the occurrence, he contributes only to his own injury, he may
recover the amount that the defendant responsible for the event should pay for such injury, less
a sum deemed a suitable equivalent for his own imprudence."
4. ID.; ID.; ID.; LIABILITY OF PERSON HOLDING OUT AS HAVING PROFESSIONAL SKILL.
Considering the nature of the task of emptying a septic tank especially one which has not been
cleaned for years, an ordinarily prudent person should undoubtedly be aware of the attendant
risks. The victims are no exception; more so with Mr. Bertulano, an old hand in this
kind of service, who is presumed to know the hazards of the job. His failure, therefore, and
that of his men to take precautionary measures for their safety was the proximate cause of the
accident. In Culion Ice, Fish and Elect. Co., v. Phil. Motors Corporation (55 Phil. 129, 133), We
held that when a person holds himself out as being competent to do things requiring
professional skill, he will be held liable for negligence if he fails to exhibit the care and
skill of one ordinarily skilled in the particular work which he attempts to do (emphasis Ours). The
fatal accident in this case would not have happened but for the victims' negligence.
5. ID.; ID.; ID.; ID.; PROXIMATE AND IMMEDIATE CAUSE OF DEATH IN CASE AT BAR IS
VICTIM'S NEGLIGENCE; NO DAMAGES CAN BE DEMANDED. Considering that there was
yet no award and order to commence work on the septic tank, the duty of the market master or
his security guards to supervise the work could not have started. Also, the victims could not
have been seen working in the area because the septic tank was hidden by a garbage storage
which is more or less ten (10) meters away from the comfort room itself. The surreptitious way
in which the victims did their job without clearance from the market master or any of the
security guards goes against their good faith. Even their relatives or family members did not
know of their plan to clean the septic tank. The herein circumstances lead Us to no other
conclusion than that the proximate and immediate cause of the death of the victims was due to
their own negligence. Consequently, the petitioners cannot demand damages from the public
respondent.
6. ID.; NUISANCE; TOILETS AND SEPTIC TANKS ARE NOT NUISANCE PER SE. Toilets and
septic tanks are not nuisances per se as defined in Article 694 of the New Civil Code which
would necessitate warning signs for the protection of the public. While the construction of these
public facilities demands utmost compliance with safety and sanitary requirements, the putting
up of warning signs is not one of those requirements.
DECISION

MEDIALDEA, J p:
This is a petition for review on certiorari praying that the amended
decision of the Court of Appeals dated January 11, 1990 in CA-G.R. No. C.V. 04846, entitled
"Sofia Fernando, etc., et al. v. The City of Davao," be reversed and that its original decision
dated January 31, 1986 be reinstated subject to the modification sought by the petitioners in
their motion for partial reconsideration dated March 6, 1986.
The antecedent facts are briefly narrated by the trial court, as follows:
"From the evidence presented we see the following facts: On November
7, 1975, Bibiano Morta, market master of the Agdao Public Market filed a
requisition request with the Chief of Property of the City Treasurer's
Office for the re-emptying of the septic tank in Agdao. An invitation to
bid was issued to Aurelio Bertulano, Lito Catarsa, Feliciano Bascon,
Federico Bolo and Antonio Suer, Jr. Bascon won the bid. On November
26, 1975 Bascon was notified and he signed the purchase order.
However, before such date, specifically on November 22, 1975, bidder
Bertulano with four other companions namely Joselito Garcia, William
Liagoso, Alberto Fernando and Jose Fajardo, Jr. were found dead inside
the septic tank. The bodies were removed by a fireman. One body,
that of Joselito Garcia, was taken out by his uncle, Danilo Garcia and
taken to the Regional Hospital but he expired there. The City Engineer's
office investigated the case and learned that the five victims entered the
septic tank without clearance from it nor with the knowledge and
consent ofthe market master. In fact, the septic tank was found to be
almost empty and the victims were presumed to be the ones who did the
re-emptying. Dr. Juan Abear of the City Health Office autopsied the
bodies and in his reports, put the cause of death of all five victims as
`asphyxia' caused by the diminution of oxygen supply in the body
working below normal conditions. The lungs of the five victims burst,
swelled in hemorrhagic areas and this was due to their intake of toxic
gas, which, in this case, was sulfide gas produced from the waste matter
inside the septic tank." (p. 177, Records).
On August 28, 1984, the trial court rendered a decision, the dispositive portion of which reads:
"IN VIEW OF THE FOREGOING, this case is hereby DISMISSED without
pronouncement as to costs.
"SO ORDERED." (Records, p. 181)
From the said decision, the petitioners appealed to the then Intermediate
Appellate Court (now Court of Appeals). On January 3, 1986, the appellate court issued a
decision, the dispositive portion of which reads:
"WHEREFORE, in view of the facts fully established and in the liberal
interpretation of what the Constitution and the law intended to protect
the plight of the poor and the needy, the ignorant and the indigent
more entitled to social justice for having, in the unforgettable
words of Magsaysay, 'less in life,' We hereby reverse and get aside the
appealed judgment and render another one:
"1. Ordering the defendant to pay to the plaintiffs Dionisio Fernando,
Sofia Fernando and her minor children the following sums of money:
149
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00.
"2. Ordering the defendant to pay to the plaintiffs David Garcia and Anita
Garcia the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
"3. Ordering the defendant to pay to the plaintiff Rosalia Bertulado (sic)
and her minor children the following sums of money.
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
"4. Ordering the defendant to pay to the plaintiff Primitiva Fajardo and
her minor children the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
"5. Ordering the defendant to pay to the plaintiffs Norma Liagoso,
Nicolas Liagoso and Emeteria Liagoso and her minor grandchildren the
following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
The death compensation is fixed at P30,000.00 in accordance with the
rulings of the Supreme Court starting with People vs. De la Fuente Nos.
L-63251-32, December 29, 1983, 126 SCRA 518 reiterated in the recent
case of People vs. Nepomuceno, No. L-41412, May 27, 1985. Attorney's
fees in the amount of P10,000.00 for the handling of the case for the 5
victims is also awarded. LLjur
"No pronouncement as to costs.
"SO ORDERED." (Rollo, pp. 33-34).
Both parties filed their separate motions for reconsideration. On January 11, 1990,
the Court of Appeals rendered an Amended Decision, the dispositive portion of which reads:
"WHEREFORE, finding merit in the motion for reconsideration of the
defendant-appellee Davao City, the same is hereby GRANTED. The
decision of this Court dated January 31, 1986 is reversed and set aside
and another one is hereby rendered dismissing the case. No
pronouncement as to costs.
"SO ORDERED." (Rollo, p. 25).
Hence, this petition raising the following issues for resolution:
"1. Is the respondent Davao City guilty of negligence in the case at bar?

"2. If so, is such negligence the immediate and proximate
cause of deaths of the victims hereof?" (p. 73, Rollo)
Negligence has been defined as the failure to observe for the protection of the
interests of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury (Corliss v. Manila
Railroad Company, L-21291, March 28, 1969, 27 SCRA 674, 680). Under the law, a person who
by his omission causes damage to another, there being negligence, is obliged to pay for the
damage done (Article 2176, New Civil Code). As to what would constitute a negligent act in a
given situation, the case of Picart v. Smith (37 Phil. 809, 813) provides Us the answer, to wit:
"The test by which to determine the existence or negligence in a
particular case may be stated as follows: Did the defendant in doing the
alleged negligent act use that reasonable care and caution which an
ordinary person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet pater
familias of the Roman law. The existence of negligence in a given case is
not determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that.
"The question as to what would constitute the conduct of a prudent man
in a given situation must of course be always determined in the
light of human experience and in view of the facts involved in the
particular case. Abstract speculation cannot here be of much value but
this much can be profitably said: Reasonable men govern their conduct
by the circumstances which are before them or known to them. They are
not, and are not supposed to be; omniscient of the future. Hence they
can be expected to take care only when there is something before them
to suggest or warn of danger. Could a prudent man, in the case under
consideration, foresee harm as a result of the course actually pursued? If
so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by the ignoring of the
suggestion born of this provision, is always necessary before negligence
can be held to exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given case is this: Conduct
is said to be negligent when a prudent man in the position of the
tortfeasor would have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing the conduct or guarding
against its consequences."(Emphasis supplied)
To be entitled to damages for an injury resulting from the negligence of another, a claimant
must establish the relation between the omission and the damage. He must prove under Article
2179 of the New Civil Code that the defendant's negligence was the immediate and proximate
cause of his injury. Proximate cause has been defined as that cause, which, in natural and
continuous sequence unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred (Vda. de Bataclan, et al. v. Medina, 102 Phil.
181, 186). Proof of such relation of cause and effect is not an arduous one if the claimant did
not in any way contribute to the negligence of the defendant. However, where the resulting
injury was the product of the negligence of both parties, there exists a difficulty to discern
which acts shall be considered the proximate cause of the accident. In Taylor v. Manila Electric
Railroad and Light Co. (16 Phil. 8, 29-30), this Court set a guideline for a judicious
assessment of the situation:
150
"Difficulty seems to be apprehended in deciding which acts of the
injured party shall be considered immediate causes of the accident. The
test is simple. Distinction must be made between the accident and the
injury, between the event itself, without which there could have been no
accident, and those acts of the victim not entering into it,
independent of it, but contributing to his own proper hurt. For instance,
the cause of the accident under review was the displacement of the
crosspiece or the failure to replace it. This produced the event giving
occasion for damages that is, the sinking of the track and the
sliding of the iron rails. To this event, the act of the plaintiff in walking by
the side of the car did not contribute, although it was an element of the
damage which came to himself. Had the crosspiece been out of place
wholly or partly through his act or omission of duty, that would have
been one of the determining causes of the event or accident, for which
he would have been responsible. Where he contributes to the principal
occurrence, as one of its determining factors, he can not recover. Where,
in conjunction with the occurrence, he contributes only to his own injury,
he may recover the amount that the defendant responsible for the event
should pay for such injury, less a sum deemed a suitable equivalent for
his own imprudence." (emphasis Ours)
Applying all these established doctrines in the case at bar and after a careful scrutiny of the
records, We find no compelling reason to grant the petition. We affirm. llcd
Petitioners fault the city government of Davao for failing to clean a septic tank for the
period of 19 years resulting in an accumulation of hydrogen sulfide gas which killed the
laborers. They contend that such failure was compounded by the fact that there was no
warning sign of the existing danger and no efforts exerted by the public respondent to
neutralize or render harmless the effects of the toxic gas. They submit that the public
respondent's gross negligence was the proximate cause of the fatal incident.
We do not subscribe to this view. While it may be true that the public respondent has been
remiss in its duty to re-empty the septic tank annually, such negligence was not a continuing
one. Upon learning from the report of the market master about the need to clean the septic
tank of the public toilet in Agdao Public Market, the public respondent immediately responded
by issuing invitations to bid for such service. Thereafter, it awarded the bid to the lowest bidder,
Mr. Feliciano Bascon (TSN, May 24, 1983, pp. 22-25). The public respondent, therefore, lost no
time in taking up remedial measures to meet the situation. It is likewise an undisputed fact that
despite the public respondent's failure to re-empty the septic tank since 1956, people in the
market have been using the public toilet for their personal necessities but have remained
unscathed. The testimonies of Messrs. Danilo Garcia and David Secoja (plaintiffs'-petitioners'
witnesses) on this point are relevant, to wit:
"Atty. Mojica, counsel for defendant Davao City.
xxx xxx xxx
The place where you live is right along the Agdao creek, is that
correct?
DANILO GARCIA:
"A Yes, sir.
"Q And to be able to go to the market place, where you claim you have a
stall, you have to pass on the septic tank?

"A Yes, sir.
"Q Day in and day out, you pass on top of the septic tank?
"A Yes, sir.
"Q Is it not a fact that everybody living along the creek passes on
top of this septic tank as they go out from the place and return
to their place of residence, is that correct?
And this septic tank, rather the whole of the septic tank, is
covered by a lead?
"A Yes, sir. there is a cover.
"Q And there were three (3) of these lead covering the septic tank?
"A Yes, sir.
"Q And this has always been closed?
"A Yes, sir." (TSN, November 26, 1979, pp. 21-23, Emphasis supplied).
"ATTY. JOVER, counsel for the plaintiffs:
"Q You said you are residing at Davao City, is it not?
"DAVID SEJOYA:
"A Yes, sir.
"Q How long have you been a resident of Agdao?
"A Since 1953.
"Q Where specifically in Agdao are you residing?
"A At the Public Market.
"Q Which part of the Agdao Public Market is your house located?
"A Inside the market in front of the fish section.
"Q Do you know where the Agdao septic tank is located?
"A Yes, sir.
"Q How far is that septic tank located from your house?
"A Around thirty (30) meters.
"Q Have you ever had a chance to use that septic tank (public toilet)?
"A Yes, sir.
"Q How many times, if you could remember?
"A Many times, maybe more than 1,000 times.
151
"Q Prior to November 22, 1975, have you ever used that septic tank
(public toilet)?
"A Yes, sir.
"Q How many times have you gone to that septic tank (public toilet) prior
to that date, November 22, 1975?
"A Almost 1,000 times." (TSN, February 9, 1983, pp. 1-2).
The absence of any accident was due to the public respondent's compliance with the
sanitary and plumbing specifications in constructing the toilet and the septic tank (TSN,
November 4, 1983, p. 51). Hence, the toxic gas from the waste matter could not have
leaked out because the septic tank was air-tight (TSN, ibid. p. 49). The only indication that
the septic tank in the case at bar was full and needed emptying was when water came out
from it (TSN, September 13, 1983, p. 41). Yet, even when the septic tank was full, there
was no report of any casualty of gas poisoning despite the presence of people living near
it or passing on top of it or using the public toilet for their personal necessities.
Petitioners made a lot of fuss over the lack of any ventilation pipe in the toilet to emphasize the
negligence of the city government and presented witnesses to attest on this lack. However, this
strategy backfired on their faces. Their witnesses were not expert witnesses. On the other
hand, Engineer Demetrio Alindada of the city government testified and demonstrated by
drawings how the safety requirements like emission of gases in the construction of both toilet
and septic tank have been complied with. He stated that the ventilation pipe need not be
constructed outside the building as it could also be embodied in the hollow blocks as is usually
done in residential buildings (TSN, November 4, 1983, pp. 50-51). The petitioners submitted no
competent evidence to corroborate their oral testimonies or rebut the testimony given by Engr.
Alindada. LexLib
We also do not agree with the petitioner's submission that warning signs of noxious gas should
have been put up in the toilet in addition to the signs of "MEN" and "WOMEN" already in place
in that area. Toilets and septic tanks are not nuisances per se as defined in Article 694 of the
New Civil Code which would necessitate warning signs for the protection of the public. While
the construction of these public facilities demands utmost compliance with safety and sanitary
requirements, the putting up of warning signs is not one of those requirements. The
testimony of Engr. Alindada on this matter is elucidative:
"ATTY. ALBAY:
"Q Mr. Witness, you mentioned the several aspects of the
approval of the building permit which include the plans of an
architect, sanitary engineer and electrical plans. All ofthese still
pass your approval as building official, is that correct?
"DEMETRIO ALINDADA:
"A Yes.
"Q So there is the sanitary plan submitted to and will not be approved by
you unless the same is in conformance with the
provisions of the building code or sanitary requirements?
"A Yes, for private building constructions.
"Q How about public buildings?

"A For public buildings, they are exempted for payment of building
permits but still they have to have a building permit.
"Q But just the same, including the sanitary plans, it requires your
approval?
"A Yes, it requires also.
"Q Therefore, under the National Building Code, you are empowered not
to approve sanitary plans if they are not in conformity with the
sanitary requirements?
152
tank especially one which has not been cleaned for years, an ordinarily prudent person
should undoubtedly be aware of the attendant risks. The victims are no exception; more so with
Mr. Bertulano, an old hand in this kind of service, who is presumed to know the hazards of the
job. His failure, therefore, and that of his men to take precautionary measures for their safety
was the proximate cause of the accident. In Culion Ice, Fish and Elect. Co., v. Phil. Motors
Corporation (55 Phil. 129, 133), We held that when a person holds himself out as being
competent to do things requiring professional skill, he will be held liable for negligence if he fails
to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to
do (emphasis Ours). The fatal accident in this case would not have happened but for the
victims' negligence. Thus, the appellate court was correct to observe that:

"A Yes. ". . . Could the victims have died if they did not open the septic tank
which they were not in the first place authorized to open? Who between
"Q Now, in private or public buildings, do you see any warning signs in the passive object (septic tank) and the active subject (the victims herein)
the vicinity of septic tanks? who, having no authority therefore, arrogated unto themselves, the
task of opening the septic tank which caused their own deaths should be
"A There is no warning sign. responsible for such deaths. How could the septic tank which has been
in existence since the 1950's be the proximate cause of an accident that
"Q In residential buildings do you see any warning sign? occurred only on November 22, 1975? The stubborn fact remains that
since 1956 up to occurrence of the accident in 1975 no injury nor death
"A There is none.
was caused by the septic tank. The only reasonable conclusion that
"ATTY. AMPIG: could be drawn from the above is that the victims' death was caused by
their own negligence in opening the septic tank . . ." (Rollo, p. 23)
We submit that the matter is irrelevant and immaterial, Your
Honor. Petitioners further contend that the failure of the market master to supervise the area where the
septic tank is located is a reflection of the negligence of the public respondent.
"ATTY. ALBAY:
We do not think so. The market master knew that work on the septic tank was still forthcoming.
But that is in consonance with their cross-examination, your It must be remembered that the bidding had just been conducted. Although the winning bidder
Honor. was already known, the award to him was still to be made by the Committee on Awards. Upon
the other hand, the accident which befell the victims who are not in any way connected with the
"COURT: winning bidder happened before the award could be given. Considering that there was yet no
award and order to commence work on the septic tank, the duty of the market master or his
Anyway it is already answered. security guards to supervise the work could not have started (TSN, September 13, 1983, p. 40).
Also, the victims could not have been seen working in the area because the septic tank was
"ATTY. ALBAY:
hidden by a garbage storage which is more or less ten (10) meters away from the comfort room
"Q These warning signs, are these required under the preparation of the itself (TSN, ibid, pp. 38-39). The surreptitious way in which the victims did their job without
plans? clearance from the market master or any of the security guards goes against their good faith.
Even their relatives or family members did not know of their plan to clean the septic tank.
"A It is not required.
Finally, petitioners insistence on the applicability of Article 24 of the New Civil Code cannot be
"Q I will just reiterate, Mr. Witness. In residences, for example like the sustained. Said law states: prLL
residence of Atty. Ampig or the residence of the honorable
Judge, would you say that the same principle of the septic "ARTICLE 24. In all contractual, property or other relations, when
tank, from the water closet to the vault, is being followed? one of the parties is at a disadvantage on account of his moral
dependence, ignorance, indigence, mental weakness, tender age or
"A Yes. other handicap, the courts must be vigilant for his protection."

"ATTY. ALBAY:
That will be all, Your Honor." (TSN, December 6, 1983, pp. 62-
63).
In view of this factual milieu, it would appear that an accident such as toxic gas leakage from
the septic tank is unlikely to happen unless one removes its covers. The accident in the case at
bar occurred because the victims on their own and without authority from the public
respondent opened the septic tank. Considering the nature of the task of emptying a septic
We approve of the appellate court's ruling that "(w)hile one of the victims was invited to
bid for said project, he did not win the bid, therefore, there is a total absence ofcontractual
relations between the victims and the City Government of Davao City that could give rise
to any contractual obligation, much less, any liability on the part of Davao City." (Rollo, p.
24. The accident was indeed tragic and We empathize with the petitioners. However, the
herein circumstances lead Us to no other conclusion than that the proximate and
immediate cause of the death of the victims was due to their own negligence.
Consequently, the petitioners cannot demand damages from the public respondent.
 153
ACCORDINGLY, the amended decision of the Court of Appeals dated January 11, 1990 is that the infection of the wound by tetanus was an efficient intervening cause later or
AFFIRMED. No costs. between the time Javier was wounded to the time of his death. The infection was, therefore,
distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038). Doubts are present. There is a
SO ORDERED. likelihood that the wound was but the remote cause and its subsequent infection, for failure to
take necessary precautions, with tetanus may have been the proximate cause of Javier's death
Narvasa, C .J ., Cruz, Grio-Aquino and Bellosillo, JJ ., concur.
with which the petitioner had nothing to do.
||| (Fernando v. Court of Appeals, G.R. No. 92087, [May 8, 1992], 284-A PHIL 218-232)
4. CRIMINAL PROCEDURE; SETTLEMENT OF MINOR OFFENSES ALLOWED UNDER P.D.
1508. It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability.
At the very least, the records show he is guilty of inflicting slight physical injuries. However, the
petitioner's criminal liability in this respect was wiped out by the victim's own act. After the
THIRD DIVISION hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a
compromise agreement where Javier forgave Urbano while Urbano defrayed the medical
expenses of Javier. This settlement of minor offenses is allowed under the express provisions
[G.R. No. 72964. January 7, 1988.] of Presidential Decree No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16).

5. ID.; CIVIL LIABILITY; JUDGMENT OF ACQUITTAL DOES NOT NECESSARILY EXTINGUISH

FILOMENO URBANO, petitioner, vs. HON. INTERMEDIATE CIVIL LIABILITY. It does not necessarily follow that the petitioner is also free of civil liability.
APPELLATE COURT AND PEOPLE OF THE The well-settled doctrine is that a person, while not criminally liable, may still be civilly liable.
PHILIPPINES, respondents. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987),
we said: . . . ". . . While the guilt of the accused in a criminal prosecution must be established
beyond reasonable doubt, only a preponderance of evidence is required in a civil action for
damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of the
SYLLABUS
accused only when it includes a declaration that the facts from which the civil liability might
arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559)
1. CRIMINAL LAW; CRIMINAL LIABILITY; LIABILITY OF ACCUSED FOR NATURAL
CONSEQUENCES RESULTING FROM CRIME. Article 4 of the Revised Penal Code which
provides that "Criminal liability shall be incurred: (1) By any person committing a felony (delito)
although the wrongful act done be different from that which he intended . . ." Pursuant to this DECISION
provision "an accused is criminally responsible for acts committed by him in violation of law
and for all the natural and logical consequences resulting therefrom." (People v. Cardenas, 56
SCRA 631)

2. ID.; ID.; ID.; ACCUSED IN CASE AT BAR NOT LIABLE FOR SUBSEQUENT DEATH OF GUTIERREZ, JR., J p:
HACKING VICTIM DUE TO TETANUS NOT PRESENT AT TIME OF INFLICTION OF WOUND.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the This is a petition to review the decision of the then Intermediate Appellate Court which affirmed
bolo which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 the decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno
days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle Urban guilty beyond reasonable doubt of the crime of homicide.
spasms. The following day, November 15, 1980, he died. If, therefore, the wound of Javier
inflicted by the appellant was already infected by tetanus germs at the time, it is more medically The records disclose the following facts of the case.
probable that Javier should have been infected with only a mild cause of tetanus because the
At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to
symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14
his ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from
days after the infliction of the wound. Therefore, the onset time should have seen more than six
the tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded
days. Javier, however, died on the second day from the onset time. The more credible
with water coming from the irrigation canal nearby which had overflowed. Urbano went to the
conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of
elevated portion of the canal to see what happened and there he saw Marcelo Javier and Emilio
tetanus that killed him was not yet present. Consequently, Javier's wound could have been
Erfe cutting grass. He asked them who was responsible for the opening of the irrigation canal
infected with tetanus after the hacking incident. Considering the circumstance surrounding
and Javier admitted that he was the one. Urbano then got angry and demanded that Javier pay
Javier's death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22
for his soaked palay. A quarrel between them ensued. Urbano unsheathed his bolo (about 2
days before he died.
feet long, including the handle, by 2 inches wide) and hacked Javier hitting him on the right
3. ID.; ID.; ID.; CONVICTION TO HOMICIDE REQUIRES PROOF BEYOND REASONABLE palm of his hand, which was used in parrying the bolo hack. Javier who was then unarmed ran
DOUBT THAT WOUND WAS PROXIMATE CAUSE OF DEATH. The rule is that the death of away from Urbano but was overtaken by Urbano who hacked him again hitting Javier on the left
the victim must be the direct, natural, and logical consequence of the wounds inflicted upon leg with the back portion of said bolo, causing a swelling on said leg. When Urbano tried to
him by the accused. (People v. Cardenas, supra) And since we are dealing with a criminal hack and inflict further injury, his daughter embraced and prevented him from hacking Javier.
conviction, the proof that the accused caused the victim's death must convince a rational
mind beyond reasonable doubt. The medical findings, however, lead us to a distinct possibility

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house
about 50 meters away from where the incident happened. Emilio then went to the house of
Barangay Captain Menardo Soliven but not finding him there, Emilio looked for barrio
councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with Javier went to
the police station of San Fabian to report the incident. As suggested by Corporal Torio, Javier
was brought to a physician. The group went to Dr. Guillermo Padilla, rural health physician of
San Fabian, who did not attend to Javier but instead suggested that they go to Dr. Mario
Meneses because Padilla had no available medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo
Padilla who conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate
(Exhibit "C" dated September 28, 1981) which reads:
"TO WHOM IT MAY CONCERN:
"This is to certify that I have examined the would of Marcelo Javier, 20
years of age, married, residing at Barangay Anonang, San Fabian,
Pangasinan on October 23, 1980 and found the following:
"1-Incised wound 2 inches in length at the upper portion of the lesser
palmar prominence, right.
"As to my observation the incapacitation is from (7-9) days period. This
would was presented to me only for medico-legal examination, as it was
already treated by the other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences.
Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27,
1980, the two accompanied by Solis appeared before the San Fabian Police to formalize their
amicable settlement. Patrolman Torio recorded the event in the police blotter (Exhibit "A"), to
wit:
xxx xxx xxx
"Entry Nr 599/27 Oct '80/1030H/ Re entry Nr 592 on page 257 both
parties appeared before this Station accompanied by brgy councilman
Felipe Solis and settled their case amicably, for they are neighbors and
close relatives to each other. Marcelo Javier accepted and granted
forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in
his medical treatment, and promising to him and to this Office that this
will never be repeated anymore and not to harbour any grudge against
each other." (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional
P300.00 was given to Javier at Urbano's house in the presence of barangay captain
Soliven. prLL
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital
in a very serious condition. When admitted to the hospital, Javier had lockjaw and was having
convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter's
serious condition was caused by tetanus toxin. He noticed the presence of a healing wound in
Javier's palm which could have been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of
Dr. Exconde are as follows:
"Date Diagnosis
154
11-14-80 ADMITTED due to trismus
adm. at DX: TETANUS
1:30 AM Still having frequent muscle spasm. With
difficulty opening his mouth.
#35, 421 Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden
cessation of respiration and HR after
muscular spasm. O2 inhalation
administered. Ambo bag resuscitation and
cardiac massage done but to no avail.
Pronounced dead by Dra. Cabugao at 4:18
P.M. PMC done and cadaver brought
home by relatives." (p. 100, Original
Records)
In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of
homicide before the then Circuit Criminal Court of Dagupan City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as
charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS
of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY
of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the
heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary
imprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New
Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his
penalty.
The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised
the award of indemnity to the heirs of the deceased to P30,000.00 with costs against the
appellant. prcd
The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was
based on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states:
"That in 1980, I was the barrio captain of Barrio Anonang, San Fabian,
Pangasinan, and up to the present having been re-elected to such
position in the last barangay elections on May 17, 1982;
"That sometime in the first week of November, 1980, there was a
typhoon that swept Pangasinan and other places of Central Luzon
including San Fabian, a town of said province;
"That during the typhoon, the sluice or control gates of the Bued-
irrigation dam which irrigates the ricefields of San Fabian were closed
and/or controlled so much so that water and its flow to the canals and
ditches were regulated and reduced;
"That due to the locking of the sluice or control gates of the dam leading
to the canals and ditches which will bring water to the ricefields, the
water in said canals and ditches become shallow which was suitable for
catching mudfishes;
"That after the storm, I conducted a personal survey in the area affected,
with my secretary Perfecto Jaravata;

"That on November 5, 1980, while I was conducting survey, I saw the
late Marcelo Javier catching fish in the shallow irrigation canals with
some companions;
"That few days thereafter, or on November 15, 1980, I came to know that
said Marcelo Javier died of tetanus." (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal Code which provides that
"Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the
wrongful act done be different from that which he intended . . ." Pursuant to this provision "an
accused is criminally responsible for acts committed by him in violation of law and for all the
natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631)
The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a
result of which Javier suffered a 2-inch incised wound on his right palm; that on November 14,
1981 which was the 22nd day after the incident, Javier was rushed to the hospital in a very
serious condition and that on the following day, November 15, 1981, he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death was the natural and
logical consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's
death. Thus, the appellate court said:
"The claim of appellant that there was an efficient cause which
supervened from the time the deceased was wounded to the time of his
death, which covers a period of 23 days does not deserve serious
consideration. True, that the deceased did not die right away from his
wound, but the cause of his death was due to said wound which was
inflicted by the appellant. Said wound which was in the process of
healing got infected with tetanus which ultimately caused his death.
"Dr. Edmundo Exconde of the Nazareth General Hospital testified that
the victim suffered lockjaw because of the infection of the wound with
tetanus. And there is no other way by which he could be infected with
tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981).
Consequently, the proximate cause of the victim's death was the wound
which got infected with tetanus. And the settled rule in this jurisdiction is
that an accused is liable for all the consequences of his unlawful act.
(Article 4, par. 1, R.P.C.; People v. Red, CA 43 O.G. 5072; People v.
Cornel, 78 Phil. 418)
"Appellant's allegation that the proximate cause of the victim's death
was due to his own negligence in going back to work without his wound
being properly healed, and lately, that he went to catch fish in dirty
irrigation canals in the first week of November, 1980, is an afterthought,
and a desperate attempt by appellant to wiggle out of the predicament
he found himself in. If the wound had not yet healed, it is impossible to
conceive that the deceased would be reckless enough to work with a
disabled hand." (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier
was due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that
Javier got infected with tetanus when after two weeks he returned to his farm and tended his
155
tobacco plants with his bare hands exposing the wound to harmful elements like tetanus
germs. LLpr
The evidence on record does not clearly show that the wound inflicted by Urbano was infected
with tetanus at the time of the infliction of the wound. The evidence merely confirms that the
wound, which was already healing at the time Javier suffered the symptoms of the fatal ailment,
somehow got infected with tetanus However, as to when the wound was infected is not clear
from the record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of
proximate cause:
xxx xxx xxx
". . . A satisfactory definition of proximate cause is found in
Volume 38, pages 695-696 of American Jurisprudence, cited by
plaintiffs-appellants in their brief. It is as follows:
". . . 'that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred.' And
more comprehensively, 'the proximate legal cause is that acting
first and producing the injury, either immediately or by setting
other events in motion, all constituting a natural and continuous
chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause
which first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent
and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might
probably result therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient intervening cause from the
time Javier was wounded until his death which would exculpate Urbano from any liability for
Javier's death.
We look into the nature of tetanus
"The incubation period of tetanus, i.e., the time between injury and the
appearance of unmistakable symptoms, ranges from 2 to 56 days.
However, over 80 percent of patients become symptomatic within 14
days. A short incubation period indicates severe disease, and when
symptoms occur within 2 or 3 days of injury, the mortality rate
approaches 100 percent.
"Nonspecific premonitory symptoms such as restlessness, irritability,
and headache are encountered occasionally, but the commonest
presenting complaints are pain and stiffness in the jaw, abdomen, or
back and difficulty swallowing. As the disease progresses, stiffness gives
way to rigidity, and patients often complain of difficulty opening their
mouths. In fact, trismus is the commonest manifestation of tetanus and
is responsible for the familiar descriptive name of lockjaw. As more
muscles are involved, rigidity becomes generalized, and sustained
contractions called risus sardonicus. The intensity and sequence of
muscle involvement is quite variable. In a small proportion of patients,
only local signs and symptoms develop in the region of the injury. In the
vast majority, however, most muscles are involved to some degree, and

the signs and symptoms encountered depend upon the major muscle
groups affected.
Reflex spasm usually occur within 24 to 72 hours of the first symptoms,
on interval referred to as the onset time. As in the case of the incubation
period, a short onset time is associated with a poor prognosis. Spasms
are caused by sudden intensification of afferent stimuli arising in the
periphery, which increases rigidity and causes simultaneous and
excessive contraction of muscles and their antagonists. Spasms may be
both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer-lasting spasms with
increasing frequency. Respiration may be impaired by laryngospasm or
tonic contraction of respiratory muscles which prevent adequate
ventilation. Hypoxia may then lead to irreversible central nervous system
damage and death.
Mild tetanus is characterized by an incubation period of at least 14 days
and an onset time of more than 6 days. Trismus is usually present, but
dysphagia is absent and generalized spasms are brief and mild.
Moderately severe tetanus has a somewhat shorter incubation period
and onset time; trismus is marked, dysphagia and generalized rigidity are
present, but ventilation remains adequate even during spasms. The
criteria for severe tetanus include a short incubation time, and an onset
time of 72 hrs., or less, severe trismus, dysphagia and rigidity and
frequent prolonged, generalized convulsive spasms. (Harrison's Principle
of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's body depends
on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the
bolo which Urbano used in hacking him. This incident took place on October 23, 1980. After 22
days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle
spasms. The following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus
germs at the time, it is more medically probable that Javier should have been infected with only
a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the
hacking incident or more than 14 days after the infliction of the wound. Therefore, the onset
time should have seen more than six days. Javier, however, died on the second day from
the onset time. The more credible conclusion is that at the time Javier's wound was inflicted by
the appellant, the severe form of tetanus that killed him was not yet present. Consequently,
Javier's wound could have been infected with tetanus after the hacking incident. Considering
the circumstance surrounding Javier's death, his wound could have been infected by tetanus 2
or 3 or a few but not 20 to 22 days before he died. prcd
The rule is that the death of the victim must be the direct, natural, and logical consequence of
the wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are
dealing with a criminal conviction, the proof that the accused caused the victim's death must
convince a rational mind beyond reasonable doubt. The medical findings, however, lead us to a
distinct possibility that the infection of the wound by tetanus was an efficient intervening cause
later or between the time Javier was wounded to the time of his death. The infection was,
therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038)
156
Doubts are present. There is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled
in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118)
"'A prior and remote cause cannot be made the basis of an action if such
remote cause did nothing more than furnish the condition or give rise to
the occasion by which the injury was made possible, if there intervened
between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury
would not have happened but for such condition or occasion. If no
danger existed in the condition except because of the independent
cause, such condition was not the proximate cause. And if an
independent negligent act or defective condition sets into operation the
circumstances, which result in injury because of the prior defective
condition, such subsequent act or condition is the proximate cause.' (45
C.J. pp. 931-932)." (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the
very least, the records show he is guilty of inflicting slight physical injuries. However, the
petitioner's criminal liability in this respect was wiped out by the victim's own act. After the
hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a
compromise agreement where Javier forgave Urbano while Urbano defrayed the medical
expenses of Javier. This settlement of minor offenses is allowed under the express provisions
of Presidential Decree No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16)
We must stress, however, that our discussion of proximate cause and remote cause is limited
to the criminal aspects of this rather unusual case. It does not necessarily follow that the
petitioner is also free of civil liability. The well-settled doctrine is that a person, while not
criminally liable, may still be civilly liable. Thus, in the recent case of People v. Rogelio Ligon y
Tria, et al. (G.R. No. 74041, July 29, 1987), we said:
xxx xxx xxx
". . . While the guilt of the accused in a criminal prosecution must
be established beyond reasonable doubt, only a preponderance
of evidence is required in a civil action for damages. (Article 29,
Civil Code). The judgment of acquittal extinguishes the civil
liability of the accused only when it includes a declaration that
the facts from which the civil liability might arise did not exist.
(Padilla v. Court of Appeals, 129 SCRA 559)
"The reason for the provisions of Article 29 of the Civil Code, which
provides that the acquittal of the accused on the ground that his guilt
has not been proved beyond reasonable doubt does not necessarily
exempt him from civil liability for the same act or omission, has been
explained by the Code Commission as follows:
"The old rule that the acquittal of the
accused in a criminal case also releases him from civil
liability is one of the most serious flaws in the
Philippine legal system. It has given rise to numberless
instances of miscarriage of justice, where the acquittal
was due to a reasonable doubt in the mind of the court
as to the guilt of the accused. The reasoning followed
is that inasmuch as the civil responsibility is derived

from the criminal offense, when the latter is not
proved, civil liability cannot be demanded.
"'This is one of those causes where confused
thinking leads to unfortunate and deplorable
consequences. Such reasoning fails to draw a clear
line of demarcation between criminal liability and civil
responsibility, and to determine the logical result of the
distinction. The two liabilities are separate and distinct
from each other. One affects the social order and the
other, private rights. One is for the punishment or
correction of the offender while the other is for
reparation of damages suffered by the aggrieved party.
The two responsibilities are so different from each
other that article 1813 of the present (Spanish) Civil
Code reads thus: 'There may be a compromise upon
the civil action arising from a crime; but the public
action for the imposition of the legal penalty shall not
thereby be extinguished.' It is just and proper that, for
the purposes of the imprisonment of or fine upon the
accused, the offense should be proved beyond
reasonable doubt. But for the purpose of indemnifying
the complaining party, why should the offense also be
proved beyond reasonable doubt? Is not the invasion
or violation of every private right to be proved only by a
preponderance of evidence? Is the right of the
aggrieved person any less private because the
wrongful act is also punishable by the criminal law?
"'For these reasons, the Commission
recommends the adoption of the reform under
discussion. It will correct a serious defect in our law. It
will close up an inexhaustible source of injustice a
cause for disillusionment on the part of the
innumerable persons injured or wronged.'"
The respondent court increased the P12,000.00 indemnification imposed by the trial court to
P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond
reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly
examined. This aspect of the case calls for fuller development if the heirs of the victim are so
minded.
WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then
Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The
petitioner is ACQUITTED of the crime of homicide. Costs de oficio.
SO ORDERED.
Fernan, Feliciano, Bidin and Cortes JJ., concur.
||| (Urbano v. Intermediate Appellate Court, G.R. No. 72964, [January 7, 1988], 241 PHIL 1-14)
FIRST DIVISION
157
[G.R. No. 156037. May 25, 2007.]
MERCURY DRUG CORPORATION, petitioner, vs. SEBASTIAN M.
BAKING, respondent.
DECISION
SANDOVAL-GUTIERREZ, J p:
For our resolution is the instant Petition for Review on Certiorari 1 assailing the
Decision 2 dated May 30, 2002 and Resolution dated November 5, 2002 of the Court of
Appeals in CA-G.R. CV No. 57435, entitled "Sebastian M. Baking, plaintiff-appellee, versus
Mercury Drug Co. Inc., defendant-appellant." CHaDIT
The facts are:
On November 25, 1993, Sebastian M. Baking, respondent, went to the clinic of Dr. Cesar Sy for
a medical check-up. On the following day, after undergoing an ECG, blood, and hematology
examinations and urinalysis, Dr. Sy found that respondent's blood sugar and triglyceride were
above normal levels. Dr. Sy then gave respondent two medical prescriptions Diamicron for
his blood sugar and Benalize tablets for his triglyceride.
Respondent then proceeded to petitioner Mercury Drug Corporation (Alabang Branch) to buy
the prescribed medicines. However, the saleslady misread the prescription for Diamicron as a
prescription for Dormicum. Thus, what was sold to respondent was Dormicum, a potent
sleeping tablet.
Unaware that what was given to him was the wrong medicine, respondent took one pill of
Dormicum on three consecutive days November 6, 1993 at 9:00 p.m., November 7 at 6:00
a.m., and November 8 at 7:30 a.m.
On November 8 or on the third day he took the medicine, respondent figured in a vehicular
accident. The car he was driving collided with the car of one Josie Peralta. Respondent fell
asleep while driving. He could not remember anything about the collision nor felt its
impact. aSECAD
Suspecting that the tablet he took may have a bearing on his physical and mental state at the
time of the collision, respondent returned to Dr. Sy's clinic. Upon being shown the medicine, Dr.
Sy was shocked to find that what was sold to respondent was Dormicum, instead of the
prescribed Diamicron.
Thus, on April 14, 1994, respondent filed with the Regional Trial Court (RTC), Branch 80 of
Quezon City a complaint for damages against petitioner, docketed as Civil Case No. Q-94-
20193.
After hearing, the trial court rendered its Decision dated March 18, 1997 in favor of respondent,
thus:
WHEREFORE, premises considered, by preponderance of evidence, the
Court hereby renders judgment in favor of the plaintiff and against the
defendant ordering the latter to pay mitigated damages as follows:

1. P250,000.00 as moral damages;
2. P20,000.00 as attorney's fees and litigation expenses;
3. plus 1/2% of the cost of the suit.
SO ORDERED.
On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC judgment. Petitioner
filed a motion for reconsideration but it was denied in a Resolution dated November 5, 2002.
Hence, this petition.
Petitioner contends that the Decision of the Court of Appeals is not in accord with law or
prevailing jurisprudence.
Respondent, on the other hand, maintains that the petition lacks merit and, therefore, should be
denied.
The issues for our resolution are:
1. Whether petitioner was negligent, and if so, whether such negligence was the proximate
cause of respondent's accident; and
2. Whether the award of moral damages, attorney's fees, litigation expenses, and cost of the
suit is justified.
Article 2176 of the New Civil Code provides: HCSEIT
Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
To sustain a claim based on the above provision, the following requisites must concur: (a)
damage suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c) connection of
cause and effect between the fault or negligence of the defendant and the damage incurred by
the plaintiff. 3
There is no dispute that respondent suffered damages.
It is generally recognized that the drugstore business is imbued with public interest. The health
and safety of the people will be put into jeopardy if drugstore employees will not exercise the
highest degree of care and diligence in selling medicines. Inasmuch as the matter of negligence
is a question of fact, we defer to the findings of the trial court affirmed by the Court of
Appeals. AHaETS
Obviously, petitioner's employee was grossly negligent in selling to respondent Dormicum,
instead of the prescribed Diamicron. Considering that a fatal mistake could be a matter of life
and death for a buying patient, the said employee should have been very cautious in dispensing
medicines. She should have verified whether the medicine she gave respondent was indeed the
one prescribed by his physician. The care required must be commensurate with the danger
involved, and the skill employed must correspond with the superior knowledge of the business
which the law demands. 4
Petitioner contends that the proximate cause of the accident was respondent's negligence in
driving his car.
158
We disagree.
Proximate cause is defined as any cause that produces injury in a natural and continuous
sequence, unbroken by any efficient intervening cause, such that the result would not have
occurred otherwise. Proximate cause is determined from the facts of each case, upon a
combined consideration of logic, common sense, policy, and precedent. 5
Here, the vehicular accident could not have occurred had petitioner's employee been careful in
reading Dr. Sy's prescription. Without the potent effects of Dormicum, a sleeping tablet, it was
unlikely that respondent would fall asleep while driving his car, resulting in a collision.
Complementing Article 2176 is Article 2180 of the same Code which states:
ART. 2180. The obligation imposed by Article 2176 is demandable not
only for 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. aACEID
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 the diligence of a good father
of a family to prevent damage.
It is thus clear that the employer of a negligent employee is liable for the damages caused by
the latter. When an injury is caused by the negligence of an employee, there instantly arises a
presumption of the law that there has been negligence on the part of the employer, either in the
selection of his employee or in the supervision over him, after such selection. The presumption,
however, may be rebutted by a clear showing on the part of the employer that he has exercised
the care and diligence of a good father of a family in the selection and supervision of his
employee. 6 Here, petitioner's failure to prove that it exercised the due diligence of a good
father of a family in the selection and supervision of its employee will make it solidarily liable for
damages caused by the latter.
As regards the award of moral damages, we hold the same to be in order. Moral damages may
be awarded whenever the defendant's wrongful act or omission is the proximate cause of the
plaintiff's physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury in the cases specified
or analogous to those provided in Article 2219 of the Civil Code. 7
Respondent has adequately established the factual basis for the award of moral damages when
he testified that he suffered mental anguish and anxiety as a result of the accident caused by
the negligence of petitioner's employee.
There is no hard-and-fast rule in determining what would be a fair and reasonable amount of
moral damages, since each case must be governed by its own peculiar facts. However, it must
be commensurate to the loss or injury suffered. 8 Taking into consideration the attending

circumstances here, we are convinced that the amount awarded by the trial court is exorbitant.
Thus, we reduce the amount of moral damages from P250,000.00 to P50,000.00 only.
In addition, we also deem it necessary to award exemplary damages. Article 2229 allows the
grant of exemplary damages by way of example or correction for the public good. As
mentioned earlier, the drugstore business is affected with public interest. Petitioner should have
exerted utmost diligence in the selection and supervision of its employees. On the part of the
employee concerned, she should have been extremely cautious in dispensing pharmaceutical
products. Due to the sensitive nature of its business, petitioner must at all times maintain a high
level of meticulousness. Therefore, an award of exemplary damages in the amount of
P25,000.00 is in order. SADECI
On the matter of attorney's fees and expenses of litigation, it is settled that the reasons or
grounds for the award thereof must be set forth in the decision of the court. 9 Since the trial
court's decision did not give the basis of the award, the same must be deleted. In Vibram
Manufacturing Corporation v. Manila Electric Company, 10 we held:
Likewise, the award for attorney's fees and litigation expenses should be
deleted. Well-enshrined is that "an award for attorney's fees must be
stated in the text of the court's decision and not in the dispositive portion
only" (Consolidated Bank and Trust Corporation (Solidbank) v. Court of
Appeals, 246 SCRA 193 [1995] and Keng Hua Paper Products, Inc. v.
Court of Appeals, 286 SCRA 257 [1998]). This is also true with the
litigation expenses where the body of the decision discussed nothing for
its basis.
WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of
Appeals in CA-G.R. CV No. 57435 are AFFIRMED with modification in the sense that (a) the
award of moral damages to respondent is reduced from P250,000.00 to P50,000.00; (b)
petitioner is likewise ordered to pay said respondent exemplary damages in the amount of
P25,000.00; and (c) the award of attorney's fees and litigation expenses is deleted.
Costs against petitioner.
SO ORDERED.
Puno, C.J., Azcuna and Garcia, JJ., concur.
Corona, J., is on leave.
||| (Mercury Drug Corporation v. Baking, G.R. No. 156037, [May 25, 2007], 551 PHIL 182-191)
FIRST DIVISION
[G.R. No. L-40570. January 30, 1976.]
TEODORO C. UMALI, petitioner, vs. HON. ANGEL BACANI, in his capacity as
Presiding Judge of Branch IX of the Court of First Instance of Pangasinan
and FIDEL H. SAYNES, respondents.
159
Julian M. Armas for the petitioner.
Antonino de los Reyes for the private respondent.
SYNOPSIS
Defendant as owner and manager of the Alcala Electric Plant was ordered to pay damages by
the lower court which found the death by electrocution of a 3 year old boy as due to
defendant's fault or negligence. Petitioner claims that he could not be held liable under the
concept of quasi-delict or tort as owner and manager because the proximate cause of the
boy's death by electrocution could not be due to any negligence on his part, but rather to a
fortuitous event the storm that caused the banana plants to fall and cut the electric line
pointing out the absence of negligence on the part of his employee who tried to have the line
repaired and the presence of negligence of the parents of the child in allowing him to leave his
house during that time. The Supreme Court found that a series of negligence on the part of the
defendant's employee resulted in the death of the victim by electrocution, to wit: the defendant
did not cut down the banana plants which are taller than the electric posts to eliminate that
source of danger to the electric line; that after the storm they did not cut off the flow of
electricity from the lines pending inspection of the wires to see if they had been cut; and lastly,
in not taking precautions to prevent anybody from approaching the live wires.
Decision affirmed.
SYLLABUS
1. DAMAGES; QUASI-DELICT; NEGLIGENCE. Art. 2179 of the Civil Code provides that if the
negligence of the plaintiff was only contributory, the immediate and proximate cause of the
injury being the defendant's lack of care, the plaintiff may recover damages, but the court shall
mitigate the damages to be awarded. This law may be availed of by the petitioner but does not
exempt him from liability.
2. ID.; ID.; ID.; EMPLOYER AND EMPLOYEE; NEGLIGENCE OF EMPLOYEE IS PRESUMED TO
BE THE NEGLIGENCE OF EMPLOYER. The negligence of the employee is presumed to be
negligence of the employer because the employer is supposed to exercise supervision over the
work of the employee. The liability of the employer is primary and direct. In fact the proper
defense for the employer to raise so that he may escape liability is to prove that he exercised
the diligence of the good father of the family to prevent damage not only in the selection of his
employees but also in adequately supervising them over their work.
DECISION
ESGUERRA, J p:
Petition for certiorari to review the decision of the Court of First Instance of Pangasinan, Branch
IX, in Civil Case No. U-2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C.
Umali, defendant-appellant", which found the death by electrocution of Manuel Saynes, a boy

of 3 years and 8 months, as "due to the fault or negligence of the defendant (Umali) as owner
and manager of the Alcala Electric Plant; although the liability of defendant is mitigated by
contributory negligence of the parents of the boy "in not providing for the proper and adequate
supervision and control over their son." The dispositive part of the decision reads as
follows: cdrep
"Wherefore, the Court hereby renders judgment in
favor of the plaintiff by ordering the defendant to pay
to the plaintiff the sum of Five Thousand Pesos
(P5,000.00) for the death of his son, Manuel Saynes;
the sum of One Thousand Two Hundred Pesos
(P1,200.00) for actual expenses for and in connection
with the burial of said deceased child, and the further
sum of Three Thousand Pesos (P3,000.00) for moral
damages and Five Hundred (P500.00) Pesos as
reasonable attorney's fee, or a total of Nine Thousand
Seven Hundred (P9,700.00) Pesos, and to pay the
costs of this suit. It Is So Ordered."
Undisputed facts appearing of record are:
"On May 14, 1972, a storm with strong rain hit the
Municipality of Alcala, Pangasinan, which started from
2:00 o'clock in the afternoon and lasted up to about
midnight of the same day. During the storm, the
banana plants standing on an elevated ground along
the barrio road in San Pedro Ili of said municipality and
near the transmission line of the Alcala Electric Plant
were blown down and fell on the electric wire. As a
result, the live electric wire was cut, one end of which
was left hanging on the electric post and the other fell
to the ground under the fallen banana plants.
"On the following morning, at about 9:00 o'clock barrio
captain Luciano Bueno of San Pedro Ili who was
passing by saw the broken electric wire and so he
warned the people in the place not to go near the wire
for they might get hurt. He also saw Cipriano
Baldomero, a laborer of the Alcala Electric Plant near
the place and notified him right then and there of the
broken line and asked him to fix it, but the latter told
the barrio captain that he could not do it but that he
was going to look for the lineman to fix it.
"Sometime after the barrio captain and Cipriano
Baldomero had left the place, a small boy of 3 years
and 8 months old by the name of Manuel P. Saynes,
whose house is just on the opposite side of the road,
went to the place where the broken line wire was and
got in contact with it. The boy was electrocuted and he
subsequently died. It was only after the electrocution
of Manuel Saynes that the broken wire was fixed at
about 10:00 o'clock on the same morning by the
lineman of the electric plant."
Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner
and manager of the Alcala Electric Plant because the proximate cause of the boy's death by
160
electrocution could not be due to any negligence on his part, but rather to a fortuitous
event the storm that caused the banana plants to fall and cut the electric line pointing out
the absence of negligence on the part of his employee Cipriano Baldomero who tried to have
the line repaired and the presence of negligence of the parents of the child in allowing him to
leave his house during that time. prLL
A careful examination of the record convinces Us that a series of negligence on the part of
defendant's employees in the Alcala Electric Plant resulted in the death of the victim by
electrocution. First, by the very evidence of the defendant, there were big and tall banana
plants at the place of the incident standing on an elevated ground which were about 30 feet
high and which were higher than the electric post supporting the electric line, and yet the
employees of the defendant who, with ordinary foresight, could have easily seen that even in
case of moderate winds the electric line would be endangered by banana plants being blown
down, did not even take the necessary precaution to eliminate that source of danger to the
electric line. Second, even after the employees of the Alcala Electric Plant were already aware
of the possible damage the storm of May 14, 1972, could have caused their electric lines, thus
becoming a possible threat to life and property, they did not cut off from the plant the flow of
electricity along the lines, an act they could have easily done pending inspection of the wires to
see if they had been cut. Third, employee Cipriano Baldomero was negligent on the morning of
the incident because even if he was already made aware of the live cut wire, he did not have
the foresight to realize that the same posed a danger to life and property, and that he should
have taken the necessary precaution to prevent anybody from approaching the live wire;
instead Baldomero left the premises because what was foremost in his mind was the repair of
the line, obviously forgetting that if left unattended to it could endanger life and property.
On defendant's argument that the proximate cause of the victim's death could be attributed to
the parents' negligence in allowing a child of tender age to go out of the house alone, We could
readily see that because of the aforementioned series of negligence on the part of defendants'
employees resulting in a live wire lying on the premises without any visible warning of its lethal
character, anybody, even a responsible grown up or not necessarily an innocent child, could
have met the same fate that befell the victim. It may be true, as the lower Court found out, that
the contributory negligence of the victim's parents in not properly taking care of the child,
which enabled him to leave the house alone on the morning of the incident and go to a nearby
place (cut wire was very near the house where victim was living) where the fatal fallen wire
electrocuted him, might mitigate respondent's liability, but We cannot agree with petitioner's
theory that the parents' negligence constituted the proximate cause of the victim's death
because the real proximate cause was the fallen live wire which posed a threat to life and
property on that morning due to the series of negligence adverted to above committed by
defendants' employees and which could have killed any other person who might by accident
get into contact with it. Stated otherwise, even if the child was allowed to leave the house
unattended due to the parents' negligence, he would not have died that morning where it not
for the cut live wire he accidentally touched. cdphil
Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in
this case) was only contributory, the immediate and proximate cause of the injury being the
defendants' lack of due care, the plaintiff may recover damages, but the courts shall mitigate
the damages to be awarded. This law may be availed of by the petitioner but does not exempt
him from liability.
Petitioner's liability for injury caused by his employees' negligence is well defined in par. 4, of
Article 2180 of the Civil Code, which states:
"The owner and manager of the 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."
The negligence of the employee is presumed to be the negligence of the employer because the
employer is supposed to exercise supervision over the work of the employees. This liability of
the employer is primary and direct (Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107
Phil. 109). In fact the proper defense for the employer to raise so that he may escape liability is
to prove that he exercised the diligence of the good father of the family to prevent damage not
only in the selection of his employees but also in adequately supervising them over their work.
This defense was not adequately proven as found by the trial Court, and We do not find any
sufficient reason to deviate from its finding.
Notwithstanding diligent efforts, We fail to find any reversible error committed by the trial Court
in this case, either in its appreciation of the evidence on questions of facts or on the
interpretation and application of laws governing quasi-delicts and liabilities emanating
therefrom. The inevitable conclusion is that no error amounting to grave abuse of discretion
was committed and the decision must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.
Costs against petitioner.
SO ORDERED.
Teehankee (Chairman), Makasiar, Muoz Palma and Martin, JJ., concur.
||| (Umali v. Bacani, G.R. No. L-40570, [January 30, 1976], 161 PHIL 351-358)
EN BANC
[G.R. No. L-5691. December 27, 1910.]
S. D. MARTINEZ and his wife, CARMEN ONG DE
MARTINEZ, plaintiffs-appellees, vs. WILLIAM VAN
BUSKIRK, defendant-appellant.
Lionel D. Hargis for appellant.
Sanz and Oppisso for appellee.
SYLLABUS
1. MASTER AND SERVANT; DRIVERS OF HORSES; CUSTOM AND USAGE;
NEGLIGENCE. A coachman or driver, who had driven the horses composing his team
for a considerable time, during which the animals has shown no disposition to become
unruly, left his team as usual and was assisting in unloading the wagon when the horses
bolted and running into the plaintiffs' carriage caused personal injuries to the plaintiff and
161
damage to the vehicle. It was further shown that, to leave teams under like
circumstances and to assist in unloading the wagon, is the custom of drivers in the city
and that the custom is sanctioned by employers. Held: That acts, the performance of
which has not proven destructive or injurious and which have been generally acquiesced
in by society for so long a time as to have ripened into a custom, can not be held to be
unreasonable or imprudent and that, under the circumstances, the driver was not guilty of
negligence in so leaving his team while assisting in unloading his wagon.
DECISION
MORELAND, J p:
The facts found by the trial court are undisputed by either party in this case.
They are
"That on the 11th day of September, 1908, the plaintiff,
Carmen Ong de Martinez, was riding in a carromata on Calle Real,
district of Ermita, city of Manila, P.I., along the left-hand side of the street
as she was going, when a delivery wagon belonging to the defendant
used for the purpose of transportation of fodder by the defendant, and to
which was attached a pair of horses, came along the street in the
opposite direction to that the in which said plaintiff was proceeding, and
that thereupon the driver of the said plaintiff's carromata, observing that
the delivery wagon of the defendant was coming at great speed,
crowded close to the sidewalk on the left-hand side of the street and
stopped, in order to give defendant's delivery wagon an opportunity to
pass by, but that instead of passing by the defendant's wagon and
horses ran into the carromata occupied by said plaintiff with her child
and overturned it, severely wounding said plaintiff by making a serious
cut upon her head, and also injuring the carromata itself and the harness
upon the horse which was drawing it.
xxx xxx xxx
"These facts are not dispute, but the defendant presented
evidence to the effect that the cochero, who was driving his delivery
wagon at the time the accident occurred, was a good servant and was
considered a safe and reliable cochero; that the delivery wagon had sent
to deliver some forage at Paco Livery Stable on Calle Herran, and that
for the purpose of delivery thereof the cochero driving the team as
defendant's employee tied the driving lines of the horses to the front end
of the delivery wagon and then went back inside of the wagon for the
purpose of unloading the forage to be delivered; that while unloading the
forage and in the act of carrying some of it out, another vehicle drove by,
the driver of which cracked a whip and made some other noises, which
frightened the horses attached to the delivery wagon and they ran away,
and the driver was thrown from the inside of the wagon out through the
rear upon the ground and was unable to stop the horses; that the horses
then ran up and on which street they came into collision with the
carromata in which the plaintiff, Carmen Ong de Martinez, was riding."
The defendant himself was not with the vehicle on the day in question.

Upon these facts the court below found the defendant guilty of negligence and
gave judgment against him for P442.50, with interest thereon at the rate of 6 per cent per
annum from the 17th day of October, 1908, and for the costs of the action. The case is
before us on an appeal from that judgment.
There is no general law of negligence in the Philippine Islands except that
embodied in the Civil Code. The provisions of that code pertinent to this case are
"Art. 1902. A person who by an act or omission causes
damage to another when there is fault or negligence shall be obliged to
repair the damage so done.
"Art. 1903. The obligation imposed by preceding article is
demandable, not only for personal acts and omissions, but also for those
of the persons for whom they should be responsible.
"The father, and on his death or incapacity the mother, is liable
for the damages caused by the minors who live with them.
"Guardians are liable for the damages caused by minors or
incapacitated persons who are under their authority and live with them.
"Owners of directors of an establishment or enterprise are
equally liable for the damages caused by the employees in the service of
the branches in which the latter may be employed or on account of their
duties.
"The State is liable in this sense when it acts through a special
agent, but not when the damages 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.
"Finally, masters or directors of arts and trades are liable for
the damages caused by their pupils or apprentices while they are under
their custody.
"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 damage."
Passing the question whether or not an employer who has furnished a gentle
and tractable team and a trusty and capable driver is, under the last paragraph of the
above provisions, liable for the negligence of such driver in handling the team, we are of
the opinion that the judgment must be reversed upon the ground that the evidence does
not disclose that the cochero was negligent.
While the law relating to negligence in this jurisdiction may possibly be some
what different from that in Anglo-Saxon countries, a question we do not now discuss, the
rules under which the fact of negligence is determined are, nevertheless, generally the
same. That is to say, while the law designating the person responsible for a negligent act
may not be the same here as in many jurisdictions, the law determining what is a negligent
act is the same here, generally speaking, as elsewhere. (Supreme court of Spain, 4
December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14 March, 1901; 2 March,
1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7 March, 1902; 12
June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)
It appears from the undisputed evidence that the horses which caused the
damage were gentle and tractable; that the cochero was experienced and capable; that he
had driven one of the horses several years and the other five or six months; that he had
been in the habit, during all that time, of leaving them in the condition in which they were
left on the day of the accident; that they had never run away up to that time and there had
162
been, therefore, no accident due to such practice; that to leave the horses and assist in
unloading the merchandise in the manner described on the day of the accident was the
custom of all cochero who delivered merchandise of the character of that which was being
delivered by the cochero of the defendant on the day in question, which custom was
sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the
horses in the manner described by the evidence in this case, either under Spanish or
American jurisprudence. (Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590;
Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement Co. vs. Lally, 48 N. J.
L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N. Y., 212.)
In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon
said:
"He was performing his duty while removing the goods into the
house, and, if every person who suffered a cart to remain in the street
while he took goods out of it was obliged to employ another to look after
the horses, it would be impossible for the business of the metropolis to
go on.
In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:
"The degree of care required of the plaintiff, or those in
charged of his horse, at the time of the injury, is that which would be
exercised by a person of ordinary care and prudence under like
circumstances. It can not be said that the fact of leaving the horse
unhitched is in itself negligence. Whether it is negligence to leave a horse
unhitched must be depend upon the disposition of the horse; whether he
was under the observation and control of some person all the time, and
many other circumstances; and is a question to be determined by the
jury from the facts of each case."
In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on
the part of the trial court to refuse to charge that "it is not negligence for the driver of a
quite, gentle horse to leave him unhitched and otherwise unattended on the side of a
public highways while the driver is upon the sidewalk loading goods on the wagon." The
said court closed its opinion with these words:
"There was evidence which could have fully justified the jury in
finding that the horse was quite and gentle, and that the driver was upon
the sidewalk loading goods on the wagon, at time of the alleged injury,
and that the horse had been used for years in that way without accident.
The refusal of the trial court to charge as requested left the jury free to
find was verdict against the defendant, although the jury was convinced
that these facts were proven.
In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
"That evidence that a servant, whom traders employed to
deliver goods, upon stopping with his horse and wagon to deliver a
parcel at a house from fifty to a hundred rods from a railroad crossing,
left the horse unfastened for four or five minutes while he was in the
house, knowing that it was not afraid of cars, and having used it for three
or four months without ever hitching it or knowing it to start, is not
conclusive, as a matter of law, of a want of due care on his part."
 163
The duty, a violation of which is claimed to be negligence in the respect in Separate Opinions
question, is to exercise reasonable care and prudence. Where reasonable care is
employed in doing an act not itself illegal or inherently likely to produce damage to others,
there will be no liability, although damage in fact ensues. (Milwaukee Ry. Co. vs. Arms, 91 TORRES, J., dissenting:
U. S., 489; Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing, 292; Jackson
Architectural Iron Works vs. Hurlbut, 158 N. Y., 34 Westerfield vs. Levis, 43 La. An., 63; I am of the opinion that the judgment should be affirmed.
Niosi vs. Empire Steam Laundry, 117 Cal., 257.)
||| (Martinez v. Buskirk, G.R. No. L-5691, [December 27, 1910], 18 PHIL 79-86)
The act of defendant's driver in leaving the horses in the manner proved was not
unreasonable or imprudent. Acts the performance of which has not proved destructive or
injurious and which have, therefore, been acquiesced in by society for so long a time that
they have ripened into custom, can not be held to be themselves unreasonable or
imprudent. Indeed the very reason why they have been permitted by society is that they SECOND DIVISION
beneficial rather than prejudicial. Accidents sometimes happen and injuries result from the
most ordinary acts of life. But such are not their natural or customary results. To hold that,
[G.R. No. 167750. March 15, 2010.]
because such an act once resulted in accident or injury, the actor is necessarily negligent,
is to go far. The fact that the doctrine of res ipsa loquitur is sometimes successfully
invoked in such a case, does not in any sense militate against the reasoning presented. BANK OF THE PHILIPPINE ISLANDS, petitioner, vs. REYNALD R.
That maxim at most only creates a prima facie case, and that only in the absence of proof
SUAREZ, respondent.
of the circumstances under which the act complained of was performed. It is something
invoked in favor of the plaintiff before defendant's case showing the conditions and
circumstances under which the injury occurred, the creative reason for the doctrine of res
ipsa loquitur disappears. This is demonstrated by the case of Inland and Seaboard
Costing Co. vs. Tolson (139 U.S., 551), where the court said (p. 554): DECISION

". . . The whole effect of the instruction in question, as applied

to the case before the jury, was that if the steamboat, on a calm day and
in smooth water, was thrown with such force against a wharf properly
built, as to tear up some of the planks of the flooring, this would be CARPIO, J p:
prima facie evidence of negligence on the part of the defendant's agent
in making the landing, unless upon the whole evidence in the case this The Case
prima facie evidence was rebutted. As such damage to a wharf is not
ordinarily done by a steamboat under control of her officers and carefully This petition for review 1 assails the Decision dated 30 November 2004 2 and
Resolution dated 11 April 2005 of the Court of Appeals in CA-G.R. CV No. 76988, affirming
managed by them, evidence that such damage was done in this case
the trial court's decision of 18 October 2002 and denying reconsideration.
was prima facie, and, if unexplained, sufficient evidence of negligence on
their part, and the jury might properly be so instructed." The Facts
There was presented in this case, and by the plaintiffs themselves, not only the Respondent Reynald R. Suarez (Suarez) is a lawyer who used to maintain both
fact of the runway and the accident resulting therefrom, but also the conditions under savings and current accounts with petitioner Bank of the Philippine Islands' (BPI) Ermita
which the runaway occurred. Those conditions showing of themselves that the Branch from 1988 to 1997.
defendant's cochero was not negligent in the management of the horse, the prima facie
case in plaintiffs' favor, if any, was destroyed as soon as made. Sometime in 1997, Suarez had a client who planned to purchase several parcels
of land in Tagaytay City, but preferred not to deal directly with the land owners. In
It is a matter of common knowledge as well as proof that it is the universal
accordance with his client's instruction, Suarez transacted with the owners of the
practice of merchants to deliver merchandise of the kind of that being delivered at the time
Tagaytay properties, making it appear that he was the buyer of the lots. As regards the
of the injury, in the manner in which that was then being delivered; and that it is the
payment of the purchase money, Suarez and his client made an arrangement such that
universal practice to leave the horses in the manner in which they were left at the time of
Suarez's client would deposit the money in Suarez's BPI account and then, Suarez would
the accident. This is the custom in all cities. It has not been productive of accidents or
issue checks to the sellers. Hence, on 16 June 1997, Suarez's client deposited a Rizal
injuries. The public, finding itself unprejudiced by such practice, has acquiesced for years
Commercial Banking Corporation (RCBC) check with a face value of P19,129,100,
without objection. Ought the public now, through the courts, without prior objection or
representing the total consideration of the sales, in BPI Pasong Tamo Branch to be
notice, to be permitted to reverse the practice of decades and thereby make culpable and
credited to Suarez's current account in BPI Ermita Branch.
guilty one who had every reason and assurance to believe that he was acting under the
sanction of the strongest of all civil forces, the custom of a people? We think not. Aware of the banking system's 3-day check clearing policy, 3 Suarez instructed
his secretary, Petronila Garaygay (Garaygay), to confirm from BPI whether the face value
The judgment is reversed, without special finding as to costs. So ordered.
of the RCBC check was already credited to his account that same day of 16 June 1997.
Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur. According to Garaygay, BPI allegedly confirmed the same-day crediting of the RCBC
check. Relying on this confirmation, Suarez issued on the same day five checks of

different amounts totaling P19,129,100 for the purchase of the Tagaytay
properties. 4 aHIEcS
The next day, Suarez left for the United States (U.S.) for a vacation. While
Suarez was in the U.S., Garaygay informed him that the five checks he issued were all
dishonored by BPI due to insufficiency of funds and that his current account had been
debited a total of P57,200 as penalty for the dishonor. Suarez's secretary further told him
that the checks were dishonored despite an assurance from RCBC, the drawee bank for
the sum of P19,129,100, that this amount had already been debited from the account of
the drawer on 16 June 1997 and the RCBC check was fully funded.
The dispositive portion of the 30 November 2004 Decision of the Court of Appeals reads:
On 19 June 1997, the payees of the five BPI checks that Suarez issued on 16
June 1997 presented the checks again. Since the RCBC check (which Suarez's client
issued) had already been cleared by that time, rendering Suarez's available funds
sufficient, the checks were honored by BPI.
Subsequently, Suarez sent a letter to BPI demanding an apology and the
reversal of the charges debited from his account. Suarez received a call from Fe
The Court of Appeals denied BPI's motion for reconsideration in its 11 April
Gregorius, then manager of the BPI Ermita Branch, who requested a meeting with him to
2005 Resolution.
explain BPI's side. However, the meeting did not transpire.
Suarez sent another letter to BPI addressed to its president, Xavier Loinaz.
Consequently, BPI representatives asked another meeting with Suarez. During the
meeting, the BPI officers handed Suarez a letter, the relevant text of which reads:
Dear Atty. Suarez:
Your letter to our President, Xavier P. Loinaz dated 02 July 1997 was
referred to us for investigation and reply.
Our investigation discloses that when the checks you issued against
your account were received for clearing, the checks you deposited were
not yet cleared. Hence, the dishonor of the your n checks.
We do not see much in your allegation that you have suffered damages
just because the reason for the return was "DAIF" and not "DAUD". In
both instances, there is a dishonor nonetheless. 5
Upon Suarez's request, BPI delivered to him the five checks which he issued on
16 June 1997. Suarez claimed that the checks were tampered with, specifically the reason
for the dishonor, prompting him to send another letter informing BPI of its act of
falsification by making it appear that it marked the checks with "drawn against uncollected
deposit (DAUD) and not "drawn against insufficient fund" (DAIF). In reply, BPI offered to
reverse the penalty charges which were debited from his account, but denied Suarez's
claim for damages. Suarez rejected BPI's offer. TAIEcS
Claiming that BPI mishandled his account through negligence, Suarez filed with
the Regional Trial Court a complaint for damages, docketed as Civil Case No. 98-574.
The Regional Trial Court, Makati City, Branch 136 rendered judgment in favor of
Suarez, thus:
WHEREFORE, judgment is hereby rendered ordering defendant bank to
pay the following amounts:
1. The amount of P57,200.00, with interest from date of first
demand until full payment as actual damages;
2. The sum of P3,000,000.00 by way of moral damages;
164
3. The amount of P1,000,000.00 as and for exemplary
damages;
4. The sum of P1.00 as attorney's fees, and
5. The costs of litigation.
SO ORDERED. 6
BPI appealed to the Court of Appeals, which affirmed the trial court's decision.
WHEREFORE, premises considered, the instant appeal is DISMISSED.
The decision dated 18 October 2002 of the Regional Trial Court, Branch
136, of Makati is AFFIRMED in toto.
SO ORDERED. 7
Hence, this petition.
The Court of Appeals' Ruling
In affirming the trial court's decision, the Court of Appeals ruled as follows:
Contrary to its contention, plaintiff-appellee's evidence convincingly
established the latter's entitlement to damages, which was the direct
result of defendant-appellant's negligence in handling his account. It was
duly proven that after his client deposited a check in the amount of
P19,129,100.00 on 16 June 1997, it was confirmed through plaintiff-
appellee's secretary by an employee of defendant-appellant bank that
the aforesaid amount was, on the same day, already credited to his
account. It was on the basis of this confirmation which made plaintiff-
appellee issue five (5) checks in the amount of P19,129,100.00 to
different payees. And despite RCBC's assurance that the
aforementioned amount had already been debited from the account of
the drawer bank, defendant-appellant bank still dishonored the five (5)
checks for DAIF as reason when the various payees presented them for
payment on 17 June 1997. ITSCED
It was also proven that defendant-appellant bank through its employee
inadvertently marked the dorsal sides of the checks as DAIF instead of
DAUD. A closer look at the checks would indicate that intercalations
were made marking the acronym DAIF thereon to appear as DAUD.
Although the intercalation was obvious in the P12 million check, still the
fact that there was intercalation made in the said check cannot be
denied. It bears to stress that there lies a big difference between a check
dishonored for reasons of DAUD and a check dishonored for DAIF. A
check dishonored for reasons of DAIF would unduly expose herein
plaintiff-appellee to criminal prosecution for violation of B.P. 22 while a
check dishonored for reasons of DAUD would not. Thus, it was
erroneous on the part of defendant-appellant bank to surmise that
plaintiff-appellee would not suffer damages anyway for the dishonored
checks for reasons of DAUD or DAIF because there was dishonor
nonetheless.

While plaintiff-appellee had been spared from any criminal prosecution,
his reputation, however, was sullied on account of the dishonored
checks by reason of DAIF. His transaction with the n would be sellers of
the property in Tagaytay was aborted because the latter doubted his
capacity to fulfill his obligation as buyer of their [properties.] As the agent
of the true buyers, he had a lot of explaining to do with his client. In
short, he suffered humiliation.
Defendant-appellant bank also contends that plaintiff-appellee is liable to
pay the charges mandated by the Philippine Clearing House Rules and
Regulations (PCHRR).
If truly these charges were mandated by the PCHRR, defendant-
appellant bank should not have attempted to renege on its act of
debiting the charges to plaintiff-appellee's account. In its letter dated 28
July 1997 addressed to plaintiff-appellee, the former has offered to
reverse these charges in order to mitigate the effects of the returned
checks on the latter. This, to the mind of the court, is tantamount to an
admission on their (defendant-appellant bank's employees) part that they
have committed a blunder in handling plaintiff-appellee's account.
Perforce, defendant-appellant bank should return the amount of the
service charges debited to plaintiff-appellee. It is basic in the law
governing human relations that "no one shall be unjustly enriched at the
expense of others." 8
The Issues
In its Memorandum, BPI raised the following issues:
A. WHETHER [BPI] WAS NEGLIGENT IN HANDLING THE ACCOUNT
OF [SUAREZ];
B. WHETHER [SUAREZ] IS LIABLE TO PAY THE SERVICE CHARGES
IMPOSED BY THE PHILIPPINE CLEARING HOUSE
CORPORATION; and
C. WHETHER [BPI] IS LIABLE TO PAY [SUAREZ] MORAL AND
EXEMPLARY DAMAGES, ATTORNEY'S FEES AND COSTS OF
LITIGATION. 9
The Court's Ruling
The petition is partly meritorious. ESHcTD
As a rule, this Court is not a trier of facts. However, there are well-recognized
exceptions to this rule, one of which is when certain relevant facts were overlooked by the
lower court, which facts, if properly appreciated, would justify a different conclusion from
the one reached in the assailed decision. 10 Reviewing the records, we find that the lower
courts misappreciated the evidence in this case.
Suarez insists that BPI was negligent in handling his account when BPI
dishonored the checks he issued to various payees on 16 June 1997, despite the RCBC
check deposit made to his account on the same day to cover the total amount of the BPI
checks.
Negligence is defined as "the omission to do something which a reasonable
man, guided upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent man and reasonable man
165
could not do." 11 The question concerning BPI's negligence, however, depends on
whether BPI indeed confirmed the same-day crediting of the RCBC check's face value to
Suarez's BPI account.
In essence, Suarez impresses upon this Court that BPI is estopped 12 from
dishonoring his checks since BPI confirmed the same-day crediting of the RCBC check
deposit and assured the adequacy of funds in his account. Suarez points out that he relied
on this confirmation for the issuance of his checks to the owners of the Tagaytay
properties. In other words, Suarez claims that BPI made a representation that he had
sufficient available funds to cover the total value of his checks.
Suarez is mistaken.
Based on the records, there is no sufficient evidence to show that BPI
conclusively confirmed the same-day crediting of the RCBC check which Suarez's client
deposited late on 16 June 1997. 13 Suarez's secretary, Garaygay, testified that she was
able to talk to a BPI male employee about the same-day crediting of the RCBC
check. 14 However, Garaygay failed to (1) identify and name the alleged BPI employee,
and (2) establish that this particular male employee was authorized by BPI either to
disclose any information regarding a depositor's bank account to a person other than the
depositor over the telephone, or to assure Garaygay that Suarez could issue checks
totaling the face value of the RCBC check. Moreover, a same-day clearing of a
P19,129,100 check requires approval of designated bank official or officials, and not any
bank official can grant such approval. Clearly, Suarez failed to prove that BPI confirmed
the same-day crediting of the RCBC check, or that BPI assured Suarez that he had
sufficient available funds in his account. Accordingly, BPI was not estopped from
dishonoring the checks for inadequacy of available funds in Suarez's account since the
RCBC check remained uncleared at that time.
While BPI had the discretion to undertake the same-day crediting of the RCBC
check, 15 and disregard the banking industry's 3-day check clearing policy, Suarez failed
to convincingly show his entitlement to such privilege. As BPI pointed out, Suarez had no
credit or bill purchase line with BPI which would qualify him to the exceptions to the 3-day
check clearing policy. 16 IaAEHD
Considering that there was no binding representation on BPI's part as regards
the same-day crediting of the RCBC check, no negligence can be ascribed to BPI's
dishonor of the checks precisely because BPI was justified in dishonoring the checks for
lack of available funds in Suarez's account. 17
However, BPI mistakenly marked the dishonored checks with "drawn against
insufficient funds (DAIF)," instead of "drawn against uncollected deposit (DAUD)." DAUD
means that the account has, on its face, sufficient funds but not yet available to the drawer
because the deposit, usually a check, had not yet been cleared. 18 DAIF, on the other
hand, is a condition in which a depositor's balance is inadequate for the bank to pay a
check. 19 In other words, in the case of DAUD, the depositor has, on its face, sufficient
funds in his account, although it is not available yet at the time the check was drawn,
whereas in DAIF, the depositor lacks sufficient funds in his account to pay the check.
Moreover, DAUD does not expose the drawer to possible prosecution for estafa and
violation of BP 22, while DAIF subjects the depositor to liability for such offenses. 20 It is
clear therefore that, contrary to BPI's contention, DAIF differs from DAUD. Now, does the
erroneous marking of DAIF, instead of DAUD, give rise to BPI's liability for damages?
The following are the conditions for the award of moral damages: (1) there is an
injury whether physical, mental or psychological clearly sustained by the claimant; (2)
the culpable act or omission is factually established; (3) the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant; and (4) the award
 166
of damages is predicated on any of the cases stated in Article 2219 21 of the Civil as well as other exceptions which may be defined/circulated by PCHC
Code. 22 from time to time. 29

In the present case, Suarez failed to establish that his claimed injury was In view of the foregoing, the Court deems it unnecessary to resolve the other
proximately caused by the erroneous marking of DAIF on the checks. Proximate cause has issues raised in this case.
been defined as "any cause which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the result complained of and without which would WHEREFORE, the Court GRANTS the petition in part. The Court SETS
not have occurred." 23 There is nothing in Suarez's testimony which convincingly shows ASIDE the 30 November 2004 Decision and 11 April 2005 Resolution of the Court of
that the erroneous marking of DAIF on the checks proximately caused his alleged Appeals in CA-G.R. CV No. 76988, and deletes the award of all damages and fees. The
psychological or social injuries. Suarez merely testified that he suffered humiliation and Court awards to respondent Reynald R. Suarez nominal damages in the sum of
that the prospective consolidation of the titles to the Tagaytay properties did not P75,000.00. EcIaTA
materialize due to the dishonor of his checks, 24 not due to the erroneous marking of DAIF SO ORDERED.
on his checks. Hence, Suarez had only himself to blame for his hurt feelings and the
unsuccessful transaction with his client as these were directly caused by the justified Brion, Del Castillo, Abad, and Perez, JJ., concur.
dishonor of the checks. In short, Suarez cannot recover compensatory damages for his
own negligence. 25 DHSCTI ||| (Bank of the Philippine Islands v. Suarez, G.R. No. 167750, [March 15, 2010], 629 PHIL 305-
319)
While the erroneous marking of DAIF, which BPI belatedly rectified, was not the
proximate cause of Suarez's claimed injury, the Court reminds BPI that its business is
affected with public interest. It must at all times maintain a high level of meticulousness
and should guard against injury attributable to negligence or bad faith on its
SECOND DIVISION
part. 26Suarez had a right to expect such high level of care and diligence from BPI. Since
BPI failed to exercise such diligence, Suarez is entitled to nominal damages 27 to
vindicate Suarez's right to such high degree of care and diligence. Thus, we award Suarez [G.R. No. 182353. June 29, 2010.]
P75,000.00 nominal damages.
On the award of actual damages, we find the same without any basis.
ST. JOSEPH'S COLLEGE, SR. JOSEPHINI AMBATALI, SFIC, and
Considering that BPI legally dishonored the checks for being drawn against uncollected
deposit, BPI was justified in debiting the penalty charges against Suarez's account, ROSALINDA TABUGO, petitioners, vs. JAYSON MIRANDA,
represented by his father, RODOLFO S. MIRANDA, respondent.
pursuant to the Rules of the Philippine Clearing House Corporation, 28 to wit:
Sec. 27. Penalty Charges on Returned Items.

27.1A service charge of P600.00 for each check shall be levied against
DECISION
the DRAWER of any check or checks returned for any reason, except for
the following:

a) Account Closed
NACHURA, J p:
b) No Account

c) Under Garnishment This petition for review on certiorari seeks to set aside the Decision 1 of the
Court of Appeals (CA) in CA-G.R. CV No. 68367, which affirmed in toto the decision 2 of
d) Spurious Check the Regional Trial Court (RTC), Branch 221, Quezon City, in Civil Case No. Q-95-22889.

e) Documentary Stamps Missing (for foreign checks/drafts The facts, as found by the CA, follow:
only)
On November 17, 1994, at around 1:30 in the afternoon inside St.
f) Post-Dated/Stale-Dated Joseph College's [SJC's] premises, the class to which [respondent
Jayson Val Miranda] belonged was conducting a science experiment
g) Validity Restricted about fusion of sulphur powder and iron fillings under the tutelage of
[petitioner] Rosalinda Tabugo, she being the subject teacher and
h) Miscleared Items employee of [petitioner] SJC. The adviser of [Jayson's] class is . . .
Estefania Abdan.
i) Deceased Depositor
Tabugo left her class while it was doing the experiment without having
j) Violation of Clearing Rules and/or Procedures adequately secured it from any untoward incident or occurrence. In the
k) Lost by Presenting Bank while in transit to clearing middle of the experiment, [Jayson], who was the assistant leader of one

of the class groups, checked the result of the experiment by looking into
the test tube with magnifying glass. The test tube was being held by one
of his group mates who moved it close and towards the eye of [Jayson].
At that instance, the compound in the test tube spurted out and several
particles of which hit [Jayson's] eye and the different parts of the bodies
of some of his group mates. As a result thereof, [Jayson's] eyes were
chemically burned, particularly his left eye, for which he had to undergo
surgery and had to spend for his medication. Upon filing of this case [in]
the lower court, [Jayson's] wound had not completely healed and still
had to undergo another surgery. TSAHIa
Upon learning of the incident and because of the need for finances,
[Jayson's] mother, who was working abroad, had to rush back home for
which she spent P36,070.00 for her fares and had to forego her salary
from November 23, 1994 to December 26, 1994, in the amount of at
least P40,000.00.
Then, too, [Jayson] and his parents suffered sleepless nights, mental
anguish and wounded feelings as a result of his injury due to
[petitioners'] fault and failure to exercise the degree of care and diligence
incumbent upon each one of them. Thus, they should be held liable for
moral damages. Also, [Jayson] sent a demand letter to [petitioners] for
the payment of his medical expenses as well as other expenses
incidental thereto, which the latter failed to heed. Hence, [Jayson] was
constrained to file the complaint for damages. [Petitioners], therefore,
should likewise compensate [Jayson] for litigation expenses, including
attorney's fees.
On the other hand, [petitioners SJC, Sr. Josephini Ambatali, SFIC, and
Tabugo] alleged that [Jayson] was a grade six pupil of SJC in the school
year 1994-1995. On November 17, 1994, at about 1:30 in the afternoon,
the class to which [Jayson] belong[s] was conducting a science
experiment under the guidance and supervision of Tabugo, the class
science teacher, about fusion of sulphur powder and iron fillings by
combining these elements in a test tube and heating the same. Before
the science experiment was conducted, [Jayson] and his classmates
were given strict instructions to follow the written procedure for the
experiment and not to look into the test tube until the heated compound
had cooled off. [Jayson], however, a person of sufficient age and
discretion and completely capable of understanding the English
language and the instructions of his teacher, without waiting for the
heated compound to cool off, as required in the written procedure for the
experiment and as repeatedly explained by the teacher, violated such
instructions and took a magnifying glass and looked at the compound,
which at that moment spurted out of the test tube, a small particle hitting
one of [Jayson's] eyes.
Jayson was rushed by the school employees to the school clinic and
thereafter transferred to St. Luke's Medical Center for treatment. At the
hospital, when Tabago visited [Jayson], the latter cried and apologized to
his teacher for violating her instructions not to look into the test tube until
the compound had cooled off.
After the treatment, [Jayson] was pronounced ready for discharge and
an eye test showed that his vision had not been impaired or affected. In
order to avoid additional hospital charges due to the delay in [Jayson's]
167
discharge, Rodolfo S. Miranda, [Jayson's] father, requested SJC to
advance the amount of P26,176.35 representing [Jayson's] hospital bill
until his wife could arrive from abroad and pay back the money. SJC
acceded to the request.
On December 6, 1994, however, the parents of [Jayson], through
counsel, wrote SJC a letter demanding that it should shoulder all the
medical expenses of [Jayson] that had been incurred and will be incurred
further arising from the accident caused by the science experiment. In a
letter dated December 14, 1994, the counsel for SJC, represented by Sr.
Josephini Ambatali, SFIC, explained that the school cannot accede to
the demand because "the accident occurred by reason of [Jayson's]
failure to comply with the written procedure for the experiment and his
teacher's repeated warnings and instruction that no student must face,
much less look into, the opening of the test tube until the heated
compound has cooled. 3 aAHISE
Since SJC did not accede to the demand, Rodolfo, Jayson's father, on Jayson's
behalf, sued petitioners for damages.
After trial, the RTC rendered judgment, to wit:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of [Jayson] and against [petitioners]. This Court orders and holds
the [petitioners] joint[ly] and solidarily liable to pay [Jayson] the following
amount:
1. To pay [Jayson] the amount of P77,338.25 as actual
damages; However, [Jayson] is ordered to reimburse
[petitioner] St. Joseph College the amount of P26,176.36
representing the advances given to pay [Jayson's] initial
hospital expenses or in the alternative to deduct said amount
of P26,176.36 from the P77,338.25 actual damages herein
awarded by way of legal compensation;
2. To pay [Jayson] the sum of P50,000.00 as mitigated moral
damages;
3. To pay [Jayson] the sum of P30,000.00 as reasonable
attorney's fees;
4. To pay the costs of suit.
SO ORDERED. 4
Aggrieved, petitioners appealed to the CA. However, as previously adverted to,
the CA affirmed in toto the ruling of the RTC, thus:
WHEREFORE, in view of the foregoing, the assailed decision of the RTC
of Quezon City, Branch 221 dated September 6, 2000 is
hereby AFFIRMED IN TOTO. Costs against [petitioners]. 5
Undaunted, petitioners appealed by certiorari to this Court, adamant that the CA
grievously erred, thus:
I. THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING
THAT THE PROXIMATE CAUSE OF JAYSON'S INJURY WAS HIS OWN
ACT OF LOOKING AT THE HEATED TEST TUBE BEFORE THE

COMPOUND HAD COOLED IN COMPLETE DISREGARD OF
INSTRUCTIONS GIVEN PRIOR TO THE EXPERIMENT. AaSTIH
II. THE COURT OF APPEALS FAILED TO APPRECIATE THAT, IN LIGHT
OF THE RULING IN THE CASE OF ST. MARY'S COLLEGE V. WILLIAM
CARPITANOS, . . . JAYSON'S CONTRIBUTORY NEGLIGENCE OF
PEEKING INTO THE TEST TUBE WAS IN FACT THE PROXIMATE
CAUSE OF HIS INJURY FOR WHICH THE PETITIONERS SHOULD NOT
BE HELD LIABLE.
III. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE
AWARD OF ACTUAL DAMAGES DESPITE THE ABSENCE OF PROOF
TO SUPPORT THE SAME.
IV. THE LOWER COURT GRIEVOUSLY ERRED IN AWARDING MORAL
DAMAGES TO [JAYSON].
V. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE
AWARD OF ATTORNEY'S FEES TO [JAYSON].
VI. THE LOWER COURT GRIEVOUSLY ERRED IN DENYING THE
PETITIONERS' COUNTERCLAIM. 6
We find no reason to depart from the uniform rulings of the lower courts that
petitioners were "negligent since they all failed to exercise the required reasonable care,
prudence, caution and foresight to prevent or avoid injuries to the students."
Jurisprudence dictates that factual findings of the trial court, especially when
affirmed by the appellate court, are accorded the highest degree of respect and are
considered conclusive between the parties. 7 A review of such findings by this Court is not
warranted except for highly meritorious circumstances when: (1) the findings of a trial
court are grounded entirely on speculation, surmises or conjectures; (2) a lower court's
inference from its factual findings is manifestly mistaken, absurd or impossible; (3) there is
grave abuse of discretion in the appreciation of facts; (4) the findings of the appellate court
go beyond the issues of the case, or fail to notice certain relevant facts which, if properly
considered, will justify a different conclusion; (5) there is a misappreciation of facts; (6) the
findings of fact are conclusions without mention of the specific evidence on which they are
based, are premised on the absence of evidence, or are contradicted by evidence on
record. 8 None of the foregoing exceptions which would warrant a reversal of the assailed
decision obtains in this instance.
Yet, petitioners maintain that the proximate cause of Jayson's injury was his
own negligence in disregarding the instructions given by Tabugo prior to the experiment
and peeking into the test tube. Petitioners invoke our ruling in St. Mary's Academy v.
Carpitanos 9 which absolved St. Mary's Academy from liability for the untimely death of its
student during a school sanctioned activity, declaring that "the negligence of petitioner St.
Mary's Academy was only a remote cause of the accident." ScEaAD
We are not convinced.
Contrary to petitioners' assertions, the lower courts' conclusions are borne out
by the records of this case. Both courts correctly concluded that the immediate and
proximate cause of the accident which caused injury to Jayson was the sudden and
unexpected explosion of the chemicals, independent of any intervening cause. The
assailed Decision of the CA quotes with favor the RTC decision, thus:
In this case, [petitioners] failed to show that the negligence of [Jayson]
was the proximate cause of the latter's injury. We find that the immediate
168
cause of the accident was not the negligence of [Jayson] when he
curiously looked into the test tube when the chemicals suddenly
exploded which caused his injury, but the sudden and unexpected
explosion of the chemicals independent of any intervening cause.
[Petitioners] could have prevented the mishap if they exercised a higher
degree of care, caution and foresight. The court a quo correctly ruled
that:
"All of the [petitioners] are equally at fault and are liable for
negligence because all of them are responsible for exercising
the required reasonable care, prudence, caution and foresight
to prevent or avoid injuries to the students. The individual
[petitioners] are persons charged with the teaching and
vigilance over their students as well as the supervision and
ensuring of their well-being. Based on the facts presented
before this Court, these [petitioners] were remiss in their
responsibilities and lacking in the degree of vigilance expected
of them. [Petitioner] subject teacher Rosalinda Tabugo was
inside the classroom when the class undertook the science
experiment although [Jayson] insisted that said [petitioner] left
the classroom. No evidence, however, was presented to
establish that [petitioner] Tabugo was inside the classroom for
the whole duration of the experiment. It was unnatural in the
ordinary course of events that [Jayson] was brought to the
school clinic for immediate treatment not by [petitioner]
subject teacher Rosalinda Tabugo but by somebody else. The
Court is inclined to believe that [petitioner] subject teacher
Tabugo was not inside the classroom at the time the accident
happened. The Court is also perplexed why none of the other
students (who were eyewitnesses to the incident) testified in
Court to corroborate the story of the [petitioners]. The Court,
however, understands that these other students cannot testify
for [Jayson] because [Jayson] is no longer enrolled in said
school and testifying for [Jayson] would incur the ire of school
authorities. Estefania Abdan is equally at fault as the subject
adviser or teacher in charge because she exercised control
and supervision over [petitioner] Tabugo and the students
themselves. It was her obligation to insure that nothing would
go wrong and that the science experiment would be
conducted safely and without any harm or injury to the
students. [Petitioner] Sr. Josephini Ambatali is likewise
culpable under the doctrine of command responsibility
because the other individual [petitioners] were under her direct
control and supervision. The negligent acts of the other
individual [petitioners] were done within the scope of their
assigned tasks.
xxx xxx xxx
"The defense of due diligence of a good father of a family
raised by [petitioner] St. Joseph College will not exculpate it
from liability because it has been shown that it was guilty of
inexcusable laxity in the supervision of its teachers (despite an
apparent rigid screening process for hiring) and in the
maintenance of what should have been a safe and secured
environment for conducting dangerous experiments.

[Petitioner] school is still liable for the wrongful acts of the
teachers and employees because it had full information on the
nature of dangerous science experiments but did not take
affirmative steps to avert damage and injury to students. The
fact that there has never been any accident in the past during
the conduct of science experiments is not a justification to be
complacent in just preserving the status quo and do away with
creative foresight to install safety measures to protect the
students. Schools should not simply install safety reminders
and distribute safety instructional manuals. More importantly,
schools should provide protective gears and devices to shield
students from expected risks and anticipated dangers. aDSIHc
"Ordinarily, the liability of teachers does not extend to the
school or university itself, although an educational institution
may be held liable under the principle of RESPONDENT
SUPERIOR. It has also been held that the liability of the
employer for the [tortuous] acts or negligence of its employees
is primary and solidary, direct and immediate and not
conditioned upon the insolvency of or prior recourse against
the negligent employee." 10
Under the foregoing circumstances, we are hard pressed to disturb the findings of the
RTC, which the CA affirmed.
Nonetheless, petitioners make much of the fact that Tabugo specifically
instructed her students, including Jayson, at the start of the experiment, not to look into
the heated test tube before the compound had cooled off. Petitioners would allocate all
liability and place all blame for the accident on a twelve (12)-year-old student, herein
respondent Jayson.
We disagree.
As found by both lower courts, the proximate cause of Jayson's injury was the
concurrent failure of petitioners to prevent the foreseeable mishap that occurred during
the conduct of the science experiment. Petitioners were negligent by failing to exercise the
higher degree of care, caution and foresight incumbent upon the school, its administrators
and teachers.
Article 218 of the Family Code, in relation to Article 2180 of the Civil Code,
bestows special parental authority on the following persons with the corresponding
obligation, thus:
Art. 218. The school, its administrators and teachers, or the individual,
entity or institution engaged in child care shall have special parental
authority and responsibility over the minor child while under their
supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities whether
inside or outside the premises of the school, entity or institution.
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. HTaSEA
xxx xxx xxx
169
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.
Petitioners' negligence and failure to exercise the requisite degree of care and
caution is demonstrated by the following:
1. Petitioner school did not take affirmative steps to avert damage and injury to
its students although it had full information on the nature of dangerous science
experiments conducted by the students during class;
2. Petitioner school did not install safety measures to protect the students who
conduct experiments in class;
3. Petitioner school did not provide protective gears and devices, specifically
goggles, to shield students from expected risks and dangers; and
4. Petitioner Tabugo was not inside the classroom the whole time her class
conducted the experiment, specifically, when the accident involving Jayson occurred. In
any event, the size of the class fifty (50) students conducting the experiment is
difficult to monitor.
Moreover, petitioners cannot simply deflect their negligence and liability by
insisting that petitioner Tabugo gave specific instructions to her science class not to look
directly into the heated compound. Neither does our ruling in St. Mary's preclude their
liability in this case.
Unfortunately for petitioners, St. Mary's is not in point. In that case, respondents
thereat admitted the documentary exhibits establishing that the cause of the accident was
a mechanical defect and not the recklessness of the minor, James Daniel II, in driving the
jeep. We held, thus:
Significantly, respondents did not present any evidence to show that the
proximate cause of the accident was the negligence of the school
authorities, or the reckless driving of James Daniel II. . . . .
Further, there was no evidence that petitioner school allowed the minor
James Daniel II to drive the jeep of respondent Vivencio Villanueva. It
was Ched Villanueva, grandson of respondent Vivencio Villanueva, who
had possession and control of the jeep. He was driving the vehicle and
he allowed James Daniel II, a minor, to drive the jeep at the time of the
accident. TaCDIc
Hence, liability for the accident, whether caused by the negligence of the
minor driver or mechanical detachment of the steering wheel guide of
the jeep, must be pinned on the minor's parents primarily. The
negligence of petitioner St. Mary's Academy was only a remote cause of
the accident. Between the remote cause and the injury, there intervened
the negligence of the minor's parents or the detachment of the steering
wheel guide of the jeep. 11
In marked contrast, both the lower courts similarly concluded that the mishap
which happened during the science experiment was foreseeable by the school, its officials
and teachers. This neglect in preventing a foreseeable injury and damage equates to
neglect in exercising the utmost degree of diligence required of schools, its administrators
and teachers, and, ultimately, was the proximate cause of the damage and injury to
Jayson. As we have held in St. Mary's, "for petitioner [St. Mary's Academy] to be liable,
there must be a finding that the act or omission considered as negligent was the

proximate cause of the injury caused because the negligence must have a causal
connection to the accident." 12
As regards the contributory negligence of Jayson, we see no need to disturb the
lower courts' identical rulings thereon:
As earlier discussed, the proximate cause of [Jayson's] injury was the
explosion of the heated compound independent of any efficient
intervening cause. The negligence on the part of [petitioner] Tabugo in
not making sure that the science experiment was correctly conducted
was the proximate cause or reason why the heated compound exploded
and injured not only [Jayson] but his classmates as well. However,
[Jayson] is partly responsible for his own injury, hence, he should not be
entitled to recover damages in full but must likewise bear the
consequences of his own negligence. [Petitioners], therefore, should be
held liable only for the damages actually caused by their negligence. 13
Lastly, given our foregoing ruling, we likewise affirm the lower courts' award of
actual and moral damages, and grant of attorney's fees. The denial of petitioners'
counterclaim is also in order.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in
CA-G.R. CV No. 68367 is AFFIRMED. Costs against petitioners.
SO ORDERED.
Carpio, Peralta, Abad and Mendoza, JJ., concur.
||| (St. Joseph's College v. Miranda, G.R. No. 182353, [June 29, 2010], 636 PHIL 256-268)
EN BANC
[G.R. No. L-7664. August 29, 1958.]
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants, vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for
appellee.
SYLLABUS
1. DAMAGES; FAULT OR NEGLIGENCE; CLAIMANT HAS BURDEN TO PROVE.
The person claiming damages has the burden of proving that the damages is caused by
the fault or negligence of the person from whom the damage is claimed, or of one of his
employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517).
170
2. ID.; ABSENCE OF NEGLIGENCE OF OPERATOR OF SWIMMING POOLS;
DROWNING OR DEATH OF PATRON. The operator of swimming pools will not be held
liable for the drowning or death of 3 patron, if said operator had exercised due diligence in
the election of, and supervision over, its employees and that it had observed the diligence
required by law under the circumstances in that it has taken all necessary precautions
to avoid danger to the lives of its patrons or prevent accident. which may cause their
death.
3. WORDS AND PHRASES; "DOCTRINE OF LAST CLEAR CHANCE." The
doctrine of last clear chance simply means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided injurious consequences to
claimant notwithstanding his negligence. Or "As the doctrine usually is stated, a person
who has the last clear chance or opportunity of avoiding an accident, notwithstanding the
negligent acts of his opponent or the negligence of a third person which is imputed to his
opponent, is considered in law solely responsible for the consequences of the accident."
(38 Am. Jur. pp. 900-902.)
DECISION
BAUTISTA ANGELO, J p:
Plaintiffs spouses seek to recover from defendant, a government-owned
corporation, the sum of P50,000 as damages, P5,000 as funeral expenses, and P11,000
as attorneys' fees, for the death of their son Dominador Ong in one of the swimming pools
operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its
swimming pools but avers that his death was caused by his own negligence or by
unavoidable accident. Defendant also avers that it had exercised due diligence in the
selection of, and supervision over, its employees and that it had observed the diligence
required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and
dismissed the complaint without pronouncement as to costs. Plaintiffs took the case on
appeal directly to this Court because the amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara
filters, Diliman, Quezon City, to which people are invited and for which a nominal fee of
P0.50 for adults and P0.20 for children is charged. The main pool is between two small
pools of oval shape known as the "Wading pool" and the "Beginners Pool." There are
diving boards in the big pools and the depths of the water at different parts are indicated
by appropriate marks on the wall. The care and supervision of the pools and the users
thereof is entrusted to a recreational section composed of Simeon Chongco as chief,
Armando Rule, a male nurse, and six lifeguards who had taken the life-saving course given
by the Philippine Red Cross at the YMCA in Manila. For the safety of its patrons,
defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a
resuscitator. There is also a sanitary inspector who is in charge of a clinic established for
the benefit of the patrons. Defendant has also on display in a conspicuous place certain
rules and regulations governing the use of the pools, one of which prohibits the swimming
in the pool alone or without any attendant. Although defendant does not maintain a full-
time physician in the swimming pool compound, it has however a nurse and a sanitary

inspector ready to administer injections or operate the oxygen resuscitator if the need
should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-
year old high school student and a boy scout, and his brothers Ruben and Eusebio, went
to defendant's swimming pools. This was not the first time that the three brothers had
gone to said natatorium for they had already been there four or five times before. They
arrived at the natatorium at about 1:45 p.m. After paying the requisite admission fee, they
immediately went to one of the small pools where the water was shallow. At about 4:35
p.m., Dominador Ong told his brothers that he was going to the locker room in an
adjoining building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to
the bigger pool leaving Dominador in the small pool and so they did not see the latter
when he left the pool to get a bottle of coke. In that afternoon, there were two lifeguards
on duty in the pool compound, namely, Manuel Abao and Mario Villanueva. The tour of
duty of Abao was from 8:00 to 12:00 in the morning and from 2:00 to 6:00 in the
afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m. Between
4:00 to 5:00 that afternoon, there were about twenty bathers inside the pool area and
Manuel Abao was going around the pools to observe the bathers in compliance with the
instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a
bather by the name of Andres Hagad, Jr., that somebody was swimming under water for
quite a long time. Another boy informed lifeguard Manuel Abao of the same happening
and Abao immediately jumped into the big swimming pool and retrieved the apparently
lifeless body of Dominador Ong from the bottom. The body was placed at the edge of the
pool and Abao immediately applied manual artificial respiration. Soon after, male nurse
Armando Rule came to render assistance, followed by sanitary inspector Iluminado
Vicente who, after being called by phone from the clinic by one of the security guards,
boarded a jeep carrying with him the resuscitator and a medicine kit, and upon arriving he
injected the boy with camphorated oil. After the injection, Vicente left on a jeep in order to
fetch Dr. Ayuyao from the University of the Philippines. Meanwhile, Abao continued the
artificial manual respiration, and when this failed to revive him, they applied the
resuscitator until the two oxygen tanks were exhausted. Not long thereafter, Dr. Ayuyao
arrived with another resuscitator, but the same became of no use because he found the
boy already dead. The doctor ordered that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was investigated by
the Police Department of Quezon City and in the investigation boys Ruben Ong and
Andres Hagad, Jr. gave written statements. On the following day, July 6, 1952, an autopsy
was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal Division, National
Bureau of Investigation, who found in the body of the deceased the following: an abrasion
on the right elbow lateral aspect; contusion on the right forehead; hematoma on the scalp,
frontal region, right side; a congestion in the brain with petechial subcortical hemorrhage,
frontal lobe; cyanosis on the face and on the nails; the lung was soggy with fine froth in the
bronchioles; dark fluid blood in the heart; congestion in the visceral organs, and brownish
fluid in the stomach. The death was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor Dominador Ong
can be attributed to the negligence of defendant and/or its employees so as to entitle
plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of the
new Civil Code. The first article provides that "whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to pay for the damages done." Such
fault or negligence is called quasi-delict. Under the second article, this obligation is
demandable not only for one's own acts or omissions but also for those of persons for
171
whom one is responsible. In addition, we may quote the following authorities cited in
the decision of the trial court:
"'The rule is well settled that the owners of resorts to which
people generally are expressly or by implication invited are legally bound
to exercise ordinary care and prudence in the management and
maintenance of such resorts, to the end of making them reasonably safe
for visitors' (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 688).
"'Although the proprietor of a natatorium is liable for injuries to
a patron, resulting from lack of ordinary care in providing for his safety,
without the fault of the patron, he is not, however, in any sense deemed
to be the insurer of the safety of patrons. And the death of a patron
within his premises does not cast upon him the burden of excusing
himself from any presumption of negligence' (Bertalot vs. Kinnare. 72 Ill.
App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co., 161 Cal. 495, 119
Pac. 661). Thus in Bertalot vs.Kinnare, supra, it was held that there could
be no recovery for the death by drowning of a fifteen-year boy in
defendant's natatorium, where it appeared merely that he was lastly
seen alive in water at the shallow end of the pool, and some ten or fifteen
minutes later was discovered unconscious, and perhaps lifeless, at the
bottom of the pool, all efforts to resuscitate him being without avail."
Since the present action is one for damages founded on culpable negligence,
the principle to be observed is that the person claiming damages has the burden of
proving that the damage is caused by the fault or negligence of the person from whom the
damage is claimed, or of one of his employees (Walter A. Smith & Co. vs. Cadwallader
Gibson Lumber Co., 55 Phil., 517). The question then that arises is: Have appellants
established by sufficient evidence the existence of fault or negligence on the part of
appellee so as to render it liable for damages for the death of Dominador Ong?
There is no question that appellants had striven to prove that appellee failed to
take the necessary precaution to protect the lives of its patrons by not placing at the
swimming pools efficient and competent employees who may render help at a moment's
notice, and they ascribed such negligence to appellee because the lifeguard it had on the
occasion minor Ong was drowning was not available or was attending to something else
with the result that his help came late. Thus, appellants tried to prove through the
testimony of Andres Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad, Jr.
detected that there was a drowning person in the bottom of the big swimming pool and
shouted to the lifeguard for help, lifeguard Manuel Abao did not immediately respond to
the alarm and it was only upon the third call that he threw away the magazine he was
reading and allowed three or four minutes to elapse before retrieving the body from the
water. This negligence of Abao, they contend, is attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by
lifeguard Abao, but is belied by the written statements given by them in the investigation
conducted by the Police Department of Quezon City approximately three hours after the
happening of the accident. Thus, these two boys admitted in the investigation that they
narrated in their statements everything they knew of the accident, but, as found by the trial
nowhere in said statements do they state that the lifeguard was chatting with the security
guard at the gate of the swimming pool or was reading a comic magazine when the alarm
was given for which reason he failed to immediately respond to the alarm. On the contrary,
what Ruben Ong particularly emphasized therein was that after the lifeguard heard the
shouts for help, the latter immediately dived into the pool to retrieve the person under
water who turned out to be his brother. For this reason, the trial court made this
conclusion: "The testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure
 172
of the lifeguard Abao to immediately respond to their call may therefore be negligence of the plaintiff by an appreciable interval. Under these
disregarded because they are belied by their written statements." (Emphasis supplied.). circumstances, the law is that a person who has the last clear chance to
avoid the impending harm and fails to do so is chargeable with the
On the other hand, there is sufficient evidence to show that appellee has taken
consequences, without reference to the prior negligence of the other
all necessary precautions to avoid danger to the lives of its patrons or prevent accident
party." (Picart vs. Smith, 37 Phil., 809)
which may cause their death. Thus, it has been shown that the swimming pools of
appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and a Since it is not known how minor Ong came into the big swimming pool and it
first aid medicine kit. The bottom of the pools is painted with black colors so as to insure being apparent that he went there without any companion in violation of one of the
clear visibility. There is on display in a conspicuous place within the area certain rules and regulations of appellee as regards the use of the pools, and it appearing that lifeguard
regulations governing the use of the pools. Appellee employs six lifeguards who are all Abao responded to the call for help as soon as his attention was called to it and
trained as they had taken a course for that purpose and were issued certificates of immediately after retrieving the body all efforts at the disposal of appellee had been put
proficiency. These lifeguards work on schedule prepared by their chief and arranged in into play in order to bring him back to life, it is clear that there is no room for the
such a way as to have two guards at a time on duty to look after the safety of the bathers. application of the doctrine now invoked by appellants to impute liability to appellee.
There is a male nurse and a sanitary inspector with a clinic provided with oxygen
"The last clear chance doctrine can never apply where the
resuscitator. And there are security guards who are available always in case of emergency.
party charged is required to act instantaneously, and if the injury cannot
.
be avoided by the application of all means at hand after the peril is or
The record also shows that when the body of minor Ong was retrieved from the should have been discovered; at least in cases in which any previous
bottom of the pool, the employees of appellee did everything possible to bring him back to negligence of the party charged cannot be said to have contributed to
life. Thus, after he was placed at the edge of the pool, lifeguard Abao immediately gave the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d
him manual artificial respiration. Soon thereafter, nurse Armando Rule arrived, followed by 1063." (A.L.R. Digest, Vol. 8, pp. 955-956)
sanitary inspector Iluminado Vicente who brought with him an oxygen resuscitator. When
Before closing, we wish to quote the following observation of the trial court,
they found that the pulse of the boy was abnormal, the inspector immediately injected him
which we find supported by the evidence: "There is (also) a strong suggestion coming
with camphorated oil. When the manual artificial respiration proved ineffective they applied
from the expert evidence presented by both parties that Dominador Ong might have dived
the oxygen resuscitator until its contents were exhausted. And while all these efforts were
where the water was only 5.5 feet deep, and in so doing he might have hit or bumped his
being made, they sent for Dr. Ayuyao from the University of the Philippines who however
forehead against the bottom of the pool, as a consequence of which he was stunned, and
came late because upon examining the body found him to be already dead. All of the
which eventually led to his drowning. As a boy scout he must have received instructions in
foregoing shows that appellee has done what is humanly possible under the
swimming. He knew, or must have known, that it was dangerous for him to dive in that
circumstances to restore life to minor Ong and for that reason it is unfair to hold it liable for
part of the pool."
his death.
Wherefore, the decision appealed from being in accordance with law and the
Sensing that their former theory as regards the liability of appellee may not be of
evidence, we hereby affirm the same, without pronouncement as to costs.
much help, appellants now switch to the theory that even if it be assumed that the
deceased is partly to be blamed for the unfortunate incident, still appellee may be held Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Concepcion, Reyes,
liable under the doctrine of "last clear chance" for the reason that, having the last J.B.L., Endencia and Felix, JJ., concur.
opportunity to save the victim, it failed to do so.
||| (Ong v. Metropolitan Water District, G.R. No. L-7664, [August 29, 1958], 104 PHIL 397-406)
We do not see how this doctrine may apply, considering that the record does
not show how minor Ong came into the big swimming pool. The only thing the record
discloses is that minor Ong informed his elder brothers that he was going to the locker
room to drink a bottle of coke but that from that time on nobody knew what happened to
SECOND DIVISION
him until his lifeless body was retrieved. The doctrine of last clear chance simply means
that the negligence of a claimant does not preclude a recovery for the negligence of
defendant where it appears that the latter, by exercising reasonable care and prudence, [G.R. No. 73998. November 14, 1988.]
might have avoided injurious consequences to claimant notwithstanding his negligence.
Or, "As the doctrine usually is stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or PEDRO T. LAYUGAN, petitioner, vs. INTERMEDIATE APPELLATE
the negligence of a third person which is imputed to his opponent, is considered in law COURT, GODOFREDO ISIDRO, and TRAVELLERS MULTI-
solely responsible for the consequences of the accident." (38 Am. Jur. pp. 900-902) INDEMNITY CORPORATION, respondents.
"It goes without saying that the plaintiff himself was not free
from fault, for he was guilty of antecedent negligence in planting himself
in the wrong side of the road. But as we have already stated, the Edralin S. Mateo for petitioner.
defendant was also negligent; and in such case the problem always is to
discover which agent is immediately and directly responsible. It will be Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.
noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the Roberto T . Vallarta for respondent Godofredo Isidro.

SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; FINDINGS OF FACT OF COURT OF
APPEALS ARE ENTITLED TO GREAT RESPECT AND ORDINARILY NOT DISTURBED ON
APPEAL. It is an elementary rule in the review of decisions of the Court of Appeals that its
findings of fact are entitled to great respect and will not ordinarily be disturbed by this Court.
For if we have to review every question of fact elevated to us, we would hardly have any more
time left for the weightier issues compelling and deserving our preferential attention.
2. ID.; ID.; ID.; ID.; EXCEPTIONS. Surely there are established exceptions when the Court
should review and rectify the findings of fact of the lower court, such as: 1) when the conclusion
is a finding grounded entirely on speculation, surmise, or conjecture; 2) the inference made is
manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment is based on
misapprehension of facts; 5) the Court of Appeals went beyond the issues of the case if the
findings are contrary to the admission of both the appellant and the appellee; 6) the findings of
the Court of Appeals are contrary to those of the trial court; 7) the said findings of fact are
conclusions without citation of specific evidence on which they are based; 8) the facts set forth
in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondents; and 9) when the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted on record.
3. CIVIL LAW; CIVIL CODE; QUASI-DELICT; NEGLIGENCE; DEFINED. Negligence is the
omission to do something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the doing of something which a
prudent and reasonable man would not do, or as Judge Cooley defines it, "(T)he failure to
observe for the protection of the interests of another person, that degree of care, precaution,
and vigilance which the circumstances justly demand, whereby such other person suffers
injury."
4. ID.; ID.; ID.; ID.; TEST TO DETERMINE EXISTENCE. In Picart vs. Smith, decided more
than seventy years ago but still a sound rule, we held: The test by which to determine the
existence of negligence in a particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is guilty of negligence.
The law here in effect adopts the standard supposed to be supplied by the imaginary conduct
of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is
not determined by reference to the personal judgment of the actor in the situation before him.
The Law considers what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.
5. ID.; ID.; ID.; ID.; DOCTRINE OF RES IPSA LOQUITUR; EXPLAINED. The doctrine res ipsa
loquitur is stated thus: "Where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the ordinary course of things
does not happen if those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the accident arose from want
of care." (Cocley on Torts, Vol. 3, 369)
6. ID.; ID.; ID.; ID.; ID.; APPLICATION. The doctrine of res ipsa loquitur as a rule of evidence
is peculiar to the law of negligence which recognizes that prima facie negligence may be
established without direct proof and furnishes a substitute for specific proof of negligence. The
doctrine is not a rule of substantive law but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and circumstances of a particular case, is
not intended to and does not dispense with the requirement of proof of culpable negligence on
the part of the party charged. It merely determines and regulates what shall be prima facie
evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due
173
care. The doctrine can be invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily available.
7. ID.; ID.; ID.; ID.; DOCTRINE IS INAPPLICABLE WHERE THE ACTUAL CAUSE OF INJURY IS
ESTABLISHED BEYOND CONTROVERSY. It has generally been held that the presumption of
inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has
knowledge and testifies or presents evidence as to the specific act of negligence which is the
cause of the injury complained of or where there is direct evidence as to the precise cause of
the accident and all the facts and circumstances attendant on the occurrence clearly appear.
Finally, once the actual cause of injury is established beyond controversy, whether by the
plaintiff or by the defendant, no presumptions will be involved and the doctrine becomes
inapplicable when the circumstances have been so completely eludicated that no inference of
defendant's liability can reasonably be made, whatever the source of the evidence, as in this
case.
8. ID.; ID.; ID.; ID.; DOCTRINE OF RESPONDENT SUPERIOR; MASTER OR EMPLOYER IS
PRESUMED NEGLIGENT; PRESUMPTION IS OVERCOME OF A GOOD FATHER OF THE
FAMILY. The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph
5, of the Civil Code. In the latter, when an injury is caused by the negligence of a servant or
employee there instantly arises a presumption of law that there was negligence on the part of
the master or employer either in the selection of the servant or employee, or in supervision over
him after selection, or both. Such presumption is juris tantum and not juris et de jure and
consequently, may be rebutted. If follows necessarily that if the employer shows to the
satisfaction of the court that in the selection and in the supervision he has exercised the care
and diligence of a good father of a family, the presumption is overcome and he is relieved from
liability.
DECISION
SARMIENTO, J p:
Assailed in this petition for review on certiorari are 1) the decision 1 of the then Intermediate
Appellate Court 2 in AC-G.R. CV No. 01055, entitled "Pedro T. Layugan, Plaintiff-Appellee,
versus Godofredo Isidro, Defendant-Appellant and Third-Party Plaintiff-Appellee, versus
Travellers Multi-Indemnity Corporation, Third Party Defendant-Appellant, "which reversed and
set aside the decision 3 of the Regional Trial Court, Third Judicial Region, Branch XXVI,
Cabanatuan City, and also dismissed the complaint, third party complaint, and the counter
claims of the parties and 2) the resolution 4 denying the plaintiff-appellee's (herein petitioner)
motion for reconsideration, for lack of merit.
The findings of fact by the trial court which were adopted by the appellate court are as
follows: 5
xxx xxx xxx
"Pedro T. Layugan filed an action for damages against Godofredo Isidro,
alleging that on May 15, 1979 while at Baretbet, Bagabag, Nueva
Vizcaya, the Plaintiff and a companion were repairing the tire of their
cargo truck with Plate No. SU-730 which was parked along the right side
of the National Highway; that defendant's truck bearing Plate No. PW-
583, driven recklessly by Daniel Serrano bumped the plaintiff; that as a

result, plaintiff was injured and hospitalized at Dr. Paulino J. Garcia
Research and Medical Center and the Our Lady of Lourdes Hospital; that
he spent TEN THOUSAND PESOS (P10,000.00) and will incur more
expenses as he recuperates from said injuries; that because of said
injuries he would be deprived of a lifetime income in the sum of
SEVENTY THOUSAND PESOS (P70,000.00); and that he agreed to pay
his lawyer the sum of TEN THOUSAND PESOS (P10,000.00).
As prayed for by the plaintiffs counsel, the Court declared the defendant
in default on October 12, 1979, and plaintiffs evidence was received ex-
parte on January 11, 1978 and February 19, 1980. The decision on
behalf of the plaintiff was set aside to give a chance to the defendant to
file his answer and later on, a third-party complaint. prcd
Defendant admitted his ownership of the vehicle involved in the accident
driven by Daniel Serrano. Defendant countered that the plaintiff was
merely a bystander, not a truck helper being a brother-in-law of the
driver of said truck; that the truck allegedly being repaired was parked,
occupying almost half of the light lane towards Solano, Nueva Vizcaya,
light after the curve; that the proximate cause of the incident was the
failure of the driver of the parked truck in installing the early warning
device, hence the driver of the parked car should be liable for damages
sustained by the truck of the herein defendant in the amount of more
than P20,000.00; that plaintiff being a mere bystander and hitchhiker
must suffer all the damages he incurred. By way of counterclaim
defendant alleged that due to plaintiffs baseless complaint he was
constrained to engage the services of counsel for P5,000.00 and
P200.00 per court appearance; that he suffered sleepless nights,
humiliation, wounded feelings which may be estimated at P30.000.00.
On May 29, 1981, a third-party complaint was filed by the defendant
against his insurer, the Travellers Multi Indemnity Corporation; that the
third-party plaintiff, without admitting his liability to the plaintiff, claimed
that the third-party defendant is liable to the former for contribution,
indemnity and subrogation by virtue of their contract under Insurance
Policy No. 11723 which covers the insurer's liability for damages arising
Upon such findings, amply supported by the evidence on record, the trial court rendered its
from death, bodily injuries and damage to property.
decision, the dispositive part of which reads as follows: 6
Third-party defendant answered that, even assuming that the subject
matter of the complaint is covered by a valid and existing insurance
policy, its liability shall in no case exceed the limit defined under the
terms and conditions stated therein; that the complaint is premature as
no claim has been submitted to the third party defendant as prescribed
under the Insurance Code; that the accident in question was
approximately caused by the carelessness and gross negligence of the
plaintiff; that by reason of the third-party complaint, third-party
defendant was constrained to engage the services of counsel for a fee of
P3,000.00. LexLib
Pedro Layugan declared that he is a married man with one (1) child. He
was employed as security guard in Mandaluyong, Metro Manila, with a
salary of SIX HUNDRED PESOS (600.00) a month. When he is off-duty,
he worked as a truck helper and while working as such, he sustained
injuries as a result of the bumping of the cargo truck they were repairing
174
at Baretbet, Bagabag, Nueva Vizcaya by the driver of the defendant. He
used to earn TWO HUNDRED PESOS (P200.00) to THREE HUNDRED
PESOS (P300.00) monthly, at the rate of ONE HUNDRED PESOS
(P100.00) per trip. Due to said injuries, his left leg was amputated so he
had to use crutches to walk. Prior to the incident, he supported his
family sufficiently, but after getting injured, his family is now being
supported by his parents and brother.
GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his
truck involved in this vehicular accident is insured with the Travellers
Multi Indemnity Corporation covering own damage and third-party
liability, under vehicle policy No. 11723 (Exh. `1') dated May 30, 1978;
that after he filed the insurance claim the insurance company paid him
the sum of P18,000.00 for the damages sustained by this truck but not
the third party liability.
DANIEL SERRANO, defendant driver, declared that he gave a statement
before the municipal police of Bagabag, Nueva Vizcaya on May 16,
1979; that he knew the responsibilities of s driver; that before leaving, he
checked the truck. The truck owner used to instruct him to be careful in
driving. He bumped the truck being repaired by Pedro Layugan, plaintiff,
while the same was at a stop position.
From the evidence presented, it has been established clearly that the
injuries sustained by the plaintiff was caused by defendant's driver,
Daniel Serrano. The police report confirmed the allegation of the plaintiff
and admitted by Daniel Serrano on cross-examination. The collision
dislodged the jack from the parked truck and pinned the plaintiff to the
ground. As a result thereof, plaintiff sustained injuries on his left forearm
and left foot. The left leg of the plaintiff from below the knee was later on
amputated (Exh. 'C') when gangrene had set in, thereby rendering him
incapacitated for work depriving him of his income." (pp. 118 to 120,
Record on Appeal.)
xxx xxx xxx
WHEREFORE, premises considered, the defendant is hereby ordered:
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS actual
and compensatory damages;
b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and
d) To pay the costs of this suit.
On the third-party complaint, the third-party defendant is ordered to
indemnify the defendant/third party plaintiff:
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and
compensatory damages; and
b) The costs of this suit.

The Intermediate Appellate Court as earlier stated reversed the decision of the trial court and
dismissed the complaint, the third-party complaint, and the counter-claims of both
appellants. 7
Hence, this petition.
The petitioner alleges the following errors. 8
1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE
APPELLATE COURT ACTED CORRECTLY IN REVERSING AND
SETTING ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S
COMPLAINT.
2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED
CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA LOQUITUR"
WITH PROPER JURIS-PRUDENTIAL (sic) BASIS.
The crux of the controversy lies in the correctness or error of the decision of the respondent
court finding the petitioner negligent under the doctrine of Res ipsa loquitur (The thing speaks
for itself). Corollary thereto, is the question as to who is negligent, if the doctrine is inapplicable.
The respondent corporation stresses that the issues raised in the petition being factual, the
same is not reviewable by this Court in a petition for review by certiorari. 9
Indeed, it is an elementary rule in the review of decisions of the Court of Appeals that its
findings of fact are entitled to great respect and will not ordinarily be disturbed by this
Court. 10 For if we have to review every question of fact elevated to us, we would hardly have
any more time left for the weightier issues compelling and deserving our preferential
attention. 11 Be that as it may, this rule is not inflexible. Surely there are established
exceptions 12 when the Court should review and rectify the findings of fact of the lower
court, such as:
1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2)
the inference made is manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment
is based on misapprehension of facts; 5) the Court of Appeals went beyond the issues of the
case if the findings are contrary to the admission of both the appellant and the appellee; 6) the
findings of the Court of Appeals are contrary to those of the trial court; 7) the said findings of
fact are conclusions without citation of specific evidence on which they are based; 8) the facts
set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by
the respondents; and 9) when the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted on record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation from the general
rule.
From its finding that the parked truck was loaded with ten (10) big round logs, 13 the Court of
Appeals inferred that because of its weight the truck could not have been driven to the shoulder
of the road and concluded that the same was parked on a portion of the road 14 at the time of
the accident. Consequently, the respondent court inferred that the mishap was due to the
negligence of the driver of the parked truck.15 The inference or conclusion is manifestly
erroneous. In a large measure, it is grounded on speculation, surmise, or conjecture. How the
respondent court could have reversed the finding of the trial court that a warning device was
installed 16 escapes us because it is evident from the record that really such a device, in the
form of a lighted kerosene lamp, was installed by the driver of the parked truck three to four
meters from the rear of his parked truck. 17 We see this negative finding of the respondent
appellate court as a misreading of the facts and the evidence on record and directly
contravening the positive finding of the trial court that an early warning device was in proper
175
place when the accident happened and that the driver of the private respondent was the
one negligent. On the other hand, the respondent court, in refusing to give its "imprimatur to
the trial court's finding and conclusion that Daniel Serrano (private respondent Isidro's driver)
was negligent in driving the truck that bumped the parked truck", did not cite specific evidence
to support its conclusion. In cavalier fashion, it simply and nebulously adverted to unspecified
"scanty evidence on record." 18
On the technical aspect of the case, the respondent corporation would want us to dismiss this
petition on the ground that it was filed out of time. It must be noted that there was a motion for
extension, 19 albeit filed erroneously with the respondent court, dated March 19, 1986,
requesting for 30 days from March 20, 1986, to file the necessary petition or pleading before
the Supreme Court". Also, on April 1, 1986, an appearance of a new lawyer for the petitioner
before the Supreme Court" with motion 20 was filed, again erroneously, with the Court of
Appeals, requesting for 20 days extension "to file the Petition for Review on Certiorari."
Likewise a similar motion 21 was filed with this Court also on April 1, 1986. On the other hand,
the instant petition for review was filed on April 17, 1986 22 but it was only after three months,
on August i, 1986, in its comment, 23 that the respondent corporation raised the issue of
tardiness. The respondent corporation should not have waited in ambush before the comment
was required and before due course was given. In any event, to exact its "a pound of flesh", so
to speak, at this very late stage, would cause a grave miscarriage of justice. Parenthetically, it
must be noted that private respondent Isidro did not raise this issue of late filing.
We now come to the merits of this petition.
The question before us is who was negligent? Negligence is the omission to do something
which a reasonable man, guided by those considerations which ordinarily regulate the conduct
of human affairs, would do, or the doing of something which a prudent and reasonable man
would not do, 24 or as Judge Cooley defines it, "(T)he failure to observe for the protection of
the interests of another person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury." 25
In Picart vs. Smith, 26 decided more than seventy years ago but still a sound rule, we held:
The test by which to determine the existence of negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of negligence in a
given case is not determined by reference to the personal judgment of
the actor in the situation before him. The Law considers what would be
reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that.
Respondent Isidro posits that any immobile object along the highway, like a parked truck,
poses serious danger to a moving vehicle which has the right to be on the highway. He argues
that since the parked cargo truck in this case was a threat to life and limb and property, it was
incumbent upon the driver as well as the petitioner, who claims to be a helper of the truck
driver, to exercise extreme care so that the motorist negotiating the road would be properly
forewarned of the peril of a parked vehicle. Isidro submits that the burden of proving that care
and diligence were observed is shifted to the petitioner, for, as previously claimed, his (Isidro's)
Isuzu truck had a right to be on the road, while the immobile cargo truck had no business, so to
speak, to be there. Likewise, Isidro proffers that the petitioner must show to the satisfaction of

a reasonable mind that the driver and he (petitioner) himself, provided an early warning device,
like that required by law, or, by some other adequate means that would properly forewarn
vehicles of the impending danger that the parked vehicle posed considering the time, place,
and other peculiar circumstances of the occasion. Absent such proof of care, as in the case at
bar, Isidro concludes, would, under the doctrine of Res ipsa loquitur, evoke the presumption of
negligence on the part of the driver of the parked cargo truck as well as his helper, the
petitioner herein, who was fixing the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.
The evidence on record discloses that three or four meters from the rear of the parked truck, a
lighted kerosene lamp was placed. 28 Moreover, there is the admission of respondent Isidro's
driver, Daniel Serrano, to wit: 29
"Question No. 8 (by Patrolman Josefino Velasco) Will you narrate to
me in brief how the accident happens (sic) if you can still
remember?
Answer: (by Daniel Serrano)
That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck at
Baretbet, Bagabag, Nueva Vizcaya and at KM 285, I met
another vehicle who (sic) did not dim his (sic) lights which
cause (sic) me to be blinded with intense glare of the light
that's why I did not notice a parked truck who (sic) was
repairing a front flat tire. When I was a few meters away, I saw
the truck which was loaded with round logs. I step (sic) on my
foot brakes but it did not function with my many attempts. I
have (sic) found out later that the fluid pipe on the rear right
was cut that's why the breaks did not function." (Emphasis
supplied).
Whether the cargo truck was parked along the road or on half the shoulder of the right side of
the road would be of no moment taking into account the warning device consisting of the
lighted kerosene lamp placed three or four meters from the back of the truck. 30 But despite
this warning which we rule as sufficient, the Isuzu truck driven by Daniel Serrano, an employee
of the private respondent, still bumped the rear of the parked cargo truck. As a direct
consequence of such accident the petitioner sustained injuries on his left forearm and left foot.
His left leg was later amputated from below the knee when gangrene had set in. 31
It is clear from the foregoing disquisition that the absence or want of care of Daniel Serrano has
been established by clear and convincing evidence. It follows that in stamping
its imprimatur upon the invocation by respondent Isidro of the doctrine of Res ipsa loquitur to
escape liability for the negligence of his employee, the respondent court committed reversible
error.
The respondent court ruled: 32
xxx xxx xxx
In addition to this, we agree with the following arguments of appellant
Godofredo Isidro which would show that the accident was caused due
to the negligence of the driver of the cargo truck:
xxx xxx xxx
176
". . . In the case at bar the burden of proving that care and diligence was
(sic) observed is shifted evidently to the plaintiff, for, as adverted to, the
motorists have the right to be on the road, while the immobile truck has
no business, so to speak, to be there. It is thus for the plaintiff to show to
the satisfaction of a reasonable mind that the driver and he himself did
employ early warning device such as that required by law or by some
other adequate means or device that would properly forewarn vehicles of
the impending danger that the parked vehicle posed considering the
time, place and other peculiar circumstances of the occasion. Absent
such proof of care, as in the case at bar, will evoke the presumption of
negligence under the doctrine of res ipsa loquitur, on the part of the
driver of the parked cargo truck as well as plaintiff who was fixing the flat
tire of said truck. (pp. 14-17, Appellant's Brief)." (Emphasis supplied).
At this juncture, it may be enlightening and helpful in the proper resolution of the issue of
negligence to examine the doctrine of Res ipsa loquitur.
This doctrine is stated thus: "Where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the ordinary course of things
does not happen if those who have the management usde proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the accident arose from want
of care." 33 Or as Black's Law Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or
inference that defendant was negligent, which arises upon proof that
instrumentality causing injury was in defendant's exclusive control, and
that the accident was one which ordinarily does not happen in absence
of negligence. Res ipsa loquitur is rule of evidence whereby negligence
of alleged wrongdoer may be inferred from mere fact that accident
happened provided character of accident and circumstances attending it
lead reasonably to belief that in absence of negligence it would not have
occurred and that thing which caused injury is shown to have been
under management and control of alleged wrongdoer. Hillen v. Hooker
Const. Co., Tex. Civ. App., 484 S.W. 2d 133, 155. Under doctrine of "res
ipsa loquitur" the happening of an injury permits an inference of
negligence where plaintiff produces substantial evidence that injury was
caused by an agency or instrumentality under exclusive control and
management of defendant, and that the occurrence was such that in the
ordinary course of things would not happen if reasonable care had been
used.
In this jurisdiction we have applied this doctrine in quite a number of cases, notably in Africa et
al. vs. Caltex, Inc., et al., 35 and the latest is in the case of F.F. Cruz and Co., Inc. vs. C A . 36
The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. 37 The doctrine is not a rule of substantive
law 38 but merely a mode of proof or a mere procedural convenience. 39 The rule, when
applicable to the facts and circumstances of a particular case, is not intended to and does not
dispense with the requirement of proof of culpable negligence on the part of the party
charged. 40 It merely determines and regulates what shall be prima facie evidence thereof and
facilitates the burden of plaintiff of proving a breach of the duty of due care. 41The doctrine can
be invoked when and only when, under the circumstances involved, direct evidence is absent
and not readily available. 42 Hence, it has generally been held that the presumption of inference
arising from the doctrine cannot be availed of, or is overcome, where plaintiff has knowledge
and testifies or presents evidence as to the specific act of negligence which is the cause of the

injury complained of or where there is direct evidence as to the precise cause of the accident
and all the facts and circumstances attendant on the occurrence clearly appear. 43 Finally,
once the actual cause of injury is established beyond controversy, whether by the plaintiff or by
the defendant, no presumptions will be involved and the doctrine becomes inapplicable when
the circumstances have been so completely eludicated that no inference of defendant's liability
can reasonably be made, whatever the source of the evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil
Code. In the latter, when an injury is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on the part of the master or
employer either in the selection of the servant or employee, or in supervision over him after
selection, or both. Such presumption is juris tantum and not juris et de jure and consequently,
may be rebutted. If follows necessarily that if the employer shows to the satisfaction of the
court that in the selection and in the supervision he has exercised the care and diligence of a
good father of a family, the presumption is overcome and he is relieved from liability. 45 In
disclaiming liability for the incident, the private respondent stresses that the negligence of his
employee has already been adequately overcome by his driver's statement that he knew his
responsibilities as a driver and that the truck owner used to instruct him to be careful in
driving. 46
We do not agree with the private respondent in his submission. In the first place, It is clear that
the driver did not know his responsibilities because he apparently did not check his vehicle
before he took it on the road. If he did he could have discovered earlier that the brake fluid pipe
on the right was cut, and could have repaired it and thus the accident could have been
avoided. Moreover, to our mind, the fact that the private respondent used to instruct his driver
to be careful in his driving, that the driver was licensed, and the fact that he had no record of
any accident, as found by the respondent court, are not sufficient to destroy the finding of
negligence of the Regional Trial Court given the facts established at the trial 47 The private
respondent or his mechanic, who must be competent, should have conducted a thorough
inspection of his vehicle before allowing his driver to drive it. In the light of the circumstances
obtaining in the case, we hold that Isidro failed to prove the diligence of a good father of a
family in the supervision of his employees which would exculpate him from solidary liability with
his driver to the petitioner. But even if we concede that the diligence of a good father of a family
was observed by Isidro in the supervision of his driver, there is not an iota of evidence on
record of the observance by Isidro of the same quantum of diligence in the supervision of his
mechanic, if any, who would be directly in charge in maintaining the road worthiness of his
(Isidro's) truck. But that is not all. There is paucity of proof that Isidro exercised the diligence of
a good father of a family in the selection of his driver, Daniel Serrano, as well as in the selection
of his mechanic, if any, in order to insure the safe operation of his truck and thus prevent
damage to others. Accordingly, the responsibility of Isidro as employer treated in Article 2180,
paragraph 5, of the Civil Code has not ceased. prLL
WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent court as well
as its Resolution denying the petitioner's motion for reconsideration are hereby SET ASIDE and
the decision of the trial court, dated January 20, 1983, is hereby REINSTATED in toto. With
costs against the private respondents.
SO ORDERED.
Melencio-Herrera, Paras and Padilla, JJ., concur.
Regalado, J., took no part; did not participate in deliberations.
||| (Layugan v. Intermediate Appellate Court, G.R. No. 73998, [November 14, 1988], 249 PHIL
363-380)
177
FIRST DIVISION
[G.R. No. 83491. August 27, 1990.]
MA-AO SUGAR CENTRAL CO., INC. and GUILLERMO
ARANETA, petitioners, vs. HON. COURT OF APPEALS and HERMINIA
FAMOSO, respondents.
Jalandoni, Herrera, Del Castillo & Associates for petitioners.
Napoleon Corral for private respondent.
SYLLABUS
1. CIVIL LAW; QUASI-DELICTS; RES IPSA LOQUITOR; DESCRIPTION THEREOF. The
absence of the fish plates whatever the cause or reason is by itself alone proof of the
negligence of the petitioner. Res ipsa loquitur. The doctrine was described recently in Layugan
v. Intermediate Appellate Court. (167 SCRA 376) thus: Where the thing which causes injury is
shown to be under the management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have the management use proper care,
it affords reasonable evidence, in the absence of an explanation by the defendant, that the
accident arose from want of care.
2. ID.; ID.; DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF EMPLOYEES; NOT
EXERCISED IN THE CASE AT BAR. The petitioner also disclaims liability on the ground of
Article 2176 of the Civil Code, contending it has exercised due diligence in the selection and
supervision of its employees. The Court cannot agree. The record shows it was in fact lax in
requiring them to exercise the necessary vigilance in maintaining the rails in good condition to
prevent the derailments that sometimes happened "every hour." Obviously, merely ordering the
brakemen and conductors to fill out prescribed forms reporting derailments which reports
have not been acted upon as shown by the hourly derailments is not the kind of supervision
envisioned by the Civil Code.
3. ID.; ID.; CONTRIBUTORY NEGLIGENCE; DEFINITION THEREOF. We also do not see how
the decedent can be held guilty of contributory negligence from the mere fact that he was not
at his assigned station when the train was derailed. That might have been a violation of
company rules but could not have directly contributed to his injury, as the petitioner suggests. It
is pure speculation to suppose that he would not have been injured if he had stayed in the front
car rather than at the back and that he had been killed because he chose to ride in the
caboose. Contributory negligence has been defined as "the act or omission amounting to want
of ordinary care on the part of the person injured which, concurring with the defendant's
negligence, is the proximate cause of the injury." It has been held that "to hold a person as
having contributed to his injuries, it must be shown that he performed an act that brought about
his injuries in disregard of warnings or signs of an impending danger to health and body." There
is no showing that the caboose where Famoso was riding was a dangerous place and that he
recklessly dared to stay there despite warnings or signs of impending danger.

4. LABOR LAW AND SOCIAL LEGISLATION; SOCIAL SECURITY SYSTEM; PENSION, THE
BENEFIT DERIVABLE FROM AN EMPLOYEE'S REGULAR CONTRIBUTIONS; DOES NOT
REPRESENT THE DEATH BENEFITS PAYABLE UNDER THE WORKMEN'S COMPENSATION
ACT. The last point raised by the petitioner is easily resolved. Citing the case of Floresca v.
Philex Mining Corporation, it argues that the respondent court erred in disauthorizing the
deduction from the total damages awarded the private respondent of the amount of
P41,367.60, representing the pension to be received by the private respondent from the Social
Security System for a period of five years. The argument is that such deduction was quite
proper because of Art. 173 of the Labor Code, as amended. This article provides that any
amount received by the heirs of a deceased employee from the Employees Compensation
Commission, whose funds are administered by the SSS, shall be exclusive of all other amounts
that may otherwise be claimed under the Civil Code and other pertinent laws. The amount to be
paid by the SSS represents the usual pension received by the heirs of a deceased employee
who was a member of the SSS at the time of his death and had regularly contributed his
premiums as required by the System. The pension is the benefit derivable from such
contributions. It does not represent the death benefits payable under the Workmen's
Compensation Act to an employee who dies as a result of a work-connected injury. Indeed, the
certification from the SSS does not indicate that the pension is to be taken from the funds of
the ECC. The certification would have said so if the pension represented the death benefits
accruing to the heirs under the Workmen's Compensation Act. This conclusion is supported by
the express provision of Art. 173 as amended.
DECISION
CRUZ, J p:
To say the least, the Court views with regret the adamant refusal of petitioner Ma-ao Sugar
Central to recompense the private respondent for the death of Julio Famoso, their main source
of support, who was killed in line of duty while in its employ. It is not only a matter of law but
also of compassion on which we are called upon to rule today. We shall state at the outset that
on both counts the petition must fail.
On March 22, 1980, Famoso was riding with a co-employee in the caboose or "carbonera" of
Plymouth No. 12, a cargo train of the petitioner, when the locomotive was suddenly derailed.
He and his companion jumped off to escape injury, but the train fell on its side, caught his legs
by its wheels and pinned him down. He was declared dead on the spot. 1
The claims for death and other benefits having been denied by the petitioner, the herein private
respondent filed suit in the Regional Trial Court of Bago City. Judge Marietta Hobilla-Alinio
ruled in her favor but deducted from the total damages awarded 25% thereof for the
decedent's contributory negligence and the total pension of P41,367.60 private respondent and
her children would be receiving from the SSS for the next five years. The dispositive portion of
the decision read:
WHEREFORE, in view of the foregoing facts and circumstances present
in this case, the Court orders as it does hereby order the defendant Ma-
ao Sugar Central thru its Manager Mr. Guillermo Y. Araneta to pay
plaintiff the following amount:
P30,000.00 for the death of plaintiffs husband, the
late Julio Famoso
178
P30,000.00 for actual, exemplary and moral
damages
P10,000.00 loss of earnings for twenty (20) years
P 3,000.00 funeral expenses
__________
P73,000.00 Total Damages.
Less: P18,250.00 25% for the deceased's contributory
negligence
Less: P41,367.60 pension plaintiff and her minor children
would be receiving for five (5) years
from the SSS
P13,382.40
Plus: P 3,000.00 Attorney's fees and cost of this suit
P16,382.40 Total amount payable to the plaintiff
SO ORDERED.
The widow appealed, claiming that the deductions were illegal. So did the petitioner, but on the
ground that it was not negligent and therefore not liable at all.
In its own decision, the Court of Appeals 2 sustained the rulings of the trial court except as to
the contributory negligence of the deceased and disallowed the deductions protested by the
private respondent. Thus, the respondent court declared: prcd
WHEREFORE, the decision appealed from is MODIFIED by ordering the
defendant-appellant to pay the plaintiff-appellee the following amounts:
P30,000.00, for the death of Julio Famoso
P30,000.00, for actual, exemplary and moral damages
P10,000.00, for loss of earnings for twenty (20) years
P 3,000.00, for funeral expenses P3,000.00, for
attorney's fees
__________
P76,000.00 Total Amount
In this petition, the respondent court is faulted for finding the petitioner guilty of negligence
notwithstanding its defense of due diligence under Article 2176 of the Civil Code and for
disallowing the deductions made by the trial court.
Investigation of the accident revealed that the derailment of the locomotive was caused by
protruding rails which had come loose because they were not connected and fixed in place by
fish plates. Fish plates are described as strips of iron 8" to 12" long and 3 1/2" thick which are
attached to the rails by 4 bolts, two on each side, to keep the rails aligned. Although they could
be removed only with special equipment, the fish plates that should have kept the rails aligned
could not be found at the scene of the accident.
There is no question that the maintenance of the rails, for the purpose inter alia of preventing
derailments, was the responsibility of the petitioner, and that this responsibility was not
discharged. According to Jose Treyes, its own witness, who was in charge of the control and
supervision of its train operations, cases of derailment in the milling district were frequent and
there were even times when such derailments were reported every hour. 3 The petitioner should
therefore have taken more prudent steps to prevent such accidents instead of waiting until a life
was finally lost because of its negligence.

The argument that no one had been hurt before because of such derailments is of course not
acceptable. And neither are we impressed by the claim that the brakemen and the conductors
were required to report any defect in the condition of the railways and to fill out prescribed
forms for the purpose. For what is important is that the petitioner should acton these reports
and not merely receive and file them. The fact that it is not easy to detect if the fish plates are
missing is no excuse either. Indeed, it should stress all the more the need for the responsible
employees of the petitioner to make periodic checks and actually go down to the railroad tracks
and see if the fish plates were in place. LexLib
It is argued that the locomotive that was derailed was on its way back and that it had passed
the same rails earlier without accident. The suggestion is that the rails were properly aligned
then, but that does not necessarily mean they were still aligned afterwards. It is possible that
the fish plates were loosened and detached during its first trip and the rails were as a result
already mis-aligned during the return trip. But the Court feels that even this was unlikely, for, as
earlier noted, the fish plates were supposed to have been bolted to the rails and could be
removed only with special tools. The fact that the fish plates were not found later at the scene
of the mishap may show they were never there at all to begin with or had been removed long
before.
At any rate, the absence of the fish plates whatever the cause or reason is by itself alone
proof of the negligence of the petitioner. Res ipsa loquitur. The doctrine was described recently
in Layugan v. Intermediate Appellate Court, 4 thus:
Where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the
absence of an explanation by the defendant, that the accident arose
from want of care.
The petitioner also disclaims liability on the ground of Article 2176 of the Civil Code, contending
it has exercised due diligence in the selection and supervision of its employees. The Court
cannot agree. The record shows it was in fact lax in requiring them to exercise the necessary
vigilance in maintaining the rails in good condition to prevent the derailments that sometimes
happened "every hour." Obviously, merely ordering the brakemen and conductors to fill out
prescribed forms reporting derailments which reports have not been acted upon as shown
by the hourly derailments is not the kind of supervision envisioned by the Civil Code.
We also do not see how the decedent can be held guilty of contributory negligence from the
mere fact that he was not at his assigned station when the train was derailed. That might have
been a violation of company rules but could not have directly contributed to his injury, as the
petitioner suggests. It is pure speculation to suppose that he would not have been injured if he
had stayed in the front car rather than at the back and that he had been killed because he
chose to ride in the caboose.
Contributory negligence has been defined as "the act or omission amounting to want of
ordinary care on the part of the person injured which, concurring with the defendant's
negligence, is the proximate cause of the injury." 5 It has been held that "to hold a person as
having contributed to his injuries, it must be shown that he performed an act that brought about
his injuries in disregard of warnings or signs of an impending danger to health and
body." 6 There is no showing that the caboose where Famoso was riding was a dangerous
place and that he recklessly dared to stay there despite warnings or signs of impending
danger. cdll
179
The last point raised by the petitioner is easily resolved. Citing the case of Floresca v.
Philex Mining Corporation, 7 it argues that the respondent court erred in disauthorizing the
deduction from the total damages awarded the private respondent of the amount of
P41,367.60, representing the pension to be received by the private respondent from the Social
Security System for a period of five years. The argument is that such deduction was quite
proper because of Art. 173 of the Labor Code, as amended. This article provides that any
amount received by the heirs of a deceased employee from the Employees Compensation
Commission, whose funds are administered by the SSS, shall be exclusive of all other amounts
that may otherwise be claimed under the Civil Code and other pertinent laws.
The amount to be paid by the SSS represents the usual pension received by the heirs of a
deceased employee who was a member of the SSS at the time of his death and had regularly
contributed his premiums as required by the System. The pension is the benefit derivable from
such contributions. It does not represent the death benefits payable under the Workmen's
Compensation Act to an employee who dies as a result of a work-connected injury. Indeed, the
certification from the SSS 8 submitted by the petitioner is simply to the effect that:
TO WHOM IT MAY CONCERN:
This is to certify that Mrs. Herminia Vda. de Famoso is a recipient of a
monthly pension from the Social Security System arising from the death
of her late husband, Julio Famoso, an SSS member with SSS No. 07-
018173-1.
This certification is issued to Ma-ao Sugar Central for whatever legal
purpose it may serve best.
Issued this 8th day of April 1983 in Bacolod City, Philippines.
GODO
FRED
O S.
SISON
Region
al
Manag
er
By: (SGD.) COSME Q.
BERMEO, JR.
Chief, Benefits Branch.
It does not indicate that the pension is to be taken from the funds of the ECC. The certification
would have said so if the pension represented the death benefits accruing to the heirs under
the Workmen's Compensation Act.
This conclusion is supported by the express provision of Art. 173 as amended, which
categorically states that: llcd
Art. 173. Exclusiveness of liability. Unless otherwise provided, the
liability of the State Insurance Fund under this Title shall be exclusive
and in place of all other liabilities of the employer to the employee, his
dependents or anyone otherwise entitled to receive damages on behalf
of the employee or his dependents. The payment of compensation under
this Title shall not bar the recovery of benefits as provided for in Section
699 of the Revised Administrative Code, Republic Act Numbered Eleven
hundred sixty-one, as amended, Commonwealth Act Numbered One
hundred eighty-six, as amended, Republic Act Numbered Six hundred

ten, as amended, Republic Act Numbered Forty-eight hundred sixty-
four, as amended and other laws whose benefits are administered by the
System or by other agencies of the government. (Emphasis supplied).
Rep. Act No. 1161, as amended, is the Social Security Law.
As observed by Justice J.B.L. Reyes in the case of Valencia v. Manila Yacht Club, 9 which is
still controlling:
. . . By their nature and purpose, the sickness or disability benefits to
which a member of the System may be entitled under the Social Security
law (Rep. Act No. 1161, as amended by Rep. Acts Nos. 1792 and 2658)
are not the same as the compensation that may be claimed against the
employer under the Workmen's Compensation Act or the Civil Code, so
that payment to the member employee of social security benefits would
not wipe out or extinguish the employer's liability for the injury or illness
contracted by his employee in the course of or during the employment. It
must be realized that, under the Workmen's Compensation Act (or the
Civil Code, in a proper case), the employer is required to compensate
the employee for the sickness or injury arising in the course of the
employment because the industry is supposed to be responsible
therefore; whereas, under the Social Security Act, payment is being
made because the hazard specifically covered by the membership, and
for which the employee had put up his own money, had taken place. As
this Court had said:
. . . To deny payment of social security benefits
because the death or injury or confinement is compensable
under the Workmen's Compensation Act would be to deprive
the employees members of the System of the statutory
benefits bought and paid for by them, since they contributed
their money to the general common fund out of which benefits
are paid. In other words, the benefits provided for in the
Workmen's Compensation Act accrues to the employees
concerned due to the hazards involved in their employment
and is made a burden on the employment itself. However,
social security benefits are paid to the System's members, by
reason of their membership therein for which they contribute
their money to a general common fund.
It may be added that whereas social security
benefits are intended to provide insurance or protection
against the hazards or risks for which they are established,
e.g., disability, sickness, old age or death, irrespective of
whether they arose from or in the course of the employment or
not, the compensation receivable under the Workmen's
Compensation law is in the nature of indemnity for the injury or
damage suffered by the employee or his dependents on
account of the employment. (Rural Transit Employees Asso.
vs. Bachrach Trans. Co., 21 SCRA 1263 [1967]).
And according to Justice Jesus G. Barrera in Benguet Consolidated, Inc. v. Social Security
System: 10
The philosophy underlying the Workmen's Compensation Act is to make
the payment of the benefits provided for therein as a responsibility of the
180
industry, on the ground that it is industry which should bear the resulting
death or injury to employees engaged in the said industry. On the other
hand, social security sickness benefits are not paid as a burden on the
industry, but are paid to the members of the System as a matter of right,
whenever the hazards provided for in the law occurs. To deny payment
of social security benefits because the death or injury or confinement is
compensable under the Workmen's Compensation Act would be to
deprive the employees-members of the System of the statutory benefits
bought and paid for by them, since they contribute their money to the
general common fund out of which benefits are paid. In other words, the
benefits provided for in the Workmen's Compensation Act accrues to the
employees concerned, due to the hazards involved in their employment
and is made a burden on the employment itself. However, social security
benefits are paid to the System's members, by reason of their
membership therein for which they contributed their money to a general
common fund.
Famoso's widow and nine minor children have since his death sought to recover the just
recompense they need for their support. Instead of lending a sympathetic hand, the petitioner
has sought to frustrate their efforts and has even come to this Court to seek our assistance in
defeating their claim. That relief and we are happy to say this must be withheld.
WHEREFORE, the appealed decision is AFFIRMED in toto. The petition is DENIED, with costs
against the petitioner.
SO ORDERED.
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.
||| (Ma-ao Sugar Central Co., Inc. v. Court of Appeals, G.R. No. 83491, [August 27, 1990], 267
PHIL 99-109)
EN BANC
[G.R. No. L-12986. March 31, 1966.]
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA and the
HEIRS OF DOMINGA ONG, petitioners-appellants, vs. CALTEX (PHIL.)
INC., MATEO BOQUIREN and THE COURT OF
APPEALS, respondents-appellees.
Ross, Selph, Carrascoso & Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
SYLLABUS

1. EVIDENCE; ENTRIES IN OFFICIAL RECORDS; REQUISITES FOR
ADMISSIBILITY. There are three requisites for admissibility of evidence under Sec. 35,
Rule 123, Rules of Court: (a) that the entry was made by a public officer, or by another
person, specially enjoined by law to do so; (b) that it was made by the public officer in the
performance of his duties, or by such other person in the performance of a duty specially
enjoined by law; and (c) that the public officer or other person had sufficient knowledge of
the facts by him stated, which must have been acquired by him personally or through
official information (Moran, Comments on the Rules of Court, Vol., 3, p. 393).
2. ID.; HEARSAY RULE; REPORTS NOT CONSIDERED EXCEPTION TO
HEARSAY RULE. The reports in question do not constitute an exception to the hearsay
rule. The facts stated therein were not acquired by the reporting officers through official
information, not having been given by the informants pursuant to any duty to do so.
3. ID.; ID.; REPORT SUBMITTED BY A POLICE OFFICER IN THE
PERFORMANCE OF HIS DUTIES. The report submitted by a police officer in the
performance of his duties on the basis of his own personal observation of the facts
reported, may properly be considered as an exception to the hearsay rule.
4. ID.; PRESUMPTION OF NEGLIGENCE UNDER THE DOCTRINE OF Res Ipsa
Loquitur. Where the thing which caused the injury complained of is shown to be under
the management defendant or his servants and the accident is such as in the ordinary
course of things does not happen if those who have its management or control use proper
care, it affords reasonable evidence, in absence of explanation by defendant, that the
accident arose from want of care. (45 C. J. 768, p. 1193.)
5. ID.; ID.; APPLICATION OF PRINCIPLE TO THE CASE AT BAR. The
gasoline station, with all its appliances, equipment and employees, was under the control
of appellees. A fire occurred therein and spread to and burned the neighboring houses.
The persons who knew or could have known how the fire started were appellees and their
employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.
6. TORTS; INTERVENTION OF UNFORESEEN AND UNEXPECTED CAUSE.
The intervention of an unforeseen and unexpected cause, is not sufficient to relieve a
wrongdoer from consequences of negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting injury. (MacAfee et al., vs. Travers
Gas Corp., et al., 153 S. W. 2nd 442.)
7. DAMAGES; LIABILITY OF OWNER OF GASOLINE STATION; CASE AT BAR.
A fire broke out at the Caltex service station. It is started while gasoline was being
hosed from a tank into the underground storage. The fire spread to and burned several
neighboring houses owned by appellants. Issue: Whether Caltex should be held liable for
the damages caused to appellants. Held: The question depends on whether the operator
of the gasoline station was an independent contractor or an agent of Caltex. Under the
license agreement the operator would pay Caltex the purely nominal sum of P1.00 for the
use of the premises and all equipment therein. The operator could sell only Caltex
products. Maintenance of the station and its equipment was subject to the approval, in
other words control, of Caltex. The operator could not assign or transfer his rights as
license without the consent of Caltex. Termination of the contract was a right granted only
to Caltex but not to the operator. These provisions of the contract show that the operator
was virtually an employee of Caltex, not an independent contractor. Hence, Caltex should
be liable for damages caused to appellants.
DECISION
181
MAKALINTAL, J p:
This case is before us on a petition for review of the decision of the Court of
Appeals, which affirmed that of the Court of First Instance of Manila dismissing petitioners'
second amended complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It
appears that in the afternoon of March 18, 1948 a fire broke out at the Caltex service
station at the corner of Antipolo street and Rizal Avenue, Manila. It started while gasoline
was being hosed from a tank truck into the underground storage, right at the opening of
the receiving tank where the nozzle of the hose was inserted. The fire spread to and
burned several neighboring houses, including the personal properties and effects inside
them. Their owners, among them petitioners here, sued respondents Caltex (Phil.), Inc.
and Mateo Boquiren, the first as alleged owner of the station and the second as its agent
in charge of operation. Negligence on the part of both of them was attributed as the cause
of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove
negligence and that respondents had exercised due care in the premises and with respect
to the supervision of their employees.
The first question before Us refers to the admissibility of certain reports on the
fire prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of
the Armed Forces of the Philippines. Portions of the first two reports are as follows:
1. Police Department Report:
"Investigation disclosed that at about 4:00 P.M. March 18, 1948, while
Leandro Flores was transferring gasoline from a tank truck, plate No. T-
5292 into underground tank of the Caltex Gasoline Station located at the
corner of Rizal Avenue and Antipolo Street, this City, an unknown Filipino
lighted a cigarette and threw the burning match stick near the main valve
of the said underground tank. Due to the gasoline fumes, fire suddenly
blazed. Quick action of Leandro Flores in pulling of the gasoline hose
connecting the truck with the underground tank prevented a terrific
explosion. However, the flames scattered due to the hose from which
the gasoline was spouting. It burned the truck and the following
accessories and residences."
2. The Fire Department Report:
In connection with their allegation that the premises was (sic) subleased
for the installation of a coca-cola and cigarette stand, the complainants
furnished this Office a copy of a photograph taken during the fire and
which is submitted herewith. It appears in this picture that there are in
the premises a coca-cola cooler and a rack which according to
information gathered in the neighborhood contained cigarettes and
matches, installed between the gasoline pumps and the underground
tanks."
The report of Captain Tinio reproduced information given by a certain Benito
Morales regarding the history of the gasoline station and what the chief of the fire
department had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of
Appeals and hence inadmissible. This ruling is now assigned as error. It is contended: first,
that said reports were admitted by the trial court without objection on the part of

respondents; secondly, that with respect to the police report (Exhibit V-Africa) which
appears signed by a Detective Zapanta allegedly "for Salvador Capacillo," the latter was
presented as witness but respondents waived their right to cross-examine him although
they had the opportunity to do so; and thirdly, that in any event the said reports are
admissible as an exception to the hearsay rule under section 35 of Rule 123, now Rule
130.
The first contention is not borne out by the record. The transcript of the hearing
of September 17, 1953 (pp. 167-170) shows that the reports in question, when offered as
evidence, were objected to by counsel for each of respondents on the ground that they
were hearsay and that they were "irrelevant, immaterial and impertinent." Indeed, in the
court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the
admission of the others, including the disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand,
he was not examined and he did not testify as to the facts mentioned in his alleged report
(signed by Detective Zapanta.) All he said was that he was one of those who investigated
"the location of the fire and, if possible, gather witnesses as to the occurrence." and that
he brought the report with him. There was nothing, therefore on which he need be cross-
examined; and the contents of the report, as to which he did not testify, did not thereby
become competent evidence. And even if he had testified, his testimony would still have
been objectionable as far as information gathered by him from third persons was
concerned.
Petitioners maintain, however, that the reports in themselves, that is, without
further testimonial evidence on their contents, fall within the scope of section 35, Rule 123
which provides that "entries in official records made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that
the entry was made by a public officer, or by another person specially enjoined by law to
do so; (b) that it was made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined by law; and (c) that the
public officer or other person had sufficient knowledge of the facts by him stated, which
must have been acquired by him personally or through official information. (Moran,
Comments on the Rules of Court, Vol. 3 [1957] p. 383.)
Of the three requisites just stated, only the last need be considered here.
Obviously the material facts recited in the reports as to the cause and circumstances of
the fire were not within the personal knowledge of the officers who conducted the
investigation. Was knowledge of such facts, however, acquired by them through official
information? As to some facts the sources thereof are not even identified. Others are
attributed to Leopoldo Medina, referred to as an employee at the gas station where the fire
occurred; to Leandro Flores, driver of the tank truck from which gasoline was being
transferred at the time to the underground tank of the station; and to respondent Mateo
Boquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of
the fire. To qualify their statements as "official information acquired by the officers who
prepared the reports, the persons who made the statements not only must have personal
knowledge of the facts stated but must have the duty to give such statements for record.1
The reports in question do not constitute an exception to the hearsay rule: the
facts stated therein were not acquired by the reporting officers through official information,
not having been given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of
the fire, the doctrine of res ipsa loquitur should apply so as to presume negligence on the
part of appellees. Both the trial court and the appellate court refused to apply the doctrine
182
in the instant case on the grounds that "as to (its) applicability . . . in the Philippines,
there seems to be nothing definite," and that while the rules do not prohibit its adoption in
appropriate cases, "in the case at bar, however, we find no practical use for such
doctrine." The question deserves more than such summary dismissal. The doctrine has
actually been applied in this jurisdiction in the case of Espiritu vs. Philippine Power and
Development Co. (C.A. G. R. No. L-324O-R, September 20, 1949), wherein the decision of
the Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the
Supreme Court.
The facts of that case are stated in the decision as follows:
"In the afternoon of May 5, 1946, while the plaintiff-appellee and other
companions were loading grass between the municipalities of Bay and
Calauan, in the province of Laguna, with clear weather and without any
wind blowing, an electric transmission wire, installed and maintained by
the defendant Philippine Power and Development Co., Inc. alongside the
road, suddenly parted, and one of the broken ends hit the head of the
plaintiff as he was about to board the truck. As a result, plaintiff received
the full shock of 4,400 volts carried by the wire and was knocked
unconscious to the ground. The electric charge coursed through his
body and caused extensive and serious multiple burns from skull to legs,
leaving the bone exposed in some parts and causing intense pain and
wounds that were not completely healed when the case was tried on
June 18, 1947, over one year after the mishap."
The defendant therein disclaimed liability on the ground that the plaintiff had
failed to show any specific act of negligence but the appellate court overruled the defense
under the doctrine of res ipsa loquitur. The court said:
"The first point is directed against the sufficiency of plaintiff's evidence
to place appellant on its defense. While it is the rule, as contended by
the appellant, that in case of noncontractual negligence, or culpa
aquiliana, the burden of proof is on the plaintiff to establish that the
proximate cause of his injury was the negligence of the defendant, it is
also a recognized principle that 'Where the thing which caused injury,
without fault of the injured person, is under the exclusive control of the
defendant and the injury is such as in the ordinary course of things does
not occur if those having such control use proper care, it affords
reasonable evidence, in the absence of the explanation that the injury
arose from defendant's want of care.'
"And the burden of evidence is shifted to him to establish that he has
observed due care and diligence. (San Juan Light & Transit
Co. vs. Requena, 224 U.S. 89, 56 L. ed. 68 ). This rule is known by the
name of res ipsa loquitur (the transaction speaks for itself), and is
peculiarly applicable to the case at bar, where it is unquestioned that the
plaintiff had every right to be on the highway, and the electric wire was
under the sole control of defendant company. In the ordinary course of
events, electric wires do not part suddenly in fair weather and injure
people, unless they are subjected to unusual strain and stress or there
are defects in their installation, maintenance and supervision; just as
barrels do not ordinarily roll out of the warehouse windows to injure
passersby unless some one was negligent. (Byrne vs. Boadle, 2 H & Co.
22; 159 Eng. Reprint 299, the leading case that established that rule).
Consequently, in the absence of contributory negligence (which is
admittedly not present) the fact that the wire snapped suffices to raise a
reasonable presumption of negligence in the installation, care and

maintenance. Thereafter, as observed by Chief Baron Pollock, if there
are any facts inconsistent with negligence, it is for the defendant to
prove.'"
It is true of course that decisions of the Court of Appeals do not lay down
doctrines binding on the Supreme Court, but we do not consider this a reason for not
applying the particular doctrine of res ipsa loquitur in the case at bar. Gasoline is a high]y
combustible material, in the storage and sale of which extreme care must be taken. On the
other hand, fire is not considered a fortuitous event, as it arises almost invariably from
some act of man. A case strikingly similar to the one before Us is Jones vs. Shell
Petroleum Corporation, et al., 171 So. 447;
"Arthur O. Jones is the owner of a building in the city of Hammon which
in the year 1934 was leased to the Shell Petroleum Corporation for a
gasoline filling station. On October 8, 1934, during the term of the lease,
while gasoline was being transferred, from the tank wagon, also
operated by the Shell Petroleum Corporation, to the underground tank of
the station, a fire started with resulting damages to the building owned
by Jones. Alleging that the damages to his building amounted to
$516.95, Jones sued the Shell Petroleum Corporation for the recovery of
that amount. The judge of the district court, after hearing the testimony,
concluded that plaintiff was entitled to a recovery and rendered
judgment in his favor for $427.82. The Court of Appeals for the First
Circuit reversed this judgment, on the ground the testimony failed to
show with reasonable certainty any negligence on the part of the Shell
Petroleum Corporation or any of its agents or employees. Plaintiff
applied to this Court for a Writ of Review which was granted, and the
case is now before us for decision."
In resolving the issue of negligence, the Supreme Court of Louisiana held:
"Plaintiff's petition contains two distinct charges of negligence one
relating to the cause of the fire and the other relating to the spreading of
the gasoline about the filling station.
"Other than an expert to assess the damages caused plaintiff's building
by the fire, no witnesses were placed on the stand by the defendant.
"Taking up plaintiff's charge of negligence relating to the cause of the
fire, we find it established by the record that the filling station and the
tank truck were under the control of the defendant and operated by its
agents or employees. We further find from the uncontradicted testimony
of plaintiff's witnesses that fire started in the underground tank attached
to the filling station while it was being filled from the tank truck and while
both the tank and the truck were in charge of and being operated by the
agents or employees of the defendant, extended to the hose and tank
truck, and was communicated from the burning hose, tank truck, and
escaping gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of
defendants failure to explain the cause of the fire or to show its lack of
knowledge of the cause, plaintiff has evoked the doctrine of res ipsa
loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be
under the management of defendant or his servants and the accident is
183
such as in the ordinary course of things does not happen if those who
have its management or control use proper care, it affords reasonable
evidence, in absence of explanation by defendant, that the accident
arose from want of care. (45 C. J. #768, p. 1193).
"This statement of the rule of res ipsa loquitur has been widely approved
and adopted by the courts of last resort. Some of the cases in this
jurisdiction in which the doctrine has been applied are the following, viz.;
Maus vs. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert vs. Lake
Charles Ice etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am.
St. Rep. 505; Willis vs. Vicksburg, etc., R. Co., 115 La. 53, 38 So. 892;
Bents, vs. Page, 115 La. 560, 39 So. 599."
The principle enunciated in the aforequoted case applies with equal force here.
The gasoline station, with all its appliances, equipment and employees, was under the
control of appellees. A fire occurred therein and spread to and burned the neighboring
houses. The persons who knew or could have known how the fire started were appellees
and their employees, but they gave no explanation thereof whatsoever. It is a fair and
reasonable inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police
Department (Exh. X-1 Africa) the following appears:
"Investigation of the basic complaint disclosed that the Caltex Gasoline
Station complained of occupies a lot approximately 10 m x 10 m at the
southwest corner of Rizal Avenue and Antipolo. The location is within a
very busy business district near the Obrero Market, a railroad crossing
and very thickly populated neighborhood where a great number of
people mill around throughout the day until late at night. The
circumstances put the gasoline station in a situation primarily prejudicial
to its operation because the passersby, those waiting for buses or
transportation, those waiting to cross the streets and others loafing
around have to occupy not only the sidewalks but also portion of the
gasoline station itself. Whatever be the activities of these people
smoking or lighting a cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn endangers the entire
neighborhood to conflagration.
"Furthermore, aside from precautions already taken by its operator the
concrete walls south and west adjoining the neighborhood are only 2 1/2
meters high at most and cannot avoid the flames from leaping over it in
case of fire.
"Records show that there have been two cases of fire which caused not
only material damages but desperation and also panic in the
neighborhood.
"Although the soft drinks stand had been eliminated, this gasoline
service station is also used by its operator as a garage and repair shop
for his fleet of taxicabs numbering ten or more, adding another risk to the
possible outbreak of fire at this already small but crowded gasoline
station."
The foregoing report, having been submitted by a police officer in the
performance of his duties on the basis of his own personal observation of the facts
reported, may properly be considered as an exception to the hearsay rule. Those facts,
descriptive of the location and objective circumstances surrounding the operation of the

gasoline station in question, strengthen the presumption of negligence under the doctrine
of res ipsa loquitur, since on their face they called for more stringent measures of caution
than those which would satisfy the standard of due diligence under ordinary
circumstances. There is no more eloquent demonstration of this than the statement of
Leandro Flores before the police investigator. Flores was the driver of the gasoline tank
wagon who, alone and without assistance, was transferring the contents thereof into the
underground storage when the fire broke out. He said: "Before loading the underground
tank there were no people, but while the loading was going on, there were people who
went to drink coca-cola (at the coca-cola stand) which is about a meter from the hole
leading to the underground tank." He added that when the tank was almost filled he went
to the tank truck to close the valve, and while he had his back turned to the "manhole" he
heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses
were it not for another negligent omission on the part of defendants, namely, their failure
to provide a concrete wall high enough to prevent the flames from leaping over it. As it
was the concrete wall was only 2 1/2 meters high, and beyond that height it consisted
merely of galvanized iron sheets, which would predictably crumple and melt when
subjected to intense heat. Defendants' negligence, therefore, was not only with respect to
the cause of the fire but also with respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the
second amended complaint that "the fire was caused through the acts of a stranger who,
without authority, or permission of answering defendant, passed through the gasoline
station and negligently threw a lighted match in the premises." No evidence on this point
was adduced, but assuming the allegation to be true certainly any unfavorable
inference from the admission may be taken against Boquiren it does not extenuate his
negligence. A decision of the Supreme Court of Texas, upon facts analogous to those of
the present case, states the rule which we find acceptable here: "It is the rule that those
who distribute a dangerous article or agent owe a degree of protection to the public
proportionate to and commensurate with a danger involved . . . we think it is the generally
accepted rule as applied to torts that 'if the effects of the actor's negligent conduct
actively and continuously operate to bring about harm to another, the fact that the active
and substantially simultaneous operation of the effects of a third person's innocent,
tortious or criminal act is also a substantial factor in bringing about the harm, does not
protect the actor from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439.
Stated in another way, 'The intervention of an unforeseen and unexpected cause, is not
sufficient to relieve a wrongdoer from consequences of negligence, if such negligence
directly and proximately cooperates with the independent cause in the resulting injury.'
(MacAfee et al. vs. Traver's Gas Corp., et al., 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused
to appellants. This issue depends on whether Boquiren was an independent contractor, as
held by the Court of Appeals, or an agent of Caltex. This question, in the light of the facts
not controverted, is one of law and hence may be passed upon by this Court. These facts
are: 1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of the
fire Caltex owned the gasoline station and all the equipment therein; (3) Caltex exercised
control over Boquiren in the management of the station; (4) the delivery truck used in
delivering gasoline to the station had the name CALTEX painted on it; and (5) the license
to store gasoline at the station was in the name of Caltex, which paid the license fees.
(Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied
that he directed one of his drivers to remove gasoline from the truck into the tank and
alleged that the "alleged driver, if one there was, was not in his employ, the driver being an
employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true that
Boquiren later on amended his answer, and that among the changes was one to the effect
184
that he was not acting as agent of Caltex. But then again, in his motion to dismiss
appellants' second amended complaint the ground alleged was that it stated no cause of
action since under the allegations thereof he was merely acting as agent of Caltex, such
that he could not have incurred personal liability. A motion to dismiss on this ground is
deemed to be an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment
therein, but claims that the business conducted at the service station in question was
owned and operated by Boquiren. But Caltex did not present any contract with Boquiren
that would reveal the nature of their relationship at the time of the fire. There must have
been one in existence at that time. Instead, what was presented was a license agreement
manifestly tailored for purposes of this case, since it was entered into shortly before the
expiration of the one- year period it was intended to operate. This so-called license
agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as
of January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This
retroactivity provision is quite significant, and gives rise to the conclusion that it was
designed precisely to free Caltex from any responsibility with respect to the fire, as shown
by the clause that Caltex "shall not be liable for any injury to person or property while in
the property herein licensed, it being understood and agreed that LICENSEE (Boquiren) is
not an employee, representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be
considered an independent contractor. Under that agreement Boquiren would pay Caltex
the purely nominal sum of P1.00 for the use of the premises and all the equipment therein.
He could sell only Caltex products. Maintenance of the station and its equipment was
subject to the approval, in other words control, of Caltex. Boquiren could not assign or
transfer his rights as licensee without the consent of Caltex. The license agreement was
supposed to be from January 1, 1948 to December 31, 1948, and thereafter until
terminated by Caltex upon two days prior written notice. Caltex could at any time cancel
and terminate the agreement in case Boquiren ceased to sell Caltex products, or did not
conduct the business with due diligence, in the judgment of Caltex. Termination of the
contract was therefore a right granted only to Caltex but not to Boquiren. These provisions
of the contract show the extent of the control of Caltex over Boquiren. The control was
such that the latter was virtually an employee of the former.
"Taking into consideration the fact that the operator owed his position to
the company and the latter could remove him or terminate his services at
will; that the service station belonged to the company and bore its
tradename and the operator sold only the products of the company; that
the equipment used by the operator belonged to the company and were
just loaned to the operator and the company took charge of their repair
and maintenance; that an employee of the company supervised the
operator and conducted periodic inspection of the company's gasoline
and service station; that the price of the products sold by the operator
was fixed by the company and not by the operator; and that the receipts
signed by the operator indicated that he was a mere agent, the finding of
the Court of Appeals that the operator was an agent of the company and
not an independent contractor should not be disturbed.
"To determine the nature of a contract courts do not have or are not
bound to rely upon the name or title given it by the contracting parties,
should there be a controversy as to what they really had intended to
enter into, but the way the contracting parties do or perform their
respective obligations stipulated or agreed upon may be shown and
inquired into, and should such performance conflict with the name or title
given the contract by the parties, the former must prevail over the latter."

Shell Company of the Philippines, Ltd. vs. Firemen's Insurance Company
of Newark, New Jersey, 100 Phil. 757).
"The written contract was apparently drawn for the purpose of creating
the apparent relationship of employer and independent contractor, and
of avoiding liability for the negligence of the employees about the station;
but the company was not satisfied to allow such relationship to exist.
The evidence shows that it immediately assumed control, and
proceeded to direct the method by which the work contracted for should
be performed. By reserving the right to terminate the contract at will, it
retained the means of compelling submission to its orders. Having
elected to assume control and to direct the means and methods by
which the work has to be performed, it must be held liable for the
negligence of those performing service under its direction. We think the
evidence was sufficient to sustain the verdict of the jury." (Gulf Refining
Company vs. Rogers 57 S.W. 2d 183).
Caltex further argues that the gasoline stored in the station belonged to
Boquiren. But no cash invoices were presented to show that Boquiren had bought said
gasoline from Caltex. Neither was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after
deducting the amount of P2,000.00 collected by them on the insurance of the house. The
deduction is now challenged as erroneous on the ground that Article 2207 of the new Civil
Code, which provides for the subrogation of the insurer to the rights of the insured, was
not yet in effect when the loss took place. However, regardless of the silence of the law on
this point at that time, the amount that should be recovered must be measured by the
damages actually suffered, otherwise the principle prohibiting unjust enrichment would be
violated. With respect to the claim of the heirs of Ong, P7,500.00 was adjudged by the
lower court on the basis of the assessed value of the property destroyed namely,
P1,500.00, disregarding the testimony of one of the Ong children that said property was
worth P4,000.00. We agree that the court erred, since it is of common knowledge that the
assessment for taxation purposes is not an accurate gauge of fair market value, and in this
case should not prevail over positive evidence of such value. The heirs of Ong are
therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents- appellees
are held liable solidarily to appellants, and ordered to pay them the aforesaid sums of
P9,005.80 and P10,000.00, respectively, with interest from the filing of the complaint, and
costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala,
Bengzon, J.P. and Zaldivar, JJ., concur.
Dizon, J., took no part.
||| (Spouses Africa v. Caltex (Phil.), Inc., G.R. No. L-12986, [March 31, 1966], 123 PHIL 272-288)
THIRD DIVISION
[G.R. No. 132607. May 5, 1999.]
185
CEBU SHIPYARD AND ENGINEERING WORKS,
INC., petitioner, vs. WILLIAM LINES, INC. and PRUDENTIAL
GUARANTEE and ASSURANCE COMPANY, INC.,respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioner.
Arthur D. Lim Law Office for private respondent.
SYNOPSIS
Private respondent William Lines, Inc. was the owner of M/V Manila City, a luxury passenger-
cargo vessel, which caught fire and sank while undergoing dry-docking and repairs within the
premises of petitioner Cebu Shipyard and Engineering Works, Inc. (CSEW) on February 16,
1991. The subject vessel was insured with private respondent Prudential Guarantee and
Assurance Company, Inc. for P45 million. William Lines, Inc. sued CSEW for damages and
impleaded Prudential as co-plaintiff, after the latter had paid William Lines, Inc. the value of the
hull and machinery insurance on the M/V Manila City. As a result of such payment Prudential
was subrogated to the claim of P45 million, representing the value of the said insurance it paid.
The trial court rendered a decision against CSEW. Petitioner appealed to the Court of Appeals
which affirmed the decision of the trial court. Petitioner filed a motion for reconsideration, but
was denied by the appellate court. Hence, the present petition. Petitioner faulted the Court of
Appeals for adjudging it negligent and liable for damages to the respondents, William Lines, Inc.
and Prudential for the loss of the vessel. Petitioner maintained that it did not have exclusive
control of the vessel and the trial court and the Court of Appeals erred in applying the doctrine
of res ipsa loquitur. cdasia
The Supreme Court upheld the trial court and the Court of Appeals in their findings that the
vessel caught fire and sank by reason of the negligence of the workers of CSEW and in
applying the doctrine of res ipsa loquitur. The Court ruled that all the conditions warranting the
application of the doctrine of res ipsa loquitur were present, namely: (1) the accident was of a
kind which does not ordinarily occur unless someone is negligent; and (2) that the
instrumentality or agency which caused the injury was under the exclusive control of the person
charged with negligence. The trial court found direct evidence to prove that the workers of
CSEW were remiss in their duty of exercising due diligence in the care of subject vessel. Said
direct evidence substantiated the conclusion that CSEW was really negligent even without
applying the doctrine of res ipsa loquitur. The Court discerned no basis for disturbing the
finding of the trial court and the Court of Appeals firmly anchored on enough evidence.
SYLLABUS
1. CIVIL LAW; TORTS; DOCTRINE OF RES IPSA LOQUITOR; APPLICABLE IN CASE AT BAR.
The finding by the trial court and the Court of Appeals that M/V Manila City caught fire and
sank by reason of the negligence of the workers of CSEW, when the said vessel was under the
exclusive custody and control of CSEW is accordingly upheld. Under the circumstances of the
case, the doctrine of res ipsa loquitur applies. For the doctrine of res ipsa loquitur to apply to a
given situation, the following conditions must concur: (1) the accident was of a kind which does
not ordinarily occur unless someone is negligent; and (2) that the instrumentality or agency
which caused the injury was under the exclusive control of the person charged with negligence.
The facts and evidence on record reveal the concurrence of said conditions in the case under

scrutiny. First, the fire that occurred and consumed M/V Manila City would not have happened
in the ordinary course of things if reasonable care and diligence had been exercised. In other
words, some negligence must have occurred. Second, the agency charged with negligence, as
found by the trial court and the Court of Appeals and as shown by the records, is the herein
petitioner, Cebu Shipyardand Engineering Works, Inc., which had control over subject vessel
when it was docked for annual repairs. So also, as found by the regional trial court, "other
responsible causes, including the conduct of the plaintiff, and third persons, are sufficiently
eliminated by the evidence."
2. COMMERCIAL LAW; INSURANCE; MARINE INSURANCE; THE INTENTION OF THE
PARTIES TO MAKE EACH OTHER A CO-ASSURED UNDER AN INSURANCE POLICY IS TO BE
GLEANED PRINCIPALLY FROM THE INSURANCE CONTRACT OR POLICY ITSELF AND NOT
FROM ANY OTHER CONTRACT OR AGREEMENT BECAUSE THE INSURANCE POLICY
ITSELF DENOMINATES THE ASSURED AND BENEFICIARIES OF THE INSURANCE. Clause
20 of the Work Order in question is clear in the sense that it requires William Lines to maintain
insurance on the vessel during the period of dry-docking or repair. Concededly, such a
stipulation works to the benefit of CSEW as the shiprepairer. However, the fact that CSEW
benefits from the said stipulation does not automatically make it as a co-assured of William
Lines. The intention of the parties to make each other a co-assured under an insurance policy is
to be gleaned principally from the insurance contract or policy itself and not from any other
contract or agreement because the insurance policy denominates the assured and the
beneficiaries of the insurance. The hull and machinery insurance procured by William Lines, Inc.
from Prudential named only "William Lines, Inc." as the assured. There was no manifestation of
any intention of William Lines, Inc. to constitute CSEW as a co-assured under subject policy. It
is axiomatic that when the terms of a contract are clear its stipulations control. Thus, when the
insurance policy involved named only William Lines, Inc. as the assured thereunder, the claim of
CSEW that it is a co-assured is unfounded.
3. CIVIL LAW; CONTRACTS; IN DETERMINING WHETHER A PROVISION IN A CONTRACT IS
ONE OF ADHESION, THE FACTS AND CIRCUMSTANCES VIS--VIS THE NATURE OF THE
PROVISION SOUGHT TO BE ENFORCED SHOULD BE CONSIDERED, BEARING IN MIND THE
PRINCIPLES OF EQUITY AND FAIR PLAY. Although in this jurisdiction, contracts of
adhesion have been consistently upheld as valid per se; as binding as an ordinary contract, the
Court recognizes instances when reliance on such contracts cannot be favored especially
where the facts and circumstances warrant that subject stipulations be disregarded. Thus, in
ruling on the validity and applicability of the stipulation limiting the liability of CSEW for
negligence to One Million (P1,000,000.00) Pesos only, the facts and circumstances vis--vis the
nature of the provision sought to be enforced should be considered, bearing in mind the
principles of equity and fair play. It is worthy to note that M/V Manila City was insured with
Prudential for Forty Five Million (P45,000,000.00) Pesos. To determine the validity and
sustainability of the claim of William Lines, Inc., for a total loss, Prudential conducted its own
inquiry. Upon thorough investigation by its hull surveyor, M/V Manila City was found to be
beyond economical salvage and repair. The evaluation of the average adjuster also reported a
constructive total loss. The said claim of William Lines, Inc., was then found to be valid and
compensable such that Prudential paid the latter the total value of its insurance claim.
Furthermore, it was ascertained that the replacement cost of the vessel (the price of a vessel
similar to M/V Manila City), amounts to Fifty Five Million (P55,000,000.00) Pesos. Considering
the aforestated circumstances, let alone the fact that negligence on the part of petitioner has
been sufficiently proven, it would indeed be unfair and inequitable to limit the liability of
petitioner to One Million Pesos only. As aptly held by the trial court, "it is rather unconscionable
if not overstrained." To allow CSEW to limit its liability to One Million Pesos notwithstanding the
fact that the total loss suffered by the assured and paid for by Prudential amounted to Forty
Five Million (P45,000,000.00) Pesos would sanction the exercise of a degree of diligence short
of what is ordinarily required because, then, it would not be difficult for petitioner to escape
186
liability by the simple expedient of paying an amount very much lower than the actual
damage or loss suffered by William Lines, Inc.
4. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; OPINION OF EXPERT WITNESS; COURTS
ARE NOT BOUND BY THE TESTIMONIES OF EXPERT WITNESSES; RECEPTION THEREOF IS
WITHIN THE DISCRETION OF THE COURT. Neither is there tenability in the contention of
petitioner that the Court of Appeals erroneously ruled on the inadmissibility of the expert
testimonies it (petitioner) introduced on the probable cause and origin of the fire. Petitioner
maintains that the Court of Appeals erred in disregarding the testimonies of the fire experts,
Messrs. David Grey and Gregory Michael Southeard, who testified on the probable origin of the
fire in M/V Manila City. Petitioner avers that since the said fire experts were one in their opinion
that the fire did not originate in the area of Tank Top No. 12 where the JNB workers were doing
hotworks but on the crew accommodation cabins on the portside No. 2 deck, the trial court and
the Court of Appeals should have given weight to such finding based on the testimonies of fire
experts; petitioner argues. But courts are not bound by the testimonies of expert witnesses.
Although they may have probative value, reception in evidence of expert testimonies is within
the discretion of the court. Section 49, Rule 130 of the Revised Rules of Court, provides: 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. The word "may" signifies that the use of opinion of an expert witness as evidence is a
prerogative of the courts. It is never mandatory for judges to give substantial weight to expert
testimonies. If from the facts and evidence on record, a conclusion is readily ascertainable,
there is no need for the judge to resort to expert opinion evidence. In the case under
consideration, the testimonies of the fire experts were not the only available evidence on the
probable cause and origin of the fire. There were witnesses who were actually on board the
vessel when the fire occurred. Between the testimonies of the fire experts who merely based
their findings and opinions on interviews and the testimonies of those present during the fire,
the latter are of more probative value. Verily, the trial court and the Court of Appeals did not err
in giving more weight to said testimonies. CHDTIS
DECISION
PURISIMA, J p:
At bar is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court seeking
a reversal of the decision of the Court of Appeals 1 which affirmed the decision of the trial court
of origin finding the petitioner herein, Cebu Shipyard and Engineering Works, Inc. (CSEW)
negligent and liable for damages to the private respondent, William Lines, Inc., and to the
insurer, Prudential Guarantee Assurance Company, Inc. prLL
The antecedent facts that matter are as follows:
Cebu Shipyard and Engineering Works, Inc. (CSEW) is a domestic corporation engaged in the
business of dry-docking and repairing of marine vessels while the private respondent,
Prudential Guarantee and Assurance, Inc. (Prudential), also a domestic corporation is in the
non-life-insurance business.
William Lines, Inc. (plaintiff below) is in the shipping business. It was the owner of M/V Manila
City, a luxury passenger-cargo vessel, which caught fire and sank on February 16, 1991. At the

time of the unfortunate occurrence sued upon, subject vessel was insured with Prudential for
P45,000,000.00 pesos for hull and machinery. The Hull Policy included an "Additional Perils
(INCHMAREE)" Clause covering loss of or damage to the vessel through the negligence of,
among others, ship repairmen. The Policy provided as follows:
"Subject to the conditions of this Policy, this insurance also covers loss
of or damage to Vessel directly caused by the following:
xxx xxx xxx
Negligence of Charterers and/or Repairers, provided such Charterers
and/or Repairers are not an Assured hereunder.
xxx xxx xxx
provided such loss or damage has not resulted from want of due
diligence by the Assured, the Owners or Managers of the Vessel, of any
of them. Masters, Officers, Crew or Pilots are not to be considered
Owners within the meaning of this Clause should they hold shares in the
Vessel." 2
Petitioner CSEW was also insured by Prudential for third party liability under a Shiprepairer's
Legal Liability Insurance Policy. The policy was for P10 million only, under the limited liability
clause, to wit:
"7. Limit of Liability
The limit of liability under this insurance, in respect of any one accident or series of accidents,
arising out of one occurrence, shall be [P10 million], including liability for costs and expense
which are either:
(a) incurred with the written consent of the underwriters hereon; or
(b) awarded against the Assured." 3
On February 5, 1991, William Lines, Inc. brought its vessel, M/V Manila City, to
the Cebu Shipyard in Lapulapu City for annual dry-docking and repair.
On February 6, 1991, an arrival conference was held between representatives of William Lines,
Inc. and CSEW to discuss the work to be undertaken on the M/V Manila City.
The contracts, denominated as Work Orders, were signed thereafter, with the following
stipulations:
"10. The Contractor shall replace at its own work and at its own cost any work or material
which can be shown to be defective and which is communicated in writing within one (1) month
of redelivery of the vessel or if the vessel was not in the Contractor's Possession, the
withdrawal of the Contractor's workmen, or at its option to pay a sum equal to the cost of such
replacement at its own works. These conditions shall apply to any such replacements.
11. Save as provided in Clause 10, the Contractor shall not be under any liability to the
Customer either in contract or for delict or quasi-delict or otherwise except for negligence and
such liability shall itself be subject to the following overriding limitations and exceptions,
namely:
(a) The total liability of the Contractor to the Customer (over and above
the liability to replace under Clause 10) or of any sub-contractor shall be
limited in respect of any defect or event (and a series of accidents arising
187
out of the same defect or event shall constitute one defect or event) to
the sum of Pesos Philippine Currency One Million only.
(b) In no circumstance whatsoever shall the liability of the Contractor or
any Sub-Contractor include any sum in respect of loss of profit or loss of
use of the vessel or damages consequential on such loss of use.
xxx xxx xxx
20. The insurance on the vessel should be maintained by the customer and/or owner of the
vessel during the period the contract is in effect." 4
While the M/V Manila City was undergoing dry-docking and repairs within the premises of
CSEW, the master, officers and crew of M/V Manila City stayed in the vessel, using their cabins
as living quarters. Other employees hired by William Lines to do repairs and maintenance work
on the vessel were also present during the dry-docking.
On February 16, 1991, after subject vessel was transferred to the docking quay, it caught fire
and sank, resulting to its eventual total loss.
On February 21, 1991, William Lines, Inc. filed a complaint for damages against CSEW, alleging
that the fire which broke out in M/V Manila City was caused by CSEW's negligence and lack of
care.
On July 15, 1991 was filed an Amended Complaint impleading Prudential as co-plaintiff, after
the latter had paid William Lines, Inc. the value of the hull and machinery insurance on the M/V
Manila City. As a result of such payment Prudential was subrogated to the claim of P45 million,
representing the value of the said insurance it paid.
On June 10, 1994, the trial court a quo came out with a judgment against CSEW, disposing as
follows:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and
against the defendant, ordering the latter:
1. To pay unto plaintiff Prudential Guarantee and Assurance, Inc., the
subrogee, the amount of Forty-five Million (P45 million) Pesos, with
interest at the legal rate until full payment is made;
2. To pay unto plaintiff, William Lines, Inc., the amount of Fifty-six Million
Seven Hundred Fifteen Thousand (P56,715,000.00) Pesos representing
loss of income of M/V MANILA CITY, with interest at the legal rate until
full payment is made;
3. To pay unto plaintiff, William Lines, Inc. the amount of Eleven Million
(P11 million) as payment, in addition to what it received from the
insurance company to fully cover the injury or loss, in order to replace
the M/V MANILA CITY, with interest at the legal rate until full payment is
made;
4. To pay unto plaintiff, William Lines, Inc. the sum of Nine Hundred
Twenty-Seven Thousand Thirty-nine (P927,039.00) Pesos for the loss of
fuel and lub (sic) oil on board the vessel when she was completely gutted
by fire at defendant, Cebu Shipyard's quay, with interest at the legal rate
until full payment is made;
5. To pay unto plaintiff, William Lines, Inc. the sum of Three Million Fifty-
four Thousand Six Hundred Seventy-seven Pesos and Ninety-five

centavos (P3,054,677.95) as payment for the spare parts and materials
used in the M/V MANILA CITY during dry-docking with interest at the
legal rate until full payment is made;
6. To pay unto plaintiff William Lines, Inc. the sum of Five Hundred
Thousand (P500,000.00) Pesos in moral damages;
7. To pay unto plaintiff, William Lines, Inc. the amount of Ten Million
(P10,000,000.00) Pesos in attorney's fees; and to pay the costs of this
suit."
CSEW (defendant below) appealed the aforesaid decision to the Court of Appeals. During the
pendency of the appeal, CSEW and William Lines presented a "Joint Motion for Partial
Dismissal" with prejudice, on the basis of the amicable settlement inked
between Cebu Shipyard and William Lines only.
On July 31, 1996, the Court of Appeals ordered the partial dismissal of the case insofar as
CSEW and William Lines were concerned. cdasia
On September 3, 1997, the Court of Appeals affirmed the appealed decision of the trial court,
ruling thus:
"WHEREFORE, the judgment of the lower court ordering the
defendant, Cebu Shipyard and Engineering Works, Inc. to pay the
plaintiff Prudential Guarantee and Assurance, Inc., the subrogee, the
sum of P45 Million, with interest at the legal rate until full payment is
made, as contained in the decision of Civil Case No. CEB-9935 is hereby
AFFIRMED."
With the denial of its motion for reconsideration by the Court of Appeal's Resolution dated
February 13, 1998, CSEW found its way to this court via the present petition, contending that:
I. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
HOLDING THAT CSEW HAD "MANAGEMENT AND SUPERVISORY
CONTROL" OF THE M/V MANILA CITY AT THE TIME THE FIRE BROKE
OUT.
II. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
APPLYING THE DOCTRINE OF RES IPSA LOQUITUR AGAINST CSEW.
III. THE COURT OF APPEALS' RULING HOLDING CSEW NEGLIGENT
AND THEREBY LIABLE FOR THE LOSS OF THE M/V MANILA CITY IS
BASED ON FINDINGS OF FACT NOT SUPPORTED BY EVIDENCE.
IV. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN
RULING CSEW'S EXPERT EVIDENCE AS INADMISSIBLE OR OF NO
PROBATIVE VALUE. cdll
V. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN
RULING THAT PRUDENTIAL HAS THE RIGHT OF SUBROGATION
AGAINST ITS OWN INSURED.
VI. ASSUMING ARGUENDO THAT PRUDENTIAL HAS THE RIGHT OF
SUBROGATION AND THAT CSEW WAS NEGLIGENT IN THE
PERFORMANCE OF ITS OBLIGATIONS UNDER THE SHIPREPAIR
CONTRACTS, THE COURT OF APPEALS COMMITTED A REVERSIBLE
ERROR IN HOLDING THAT THE CONTRACTUAL PROVISIONS
LIMITING CSEW'S LIABILITY FOR NEGLIGENCE TO A MAXIMUM OF
188
P1 MILLION IS NOT VALID, CONTRARY TO THE APPLICABLE
RULINGS OF THIS HONORABLE COURT.
Petitioner's version of the events that led to the fire runs as follows:
On February 13, 1991, the CSEW completed the drydocking of M/V
Manila City at its grave dock. It was then transferred to the docking quay
of CSEW where the remaining repair to be done was the replating of the
top of Water Ballast Tank No. 12 (Tank Top No. 12) which was
subcontracted by CSEW to JNB General Services. Tank Top No. 12 was
at the rear section of the vessel, on level with the flooring of the crew
cabins located on the vessel's second deck.
At around seven o'clock in the morning of February 16, 1991, the JNB
workers trimmed and cleaned the tank top framing which involved minor
hotworks (welding/cutting works). The said work was completed at
about 10:00 a. m. The JNB workers then proceeded to rig the steel
plates, after which they had their lunch break. The rigging was resumed
at 1:00 p.m.
While in the process of rigging the second steel plate, the JNB workers
noticed smoke coming from the passageway along the crew cabins.
When one of the workers, Mr. Casas, proceeded to the passageway to
ascertain the origin of the smoke, he noticed that smoke was gathering
on the ceiling of the passageway but did not see any fire as the crew
cabins on either side of the passageway were locked. He immediately
sought out the proprietor of JNB, Mr. Buenavista, and the Safety Officer
of CSEW, Mr. Aves, who sounded the fire alarm. CSEW's fire brigade
immediately responded as well as the other fire fighting units in
Metro Cebu. However, there were no WLI representative, officer or crew
to guide the firemen inside the vessel.
Despite the combined efforts of the firemen of the Lapulapu City Fire
Department, Mandaue Fire Department, Cordova Fire Department,
Emergency Rescue Unit Foundation, and fire brigade of CSEW, the fire
was not controlled until 2:00 a.m. of the following day, February 17,
1991.
On the early morning of February 17, 1991, gusty winds rekindled the
flames on the vessel and fire again broke out. Then the huge amounts of
water pumped into the vessel, coupled with the strong current, caused
the vessel to tilt until it capsized and sank
When M/V Manila City capsized, steel and angle bars were noticed to
have been newly welded along the port side of the hull of the vessel, at
the level of the crew cabins. William Lines did not previously apply for a
permit to do hotworks on the said portion of the ship as it should have
done pursuant to its work order with CSEW. 5
Respondent Prudential, on the other hand, theorized that the fire broke out in the following
manner:
At around eleven o'clock in the morning of February 16, 1991, the Chief
Mate of M/V Manila City was inspecting the various works being done by
CSEW on the vessel, when he saw that some workers of CSEW were

cropping out steel plates on Tank Top No. 12 using acetylene, oxygen
and welding torch. He also observed that the rubber insulation wire
coming out of the air-conditioning unit was already burning, prompting
him to scold the workers.
At 2:45 in the afternoon of the same day, witnesses saw smoke coming
from Tank No. 12. The vessel's reeferman reported such occurrence to
the Chief Mate who immediately assembled the crew members to put
out the fire. When it was too hot for them to stay on board and seeing
that the fire cannot be controlled, the vessel's crew were forced to
withdraw from CSEW's docking quay.
In the morning of February 17, 1991, M/V Manila City sank. As the vessel
was insured with Prudential Guarantee, William Lines filed a claim for
constructive total loss, and after a thorough investigation of the
surrounding circumstances of the tragedy, Prudential Guarantee found
the said insurance claim to be meritorious and issued a check in favor of
William Lines in the amount of P45 million pesos representing the total
value of M/V Manila City's hull and machinery insurance. 6
The petition is unmeritorious.
Petitioner CSEW faults the Court of Appeals for adjudging it negligent and liable for damages to
the respondents, William Lines, Inc., and Prudential for the loss of M/V Manila City. It is
petitioner's submission that the finding of negligence by the Court of Appeals is not supported
by the evidence on record, and contrary to what the Court of Appeals found, petitioner did not
have management and control over M/V Manila City. Although it was brought to the premises of
CSEW for annual repair, William Lines, Inc. retained control over the vessel as the ship captain
remained in command and the ship's crew were still present. While it imposed certain rules and
regulations on William Lines, it was in the exercise of due diligence and not an indication of
CSEW's exclusive control over subject vessel. Thus, CSEW maintains that it did not have
exclusive control over the M/V Manila City and the trial court and the Court of Appeals erred in
applying the doctrine of res ipsa loquitur.
Time and again, this Court had occasion to reiterate the well-established rule that factual
findings by the Court of Appeals are conclusive on the parties and are not reviewable by this
Court. They are entitled to great weight and respect, even finality, especially when, as in this
case, the Court of Appeals affirmed the factual findings arrived at by the trial court. 7When
supported by sufficient evidence, findings of fact by the Court of Appeals affirming those of the
trial court, are not to be disturbed on appeal. The rationale behind this doctrine is that review of
the findings of fact of the Court of Appeals is not a function that the Supreme Court normally
undertakes. 8
Here, the Court of Appeals and the Cebu Regional Trial Court of origin are agreed that the fire
which caused the total loss of subject M/V Manila City was due to the negligence of the
employees and workers of CSEW. Both courts found that the M/V Manila City was under the
custody and control of petitioner CSEW, when the ill-fated vessel caught fire. The decisions of
both the lower court and the Court of Appeals set forth clearly the evidence sustaining their
finding of actionable negligence on the part of CSEW. This factual finding is accorded great
weight and is conclusive on the parties. The court discerns no basis for disturbing such finding
firmly anchored on enough evidence. As held in the case of Roblett Industrial Construction
Corporation vs. Court of Appeals, "in the absence of any showing that the trial court failed to
appreciate facts and circumstances of weight and substance that would have altered its
conclusion, no compelling reason exists for the Court to impinge upon matters more
appropriately within its province." 9
189
Furthermore, in petitions for review on certiorari, only questions of law may be put into
issue. Questions of fact cannot be entertained. The finding of negligence by the Court of
Appeals is a question which this Court cannot look into as it would entail going into factual
matters on which the finding of negligence was based. Such an approach cannot be allowed by
this Court in the absence of clear showing that the case falls under any of the exceptions 10 to
the well-established principle.
The finding by the trial court and the Court of Appeals that M/V Manila City caught fire and sank
by reason of the negligence of the workers of CSEW, when the said vessel was under the
exclusive custody and control of CSEW is accordingly upheld. Under the circumstances of the
case, the doctrine of res ipsa loquitur applies. For the doctrine of res ipsa loquitur to apply to a
given situation, the following conditions must concur: (1) the accident was of a kind which does
not ordinarily occur unless someone is negligent; and (2) that the instrumentality or agency
which caused the injury was under the exclusive control of the person charged with negligence.
The facts and evidence on record reveal the concurrence of said conditions in the case under
scrutiny. First, the fire that occurred and consumed M/V Manila City would not have happened
in the ordinary course of things if reasonable care and diligence had been exercised. In other
words, some negligence must have occurred. Second, the agency charged with negligence, as
found by the trial court and the Court of Appeals and as shown by the records, is the herein
petitioner, Cebu Shipyard and Engineering Works, Inc., which had control over subject vessel
when it was docked for annual repairs. So also, as found by the regional trial court, "other
responsible causes, including the conduct of the plaintiff, and third persons, are sufficiently
eliminated by the evidence." 11
What is more, in the present case the trial court found direct evidence to prove that the workers
and/or employees of CSEW were remiss in their duty of exercising due diligence in the care of
subject vessel. The direct evidence substantiates the conclusion that CSEW was really
negligent. Thus, even without applying the doctrine of res ipsa loquitur, in light of the direct
evidence on record, the ineluctable conclusion is that the petitioner, Cebu Shipyard and
Engineering Works, Inc., was negligent and consequently liable for damages to the respondent,
William Lines, Inc.
Neither is there tenability in the contention of petitioner that the Court of Appeals erroneously
ruled on the inadmissibility of the expert testimonies it (petitioner) introduced on the probable
cause and origin of the fire. Petitioner maintains that the Court of Appeals erred in disregarding
the testimonies of the fire experts, Messrs. David Grey and Gregory Michael Southeard, who
testified on the probable origin of the fire in M/V Manila City. Petitioner avers that since the said
fire experts were one in their opinion that the fire did not originate in the area of Tank Top No.
12 where the JNB workers were doing hotworks but on the crew accommodation cabins on the
portside No. 2 deck, the trial court and the Court of Appeals should have given weight to such
finding based on the testimonies of fire experts; petitioner argues. cdrep
But courts are not bound by the testimonies of expert witnesses. Although they may have
probative value, reception in evidence of expert testimonies is within the discretion of the court.
Section 49, Rule 130 of the Revised Rules of Court, provides:
SECTION 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.
The word "may" signifies that the use of opinion of an expert witness as evidence is a
prerogative of the courts. It is never mandatory for judges to give substantial weight to
expert testimonies. If from the facts and evidence on record, a conclusion is readily
ascertainable, there is no need for the judge to resort to expert opinion evidence. In the
case under consideration, the testimonies of the fire experts were not the only available

evidence on the probable cause and origin of the fire. There were witnesses who were
actually on board the vessel when the fire occurred. Between the testimonies of the fire
experts who merely based their findings and opinions on interviews and the testimonies of
those present during the fire, the latter are of more probative value. Verily, the trial court
and the Court of Appeals did not err in giving more weight to said testimonies.
On the issue of subrogation, petitioner contends that Prudential is not entitled to be subrogated
to the rights of William Lines, Inc., theorizing that (1) the fire which gutted M/V Manila City was
an excluded risk and (2) it is a co-assured under the Marine Hull Insurance Policy.
It is petitioner's submission that the loss of M/V Manila City or damage thereto is expressly
excluded from the coverage of the insurance because the same resulted from "want of due
diligence by the Assured, Owners or Managers" which is not included in the risks insured
against. Again, this theory of petitioner is bereft of any factual or legal basis. It proceeds from a
wrong premise that the fire which gutted subject vessel was caused by the negligence of the
employees of William Lines, Inc. To repeat, the issue of who between the parties was negligent
has already been resolved against Cebu Shipyard and Engineering Works, Inc. Upon proof of
payment by Prudential to William Lines, Inc., the former was subrogated to the right of the latter
to indemnification from CSEW. As aptly ruled by the Court of Appeals, the law on the matter is
succinct and clear, to wit:
ARTICLE 2207. If the plaintiff's property has been insured, and he has
received indemnity from the insurance company for the injury or loss
arising out of the wrong or breach of contract complained of, the
insurance company shall be subrogated to the rights of the insured
against the wrongdoer or the person who has violated the contract. If the
amount paid by the insurance company does not fully cover the injury or
loss, the aggrieved party shall be entitled to recover the deficiency from
the person causing the loss or injury. 12
Thus, when Prudential, after due verification of the merit and validity of the insurance claim of
William Lines, Inc., paid the latter the total amount covered by its insurance policy, it was
subrogated to the right of the latter to recover the insured loss from the liable party, CSEW.
Petitioner theorizes further that there can be no right of subrogation as it is deemed a co-
assured under the subject insurance policy. To buttress its stance that it is a co-assured,
petitioner placed reliance on Clause 20 of the Work Order which states:
20. The insurance on the vessel should be maintained by the customer
and/or owner of the vessel during the period the contract is in effect. 13
According to petitioner, under the aforecited clause, William Lines, Inc., agreed to assume
the risk of loss of the vessel while under drydock or repair and to such extent, it is
benefited and effectively constituted as a co-assured under the policy.
This theory of petitioner is devoid of sustainable merit. Clause 20 of the Work Order in question
is clear in the sense that it requires William Lines to maintain insurance on the vessel during the
period of dry-docking or repair. Concededly, such a stipulation works to the benefit of CSEW
as the shiprepairer. However, the fact that CSEW benefits from the said stipulation does not
automatically make it as a co-assured of William Lines. The intention of the parties to make
each other a co-assured under an insurance policy is to be gleaned principally from the
insurance contract or policy itself and not from any other contract or agreement because the
insurance policy denominates the assured and the beneficiaries of the insurance. The hull and
machinery insurance procured by William Lines, Inc. from Prudential named only "William Lines,
Inc." as the assured. There was no manifestation of any intention of William Lines, Inc. to
constitute CSEW as a co-assured under subject policy. It is axiomatic that when the terms of a
190
contract are clear its stipulations control. 14 Thus, when the insurance policy involved
named only William Lines, Inc. as the assured thereunder, the claim of CSEW that it is a co-
assured is unfounded.
Then too, in the Additional Perils Clause of the same Marine Insurance Policy, it is provided
that:
Subject to the conditions of this Policy, this insurance also covers loss of
or damage to vessel directly caused by the following:
xxx xxx xxx
Negligence of Charterers and/or Repairers, provided such Charterers
and/or Repairers are not an Assured hereunder. 15 (italics supplied)
As correctly pointed out by respondent Prudential, if CSEW were deemed a co-assured under
the policy, it would nullify any claim of William Lines, Inc. from Prudential for any loss or
damage caused by the negligence of CSEW. Certainly, no shipowner would agree to make a
shiprepairer a co-assured under such insurance policy; otherwise, any claim for loss or damage
under the policy would be invalidated. Such result could not have been intended by William
Lines, Inc.
Finally, CSEW argues that even assuming that it was negligent and therefore liable to William
Lines, Inc., by stipulation in the Contract or Work Order its liability is limited to One Million
(P1,000,000.00) Pesos only, and Prudential a mere subrogee of William Lines, Inc., should only
be entitled to collect the sum stipulated in the said contract.
Although in this jurisdiction, contracts of adhesion have been consistently upheld as valid per
se; as binding as an ordinary contract, the Court recognizes instances when reliance on such
contracts cannot be favored especially where the facts and circumstances warrant that subject
stipulations be disregarded. 16 Thus, in ruling on the validity and applicability of the stipulation
limiting the liability of CSEW for negligence to One Million (P1,000,000.00) Pesos only, the facts
and circumstances vis-a-vis the nature of the provision sought to be enforced should be
considered, bearing in mind the principles of equity and fair play. cdasia
It is worthy to note that M/V Manila City was insured with Prudential for Forty Five Million
(P45,000,000.00) Pesos. To determine the validity and sustainability of the claim of William
Lines, Inc., for a total loss, Prudential conducted its own inquiry. Upon thorough investigation
by its hull surveyor, M/V Manila City was found to be beyond economical salvage and
repair. 17 The evaluation of the average adjuster also reported a constructive total loss. 18 The
said claim of William Lines, Inc., was then found to be valid and compensable such that
Prudential paid the latter the total value of its insurance claim. Furthermore, it was ascertained
that the replacement cost of the vessel (the price of a vessel similar to M/V Manila City),
amounts to Fifty Five Million (P55,000,000.00) Pesos. 19
Considering the aforestated circumstances, let alone the fact that negligence on the part of
petitioner has been sufficiently proven, it would indeed be unfair and inequitable to limit the
liability of petitioner to One Million Pesos only. As aptly held by the trial court, "it is rather
unconscionable if not overstrained." To allow CSEW to limit its liability to One Million Pesos
notwithstanding the fact that the total loss suffered by the assured and paid for by Prudential
amounted to Forty Five Million (P45,000,000.00) Pesos would sanction the exercise of a degree
of diligence short of what is ordinarily required because, then, it would not be difficult for
petitioner to escape liability by the simple expedient of paying an amount very much lower than
the actual damage or loss suffered by William Lines, Inc.

WHEREFORE, for want of merit, the petition is hereby DENIED and the decision, dated
September 3, 1997, and Resolution, dated February 13, 1998, of the Court of Appeals
AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Romero, Vitug, Panganiban and Gonzaga-Reyes, JJ., concur.
||| (Cebu Shipyard & Engineering Works, Inc. v. William Lines, Inc., G.R. No. 132607, [May 5,
1999], 366 PHIL 439-459)
THIRD DIVISION
[G.R. No. 147746. October 25, 2005.]
PERLA COMPANIA DE SEGUROS, INC. and BIENVENIDO S.
PASCUAL, petitioners, vs. SPS. GAUDENCIO SARANGAYA III and
PRIMITIVA B. SARANGAYA, respondents.
DECISION
CORONA, J p:
This is an appeal by certiorari under Rule 45 of the 1997 Rules of Civil Procedure seeking to
annul the decisions of the Court of Appeals (CA) dated June 29, 2000 and March 31, 2001,
respectively, which affirmed the decision of the Regional Trial Court (RTC), Branch 21 of
Santiago, Isabela.
In 1986, respondent spouses Gaudencio Sarangaya III and Primitiva Sarangaya erected a semi-
concrete, semi-narra, one-storey commercial building fronting the provincial road of Santiago,
Isabela. The building was known as "Super A Building" and was subdivided into three doors,
each of which was leased out. The two-storey residence of the Sarangayas was behind the
second and third doors of the building. On the left side of the commercial building stood the
office of the Matsushita Electric Philippine Corporation (Matsushita).
In 1988, petitioner Perla Compania de Seguros, Inc. (petitioner-corporation), through its branch
manager and co-petitioner Bienvenido Pascual, entered into a contract of lease of the first door
of the "Super A Building," abutting the office of Matsushita. Petitioner-corporation renovated its
rented space and divided it into two. The left side was converted into an office while the right
was used by Pascual as a garage for a 1981 model 4-door Ford Cortina, a company-provided
vehicle he used in covering the different towns within his area of supervision.
On July 7, 1988, Pascual left for San Fernando, Pampanga but did not bring the car with him.
Three days later, he returned to Santiago and, after checking his appointments the next day,
decided to "warm up" the car. When he pulled up the handbrake and switched on the ignition
key, the engine made an "odd" sound and did not start. Thinking it was just the gasoline
percolating into the engine, he again stepped on the accelerator and started the car. This
191
revved the engine but petitioner again heard an unusual sound. He then saw a small flame
coming out of the engine. Startled, he turned it off, alighted from the vehicle and started to
push it out of the garage when suddenly, fire spewed out of its rear compartment and engulfed
the whole garage. Pascual was trapped inside and suffered burns on his face, legs and arms.
Meanwhile, respondents were busy watching television when they heard two loud explosions.
The smell of gasoline permeated the air and, in no time, fire spread inside their house,
destroying all their belongings, furniture and appliances. aDHCAE
The city fire marshall conducted an investigation and thereafter submitted a report to the
provincial fire marshall. He concluded that the fire was "accidental." The report also disclosed
that petitioner-corporation had no fire permit as required by law.
Based on the same report, a criminal complaint for "Reckless Imprudence Resulting to (sic)
Damage in (sic) Property" 1 was filed against petitioner Pascual. On the other hand, petitioner-
corporation was asked to pay the amount of P7,992,350, inclusive of the value of the
commercial building. At the prosecutor's office, petitioner Pascual moved for the withdrawal of
the complaint, which was granted.
Respondents later on filed a civil complaint based on quasi-delict against petitioners for a "sum
of money and damages," alleging that Pascual acted with gross negligence while petitioner-
corporation lacked the required diligence in the selection and supervision of Pascual as its
employee. They prayed for payment of the following damages:
1. P2,070,000.00 representing the value of the 2-storey residential
building and the 3-door apartment;
2. P5,922,350.00 representing the value of the jewelries, appliances,
[furniture], fixtures and cash;
3. P8,300.00 a month for [lost rental] income from July 1995 until such
time that the premises is restored to its former condition or
payment for its value, whichever comes first;
4. P2,000,000.00 for moral damages;
5. P1,000,000.00 for exemplary damages, and
6. Attorney's fees equivalent to 15% of the total amount to be awarded
to the plaintiffs. 2
During the trial, respondents presented witnesses who testified that a few days before the
incident, Pascual was seen buying gasoline in a container from a nearby gas station. He then
placed the container in the rear compartment of the car.
In his answer, Pascual insisted that the fire was purely an accident, a caso fortuito, hence, he
was not liable for damages. He also denied putting a container of gasoline in the car's rear
compartment. For its part, petitioner-corporation refused liability for the accident on the ground
that it exercised due diligence of a good father of a family in the selection and supervision of
Pascual as its branch manager.
After the trial, the court a quo ruled in favor of respondents. The decretal portion of the decision
read:
WHEREFORE, in the light of the foregoing considerations judgment is
hereby rendered ORDERING the defendants, Bienvenido Pascual and
Perla Compania de Seguros, Inc. to pay jointly and solidarily to the
plaintiffs spouses Gaudencio and Primitiva Sarangaya the total sum of

Two Million Nine Hundred Four Thousand Eight Hundred and Eighty
Pesos ([P]2,904,880.00) as actual damages with legal interest thereon
from December 12, 1995 until fully paid. 3 (emphasis supplied) AacCIT
The court a quo declared that, although the respondents failed to prove the precise cause of
the fire that engulfed the garage, Pascual was nevertheless negligent based on the doctrine
of res ipsa loquitur. 4 It did not, however, categorically rule that the gasoline container allegedly
placed in the rear compartment of the car caused the fire. The trial court instead declared that
both petitioners failed to adduce sufficient evidence to prove that they employed the necessary
care and diligence in the upkeep of the car. 5 Contrary to the claims of petitioner-corporation,
the trial court also found that it failed to employ the diligence of a good father of a family, as
required by law, in the selection and supervision of Pascual.
With respect to the amount of damages, the trial court awarded to respondents no more than
their claim for actual damages covering the cost of the 2-storey residential building and the
commercial building, including their personal properties. It explained:
According to the plaintiff Gaudencio Sarangaya III, he made a list of what
was lost. His list includes the commercial building that was burned which
he valued at P2,070,000.00. The defendants take exception to the value
given by the plaintiff and for this purpose they submitted the tax
declaration of the building which states that the market value is
P183,770.00. The Court takes judicial notice that the valuation appearing
on the tax declaration of property is always lower [than] the correct value
thereof. Considering that the building that was burned was a two-storey
residential house with a commercial building annex with a total floor area
of 241 square meters as stated in the tax declaration, mostly concrete
mixed with narra and other lumber materials, the value given by the
plaintiffs of P2,070,000.00 is reasonable and credible and it shall be
awarded to the plaintiffs.
The other items listed are assorted [furniture] and fixtures totaling
P307,000.00 assorted appliances worth P358,350.00; two filing cabinets
worth P7,000.00 and clothing and other personal effects costing
P350,000.00, household utensils costing P15,000.00. The Court finds
them reasonable and credible considering the social and financial stature
of the plaintiffs who are businessmen. There could be no question that
they were able to acquire and own quite a lot of home furnishings and
personal belongings. The costing however is high considering that these
belongings were already used for quite some time so a 20%
depreciation should be equitably deducted from the cost of acquisition
submitted by plaintiffs. Thus, the total amount recoverable would be
P1,037,350.00 less 20% or a total of P829,880.00. The P5,000.00
representing foodstock can also be ordered paid to the plaintiffs. . . . . 6
On appeal to the Court of Appeals, the appellate court again ruled in favor of respondents but
modified the amount of damages awarded by the trial court. It held:
. . . the Decision of the Court a quo is AFFIRMED, with the modification
that the Appellants are hereby ordered to pay the Appellees, jointly and
severally, the total amount of P600,000.00 by way of nominal damages
under Articles 2222 and 2223 of the New Civil Code, with interest
thereon, at the rate of 6% per annum from the date of the Decision of
this Court. 7
192
The appellate court was in accord with the trial court's findings that the doctrine of res
ipsa loquitur was correctly applied in determining the liability of Pascual and that petitioner-
corporation, as the employer, was vicariously liable to respondents. Nonetheless, for
respondents' failure to substantiate their actual loss, the appellate court granted nominal
damages of P600,000 to them. SEIcHa
Petitioners and respondents filed their respective motions for reconsideration.
In their MR, petitioners contested the findings of fact of the appellate court. They denied any
liability whatsoever to respondents but this was rejected by the CA for lack of merit. Thus, the
present appeal.
Respondents, on the other hand, argued in their MR that the award of nominal damages was
erroneous. They prayed that, in lieu of the award of nominal damages, the case should instead
be remanded to the trial court for reception of additional evidence on their claim for actual
damages. The CA granted respondents' MR. Hence they did not appeal the CA's decision to
us. According to the CA:
Anent Plaintiffs-Appellees' plea that, in lieu of the Court's award of
nominal damages, the case be remanded to the Court a quo, in the
interest of justice, to enable them to adduce evidence to prove their
claim for actual damages, we find the same meritorious.
Accordingly, the Decision of the Court is hereby amended to read as
follows:
IN THE LIGHT OF ALL THE FOREGOING, the Decision of the Court a
quo appealed from is AFFIRMED. The award of nominal damages is
set aside. Let the records be remanded to the Court a quo for the
reception of additional evidence by the Plaintiffs-Appellees and the
Defendants-Appellants anent Plaintiffs-Appellees' claim for actual
damages. 8 (emphasis supplied)
Via this petition, petitioners ascribe the following errors to the appellate court:
(a) THE COURT OF APPEALS ERRED IN APPLYING THE DOCTRINE OF
["RES IPSA LOQUITUR"] IN THE PRESENT CASE;
(b) THE COURT OF APPEALS ERRED WHEN IT FOUND PERLA
NEGLIGENT IN THE SUPERVISION OF PASCUAL, AND
CONSEQUENTLY, VICARIOUSLY LIABLE FOR THE FIRE
BECAUSE PERLA FAILED TO ADDUCE EVIDENCE OF
SUPERVISION OF EMPLOYEE'S CARE AND UPKEEP OF
COMPANY VEHICLES REQUIRED BY THE SUPREME COURT
ON TRANSPORTATION COMPANIES; AND
(c) THE COURT OF APPEALS ERRED WHEN IT ORDERED THE
REMAND OF THE CASE TO RTC ISABELA FOR RECEPTION
OF ADDITIONAL EVIDENCE BY THE SARANGAYA SPOUSES
ON THEIR CLAIM FOR ACTUAL DAMAGES. 9
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for
itself." 10 It relates to the fact of an injury that sets out an inference to the cause thereof or
establishes the plaintiff's prima facie case. 11 The doctrine rests on inference and not on

presumption. 12 The facts of the occurrence warrant the supposition of negligence and they
furnish circumstantial evidence of negligence when direct evidence is lacking. 13
The doctrine is based on the theory that the defendant either knows the cause of the accident
or has the best opportunity of ascertaining it and the plaintiff, having no knowledge thereof, is
compelled to allege negligence in general terms. 14 In such instance, the plaintiff relies on proof
of the happening of the accident alone to establish negligence. 15
The doctrine provides a means by which a plaintiff can pin liability on a defendant who, if
innocent, should be able to explain the care he exercised to prevent the incident complained of.
Thus, it is the defendant's responsibility to show that there was no negligence on his part. 16
To sustain the allegation of negligence based on the doctrine of res ipsa loquitur, the following
requisites must concur:
1) the accident is of a kind which does not ordinarily occur unless
someone is negligent;
2) the cause of the injury was under the exclusive control of the person in
charge and
3) the injury suffered must not have been due to any voluntary action or
contribution on the part of the person injured. 17
Under the first requisite, the occurrence must be one that does not ordinarily occur unless
there is negligence. "Ordinary" refers to the usual course of events. 18 Flames spewing out of a
car engine, when it is switched on, is obviously not a normal event. Neither does an explosion
usually occur when a car engine is revved. Hence, in this case, without any direct evidence as
to the cause of the accident, the doctrine of res ipsa loquitur comes into play and, from it, we
draw the inference that based on the evidence at hand, someone was in fact negligent and
responsible for the accident. ATHCDa
The test to determine the existence of negligence in a particular case may be stated as follows:
did the defendant in committing the alleged negligent act, use reasonable care and caution
which an ordinarily prudent person in the same situation would have employed? 19 If not, then
he is guilty of negligence.
Here, the fact that Pascual, as the caretaker of the car, failed to submit any proof that he had it
periodically checked (as its year-model and condition required) revealed his negligence. A
prudent man should have known that a 14-year-old car, constantly used in provincial trips, was
definitely prone to damage and other defects. For failing to prove care and diligence in the
maintenance of the vehicle, the necessary inference was that Pascual had been negligent in the
upkeep of the car.
Pascual attempted to exculpate himself from liability by insisting that the incident was a caso
fortuito. We disagree.
The exempting circumstance of caso fortuito may be availed only when: (a) the cause of the
unforeseen and unexpected occurrence was independent of the human will; (b) it was
impossible to foresee the event which constituted the caso fortuito or, if it could be foreseen, it
was impossible to avoid; (c) the occurrence must be such as to render it impossible to perform
an obligation in a normal manner and (d) the person tasked to perform the obligation must not
have participated in any course of conduct that aggravated the accident. 20
In fine, human agency must be entirely excluded as the proximate cause or contributory cause
of the injury or loss. 21 In a vehicular accident, for example, a mechanical defect will not release
193
the defendant from liability if it is shown that the accident could have been prevented had
he properly maintained and taken good care of the vehicle. 22
The circumstances on record do not support the defense of Pascual. Clearly, there was no caso
fortuito because of his want of care and prudence in maintaining the car.
Under the second requisite, the instrumentality or agency that triggered the occurrence must
be one that falls under the exclusive control of the person in charge thereof. In this case, the car
where the fire originated was under the control of Pascual. Being its caretaker, he alone had the
responsibility to maintain it and ensure its proper functioning. No other person, not even the
respondents, was charged with that obligation except him.
Where the circumstances which caused the accident are shown to have been under the
management or control of a certain person and, in the normal course of events, the incident
would not have happened had that person used proper care, the inference is that it occurred
because of lack of such care. 23 The burden of evidence is thus shifted to defendant to
establish that he observed all that was necessary to prevent the accident from happening. In
this aspect, Pascual utterly failed.
Under the third requisite, there is nothing in the records to show that respondents contributed
to the incident. They had no access to the car and had no responsibility regarding its
maintenance even if it was parked in a building they owned.
On the second assigned error, we find no reason to reverse the decision of the Court of
Appeals. The relationship between the two petitioners was based on the principle of pater
familias according to which the employer becomes liable to the party aggrieved by its employee
if he fails to prove due diligence of a good father of a family in the selection and supervision of
his employees. 24 The burden of proof that such diligence was observed devolves on the
employer who formulated the rules and procedures for the selection and hiring of his
employees. ADECcI
In the selection of prospective employees, employers are required to examine them as to their
qualifications, experience and service records. 25 While the petitioner-corporation does not
appear to have erred in considering Pascual for his position, its lack of supervision over him
made it jointly and solidarily liable for the fire.
In the supervision of employees, the employer must formulate standard operating procedures,
monitor their implementation and impose disciplinary measures for the breach thereof. 26 To
fend off vicarious liability, employers must submit concrete proof, including documentary
evidence, that they complied with everything that was incumbent on them. 27Here, petitioner-
corporation's evidence hardly included any rule or regulation that Pascual should have
observed in performing his functions. It also did not have any guidelines for the maintenance
and upkeep of company property like the vehicle that caught fire. Petitioner-corporation did not
require periodic reports on or inventories of its properties either. Based on these
circumstances, petitioner-corporation clearly did not exert effort to be apprised of the condition
of Pascual's car or its serviceability.
Petitioner-corporation's argument that the liability attached to employers only applies in cases
involving the supervision of employees in the transportation business is incorrect. Article 2180
of the Civil Code states that employers shall be liable for the damage caused by their
employees. The liability is imposed on all those who by their industry, profession or other
enterprise have other persons in their service or supervision. 28 Nowhere does it state that the
liability is limited to employers in the transportation business.
WHEREFORE, the petition is hereby DENIED and the decision 29 of the Court of Appeals
affirmed in toto.

Costs against petitioners.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Carpio Morales and Garcia, JJ., concur.
||| (Perla Compania de Seguros Inc. v. Spouses Sarangaya, G.R. No. 147746, [October 25,
2005], 510 PHIL 676-690)
SECOND DIVISION
[G.R. No. 180440. December 5, 2012.]
DR. GENEVIEVE L. HUANG, petitioner, vs. PHILIPPINE HOTELIERS,
INC., DUSIT THANI PUBLIC CO., LTD. and FIRST LEPANTO TAISHO
INSURANCE CORPORATION,respondents.
DECISION
PEREZ, J p:
For this Court's resolution is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, assailing the Decision 1 of the Court of Appeals in CA-G.R. CV No. 87065 dated 9
August 2007, affirming the Decision 2 of Branch 56 of the Regional Trial Court (RTC) of Makati
City in Civil Case No. 96-1367 dated 21 February 2006, dismissing for lack of merit herein
petitioner Dr. Genevieve L. Huang's Complaint for Damages. Assailed as well is the Court of
Appeals' Resolution 3 dated 5 November 2007 denying for lack of merit petitioner's Motion for
Reconsideration. prcd
This case stemmed from a Complaint for Damages filed on 28 August 1996 by petitioner Dr.
Genevieve L. Huang 4 against herein respondents Philippine Hoteliers, Inc. (PHI) 5 and Dusit
Thani Public Co., Ltd. (DTPCI), 6 as owners of Dusit Thani Hotel Manila (Dusit Hotel); 7 and co-
respondent First Lepanto Taisho Insurance Corporation (First Lepanto), 8 as insurer of the
aforesaid hotel. The said Complaint was premised on the alleged negligence of respondents
PHI and DTPCI's staff, in the untimely putting off all the lights within the hotel's swimming pool
area, as well as the locking of the main entrance door of the area, prompting petitioner to grope
for a way out. While doing so, a folding wooden counter top fell on her head causing her
serious brain injury. The negligence was allegedly compounded by respondents PHI and
DTPCI's failure to render prompt and adequate medical assistance.
Petitioner's version of the antecedents of this case is as follows:
On 11 June 1995, Delia Goldberg (Delia), a registered guest of Dusit Hotel, invited her friend,
petitioner Dr. Genevieve L. Huang, for a swim at the hotel's swimming pool facility. They started
bathing at around 5:00 p.m. At around 7:00 p.m., the hotel's swimming pool attendant informed
them that the swimming pool area was about to be closed. The two subsequently proceeded to
the shower room adjacent to the swimming pool to take a shower and dress up. However,
194
when they came out of the bathroom, the entire swimming pool area was already pitch
black and there was no longer any person around but the two of them. They carefully walked
towards the main door leading to the hotel but, to their surprise, the door was locked. 9
Petitioner and Delia waited for 10 more minutes near the door hoping someone would come to
their rescue but they waited in vain. Delia became anxious about their situation so petitioner
began to walk around to look for a house phone. Delia followed petitioner. After some time,
petitioner saw a phone behind the lifeguard's counter. While slowly walking towards the phone,
a hard and heavy object, which later turned out to be the folding wooden counter top, fell on
petitioner's head that knocked her down almost unconscious. 10
Delia immediately got hold of the house phone and notified the hotel telephone operator of the
incident. Not long after, the hotel staff arrived at the main entrance door of the swimming pool
area but it took them at least 20 to 30 minutes to get inside. When the door was finally opened,
three hotel chambermaids assisted petitioner by placing an ice pack and applying some
ointment on her head. After petitioner had slightly recovered, she requested to be assisted to
the hotel's coffee shop to have some rest. Petitioner demanded the services of the hotel
physician. 11
Dr. Violeta Dalumpines (Dr. Dalumpines) arrived. She approached petitioner and introduced
herself as the hotel physician. However, instead of immediately providing the needed medical
assistance, Dr. Dalumpines presented a "Waiver" and demanded that it be signed by petitioner,
otherwise, the hotel management will not render her any assistance. Petitioner refused to do
so. 12 TCASIH
After eating her dinner and having rested for a while, petitioner left the hotel's coffee shop and
went home. Thereupon, petitioner started to feel extraordinary dizziness accompanied by an
uncomfortable feeling in her stomach, which lasted until the following day. Petitioner was
constrained to stay at home, thus, missing all her important appointments with her patients.
She also began experiencing "on" and "off" severe headaches that caused her three (3)
sleepless nights. 13
Petitioner, thus, decided to consult a certain Dr. Perry Noble (Dr. Noble), a neurologist from
Makati Medical Center, who required her to have an X-ray and a Magnetic Resonance Imaging
(MRI) tests. 14 The MRI Report 15 dated 23 August 1995 revealed the following findings:
CONSULTATION REPORT:
MRI examination of the brain shows scattered areas of
intraparenchymal contusions and involving mainly the left
middle and posterior temporal and slightly the right anterior
temporal lobe.
Other small areas of contusions with suggestive pertechiae are
seen in the left fronto-parietal, left parieto-occipital and with
deep frontal periventricular subcortical and cortical regions.
There is no mass effect nor signs of localized hemorrhagic
extravasation.
The ventricles are not enlarged, quite symmetrical without
shifts or deformities; the peripheral sulci are within normal
limits.
The C-P angles, petromastoids, sella, extrasellar and retro
orbital areas appear normal.
The brainstem is unremarkable.

IMPRESSION:Scattered small intraparenchymal contusions
mainly involving the left middle-posterior
temporal lobe and also right medial anterior
temporal, both deep frontal subcortical, left
parieto-occipital subcortical and cortical
regions.
Ischemic etiology not ruled out.
No localized intra or extracerebral
hemorrhage. 16
Petitioner claimed that the aforesaid MRI result clearly showed that her head was bruised.
Based also on the same MRI result, Dr. Noble told her that she has a very serious brain injury.
In view thereof, Dr. Noble prescribed the necessary medicine for her condition. 17
Petitioner likewise consulted a certain Dr. Ofelia Adapon, also a neurologist from Makati
Medical Center, who required her to undergo an Electroencephalogram examination (EEG) to
measure the electrostatic in her brain. 18 Based on its result, 19 Dr. Ofelia Adapon informed her
that she has a serious condition a permanent one. Dr. Ofelia Adapon similarly prescribed
medicines for her brain injury. 20
Petitioner's condition did not get better. Hence, sometime in September 1995, she consulted
another neuro-surgeon by the name of Dr. Renato Sibayan (Dr. Sibayan), who required her to
have an X-ray test. 21 According to petitioner, Dr. Sibayan's finding was the same as those of
the previous doctors that she had consulted she has a serious brain injury. 22
By reason of the unfortunate 11 June 1995 incident inside the hotel's swimming pool area,
petitioner also started to feel losing her memory, which greatly affected and disrupted the
practice of her chosen profession. 23 Thus, on 25 October 1995, petitioner, through counsel,
sent a demand letter 24 to respondents PHI and DTPCI seeking payment of an amount not less
than P100,000,000.00 representing loss of earnings on her remaining life span. But, petitioner's
demand was unheeded.
In November 1995, petitioner went to the United States of America (USA) for further medical
treatment. She consulted a certain Dr. Gerald Steinberg and a certain Dr. Joel Dokson 25from
Mount Sinai Hospital who both found that she has "post traumatic-post concussion/contusion
cephalgias-vascular and neuralgia." 26 She was then prescribed to take some medications for
severe pain and to undergo physical therapy. Her condition did not improve so she returned to
the Philippines. 27
Petitioner, once again, consulted Dr. Sibayan, who simply told her to just relax and to continue
taking her medicines. Petitioner also consulted other neurologists, who all advised her to just
continue her medications and to undergo physical therapy for her neck pain. 28
Sometime in 1996, petitioner consulted as well a certain Dr. Victor Lopez (Dr. Lopez), an
ophthalmologist from the Makati Medical Center, because of her poor vision, which she has
experienced for several months. 29 Petitioner's Eye Report dated 5 March 1996 30 issued by
Dr. Lopez stated: "IMPRESSION: Posterior vitreous detachment, right eye of floaters." Dr.
Lopez told petitioner that her detached eye is permanent and very serious. Dr. Lopez then
prescribed an eye drop to petitioner. 31
For petitioner's frustration to dissipate and to regain her former strength and physical well-
being, she consulted another neuro-surgeon from Makati Medical Center by the name of Dr.
Leopoldo P. Pardo, Jr. (Dr. Pardo, Jr.). 32 She disclosed to Dr. Pardo, Jr. that at the age of 18
she suffered a stroke due to mitral valve disease and that she was given treatments, which also
195
resulted in thrombocytopenia. In Dr. Pardo, Jr.'s medical evaluation of petitioner dated 15
May 1996, 33 he made the following diagnosis and opinion: SAHaTc
DIAGNOSIS AND OPINION:
This patient sustained a severe head injury in (sic) [11 June 1995] and
as a result of which she developed the following injuries:
1. Cerebral Concussion and Contusion
2. Post-traumatic Epilepsy
3. Post-concussional Syndrome
4. Minimal Brain Dysfunction
5. Cervical Sprain, chronic recurrent
It is my opinion that the symptoms she complained of in the foregoing
history are all related to and a result of the injury sustained on [11
June 1995].
It is further my opinion that the above diagnosis and complaints do
materially affect her duties and functions as a practi[c]ing physician
and dermatologist, and that she will require treatment for an
undetermined period of time.
The percentage of disability is not calculated at this time and will
require further evaluation and observation. 34
Dr. Pardo, Jr. then advised petitioner to continue her medications. 35
Petitioner likewise consulted a certain Dr. Tenchavez 36 for her follow-up EEG. 37 He similarly
prescribed medicine for petitioner's deep brain injury. He also gave her pain killer for her
headache and advised her to undergo physical therapy. Her symptoms, however, persisted all
the more. 38
In 1999, petitioner consulted another neurologist at the Makati Medical Center by the name of
Dr. Martesio Perez (Dr. Perez) because of severe fleeting pains in her head, arms and legs;
difficulty in concentration; and warm sensation of the legs, which symptoms also occurred after
the 11 June 1995 incident. Upon examination, Dr. Perez observed that petitioner has been
experiencing severe pains and she has a slight difficulty in concentration. He likewise noted
that there was a slight spasm of petitioner's neck muscle but, otherwise, there was no objective
neurologic finding. The rest of petitioner's neurologic examination was essentially normal. 39
Dr. Perez's neurologic evaluation 40 of petitioner reflected, among others: (1) petitioner's past
medical history, which includes, among others, mitral valve stenosis; (2) an interpretation of
petitioner's EEG results in October 1995 and in January 1999, i.e., the first EEG showed sharp
waves seen bilaterally more on the left while the second one was normal; and (3) interpretation
of petitioner's second MRI result, i.e., petitioner has a permanent damage in the brain, which
can happen either after a head injury or after a stroke. Dr. Perez concluded that petitioner has
post-traumatic or post concussion syndrome. 41 HTDCAS
Respondents, on the other hand, denied all the material allegations of petitioner and, in turn,
countered the latter's statement of facts, thus:
According to respondents PHI and DTPCI, a sufficient notice had been posted on the glass
door of the hotel leading to the swimming pool area to apprise the people, especially the hotel

guests, that the swimming pool area is open only from 7:00 a.m. to 7:00 p.m. 42 Though the
hotel's swimming pool area is open only between the aforestated time, the lights thereon are
kept on until 10:00 p.m. for, (1) security reasons; (2) housekeeping personnel to do the cleaning
of the swimming pool surroundings; and (3) people doing their exercise routine at the Slimmer's
World Gym adjacent to the swimming pool area, which was then open until 10:00 p.m., to have
a good view of the hotel's swimming pool. Even granting that the lights in the hotel's swimming
pool area were turned off, it would not render the area completely dark as the Slimmer's World
Gym near it was well-illuminated. 43
Further, on 11 June 1995, at around 7:00 p.m., the hotel's swimming pool attendant advised
petitioner and Delia to take their showers as it was already closing time. Afterwards, at around
7:40 p.m., Pearlie Benedicto-Lipana (Ms. Pearlie), the hotel staff nurse, who was at the hotel
clinic located at the mezzanine floor, received a call from the hotel telephone operator informing
her that there was a guest requiring medical assistance at the hotel's swimming pool area
located one floor above the clinic. 44
Immediately, Ms. Pearlie got hold of her medical kit and hurriedly went to the hotel's swimming
pool area. There she saw Delia and petitioner, who told her that she was hit on the head by a
folding wooden counter top. Although petitioner looked normal as there was no indication of
any blood or bruise on her head, Ms. Pearlie still asked her if she needed any medical attention
to which petitioner replied that she is a doctor, she was fine and she did not need any medical
attention. Petitioner, instead, requested for a hirudoid cream to which Ms. Pearlie acceded. 45
At about 8:00 p.m., after attending to petitioner, Ms. Pearlie went back to the
hotel clinic to inform Dr. Dalumpines of the incident at the hotel's swimming pool area. But
before she could do that, Dr. Dalumpines had already chanced upon Delia and petitioner
at the hotel's coffee shop and the latter reported to Dr. Dalumpines that her head was hit
by a folding wooden counter top while she was inside the hotel's swimming pool area.
When asked by Dr. Dalumpines how she was, petitioner responded she is a doctor, she
was fine and she was already attended to by the hotel nurse, who went at the hotel's
swimming pool area right after the accident. Dr. Dalumpines then called Ms. Pearlie to
verify the same, which the latter confirmed. 46
Afterwards, Dr. Dalumpines went back to petitioner and checked the latter's condition.
Petitioner insisted that she was fine and that the hirudoid cream was enough. Having been
assured that everything was fine, Dr. Dalumpines requested petitioner to execute a handwritten
certification 47 regarding the incident that occurred that night. Dr. Dalumpines then suggested
to petitioner to have an X-ray test. Petitioner replied that it was not necessary. Petitioner also
refused further medical attention. 48
On 13 June 1995, petitioner called up Dr. Dalumpines. The call, however, had nothing to do
with the 11 June 1995 incident. Instead, petitioner merely engaged in small talk with Dr.
Dalumpines while having her daily massage. The two talked about petitioner's personal
matters, i.e., past medical history, differences with siblings and family over inheritance and
difficulty in practice. Petitioner even disclosed to Dr. Dalumpines that she once fell from a
horse; that she had a stroke; had hysterectomy and is incapable of having children for her
uterus had already been removed; that she had blood disorder, particularly lack of platelets,
that can cause bleeding; and she had an "on" and "off" headaches. Petitioner oftentimes called
Dr. Dalumpines at the hotel clinic to discuss topics similar to those discussed during their 13
June 1995 conversation. 49
Also, during one of their telephone conversations, petitioner requested for a certification
regarding the 11 June 1995 incident inside the hotel's swimming pool area. Dr. Dalumpines
accordingly issued Certification dated 7 September 1995, which states that: 50 ICAcaH
CERTIFICATION
196
This is to certify that as per Clinic records, duty nurse [Pearlie] was called
to attend to an accident at the poolside at 7:45PM on [11 June 1995].
Same records show that there, she saw [petitioner] who claimed the
folding countertop fell on her head when she lifted it to enter the
lifeguard's counter to use the phone. She asked for Hirudoid.
The same evening [petitioner] met [Dr. Dalumpines] at the Coffee Shop.
After narrating the poolside incident and declining [Dr. Dalumpines']
offer of assistance, she reiterated that the Hirudoid cream was
enough and that [petitioner] being a doctor herself, knew her
condition and she was all right.
This certification is given upon the request of [petitioner] for whatever
purpose it may serve, [7 September 1995] at Makati City. 51 (Emphasis
supplied).
Petitioner personally picked up the afore-quoted Certification at the hotel clinic without any
objection as to its contents. 52
From 11 June 1995 until 7 September 1995, the hotel clinic never received any complaint from
petitioner regarding the latter's condition. The hotel itself neither received any written complaint
from petitioner. 53
After trial, the court a quo in its Decision dated 21 February 2006 dismissed petitioner's
Complaint for lack of merit.
The trial court found petitioner's testimony self-serving, thus, devoid of credibility. Petitioner
failed to present any evidence to substantiate her allegation that the lights in the hotel's
swimming pool area were shut off at the time of the incident. She did not even present her
friend, Delia, to corroborate her testimony. More so, petitioner's testimony was contradicted by
one of the witnesses presented by the respondents who positively declared that it has been a
normal practice of the hotel management not to put off the lights until 10:00 p.m. to allow the
housekeepers to do the cleaning of the swimming pool surroundings, including the toilets and
counters. Also, the lights were kept on for security reasons and for the people in the nearby
gym to have a good view of the swimming pool while doing their exercise routine. Besides,
there was a remote possibility that the hotel's swimming pool area was in complete darkness
as the aforesaid gym was then open until 10:00 p.m., and the lights radiate to the hotel's
swimming pool area. As such, petitioner would not have met the accident had she only
acted with care and caution. 54
The trial court further struck down petitioner's contention that the hotel management did not
extend medical assistance to her in the aftermath of the accident. Records showed that the
hotel management immediately responded after being notified of the accident. The hotel nurse
and the two chambermaids placed an ice pack on petitioner's head. They were willing to
extend further emergency assistance but petitioner refused and merely asked for a hirudoid
cream. Petitioner even told them she is a doctor and she was fine. Even the medical services
offered by the hotel physician were turned down by petitioner. Emphatically, petitioner cannot
fault the hotel for the injury she sustained as she herself did not heed the warning that the
swimming pool area is open only from 7:00 a.m. to 7:00 p.m. As such, since petitioner's own
negligence was the immediate and proximate cause of her injury, she cannot recovered
damages. 55
The trial court similarly observed that the records revealed no indication that the head injury
complained of by petitioner was the result of the alleged 11 June 1995
accident. Firstly,petitioner had a past medical history which might have been the cause of her
recurring brain injury. Secondly, the findings of Dr. Perez did not prove a causal relation

between the 11 June 1995 accident and the brain damage suffered by petitioner. Even Dr.
Perez himself testified that the symptoms being experienced by petitioner might have been due
to factors other than the head trauma she allegedly suffered. It bears stressing that petitioner
had been suffering from different kinds of brain problems since she was 18 years old, which
may have been the cause of the recurring symptoms of head injury she is experiencing at
present. Absent, therefore, of any proof establishing the causal relation between the injury she
allegedly suffered on 11 June 1995 and the head pains she now suffers, her claim must
fail. Thirdly, Dr. Teresita Sanchez's (Dr. Sanchez) testimony cannot be relied upon since she
testified on the findings and conclusions of persons who were never presented in court. Ergo,
her testimony thereon was hearsay. Fourthly, the medical reports/evaluations/certifications
issued by myriads of doctors whom petitioner sought for examination or treatment were neither
identified nor testified to by those who issued them. Being deemed as hearsay, they cannot be
given probative value. Even assuming that petitioner suffered head injury as a
consequence of the 11 June 1995 accident, she cannot blame anyone but herself for
staying at the hotel's swimming pool area beyond its closing hours and for lifting the
folding wooden counter top that eventually hit her head. 56
For petitioner's failure to prove that her serious and permanent injury was the result of the 11
June 1995 accident, thus, her claim for actual or compensatory damages, loss of income, moral
damages, exemplary damages and attorney's fees, must all fail. 57 DcIHSa
With regard to respondent First Lepanto's liability, the trial court ruled that under the contract of
insurance, suffice it to state that absent any cause for any liability against respondents PHI and
DTPCI, respondent First Lepanto cannot be made liable thereon.
Dissatisfied, petitioner elevated the matter to the Court of Appeals with the following
assignment of errors: (1) the trial court erred in finding that the testimony of [petitioner] is self-
serving and thus void of credibility; (2) the trial court erred in applying the doctrine of proximate
cause in cases of breach of contract [and even] assuming arguendo that the doctrine is
applicable, [petitioner] was able to prove by sufficient evidence the causal connection between
her injuries and [respondents PHI and DTPCI's] negligent act; and (3) the trial court erred in
holding that [petitioner] is not entitled to damages. 58
On 9 August 2007, the Court of Appeals rendered a Decision affirming the findings and
conclusions of the trial court.
The Court of Appeals ratiocinated in this wise:
At the outset, it is necessary for our purpose to determine whether to
decide this case on the theory that [herein respondents PHI and DTPCI]
are liable for breach of contract or on the theory of quasi-delict.
xxx xxx xxx
It cannot be gainsaid that [herein petitioner's] use of the hotel's pool was
only upon the invitation of [Delia], the hotel's registered guest. As such,
she cannot claim contractual relationship between her and the
hotel. Since the circumstances of the present case do not evince a
contractual relation between [petitioner] and [respondents], the
rules on quasi-delict, thus, govern.
The pertinent provision of Art. 2176 of the Civil Code which states:
"Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the
parties, is called quasi-delict."
197
A perusal of Article 2176 shows that obligations arising from quasi-
delict or tort, also known as extra-contractual obligations, arise only
between parties not otherwise bound by contract, whether express or
implied. Thus, to sustain a claim liability under quasi-delict, the following
requisites must concur: (a) damages suffered by the plaintiff; (b) fault or
negligence of the defendant, or some other person for whose acts he
must respond; and (c) the connection of cause and effect between the
fault or negligence of the defendant and the damages incurred by the
plaintiff. cSCADE
Viewed from the foregoing, the question now is whether [respondents
PHI and DTPCI] and its employees were negligent? We do not think so.
Several factors militate against [petitioner's] contention.
One. [Petitioner] recognized the fact that the pool area's closing time is
[7:00 p.m.]. She, herself, admitted during her testimony that she was well
aware of the sign when she and [Delia] entered the pool area. Hence,
upon knowing, at the outset, of the pool's closing time, she took the risk
of overstaying when she decided to take shower and leave the area
beyond the closing hour. In fact, it was only upon the advise of the pool
attendants that she thereafter took her shower.
Two. She admitted, through her certification that she lifted the wooden
bar countertop, which then fell onto her head. The admission in her
certificate proves the circumstances surrounding the occurrence that
transpired on the night of [11 June 1995]. This is contrary to her
assertion in the complaint and testimony that, while she was passing
through the counter door, she was suddenly knocked out by a hard and
heavy object. In view of the fact that she admitted having lifted the
counter top, it was her own doing, therefore, that made the counter top
fell on to her head.
Three. We cannot likewise subscribe to [petitioner's] assertion that the
pool area was totally dark in that she herself admitted that she saw a
telephone at the counter after searching for one. It must be noted that
[petitioner] and [Delia] had walked around the pool area with ease since
they were able to proceed to the glass entrance door from shower room,
and back to the counter area where the telephone was located without
encountering any untoward incident. Otherwise, she could have easily
stumbled over, or slid, or bumped into something while searching for the
telephone. This negates her assertion that the pool area was completely
dark, thereby, totally impairing her vision.
xxx xxx xxx
The aforementioned circumstances lead us to no other conclusion than
that the proximate and immediate cause of the injury of [petitioner]
was due to her own negligence.
Moreover, [petitioner] failed to sufficiently substantiate that the medical
symptoms she is currently experiencing are the direct result of the head
injury she sustained on [11 June 1995] as was aptly discussed in the
lower court's findings.
xxx xxx xxx

It bears stressing that in civil cases, the law requires that the party who
alleges a fact and substantially asserts the affirmative of the issue has
the burden of proving it. Hence, for [petitioner] to be entitled to damages,
she must show that she had suffered an actionable injury. Regrettably,
[petitioner] failed in this regard. 59 (Emphasis supplied).
Petitioner's Motion for Reconsideration was denied for lack of merit in a Resolution dated 5
November 2007.
Hence, this Petition raising the following issues:
(1) Whether or not the findings of fact of the trial court and of the Court
of Appeals are conclusive in this case.
(2) Whether or not [herein respondents PHI and DTPCI are] responsible
by implied contract to exercise due care for the safety and welfare of the
petitioner.
(3) Whether or not the cause of action of the petitioner can be based on
both breach of contract and tort.
(4) Whether or not it is [respondents PHI and DTPCI] and its employees
who are liable to the petitioner for negligence, applying the well-
established doctrines of res ipsa loquitur and respondeat superior.
(5) Whether the petitioner's debilitating and permanent injuries were a
result of the accident she suffered at the hotel on [11 June 1995].
(6) Whether or not the petitioner is entitled to the payment of damages,
attorney's fees, interest, and the costs of suit.
(7) Whether or not the respondent insurance company is liable, even
directly, to the petitioner.
(8) Whether or not petitioner's motion for reconsideration of the decision
of the Court of Appeals is pro forma. 60
Petitioner argues that the rule that "findings of fact of the lower courts are conclusive and must
be respected on appeal" finds no application herein because this case falls under the
jurisprudentially established exceptions. Moreover, since the rationale behind the afore-
mentioned rule is that "the trial judge is in a vantage point to appreciate the conduct and
behavior of the witnesses and has the unexcelled opportunity to evaluate their testimony," one
logical exception to the rule that can be deduced therefrom is when the judge who decided the
case is not the same judge who heard and tried the case.
Petitioner further faults the Court of Appeals in ruling that no contractual relationship existed
between her and respondents PHI and DTPCI since her use of the hotel's swimming pool
facility was only upon the invitation of the hotel's registered guest. On the contrary, petitioner
maintains that an implied contract existed between them in view of the fact that the hotel guest
status extends to all those who avail of its services its patrons and invitees. It follows then
that all those who patronize the hotel and its facilities, including those who are invited to
partake of those facilities, like petitioner, are generally regarded as guests of the hotel. As such,
respondents PHI and DTPCI are responsible by implied contract for the safety and welfare of
petitioner while the latter was inside their premises by exercising due care, which they failed to
do.
198
Petitioner even asserts that the existence of a contract between the parties does not bar
any liability for tort since the act that breaks a contract may also be a tort. Hence, the concept
of change of theory of cause of action pointed to by respondents is irrelevant. HCTEDa
Petitioner similarly avows that the doctrines of res ipsa loquitur and respondeat superior are
applicable in this case. She argues that a person who goes in a hotel without a "bukol"or
hematoma and comes out of it with a "bukol" or hematoma is a clear case of res ipsa loquitur. It
was an accident caused by the fact that the hotel staff was not present to lift the heavy counter
top for petitioner as is normally expected of them because they negligently locked the main
entrance door of the hotel's swimming pool area. Following the doctrine of res ipsa
loquitur, respondents PHI and DTPCI's negligence is presumed and it is incumbent upon them
to prove otherwise but they failed to do so. Further, respondents PHI and DTPCI failed to
observe all the diligence of a good father of a family in the selection and supervision of their
employees, hence, following the doctrine of respondeat superior, they were liable for the
negligent acts of their staff in not verifying if there were still people inside the swimming pool
area before turning off the lights and locking the door. Had respondents PHI and DTPCI's
employees done so, petitioner would not have been injured. Since respondents PHI and
DTPCI's negligence need not be proved, the lower courts erred in shifting the burden to
petitioner and, thereafter, holding the hotel and its employees not negligent for petitioner's
failure to prove their negligence. Moreover, petitioner alleges that there was no contributory
negligence on her part for she did not do anything that could have contributed to her injury.
And, even if there was, the same does not bar recovery.
Petitioner equally declares that the evidence on record, including the objective medical
findings, had firmly established that her permanent debilitating injuries were the direct result of
the 11 June 1995 accident inside the hotel's swimming pool area. This fact has not been totally
disputed by the respondents. Further, the medical experts who had been consulted by
petitioner were in unison in their diagnoses of her condition. Petitioner was also able to prove
that the falling of the folding wooden counter top on her head while she was at the hotel's
swimming pool area was the cause of her head, eye and neck injuries.
Petitioner reiterates her claim for an award of damages, to wit: actual, including loss of income;
moral, exemplary; as well as attorney's fees, interest and costs of suit. She states that
respondents PHI and DTPCI are liable for quasi-delict under Articles 19, 2176 and 2180 of
the New Civil Code. At the same time, they are liable under an implied contract for they have a
public duty to give due courtesy, to exercise reasonable care and to provide safety to hotel
guests, patrons and invitees. Respondent First Lepanto, on the other hand, is directly liable
under the express contract of insurance.
Lastly, petitioner contends that her Motion for Reconsideration before the Court of Appeals was
not pro forma for it specifically pointed out the alleged errors in the Court of Appeals Decision.
The instant Petition is devoid of merit.
Primarily, only errors of law and not of facts are reviewable by this Court in a Petition for Review
on Certiorari under Rule 45 of the Rules of Court. 61 This Court is not a trier of facts and it is
beyond its function to re-examine and weigh anew the respective evidence of the
parties. 62 Besides, this Court adheres to the long standing doctrine that the factual findings of
the trial court, especially when affirmed by the Court of Appeals, are conclusive on the parties
and this Court. 63 Nonetheless, this Court has, at times, allowed exceptions thereto, to
wit: EcAISC
(a) When the findings are grounded entirely on speculation, surmises, or
conjectures;
(b) When the inference made is manifestly mistaken, absurd, or
impossible;

(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the [Court of Appeals] went beyond the
issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee;
(g) When the [Court of Appeals'] findings are contrary to those by the trial
court;
(h) When the findings are conclusions without citation of specific
evidence on which they are based;
(i) When the facts set forth in the petition as well as in the petitioner's
main and reply briefs are not disputed by the respondent;
(j) When the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record; or
(k) When the [Court of Appeals] manifestly overlooked certain relevant
facts not disputed by the parties, which, if properly
considered, would justify a different conclusion. 64
Upon meticulous perusal of the records, however, this Court finds that none of these
exceptions is obtaining in this case. No such justifiable or compelling reasons exist for this
Court to depart from the general rule. This Court will not disturb the factual findings of the trial
court as affirmed by the Court of Appeals and adequately supported by the evidence on record.
Also, this Court will not review the factual findings of the trial court simply because the judge
who heard and tried the case was not the same judge who penned the decision. This fact alone
does not diminish the veracity and correctness of the factual findings of the trial
court. 65 Indeed, "the efficacy of a decision is not necessarily impaired by the fact that its writer
only took over from a colleague who had earlier presided at the trial, unless there is showing of
grave abuse of discretion in the factual findings reached by him." 66 In this case, there was
none.
It bears stressing that in this jurisdiction there is a disputable presumption that the trial court's
decision is rendered by the judge in the regular performance of his official duties. While the said
presumption is only disputable, it is satisfactory unless contradicted or overcame by other
evidence. Encompassed in this presumption of regularity is the presumption that the trial court
judge, in resolving the case and drafting the decision, reviewed, evaluated, and weighed all the
evidence on record. That the said trial court judge is not the same judge who heard the case
and received the evidence is of little consequence when the records and transcripts of
stenographic notes (TSNs) are complete and available for consideration by the former, 67 just
like in the present case.
Irrefragably, by reason alone that the judge who penned the trial court's decision was not the
same judge who heard the case and received the evidence therein would not render the
findings in the said decision erroneous and unreliable. While the conduct and demeanor of
witnesses may sway a trial court judge in deciding a case, it is not, and should not be, his only
consideration. Even more vital for the trial court judge's decision are the contents and
substance of the witnesses' testimonies, as borne out by the TSNs, as well as the object and
documentary evidence submitted and made part of the records of the case. 68 SIcCTD
199
This Court examined the records, including the TSNs, and found no reason to disturb the
factual findings of both lower courts. This Court, thus, upholds their conclusiveness.
In resolving the second and third issues, a determination of the cause of action on which
petitioner's Complaint for Damages was anchored upon is called for.
Initially, petitioner was suing respondents PHI and DTPCI mainly on account of their negligence
but not on any breach of contract. Surprisingly, when the case was elevated on appeal to the
Court of Appeals, petitioner had a change of heart and later claimed that an implied contract
existed between her and respondents PHI and DTPCI and that the latter were liable for breach
of their obligation to keep her safe and out of harm. This allegation was never an issue before
the trial court. It was not the cause of action relied upon by the petitioner not until the case was
before the Court of Appeals. Presently, petitioner claims that her cause of action can be based
both on quasi-delict and breach of contract.
A perusal of petitioner's Complaint evidently shows that her cause of action was based solely
on quasi-delict. Telling are the following allegations in petitioner's Complaint:
6. THAT, in the evening of [11 June 1995], between the hours from
7:00 to 8:00 o'clock, after [herein petitioner] and her friend from New
York, [Delia], the latter being then a Hotel guest, were taking their
shower after having a dip in the hotel's swimming pool, without any
notice or warning, the Hotel's staff put off all the lights within the
pool area including the lights on the hallway and also locked the
main entrance door of the pool area, . . .;
7. THAT, Hotel guest [Delia] started to panic while [petitioner] pacified
her by telling her not to worry as they would both find their way out.
[Petitioner] knowing that within the area there is a house phone,
started to look around while [Delia] was following her, eventually
[petitioner] saw a phone behind the counter . . ., that while slowly
moving on towards the phone on a stooping manner due to the
darkness CAUSED BY UNTIMELY AND NEGLIGENTLY PUTTING
OFF WITH THE LIGHTS BY THE [HEREIN RESPONDENTS PHI AND
DTPCI'S] EMPLOYEE while passing through the open counter door
with its Folding Counter Top also opened, . . ., a hard and heavy
object fell onto the head of the [petitioner] that knocked her down
almost unconscious which hard and heavy object turned out to be the
Folding Counter Top;
8. THAT, [Delia] immediately got hold of the house phone and notified
the Hotel Telephone Operator about the incident, immediately the
hotel staffs (sic) arrived but they were stranded behind the main
door of the pool entrance and it too (sic) them more than twenty
(20) minutes to locate the hotel maintenance employee who holds
the key of the said main entrance door;
9. THAT, when the door was opened, two Hotel Chamber Maids
assisted the [petitioner] to get out of the counter door. [Petitioner]
being a Physician tried to control her feelings although groggy and
requested for a HURIDOID, a medicine for HEMATOMA, as a huge
lump developed on her head while the two Chamber Maids
assisted [petitioner] by holding the bag of ice on her head and
applying the medicine on the huge lump;

10. THAT, [petitioner] after having recovered slightly from her
nightmare, though still feeling weak, asked to be assisted to the Hotel
Coffee Shop to take a rest but requested for the hotel's
Physician. Despite her insistent requests, the [Dusit Hotel] refused
to lift a finger to assists [petitioner] who was then in distress until
a lady approached and introduced herself as the Hotel's house
Doctor. Instead however of assisting [petitioner] by asking her
what kind of assistance the Hotel could render, in a DISCOURTEOUS
MANNER presented instead a paper and demanding [petitioner] to
affix her signature telling her that the Hotel Management would
only assists and answer for all expenses incurred if [petitioner]
signs the paper presented, but she refused and [petitioner]
instead wrote a marginal note on the said paper stating her
reason therefore, said paper later on turned out to be a WAIVER
OF RIGHT or QUIT CLAIM;
xxx xxx xxx
14. THAT, due to the unfortunate incident caused by [respondents
PHI and DTPCI's] gross negligence despite medical assistance,
[petitioner] started to feel losing her memory that greatly affected
and disrupted the practice of her chosen profession . . . .
xxx xxx xxx
19. THAT, due to [respondents PHI and DTPCI's] gross negligence as
being narrated which caused [petitioner] to suffer sleepless nights,
depression, mental anguish, serious anxiety, wounded feelings, and
embarrassment with her Diplomate friends in the profession and
industry, her social standing in the community was greatly affected
and hence, [respondents PHI and DTPCI] must be imposed the
hereunder damages, prayed for . . . and Artile (sic) 2176 and 2199 of
the New Civil Code of the Philippines . . . .
xxx xxx xxx
22. THAT, as to Moral, Exemplary and Actual Damages, as well as
[petitioner's] Loss of Income, the amounts are stated in its prayer
hereunder. 69
It is clear from petitioner's allegations that her Complaint for Damages was predicated on the
alleged negligence of respondents PHI and DTPCI's staff in the untimely putting off of all the
lights within the hotel's swimming pool area, as well as the locking of its main door, prompting
her to look for a way out leading to the fall of the folding wooden counter top on her head
causing her serious brain injury. The said negligence was allegedly compounded by
respondents PHI and DTPCI's failure to render prompt and adequate medical assistance. These
allegations in petitioner's Complaint constitute a cause of action for quasi-delict, which under
the New Civil Code is defined as an act, or omission which causes damage to another, there
being fault or negligence. 70
It is evident from petitioner's Complaint and from her open court testimony that the reliance
was on the alleged tortious acts committed against her by respondents PHI and DTPCI,
through their management and staff. It is now too late in the day to raise the said argument for
the first time before this Court. 71 DcCEHI
200
Petitioner's belated reliance on breach of contract as her cause of action cannot be
sanctioned by this Court. Well-settled is the rule that a party is not allowed to change the theory
of the case or the cause of action on appeal. Matters, theories or arguments not submitted
before the trial court cannot be considered for the first time on appeal
or certiorari. 72 When a party adopts a certain theory in the court below, he will not be
permitted to change his theory on appeal for to permit him to do so would not only be unfair to
the other party but it would also be offensive to the basic rules of fair play, justice and due
process. 73 Hence, a party is bound by the theory he adopts and by the cause of action he
stands on and cannot be permitted after having lost thereon to repudiate his theory and cause
of action and adopt another and seek to re-litigate the matter a new either in the same forum or
on appeal. 74
In that regard, this Court finds it significant to take note of the following differences
between quasi-delict (culpa aquilina) and breach of contract (culpa contractual). In quasi-
delict,negligence is direct, substantive and independent, while in breach of contract, negligence
is merely incidental to the performance of the contractual obligation; there is a pre-existing
contract or obligation. 75 In quasi-delict, the defense of "good father of a family" is a complete
and proper defense insofar as parents, guardians and employers are concerned, while in
breach of contract, such is not a complete and proper defense in the selection and supervision
of employees. 76 In quasi-delict, there is no presumption of negligence and it is incumbent
upon the injured party to prove the negligence of the defendant, otherwise, the former's
complaint will be dismissed, while in breach of contract, negligence is presumed so long as
it can be proved that there was breach of the contract and the burden is on the defendant
to prove that there was no negligence in the carrying out of the terms of the contract; the rule
of respondeat superior is followed. 77
Viewed from the foregoing, petitioner's change of theory or cause of action from quasi-delict to
breach of contract only on appeal would necessarily cause injustice to respondents PHI and
DTPCI. First, the latter will have no more opportunity to present evidence to contradict
petitioner's new argument. Second, the burden of proof will be shifted from petitioner to
respondents PHI and DTPCI. Petitioner's change of theory from quasi-delict to breach of
contract must be repudiated.
As petitioner's cause of action is based on quasi-delict, it is incumbent upon her to prove the
presence of the following requisites before respondents PHI and DTPCI can be held liable, to
wit: (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some
other person for whose acts he must respond; and (c) the connection of cause and effect
between the fault or negligence of the defendant and the damages incurred by the
plaintiff. 78 Further, since petitioner's case is for quasi-delict, the negligence or fault
should be clearly established as it is the basis of her action. 79 The burden of proof is upon
petitioner. Section 1, Rule 131 of the Rules of Court provides that "burden of proof is the duty
of a party to present evidence on the facts in issue necessary to establish his claim or defense
by the amount of evidence required by law." It is then up for the plaintiff to establish his cause
of action or the defendant to establish his defense. Therefore, if the plaintiff alleged in his
complaint that he was damaged because of the negligent acts of the defendant, he has
the burden of proving such negligence. It is even presumed that a person takes ordinary care
of his concerns. The quantum of proof required is preponderance of evidence. 80
In this case, as found by the trial court and affirmed by the Court of Appeals, petitioner utterly
failed to prove the alleged negligence of respondents PHI and DTPCI. Other than petitioner's
self-serving testimony that all the lights in the hotel's swimming pool area were shut off and the
door was locked, which allegedly prompted her to find a way out and in doing so a folding
wooden counter top fell on her head causing her injury, no other evidence was presented to
substantiate the same. Even her own companion during the night of the accident inside the
hotel's swimming pool area was never presented to corroborate her allegations. Moreover,

petitioner's aforesaid allegations were successfully rebutted by respondents PHI and DTPCI.
Here, we quote with conformity the observation of the trial court, thus:
. . . Besides not being backed up by other supporting evidence, said
statement is being contradicted by the testimony of Engineer Dante L.
Costas, 81 who positively declared that it has been a normal practice of
the Hotel management not to put off the lights until 10:00P.M. in order to
allow the housekeepers to do the cleaning of the pool's surrounding, the
toilets and the counters. It was also confirmed that the lights were kept
on for security reasons and so that the people exercising in the nearby
gym may be able to have a good view of the swimming pool. This Court
also takes note that the nearby gymnasium was normally open until
10:00 P.M. so that there was a remote possibility the pool area was in
complete darkness as was alleged by [herein petitioner], considering that
the illumination which reflected from the gym. Ergo, considering that the
area were sufficient (sic) illuminated when the alleged incident occurred,
there could have been no reason for the [petitioner] to have met said
accident, much less to have been injured as a consequence thereof, if
she only acted with care and caution, which every ordinary person is
expected to do. 82
More telling is the ratiocination of the Court of Appeals, to wit:
Viewed from the foregoing, the question now is whether [respondents
PHI and DTPCI] and its employees were negligent? We do not think so.
Several factors militate against [petitioner's] contention.
One. [Petitioner] recognized the fact that the pool area's closing time is
[7:00 p.m.]. She, herself, admitted during her testimony that she was well
aware of the sign when she and [Delia] entered the pool area. Hence,
upon knowing, at the outset, of the pool's closing time, she took the risk
of overstaying when she decided to take shower and leave the area
beyond the closing hour. In fact, it was only upon the advise of the pool
attendants that she thereafter took her shower.
Two. She admitted, through her certification, that she lifted the wooden
bar countertop, which then fell on to her head. The admission in her
certificate proves the circumstances surrounding the occurrence that
transpired on the night of [11 June 1995]. This is contrary to her
assertion in the complaint and testimony that, while she was passing
through the counter door, she was suddenly knocked out by a hard and
heavy object. In view of the fact that she admitted having lifted the
countertop, it was her own doing, therefore, that made the counter top
fell on to her head.
Three. We cannot likewise subscribe to [petitioner's] assertion that the
pool area was totally dark in that she herself admitted that she saw a
telephone at the counter after searching for one. It must be noted that
[petitioner] and [Delia] had walked around the pool area with ease since
they were able to proceed to the glass entrance door from the shower
room, and back to the counter area where the telephone was located
without encountering any untoward incident. Otherwise, she could have
easily stumbled over, or slid, or bumped into something while searching
for the telephone. This negates her assertion that the pool area was
completely dark, thereby, totally impairing her vision.
201
xxx xxx xxx
The aforementioned circumstances lead us to no other conclusion than
that the proximate and immediate cause of the injury of [petitioner]
was due to her own negligence. 83 (Emphasis supplied).
Even petitioner's assertion of negligence on the part of respondents PHI and DTPCI in not
rendering medical assistance to her is preposterous. Her own Complaint affirmed that
respondents PHI and DTPCI afforded medical assistance to her after she met the unfortunate
accident inside the hotel's swimming pool facility. Below is the portion of petitioner's Complaint
that would contradict her very own statement, thus:
14. THAT, due to the unfortunate incident caused by [respondents PHI
and DTPCI's] gross negligence despite medical assistance,
[petitioner] started to feel losing her memory that greatly affected and
disrupted the practice of her chosen profession. . . . . 84 (Emphasis
supplied).
Also, as observed by the trial court, respondents PHI and DTPCI, indeed, extended medical
assistance to petitioner but it was petitioner who refused the same. The trial court stated, thus:
Further, [herein petitioner's] asseverations that the Hotel Management
did not extend medical assistance to her in the aftermath of the alleged
accident is not true. Again, this statement was not supported by any
evidence other that the sole and self-serving testimony of [petitioner].
Thus, this Court cannot take [petitioner's] statement as a gospel truth. It
bears stressing that the Hotel Management immediately responded after
it received notice of the incident. As a matter of fact, [Ms. Pearlie], the
Hotel nurse, with two chambermaids holding an ice bag placed on
[petitioner's] head came to the [petitioner] to extend emergency
assistance when she was notified of the incident, but [petitioner] merely
asked for Hirudoid, saying she was fine, and that she was a doctor and
know how to take care of herself. Also, the Hotel, through its in-house
physician, [Dr. Dalumpines] offered its medical services to [petitioner]
when they met at the Hotel's coffee shop, but again [petitioner] declined
the offer. Moreover, the Hotel as a show of concern for the [petitioner's]
welfare, shouldered the expenses for the MRI services performed on
[petitioner] at the Makati Medical Center. Emphatically, [petitioner]
herself cannot fault the Hotel for the injury she allegedly suffered
because she herself did not heed the warning at the pool to the effect
that it was only open from 7:00 to 7:00 P.M. Thus, when the [petitioner's]
own negligence was the immediate and proximate cause of his injury,
[she] cannot recover damages . . . . 85 DSIaAE
With the foregoing, the following were clearly established, to wit: (1) petitioner stayed in the
hotel's swimming pool facility beyond its closing hours; (2) she lifted the folding wooden
counter top that eventually hit her head; and (3) respondents PHI and DTPCI extended medical
assistance to her. As such, no negligence can be attributed either to respondents PHI and
DTPCI or to their staff and/or management. Since the question of negligence is one of fact, this
Court is bound by the said factual findings made by the lower courts. It has been repeatedly
held that the trial court's factual findings, when affirmed by the Court of Appeals, are conclusive
and binding upon this Court, if they are not tainted with arbitrariness or oversight of some fact
or circumstance of significance and influence. Petitioner has not presented sufficient ground to
warrant a deviation from this rule. 86

With regard to petitioner's contention that the principles of res ipsa loquitur and respondeat
superior are applicable in this case, this Court holds otherwise.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for
itself." It relates to the fact of an injury that sets out an inference to the cause thereof or
establishes the plaintiff's prima facie case. The doctrine rests on inference and not on
presumption. The facts of the occurrence warrant the supposition of negligence and they
furnish circumstantial evidence of negligence when direct evidence is lacking. 87 Simply stated,
this doctrine finds no application if there is direct proof of absence or presence of negligence. If
there is sufficient proof showing the conditions and circumstances under which the injury
occurred, then the creative reason for the said doctrine disappears. 88
Further, the doctrine of res ipsa loquitur applies where, (1) the accident was of such character
as to warrant an inference that it would not have happened except for the defendant's
negligence; (2) the accident must have been caused by an agency or instrumentality within the
exclusive management or control of the person charged with the negligence complained of;
and (3) the accident must not have been due to any voluntary action or contribution on the part
of the person injured. 89
In the case at bench, even granting that respondents PHI and DTPCI's staff negligently turned
off the lights and locked the door, the folding wooden counter top would still not fall on
petitioner's head had she not lifted the same. Although the folding wooden counter top is within
the exclusive management or control of respondents PHI and DTPCI, the falling of the same
and hitting the head of petitioner was not due to the negligence of the former. As found by both
lower courts, the folding wooden counter top did not fall on petitioner's head without any
human intervention. Records showed that petitioner lifted the said folding wooden counter
top that eventually fell and hit her head. The same was evidenced by the, (1) 11 June 1995
handwritten certification of petitioner herself; (2) her Letter dated 30 August 1995 addressed to
Mr. Yoshikazu Masuda (Mr. Masuda), General Manager of Dusit Hotel; and, (3) Certification
dated 7 September 1995 issued to her by Dr. Dalumpines upon her request, which contents
she never questioned.
Here, we, respectively, quote the 11 June 1995 handwritten certification of petitioner; her letter
to Mr. Masuda dated 30 August 1995; and Dr. Dalumpines' Certification dated 7 September
1995, to wit:
Petitioner's 11 June 1995 Handwritten Certification:
I was requested by [Dr.] Dalumpines to write that I was assured of
assistance should it be necessary with regard an accident at the pool. . .
. The phone was in an enclosed area on a chair I lifted the wooden
bar counter top which then fell on my head producing a large
hematoma . . . . 90 SaICcT
Petitioner's Letter addressed to Mr. Masuda dated 30 August 1995:
Dear Mr. Masuda,
xxx xxx xxx
. . . We searched and saw a phone on a chair behind a towel counter.
However[,] in order to get behind the counter I had to lift a hinged
massive wooden section of the counter which subsequently fell and
knocked me on my head . . . . 91
Dr. Dalumpines' Certification dated 7 September 1995:
202
CERTIFICATION
This is to certify that as per Clinic records, duty nurse [Pearlie] was called
to attend to an accident at the poolside at 7:45PM on [11 June 1995].
Same records show that there, she saw [petitioner] who claimed the
folding counter top fell on her head when she lifted it to enter the
lifeguard's counter to use the phone. She asked for Hirudoid.
The same evening [petitioner] met [Dr. Dalumpines] at the Coffee Shop.
After narrating the poolside incident and declining [Dr. Dalumpines']
offer of assistance, she reiterated that the Hirudoid cream was
enough and that [petitioner] being a doctor herself, knew her
condition and she was all right.
This certification is given upon the request of [petitioner] for whatever
purpose it may serve, [7 September 1995] at Makati City. 92 (Emphasis
supplied).
This Court is not unaware that in petitioner's Complaint and in her open court testimony, her
assertion was, "while she was passing through the counter door, she was suddenly knocked
out by a hard and heavy object, which turned out to be the folding wooden counter top."
However, in her open court testimony, particularly during cross-examination, petitioner
confirmed that she made such statement that "she lifted the hinge massive wooden section of
the counter near the swimming pool." 93 In view thereof, this Court cannot acquiesce
petitioner's theory that her case is one of res ipsa loquitur as it was sufficiently established how
petitioner obtained that "bukol" or "hematoma."
The doctrine of respondeat superior finds no application in the absence of any showing that the
employees of respondents PHI and DTPCI were negligent. Since in this case, the trial court and
the appellate court found no negligence on the part of the employees of respondents PHI and
DTPCI, thus, the latter cannot also be held liable for negligence and be made to pay the millions
of pesos damages prayed for by petitioner. TcHCDI
The issue on whether petitioner's debilitating and permanent injuries were the result of the
accident she suffered at the hotel's swimming pool area on 11 June 1995 is another question of
fact, which is beyond the function of this Court to resolve. More so, this issue has already been
properly passed upon by the trial court and the Court of Appeals. To repeat, this Court is bound
by the factual findings of the lower courts and there is no cogent reason to depart from the said
rule.
The following observations of the trial court are controlling on this matter:
Firstly, petitioner had a past medical history which might have been the cause of her recurring
brain injury.
Secondly, the findings of Dr. Perez did not prove a causal relation between the 11 June 1995
accident and the brain damage suffered by petitioner. Dr. Perez himself testified that the
symptoms being experienced by petitioner might have been due to factors other than the
head trauma she allegedly suffered. Emphasis must be given to the fact that petitioner had
been suffering from different kinds of brain problems since she was 18 years old, which may
have been the cause of the recurring symptoms of head injury she is experiencing at present.
Thirdly, Dr. Sanchez's testimony cannot be relied upon since she testified on the findings and
conclusions of persons who were never presented in court. Ergo, her testimony thereon was
hearsay. A witness can testify only with regard to facts of which they have personal knowledge.
Testimonial or documentary evidence is hearsay if it is based, not on the personal knowledge of

the witness, but on the knowledge of some other person not on the witness stand.
Consequently, hearsay evidence whether objected to or not has no probative value. 94
Fourthly, the medical reports/evaluations/certifications issued by myriads of doctors whom
petitioner sought for examination or treatment were neither identified nor testified to by those
who issued them. Being deemed as hearsay, they cannot be given probative value.
The aforesaid medical reports/evaluations/certifications of different doctors in favor of petitioner
cannot be given probative value and their contents cannot be deemed to constitute proof of the
facts stated therein. It must be stressed that a document or writing which is admitted not as
independent evidence but merely as part of the testimony of a witness does not constitute
proof of the facts related therein. 95 In the same vein, the medical certificate which was
identified and interpreted in court by another doctor was not accorded probative value because
the doctor who prepared it was not presented for its identification. Similarly, in this case, since
the doctors who examined petitioner were not presented to testify on their findings, the medical
certificates issued on their behalf and identified by another doctor cannot be admitted as
evidence. Since a medical certificate involves an opinion of one who must first be established
as an expert witness, it cannot be given weight or credit unless the doctor who issued it is
presented in court to show his qualifications. 96 Thus, an unverified and unidentified private
document cannot be accorded probative value. It is precluded because the party against whom
it is presented is deprived of the right and opportunity to cross-examine the person to whom
the statements or writings are attributed. Its executor or author should be presented as a
witness to provide the other party to the litigation the opportunity to question its contents.
Being mere hearsay evidence, failure to present the author of the letter renders its contents
suspect and of no probative value. 97
All told, in the absence of negligence on the part of respondents PHI and DTPCI, as well as
their management and staff, they cannot be made liable to pay for the millions of damages
prayed for by the petitioner. Since respondents PHI and DTPCI are not liable, it necessarily
follows that respondent First Lepanto cannot also be made liable under the contract of
insurance.
WHEREFORE, premises considered, the Decision and Resolution of the Court of Appeals in
CA-G.R. CV No. 87065 dated 9 August 2007 and 5 November 2007, respectively, are
hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
Brion, Velasco, Jr., * Villarama, Jr. ** and Perlas-Bernabe, JJ., concur.
||| (Huang v. Philippine Hoteliers, Inc., G.R. No. 180440, [December 5, 2012], 700 PHIL 327-367)
SECOND DIVISION
[G.R. No. 130547. October 3, 2000.]
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors
LLOYD and KRISTINE, all surnamed REYES, represented by their
mother, LEAH
ALESNA REYES,petitioners, vs. SISTERS OF MERCY HOSPITAL,
SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN
RICO, respondents.
203
Abbas Abundiente & Associates Law Offices for petitioner.
Fernan Mercado Cordero Dela Torre & Bael for private respondent.
Arsenio C. Pascual, Jr. for respondents Sisters of Mercy, Sis R. Palacio & Dr. M. Blanes.
SYNOPSIS
Petitioners, wife and children of the deceased patient, Jorge Reyes, appealed from the
decision of the Court of Appeals and the trial court which dismissed their complaint for
damages for medical practice filed against the doctors who attended Jorge Reyes.
The trial court and the Court of Appeals required expert opinion on the alleged breach by
respondents of the standard of care required under the circumstances. Expert witnesses,
however, testified that due care had been exercised and the service or treatment rendered
followed the usual procedure of those skilled in that particular practice.
Petitioners claimed that expert testimony was not necessary, rather the doctrine of res ipsa
loquitur should have been applied in determining the doctors' failure to observe due care which
is immediately apparent to a layman. Jorge Reyes was brought to the hospital merely
experiencing fever and chills for five days, but he was fully conscious, coherent and ambulant,
when he went to the hospital. Due to their acts of negligence in their treatment of Jorge Reyes,
the latter died after only ten hours from the time of his admission.
The Supreme Court ruled that expert testimony was essential in determining the reasonable
level of care required under the circumstances in the present case. According to expert
testimony, there was no doctors' negligence in the treatment of Jorge Reyes because the
doctors who treated him observed the due care required under the circumstances. The Widal
test is normally used when a case of typhoid fever is suspected and chloromycetin was the
drug of choice. The burden of proving that Jorge Reyes was suffering from any other illness
rested with the petitioners, but they failed to present expert opinion on this. Finally, the
standard of care and degree of diligence contemplated from physicians is simply the
reasonable average merit among the ordinarily good physicians.
SYLLABUS
1. CRIMINAL LAW; DAMAGES; NEGLIGENCE; MEDICAL MALPRACTICE, WHEN
ACTIONABLE; ELEMENTS THEREOF. Petitioner's action is for medical malpractice. This is a
particular form of negligence which consists in the failure of a physician or surgeon to apply to
his practice of medicine that degree of care and skill which is ordinarily employed by the
profession generally, under similar conditions, and in like surrounding circumstances. In order
to successfully pursue such a claim, a patient must prove that the physician or surgeon either
failed to do something which a reasonably prudent physician or surgeon would have done, or
that he or she did something that a reasonably prudent physician or surgeon would not have
done, and that the failure or action caused injury to the patient. There are thus four elements
involved in medical negligence cases, namely; duty, breach, injury, and proximate
causation. CIcTAE
2. ID.; ID.; ID.; ID.; EXPERT TESTIMONY IS ESSENTIAL TO DETERMINE CAUSE OF INJURIES;
CASE AT BAR. In the present case, there is no doubt that a physician-patient relationship
existed between respondent doctors and Jorge Reyes. Respondents were thus duty-bound to
use at least the same level of care that any reasonably competent doctor would use to treat a

condition under the same circumstances. It is breach of this duty which constitutes actionable
malpractice. As to this aspect of medical malpractice, the determination of the reasonable
level of care and the breach thereof, expert testimony is essential. Inasmuch as the
causes of the injuries involved in malpractice actions are determinable only in the
light of scientific knowledge, it has been recognized that expert testimony is usually necessary
to support the conclusion as to causation.
3. ID.; ID.; ID.; ID.; ID.; WHEN EXPERT TESTIMONY MAY BE DISPENSED WITH; CASE AT
BAR. There is a case when expert testimony may be dispensed with, and that is under the
doctrine of res ipsa loquitur. Petitioners asserted in the Court of Appeals that the doctrine of res
ipsa loquitur applies to the present case because Jorge Reyes was merely experiencing fever
and chills for five days and was fully conscious, coherent, and ambulant when he went to
the hospital. Yet he died after only ten hours from the time of his admission. . . . While it is true
that the patient died just a few hours after professional medical assistance was rendered, there
is really nothing unusual or extraordinary about his death. Prior to his admission, the patient
already had recurring fevers and chills for five days unrelieved by the analgesic, antipyretic, and
antibiotics given him by his wife. This shows that he had been suffering from a serious illness
and professional medical help came too late for him. Respondents alleged failure to observe
due care was not immediately apparent to a layman so as to justify application of res ipsa
loquitur. The question required expert opinion on the alleged breach by respondent of the
standard of care required by the circumstances.
4. ID.; ID.; ID.; ID.; STANDARD OF CARE AND DILIGENCE CONTEMPLATED FOR DOCTORS.
The practice of medicine is a profession engaged in only by qualified individuals. It is a right
earned through years of education, training, and by first obtaining a license from the state
through professional board examinations. Such license may, at any time and for cause, be
revoked by the government. In addition to state regulation, the conduct of doctors is also
strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which
doctors have imposed upon themselves in recognition and acceptance of their great
responsibility to society. Given these safeguards, there is no need to expressly
require of doctors the observance of "extraordinary" diligence. As it is now, the
practice of medicine is already conditioned upon the highest degree of diligence. And, as we
have already noted, the standard contemplated for doctors is simply the reasonable average
merit among ordinarily good physicians. That is reasonable diligence for doctors or, as the
Court of Appeals called it, the reasonable "skill and competence . . . that a physician in the
same or similar locality . . . should apply."
5. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. Indeed, the standard contemplated is not what is
actually the average merit among all known practitioners from the best to the worst and from
the most to the least experienced, but the reasonable average merit among the ordinarily good
physicians. Here, Dr. Marlyn Rico did not depart from the reasonable standard recommended
by the experts as she in fact observed the due care required under the circumstances. Though
the Widal test is not conclusive, it remains a standard diagnostic test for typhoid fever and, in
the present case, greater accuracy through repeated testing was rendered unobtainable by the
early death of the patient. The results of the Widal test and the patient's history of fever with
chills for five days, taken with the fact that typhoid fever was then prevalent as indicated by the
fact that the clinic had been getting about 15 to 20 typhoid cases a month, were sufficient to
give upon any doctor of reasonable skill the impression that Jorge Reyes had typhoid fever. Dr.
Rico was also justified in recommending the administration of the drug chloromycetin, the
drug of choice for typhoid fever. The burden of proving that Jorge Reyes was suffering from any
other illness rested with the petitioners. As they failed to present expert opinion on this,
preponderant evidence to support their contention is clearly absent.
204
DECISION
MENDOZA, J p:
This is a petition for review of the decision 1 of the Court of Appeals in CA-G.R. CV No. 36551
affirming the decision of the Regional Trial Court, Branch IX, Cebu City which dismissed a
complaint for damages filed by petitioners against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners, namely,
Rose Nahdja, Johnny, Lloyd, and Kristine, all surnamed Reyes, were their children. Five days
before his death on January 8, 1987, Jorge had been suffering from a recurring fever with chills.
After he failed to get relief from some home medication he was taking, which
consisted of analgesic, antipyretic, and antibiotics, he decided to see the doctor.
On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was attended
to by respondent Dr. Marlyn Rico, resident physician and admitting physician on duty, who
gave Jorge a physical examination and took his medical history. She noted that at the
time of his admission, Jorge was conscious, ambulatory, oriented, coherent, and with
respiratory distress. 2 Typhoid fever was then prevalent in the locality, as the clinic had been
getting from 15 to 20 cases of typhoid per month. 3 Suspecting that Jorge could be suffering
from this disease, Dr. Rico ordered a Widal Test, a standard test for typhoid fever, to be
performed on Jorge. Blood count, routine urinalysis, stool examination, and malarial smear
were also made. 4 After about an hour, the medical technician submitted the results of the test
from which Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was only
up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorge's history
and gave him a physical examination. Like Dr. Rico, her impression was that Jorge had typhoid
fever. Antibiotics being the accepted treatment for typhoid fever, she ordered that a
compatibility test with the antibiotic chloromycetin be done on Jorge. Said test was
administered by nurse Josephine Pagente who also gave the patient a dose of triglobe. As she
did not observe any adverse reaction by the patient to chloromycetin, Dr. Blanes ordered the
first five hundred milligrams of said antibiotic to be administered on Jorge at around 9:00 p.m.
A second dose was administered on Jorge about three hours later just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorge's temperature rose to
41C. The patient also experienced chills and exhibited respiratory distress, nausea, vomiting,
and convulsions. Dr. Blanes put him under oxygen, used a suction machine, and administered
hydrocortisone, temporarily easing the patient's convulsions. When he regained consciousness,
the patient was asked by Dr. Blanes whether he had a previous heart ailment or had suffered
from chest pains in the past. Jorge replied he did not. 5 After about 15 minutes, however, Jorge
again started to vomit, showed restlessness, and his convulsions returned. Dr. Blanes re-
applied the emergency measures taken before and, in addition, valium was administered.
Jorge, however, did not respond to the treatment and slipped into cyanosis, a bluish or purplish
discoloration of the skin or mucous membrane due to deficient oxygenation of the blood. At
around 2:00 a.m., Jorge died. He was forty years old. The cause of his death was "Ventricular
Arrythemia Secondary to Hyperpyrexia and typhoid fever."
On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a complaint 6 for
damages against respondents Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr.

Marlyn Rico, and nurse Josephine Pagente. On September 24, 1987, petitioners amended their
complaint to implead respondent Mercy Community Clinic as additional defendant and to drop
the name of Josephine Pagente as defendant since she was no longer connected with
respondent hospital. Their principal contention was that Jorge did not die oftyphoid
fever. 7 Instead, his death was due to the wrongful administration of chloromycetin. They
contended that had respondent doctors exercised due care and diligence, they would not have
recommended and rushed the performance of the Widal Test, hastily concluded that Jorge was
suffering from typhoid fever, and administered chloromycetin without first conducting sufficient
tests on the patient's compatibility with said drug. They charged respondent clinic and its
directress, Sister Rose Palacio, with negligence in failing to provide adequate facilities and in
hiring negligent doctors and nurses. 8
Respondents denied the charges. During the pre-trial conference, the parties agreed to limit the
issues on the following: (1) whether the death of Jorge Reyes was due to or caused by the
negligence, carelessness, imprudence, and lack of skill or foresight on the part of defendants;
(2) whether respondent Mercy Community Clinic was negligent in the hiring ofits employees;
and (3) whether either party was entitled to damages. The case was then heard by the trial court
during which, in addition to the testimonies of the parties, the testimonies of doctors as expert
witnesses were presented.
Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern
Mindanao Training Hospital, Cagayan de Oro City. On January 9, 1987, Dr. Vacalares
performed an autopsy on Jorge Reyes to determine the cause of his death. However, he did not
open the skull to examine the brain. His findings 9 showed that the gastro-intestinal tract was
normal and without any ulceration or enlargement of the nodules. Dr. Vacalares testified that
Jorge did not die of typhoid fever. He also stated that he had not seen a patient die of typhoid
fever within five days from the onset of the disease.
For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio.
Dr. Gotiong is a diplomate in internal medicine whose expertise is microbiology and infectious
diseases. He is also a consultant at the Cebu City Medical Center and an associate
professor of medicine at the South Western University College of Medicine in Cebu City. He
had treated over a thousand cases of typhoid patients. According to Dr. Gotiong, the patient's
history and positive Widal Test results ratio of 1:320 would make him suspect that the patient
had typhoid fever. As to Dr. Vacalares' observation regarding the absence of ulceration in
Jorge's gastro-intestinal tract, Dr. Gotiong said that such hyperplasia in the intestines of a
typhoid victim may be microscopic. He noted that since the toxic effect of typhoid fever may
lead to meningitis, Dr. Vacalares' autopsy should have included an examination of the brain. 10
The other doctor presented was Dr. Ibarra Panopio, a member of the American
Board of Pathology, examiner of the Philippine Board of Pathology from 1978 to 1991,
fellow of the Philippine Society of Pathologist, associate professor of the Cebu
Institute of Medicine, and chief pathologist of the Andres Soriano Jr. Memorial Hospital in
Toledo City. Dr. Panopio stated that although he was partial to the use of the culture test for its
greater reliability in the diagnosis of typhoid fever, the Widal Test may also be used. Like Dr.
Gotiong, he agreed that the 1:320 ratio in Jorge's case was already the maximum by which a
conclusion of typhoid fever may be made. No additional information may be deduced from a
higher dilution. 11 He said that Dr. Vacalares' autopsy on Jorge was incomplete and thus
inconclusive.
On September 12, 1991, the trial court rendered its decision absolving respondents from the
charges of negligence and dismissing petitioners' action for damages. The trial court likewise
dismissed respondents' counterclaim, holding that, in seeking damages from respondents,
petitioners were impelled by the honest belief that Jorge's death was due to the latter's
negligence.
205
Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the
Court of Appeals affirmed the decision of the trial court.
Hence this petition.
Petitioners raise the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE
ERROR WHEN IT RULED THAT THE DOCTRINE OF RES IPSA
LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE.
II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR WHEN IT MADE AN UNFOUNDED ASSUMPTION
THAT THE LEVEL OF MEDICAL PRACTICE IS LOWER IN
ILIGAN CITY.
III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT
RULED FOR A LESSER STANDARD OF CARE AND
DEGREE OF DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN
CITY WHEN IT APPRECIATE[D] NO DOCTOR'S NEGLIGENCE
IN THE TREATMENT OF JORGE REYES.
Petitioner's action is for medical malpractice. This is a particular form of negligence which
consists in the failure of a physician or surgeon to apply to his practice of medicine that
degree of care and skill which is ordinarily employed by the profession generally, under similar
conditions, and in like surrounding circumstances. 12 In order to successfully pursue such a
claim, a patient must prove that the physician or surgeon either failed to do something which a
reasonably prudent physician or surgeon would have done, or that he or she did something that
a reasonably prudent physician or surgeon would not have done, and that the failure or action
caused injury to the patient. 13 There are thus four elements involved in medical negligence
cases, namely: duty, breach, injury, and proximate causation.
In the present case, there is no doubt that a physician-patient relationship existed between
respondent doctors and Jorge Reyes. Respondents were thus duty-bound to use at least the
same level of care that any reasonably competent doctor would use to treat a condition under
the same circumstances. It is breach of this duty which constitutes actionable
malpractice. 14 As to this aspect of medical malpractice, the determination of the reasonable
level of care and the breach thereof, expert testimony is essential. Inasmuch as the
causes of the injuries involved in malpractice actions are determinable only in the
light of scientific knowledge, it has been recognized that expert testimony is usually necessary
to support the conclusion as to causation. 15
Res Ipsa Loquitur
There is a case when expert testimony may be dispensed with, and that is under the
doctrine of res ipsa loquitur. As held in Ramos v. Court of Appeals: 16
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. 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. Ordinarily, only physicians and surgeons of skill

and experience are competent to testify as to whether a patient has
been treated or operated upon with a reasonable degree of skill and
care. However, testimony as to the statements and acts of physicians
and surgeons, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses. 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.
Where common knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had been exercised,
an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical evidence,
which is ordinarily required to show not only what occurred but how and
why it occurred. When the doctrine is appropriate, all that the patient
must do is prove a nexus between the particular act or omission
complained of and the injury sustained while under the custody and
management of the defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and ordinary
conditions, by which the patient can obtain redress for injury suffered by
him.
Thus, courts of other jurisdictions have applied the doctrine in the
following situations: leaving of a foreign object in the body of the patient
after an operation, injuries sustained on a healthy part of the body which
was not under, or in the area, of treatment, removal of the wrong
part of the body when another part was intended, knocking out a tooth
while a patient's jaw was under anesthetic for the removal of his tonsils,
and loss of an eye while the patient was under the
influence of anesthetic, during or following an operation for appendicitis,
among others. 17
Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies to the
present case because Jorge Reyes was merely experiencing fever and chills for five days and
was fully conscious, coherent, and ambulant when he went to the hospital. Yet, he died after
only ten hours from the time of his admission.
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the application of res ipsa loquitur were present,
namely: (1) the accident was of a kind which does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency which caused the injury was under the exclusive
control of the person in charge; and (3) the injury suffered must not have been due to any
voluntary action or contribution of the person injured. 18
The contention is without merit. We agree with the ruling of the Court of Appeals. In
the Ramos case, the question was whether a surgeon, an anesthesiologist, and
a hospital should be made liable for the comatose condition of a patient scheduled for
cholecystectomy. 19 In that case, the patient was given anesthesia prior to her operation.
Noting that the patient was neurologically sound at the time of her operation, the Court applied
the doctrine of res ipsa loquitur as mental brain damage does not normally occur in a
gallbladder operation in the absence of negligence of the anesthesiologist. Taking judicial
notice that anesthesia procedures had become so common that even an ordinary person could
206
tell if it was administered properly, we allowed the testimony of a witness who was not an
expert. In this case, while it is true that the patient died just a few hours after professional
medical assistance was rendered, there is really nothing unusual or extraordinary about his
death. Prior to his admission, the patient already had recurring fevers and chills for five days
unrelieved by the analgesic, antipyretic, and antibiotics given him by his wife. This shows that
he had been suffering from a serious illness and professional medical help came too late for
him.
Respondents alleged failure to observe due care was not immediately apparent to a layman so
as to justify application of res ipsa loquitur. The question required expert opinion on the alleged
breach by respondents of the standard of care required by the circumstances. Furthermore, on
the issue of the correctness of her diagnosis, no presumption ofnegligence can be applied to
Dr. Marlyn Rico. As held in Ramos:
. . . 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. 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 a surgeon which involves the merits of a
diagnosis or of a scientific treatment. 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. 20
Specific Acts of Negligence
We turn to the question whether petitioners have established specific acts of negligence
allegedly committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test,
diagnosed Jorge's illness as typhoid fever, and immediately prescribed the
administration of the antibiotic chloromycetin; 21 and (2) Dr. Marvie Blanes erred in ordering the
administration of the second dose of 500 milligrams of chloromycetin barely three hours after
the first was given. 22 Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief
Pathologist of the Northern Mindanao Training Hospital, Cagayan de Oro City, who performed
an autopsy on the body of Jorge Reyes. Dr. Vacalares testified that, based on his findings
during the autopsy, Jorge Reyes did not die of typhoid fever but of shock undetermined, which
could be due to allergic reaction or chloromycetin overdose. We are not persuaded.
First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find
him to be so as he is not a specialist on infectious diseases like typhoid fever. Furthermore,
although he may have had extensive experience in performing autopsies, he admitted that he
had yet to do one on the body of a typhoid victim at the time he conducted the postmortem on
Jorge Reyes. It is also plain from his testimony that he has treated only about three
cases of typhoid fever. Thus, he testified that: 23
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you have never seen a patient
who died of typhoid fever?

A In autopsy. But, that was when I was a resident physician yet.
Q But you have not performed an autopsy of a patient who
died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen a patient who
died of typhoid fever within five days?
A I have not seen one.
Q How many typhoid fever cases had you seen while you were in the
general practice of medicine?
A In our case we had no widal test that time so we cannot consider that
the typhoid fever is like this and like that. And the widal test
does not specify the time of the typhoid fever.
Q The question is: how many typhoid fever cases had you seen in your
general practice regardless of the cases now you practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower
courts were therefore correct in discarding his testimony, which is really inadmissible.
In Ramos, the defendants presented the testimony of a pulmonologist to prove that brain injury
was due to oxygen deprivation after the patient had bronchospasms 24 triggered by her allergic
response to a drug, 25 and not due to faulty intubation by the anesthesiologist. As the issue
was whether the intubation was properly performed by an anesthesiologist, we rejected the
opinion of the pulmonologist on the ground that he was not: (1) an anesthesiologist who could
enlighten the court about anesthesia practice, procedure, and their complications; nor (2) an
allergologist who could properly advance expert opinion on allergic mediated processes; nor (3)
a pharmacologist who could explain the pharmacologic and toxic effects of the drug allegedly
responsible for the bronchospasms.
Second. On the other hand, the two doctors presented by respondents clearly were experts on
the subject. They vouched for the correctness of Dr. Marlyn Rico's diagnosis. Dr. Peter
Gotiong, a diplomate whose specialization is infectious diseases and microbiology and an
associate professor at the Southwestern University College of Medicine and the Gullas
College of Medicine, testified that he has already treated over a thousand cases of typhoid
fever. 26 According to him, when a case of typhoid fever is suspected, the Widal test is
normally used, 27 and if the 1:320 results of the Widal test on Jorge Reyes had been presented
to him along with the patient's history, his impression would also be that the patient was
suffering from typhoid fever. 28 As to the treatment of the disease, he stated that chloromycetin
was the drug of choice. 29 He also explained that despite the measures taken by respondent
doctors and the intravenous administration of two doses of chloromycetin, complications of the
disease could not be discounted. His testimony is as follows: 30
ATTY. PASCUAL:
207
Q If with that count with the test of positive for 1 is to 320, what
treatment if any would be given?
A If those are the findings that would be presented to me, the first thing I
would consider would be typhoid fever.
Q And presently what are the treatments commonly used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after you have administered
chloramphenical about 3 1/2 hours later, the patient
associated with chills, temperature 41C, what could
possibly come to your mind?c
A Well, when it is change in the clinical finding, you have to
think of complication.
Q And what will you consider on the complication of typhoid? TCaEIc
A One must first understand that typhoid fever is toxemia. The problem
is complications are caused by toxins produced by the
bacteria . . . whether you have suffered complications to
think of heart toxic myocardities; then you can consider a
toxic meningitis and other complications and perforations and
bleeding in the ilium.
Q Even that 40-year old married patient who received
medication of chloromycetin of 500 milligrams intravenous,
after the skin test, and received a second
dose ofchloromycetin of 500 milligrams, 3 hours later, the
patient developed chills . . . rise in temperature to 41C, and
then about 40 minutes later the temperature rose to 100F,
cardiac rate of 150 per minute who appeared to be coherent,
restless, nauseating, with seizures: what significance could
you attach to these clinical changes?
A I would then think of toxemia, which was toxic meningitis and probably
a toxic meningitis because of the high cardiac rate.
Q Even if the same patient who, after having given intramuscular valium,
became conscious and coherent about 20 minutes later, have
seizure and cyanosis and rolling ofeyeballs and vomiting . . .
and death: what significance would you attach to this
development?
A We are probably dealing with typhoid to meningitis.
Q In such case, Doctor, what finding if any could you expect on the
post-mortem examination?
A No, the finding would be more on the meninges or covering of the
brain.
Q And in order to see those changes would it require opening the skull?

A Yes.
As regards Dr. Vacalares' finding during the autopsy that the deceased's gastro-intestinal
tract was normal, Dr. Rico explained that, while hyperplasia 31 in the payer's patches or
layers of the small intestines is present in typhoid fever, the same may not always be
grossly visible and a microscope was needed to see the texture of the cells. 32
Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the
Philippine and American Board of Pathology, an examiner of the Philippine Board ofPathology,
and chief pathologist at the Metro Cebu Community Hospital, Perpetual Succor Hospital, and
the Andres Soriano Jr. Memorial Medical Center. He stated that, as a clinical pathologist, he
recognized that the Widal test is used for typhoid patients, although he did not encourage its
use because a single test would only give a presumption necessitating that the test be
repeated, becoming more conclusive at the second and third weeks of the disease. 33 He
corroborated Dr. Gotiong's testimony that the danger with typhoid fever is really the possible
complications which could develop like perforation, hemorrhage, as well as liver and cerebral
complications. 34 As regards the 1:320 results of the Widal test on Jorge Reyes, Dr. Panopio
stated that no additional information could be obtained from a higher ratio. 35 He also agreed
with Dr. Gotiong that hyperplasia in the payer's patches may be microscopic. 36
Indeed, the standard contemplated is not what is actually the average merit among all known
practitioners from the best to the worst and from the most to the least experienced, but the
reasonable average merit among the ordinarily good physicians. 37 Here, Dr. Marlyn Rico did
not depart from the reasonable standard recommended by the experts as she in fact observed
the due care required under the circumstances. Though the Widal test is not conclusive, it
remains a standard diagnostic test for typhoid fever and, in the present case, greater accuracy
through repeated testing was rendered unobtainable by the early death of the patient. The
results of the Widal test and the patient's history of fever with chills for five days, taken with the
fact that typhoid fever was then prevalent as indicated by the fact that the clinic had been
getting about 15 to 20 typhoid cases a month, were sufficient to give upon any
doctor of reasonable skill the impression that Jorge Reyes had typhoid fever.
Dr. Rico was also justified in recommending the administration of the drug chloromycetin, the
drug of choice for typhoid fever. The burden of proving that Jorge Reyes was suffering from any
other illness rested with the petitioners. As they failed to present expert opinion on this,
preponderant evidence to support their contention is clearly absent.
Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr. Rico, was
negligent in ordering the intravenous administration of two doses of 500
milligrams of chloromycetin at an interval of less than three hours. Petitioners claim that
Jorge Reyes died of anaphylactic shock 38 or possibly from overdose as the second dose
should have been administered five to six hours after the first, per instruction of Dr. Marlyn
Rico. As held by the Court of Appeals, however:
That chloromycetin was likewise a proper prescription is best
established by medical authority. Wilson, et. al., in Harrison's
Principle of Internal Medicine, 12th ed. write that chloramphenicol (which
is the generic of chloromycetin) is the drug of choice for typhoid fever
and that no drug has yet proven better in promoting a favorable clinical
response. "Chlorampenicol (Chloromycetin) is specifically indicated for
bacterial meningitis, typhoid fever, rickettsial infections, bacteriodes
infections, etc." (PIMS Annual, 1994, p. 211) The dosage likewise
including the first administration of five hundred milligrams (500 mg.) at
around nine o'clock in the evening and the second dose at around 11:30
the same night was still within medically acceptable limits, since the
recommended dose of chloromycetin is one (1) gram every six (6) hours.
208
(cf. Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society,
Committee on Therapeutics and Toxicology, 1996). The intravenous
route is likewise correct. (Mansser, O'Nick, Pharmacology and
Therapeutics) Even if the test was not administered by the physician-on-
duty, the evidence introduced that it was Dra. Blanes who interpreted the
results remain uncontroverted. (Decision, pp 16-17) Once more, this
Court rejects any claim of professional negligence in this regard.
xxx xxx xxx
As regards anaphylactic shock, the usual way of guarding against it prior
to the administration of a drug, is the skin test of which, however, it has
been observed: "Skin testing with haptenic drugs is generally not
reliable. Certain drugs cause nonspecific histamine release, producing a
weal-and-flare reaction in normal individuals. Immunologic
activation ofmast cells requires a polyvalent allergen, so a negative skin
test to a univalent haptenic drug does not rule out anaphylactic
sensitivity to that drug." (Terr, "Anaphylaxis and Urticaria" in Basic and
Clinical Immunology, p. 349) What all this means legally is that even if the
deceased suffered from an anaphylactic shock, this, of itself, would not
yet establish the negligence of the appellee-physicians for all that the law
requires of them is that they perform the standard tests and perform
standard procedures. The law cannot require them to predict every
possible reaction to all drugs administered. The onus probandi was on
the appellants to establish, before the trial court, that the appellee-
physicians ignored standard medical procedure, prescribed and
administered medication with recklessness and exhibited an
absence of the competence and skills expected ofgeneral practitioners
similarly situated. 39
Fourth. Petitioners correctly observe that the medical profession is one which, like the
business of a common carrier, is affected with public interest. Moreover, they assert that since
the law imposes upon common carriers the duty of observing extraordinary diligence in the
vigilance over the goods and for the safety of the passengers, 40 physicians and surgeons
should have the same duty toward their patients. 41 They also contend that the
Court of Appeals erred when it allegedly assumed that the level of medical practice is lower in
Iligan City, thereby reducing the standard of care and degree of diligence required from
physicians and surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to common carriers. The Civil Code
provides:
Art. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence in
the vigilance over the goods and for the safety of the passengers
transported by them, according to the circumstances of each case. . . .
The practice of medicine is a profession engaged in only by qualified individuals. It is a right
earned through years of education, training, and by first obtaining a license from the state
through professional board examinations. Such license may, at any time and for cause, be
revoked by the government. In addition to state regulation, the conduct of doctors is also
strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which
doctors have imposed upon themselves in recognition and acceptance of their great
responsibility to society. Given these safeguards, there is no need to expressly
require of doctors the observance of "extraordinary" diligence. As it is now, the
practice ofmedicine is already conditioned upon the highest degree of diligence. And, as we

have already noted, the standard contemplated for doctors is simply the reasonable average
merit among ordinarily good physicians. That is reasonable diligence for doctors or, as the
Court of Appeals called it, the reasonable "skill and competence . . . that a physician in the
same or similar locality . . . should apply."
WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals is
AFFIRMED.
SO ORDERED.
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.
||| (Reyes v. Sisters of Mercy Hospital, G.R. No. 130547, [October 3, 2000], 396 PHIL 87-107)
SECOND DIVISION
[G.R. No. 128607. January 31, 2000.]
ALFREDO MALLARI SR. and
ALFREDO MALLARI JR., petitioners, vs. COURT OF APPEALS and
BULLETIN PUBLISHING CORPORATION, respondents.
Public Attorney's Office for petitioners.
Siguion Reyna Montecillo & Ongsiako and Tanjuatco Sta. Maria Tanjuatco for private
respondent.
SYNOPSIS
On October 14, 1987, at about 5:00 o'clock in the morning, the passenger jeepney driven by
petitioner Alfredo Mallari Jr. and owned by his co-petitioner Alfredo Mallari Sr. collided with the
delivery van of respondent Bulletin Publishing Corp. along the national highway in Barangay
San Pablo, Dinalupihan, Bataan. Because of this accident, several passengers were injured
one of whom was Israel Reyes who eventually died due to the gravity of his injuries. On
December 16, 1987, Claudia G. Reyes, the widow of Israel M. Reyes, filed a complaint for
damages with the Regional Trial Court of Olongapo City against Alfredo Mallari Sr. and
Alfredo Mallari Jr. and also against Bulletin, its driver Felix Angeles and N.V. Netherlands
Insurance Company. After trial on the merits, the trial court found that the proximate
cause of the collision was the negligence of the driver of the Bulletin delivery van and thus
ordered Angeles and Bulletin to pay the victim damages. It dismissed the complaint against the
other defendants, Alfredo Mallari Sr. and Alfredo Mallari Jr.
On appeal, the Court of Appeals modified the decision of the trial court and found no
negligence on the part of Angeles and consequently of his employer, respondent Bulletin.
Instead, the appellate court ruled that the collision was caused by the sole
negligence of petitioner Mallari Jr. It absolved from any liability respondents Bulletin, Felix
Angeles and the insurance company. Hence, this petition.
209
The Supreme Court found the petition not meritorious. The Court ruled that
the Court of Appeals correctly found, based on the sketch and spot report of the police
authorities, which were not disputed by petitioners, that the collision occurred immediately after
petitioner Mallari Jr. overtook a vehicle in front of it while traversing a curve on the highway.
Clearly, the proximate cause of the collision resulting in the death of Israel Reyes, a
passenger of the jeepney, was the sole negligence of the driver of the passenger jeepney,
Alfredo Mallari Jr., who recklessly operated and drove his jeepney in a lane where overtaking
was not allowed by traffic rules. With regard to the liability of Alfredo Sr., the Court ruled that
the negligence and recklessness of the driver of the passenger jeepney is binding against
petitioner Mallari, Sr., who admittedly was the owner of the passenger jeepney engaged as a
common carrier, considering the fact that in an action based on contract of carriage,
the Court need not make an express finding of fault or negligence on the part of the carrier in
order to hold it responsible for the payment of damages. Accordingly, the petition was denied
and the decision of the Court of Appeals reversing the decision of the trial court being in accord
with law and evidence was affirmed.
SYLLABUS
1. CIVIL LAW; COMMON CARRIERS; OVERTAKING VEHICLE IN FRONT OF IT WHILE
TRAVERSING A CURVE ON HIGHWAY IS CLEAR VIOLATION OF LAND TRANSPORTATION
AND TRAFFIC CODE. The Court of Appeals correctly found, based on the sketch and spot
report of the police authorities which were not disputed by petitioners, that the collision
occurred immediately after petitioner Mallari Jr. overtook a vehicle in front of it while traversing
a curve on the highway. This act of overtaking was in clear violation of Sec. 41, pars. (a) and
(b), of RA 4136 as amended, otherwise known as The Land Transportation and Traffic Code. . . .
The rule is settled that a driver abandoning his proper lane for the purpose ofovertaking another
vehicle in an ordinary situation has the duty to see to it that the road is clear and not to proceed
if he cannot do so in safety. When a motor vehicle is approaching or rounding a curve, there is
special necessity for keeping to the right side of the road and the driver does not have the right
to drive on the left hand side relying upon having time to turn to the right if a car approaching
from the opposite direction comes into view.
2. ID.; QUASI-DELICTS; PERSON DRIVING MOTOR VEHICLE IS PRESUMED NEGLIGENT IF
AT TIME OF MISHAP HE WAS VIOLATING A TRAFFIC REGULATION. By his own admission,
petitioner Mallari Jr. already saw that the BULLETIN delivery van was coming from the opposite
direction and failing to consider the speed thereof since it was still dark at 5:00 o'clock in the
morning mindlessly occupied the left lane and overtook two (2) vehicles in front of it at a curve
in the highway. Clearly, the proximate cause of the collision resulting in the death of Israel
Reyes, a passenger of the jeepney, was the sole negligence of the driver of the passenger
jeepney, petitioner Alfredo Mallari Jr., who recklessly operated and drove his jeepney in a lane
where overtaking was not allowed by traffic rules. Under Article 2185 of the Civil Code, 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 a traffic regulation. As found by the
appellate court, petitioners failed to present satisfactory evidence to overcome this legal
presumption. ITECSH
3. ID.; COMMON CARRIERS; NEGLIGENCE AND
RECKLESSNESS OF DRIVER OF PASSENGER JEEPNEY IS BINDING AGAINST
OWNER OF PASSENGER JEEPNEY ENGAGED AS A COMMON CARRIER. The negligence
and recklessness of the driver of the passenger jeepney is binding against petitioner Mallari Sr.,
who admittedly was the owner of the passenger jeepney engaged as a common carrier,
considering the fact that in an action based on contract of carriage, the court need not make an
express finding of fault or negligence on the part of the carrier in order to hold it responsible for

the payment of damages sought by the passenger. Under Art. 1755 of the Civil Code, a
common carrier is bound to carry the passengers safely as far as human care and foresight can
provide using the utmost diligence of very cautious persons with due regard for all the
circumstances. Moreover, under Art. 1756 of the Civil Code, in case of death or injuries to
passengers, a common carrier is presumed to have been at fault or to have acted negligently,
unless it proves that it observed extraordinary diligence. Further, pursuant to Art. 1759 of the
same Code, it is liable for the death of or injuries to passengers through the negligence or willful
acts of the former's employees. This liability of the common carrier does not cease upon proof
that it exercised all the diligence of a good father of a family in the selection of its employees.
Clearly, by the contract of carriage, the carrier jeepney owned by Mallari Sr. assumed the
express obligation to transport the passengers to their destination safely and to observe
extraordinary diligence with due regard for all the circumstances, and any injury or death that
might be suffered by its passengers is right away attributable to the fault or negligence of the
carrier.
DECISION
BELLOSILLO, J p:
ALFREDO MALLARI SR. and ALFREDO MALLARI JR. in this petition for review
on certiorari seek to set aside the Decision of the Court of Appeals 1 which reversed the court a
quo and adjudged petitioners to be liable for damages due to negligence as a common carrier
resulting in the death of a passenger. cdphil
On 14 October 1987, at about 5:00 o'clock in the morning, the passenger jeepney driven by
petitioner Alfredo Mallari Jr. and owned by his co-petitioner Alfredo Mallari Sr. collided with the
delivery van of respondent Bulletin Publishing Corp. (BULLETIN, for brevity) along the National
Highway in Barangay San Pablo, Dinalupihan, Bataan. Petitioner Mallari Jr. testified that he
went to the left lane of the highway and overtook a Fiera which had stopped on the right lane.
Before he passed by the Fiera, he saw the van of respondent BULLETIN coming from the
opposite direction. It was driven by one Felix Angeles. The sketch of the accident showed that
the collision occurred after Mallari Jr. overtook the Fiera while negotiating a curve in the
highway. The points of collision were the left rear portion of the passenger jeepney and the left
front side of the delivery van of BULLETIN. The two (2) right wheels of the delivery van were on
the right shoulder of the road and pieces of debris from the accident were found scattered
along the shoulder of the road up to a certain portion of the lane travelled by the passenger
jeepney. The impact caused the jeepney to turn around and fall on its left side resulting in
injuries to its passengers one of whom was Israel Reyes who eventually died due to the
gravity of his injuries.
On 16 December 1987 Claudia G. Reyes, the widow of Israel M. Reyes, filed a complaint for
damages with the Regional Trial Court of Olongapo City against Alfredo Mallari Sr. and
Alfredo Mallari Jr., and also against BULLETIN, its driver Felix Angeles, and the N.V.
Netherlands Insurance Company. The complaint alleged that the collision which resulted in the
death of Israel Reyes was caused by the fault and negligence of both drivers of the passenger
jeepney and the Bulletin Isuzu delivery van. The complaint also prayed that the defendants be
ordered jointly and severally to pay plaintiff P1,006,777.40 in compensatory damages,
P40,000.00 for hospital and medical expenses, P18,270.00 for burial expenses plus such
amounts as may be fixed by the trial court for exemplary damages and attorney's fees.
210
The trial court found that the proximate cause of the collision was the negligence of Felix
Angeles, driver of the Bulletin delivery van, considering the fact that the left front portion ofthe
delivery truck driven by Felix Angeles hit and bumped the left rear portion of the passenger
jeepney driven by Alfredo Mallari Jr. Hence, the trial court ordered BULLETIN and Felix Angeles
to pay jointly and severally Claudia G. Reyes, widow of the deceased victim, the
sums of P42,106.93 for medical expenses; P8,600.00 for funeral and burial expenses;
P1,006,777.40 for loss of earning capacity; P5,000.00 for moral damages and P10,000.00 for
attorney's fees. The trial court also ordered N.V. Netherlands Insurance Company to indemnify
Claudia G. Reyes P12,000.00 as death indemnity and P2,500.00 for funeral expenses which
when paid should be deducted from the liabilities of respondent BULLETIN and its driver Felix
Angeles to the plaintiff. It also dismissed the complaint against the other defendants
Alfredo Mallari Sr. and Alfredo Mallari Jr.
On appeal the Court of Appeals modified the decision of the trial court and found no negligence
on the part of Angeles and consequently of his employer, respondent BULLETIN. Instead, the
appellate court ruled that the collision was caused by the sole negligence of petitioner
Alfredo Mallari Jr. who admitted that immediately before the collision and after he rounded a
curve on the highway, he overtook a Fiera which had stopped on his lane and that he had seen
the van driven by Angeles before overtaking the Fiera. The Court ofAppeals ordered
petitioners Mallari Jr. and Mallari Sr. to compensate Claudia G. Reyes P1,006,777.50 for
loss of earning capacity, P50,000.00 as indemnity for death and P10,000.00 for attorney's fees.
It absolved from any liability respondent BULLETIN, Felix Angeles and N.V. Netherlands
Insurance Company. Hence this petition.
Petitioners contend that there is no evidence to show that petitioner Mallari Jr. overtook a
vehicle at a curve on the road at the time of the accident and that the testimony of Angeles on
the overtaking made by Mallari Jr. was not credible and unreliable. Petitioner also submits that
the trial court was in a better position than the Court of Appeals to assess the evidence and
observe the witnesses as well as determine their credibility; hence, its finding that the
proximate cause of the collision was the negligence of respondent Angeles, driver of the
delivery van owned by respondent BULLETIN, should be given more weight and
consideration. LibLex
We cannot sustain petitioners. Contrary to their allegation that there was no evidence
whatsoever that petitioner Mallari Jr. overtook a vehicle at a curve on the road at the time of or
before the accident, the same petitioner himself testified that such fact indeed did occur
Q: And what was that accident all about?
A: Well, what happened, sir, is that at about that time 5:00 o'clock in that
morning of October 14 while I was negotiating on the highway
at San Pablo, Dinalupihan, Bataan, I was then following a blue
Ford Fierra and my distance behind was about twenty (20) feet
and then I passed that blue Ford Fierra. I overtook and when I
was almost on the right lane of the highway towards Olongapo
City there was an oncoming delivery van of the Bulletin
Publishing Corporation which bumped the left rear
portion of the jeepney which I was driving and as a
result of which the jeepney . . . turned around and fell on its left
side and as a result of which some of my passengers including
me were injured, sir . . .
Q: Before you overtook the Ford Fierra jeepney did you look . . . whether
there was any vehicle coming towards you?

A: Yes, sir.
Q: Did you see the Bulletin van or the Press van coming towards you?
A: Yes, sir.
Q: At the moment the Ford Fierra . . . stop(ped) and in overtaking the
Fierra, did you not have an option to stop and not to overtake
the Ford Fierra?
A: Well, at the time when the Ford Fierra stopped in front of me I slowed
down with the intention of applying the brake, however, when I
saw the oncoming vehicle which is the Press van is very far . . .
which is 100 feet distance, . . . it is sufficient to overtake the
Ford Fierra so I overt(ook) it . . .
Q: You said that you took into consideration the speed of the oncoming
Press van but you also could not estimate the speed of the
Press van because it was dark at that time, which of these
statements are true?
A: What I wanted to say, I took into consideration the speed of the
oncoming vehicle, the Press van, although at the moment I
could not estimate the speed of the oncoming vehicle . . . 2
The Court of Appeals correctly found, based on the sketch and spot report of the police
authorities which were not disputed by petitioners, that the collision occurred immediately after
petitioner Mallari Jr. overtook a vehicle in front of it while traversing a curve on the
highway. 3 This act of overtaking was in clear violation of Sec. 41, pars. (a) and (b), of RA 4136
as amended, otherwise known as The Land Transportation and Traffic Code which provides:
Sec. 41. Restrictions on overtaking and passing. (a) The driver of a
vehicle shall not drive to the left side of the center line of a highway in
overtaking or passing another vehicle proceeding in the same direction,
unless such left side is clearly visible and is free of oncoming traffic for a
sufficient distance ahead to permit such overtaking or passing to be
made in safety. LLjur
(b) The driver of a vehicle shall not overtake or pass another vehicle
proceeding in the same direction when approaching the crest of a grade,
nor upon a curve in the highway, where the driver's view along the
highway is obstructed within a distance of five hundred feet ahead
except on a highway having two or more lanes for movement oftraffic in
one direction where the driver of a vehicle may overtake or pass another
vehicle: Provided That on a highway, within a business or residential
district, having two or more lanes for movement of traffic in one
direction, the driver of a vehicle may overtake or pass another vehicle on
the right.
The rule is settled that a driver abandoning his proper lane for the purpose of overtaking
another vehicle in an ordinary situation has the duty to see to it that the road is clear and not to
proceed if he cannot do so in safety. 4 When a motor vehicle is approaching or rounding a
curve, there is special necessity for keeping to the right side of the road and the driver does not
have the right to drive on the left hand side relying upon having time to turn to the right if a car
approaching from the opposite direction comes into view. 5
211
In the instant case, by his own admission, petitioner Mallari Jr. already saw that the
BULLETIN delivery van was coming from the opposite direction and failing to consider the
speed thereof since it was still dark at 5:00 o'clock in the morning mindlessly occupied the left
lane and overtook two (2) vehicles in front of it at a curve in the highway. Clearly, the proximate
cause of the collision resulting in the death of Israel Reyes, a passenger of the jeepney, was the
sole negligence of the driver of the passenger jeepney, petitioner Alfredo Mallari Jr., who
recklessly operated and drove his jeepney in a lane where overtaking was not allowed by traffic
rules. Under Art. 2185 of the Civil Code, 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 a traffic regulation. As found by the appellate court, petitioners failed to present
satisfactory evidence to overcome this legal presumption.
The negligence and recklessness of the driver of the passenger jeepney is binding against
petitioner Mallari Sr., who admittedly was the owner of the passenger jeepney engaged as a
common carrier, considering the fact that in an action based on contract of carriage,
the court need not make an express finding of fault or negligence on the part of the carrier in
order to hold it responsible for the payment of damages sought by the passenger. Under Art.
1755 of the Civil Code, a common carrier is bound to carry the passengers safely as far as
human care and foresight can provide using the utmost diligence of very cautious persons with
due regard for all the circumstances. Moreover, under Art. 1756 of the Civil Code, in
case of death or injuries to passengers, a common carrier is presumed to have been at fault or
to have acted negligently, unless it proves that it observed extraordinary diligence. Further,
pursuant to Art. 1759 of the same Code, it is liable for the death of or injuries to passengers
through the negligence or willful acts of the former's employees. This liability ofthe common
carrier does not cease upon proof that it exercised all the diligence of a good father of a family
in the selection of its employees. Clearly, by the contract of carriage, the carrier jeepney owned
by Mallari Sr. assumed the express obligation to transport the passengers to their destination
safely and to observe extraordinary diligence with due regard for all the circumstances, and any
injury or death that might be suffered by its passengers is right away attributable to the fault or
negligence of the carrier.
The monetary award ordered by the appellate court to be paid by petitioners to the
widow of the deceased passenger Israel M. Reyes of P1,006,777.50 for loss of earning
capacity, P50,000.00 as civil indemnity for death, and P10,000.00 for attorney's fees,
all of which were not disputed by petitioners, is a factual matter binding and conclusive upon
this Court.
WHEREFORE, the Petition is DENIED and the Decision of the Court of Appeals dated 20
September 1995 reversing the decision of the trial court being in accord with law and evidence
is AFFIRMED. Consequently, petitioners are ordered jointly and severally to pay Claudia G.
Reyes P1,006,777.50 for loss of earning capacity, P50,000.00 as civil indemnity for death, and
P10,000.00 for attorney's fees. Costs against petitioners. cdll
SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.
||| (Mallari Sr. v. Court of Appeals, G.R. No. 128607, [January 31, 2000], 381 PHIL 153-162)
THIRD DIVISION
[G.R. No. 162267. July 4, 2008.]

PCI LEASING AND FINANCE, INC., petitioner, vs. UCPB GENERAL
INSURANCE CO., INC., respondent.
DECISION
AUSTRIA-MARTINEZ, J p:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court, seeking a reversal of the Decision 1 of the Court of Appeals (CA) dated
December 12, 2003 affirming with modification the Decision of the Regional Trial Court
(RTC) of Makati City which ordered petitioner and Renato Gonzaga (Gonzaga) to pay,
jointly and severally, respondent the amount of P244,500.00 plus interest; and the CA
Resolution 2 dated February 18, 2004 denying petitioner's Motion for
Reconsideration. TSIDaH
The facts, as found by the CA, are undisputed:
On October 19, 1990 at about 10:30 p.m., a Mitsubishi
Lancer car with Plate Number PHD-206 owned by United Coconut
Planters Bank was traversing the Laurel Highway, Barangay
Balintawak, Lipa City. The car was insured with plantiff-appellee
[UCPB General Insurance Inc.], then driven by Flaviano Isaac with
Conrado Geronimo, the Asst. Manager of said bank, was hit and
bumped by an 18-wheeler Fuso Tanker Truck with Plate No. PJE-737
and Trailer Plate No. NVM-133, owned by defendants-appellants PCI
Leasing & Finance, Inc. allegedly leased to and operated by
defendant-appellant Superior Gas & Equitable Co., Inc. (SUGECO)
and driven by its employee, defendant appellant Renato Gonzaga.
The impact caused heavy damage to the Mitsubishi Lancer
car resulting in an explosion of the rear part of the car. The driver and
passenger suffered physical injuries. However, the driver defendant-
appellant Gonzaga continued on its [sic] way to its [sic] destination
and did not bother to bring his victims to the hospital. CacEID
Plaintiff-appellee paid the assured UCPB the amount of
P244,500.00 representing the insurance coverage of the damaged car.
As the 18-wheeler truck is registered under the name of PCI
Leasing, repeated demands were made by plaintiff-appellee for the
payment of the aforesaid amounts. However, no payment was made.
Thus, plaintiff-appellee filed the instant case on March 13, 1991. 3
PCI Leasing and Finance, Inc., (petitioner) interposed the defense that it could
not be held liable for the collision, since the driver of the truck, Gonzaga, was not its
employee, but that of its co-defendant Superior Gas & Equitable Co., Inc. (SUGECO). 4 In
fact, it was SUGECO, and not petitioner, that was the actual operator of the truck,
pursuant to a Contract of Lease signed by petitioner and SUGECO. 5 Petitioner, however,
admitted that it was the owner of the truck in question. 6
After trial, the RTC rendered its Decision dated April 15, 1999, 7 the dispositive
portion of which reads:
212
WHEREFORE, premises considered, judgment is hereby
rendered in favor of plaintiff UCPB General Insurance [respondent],
ordering the defendants PCI Leasing and Finance, Inc., [petitioner]
and Renato Gonzaga, to pay jointly and severally the former the
following amounts: the principal amount of P244,500.00 with 12%
interest as of the filing of this complaint until the same is paid;
P50,000.00 as attorney's fees; and P20,000.00 as costs of
suit. DHTECc
SO ORDERED. 8
Aggrieved by the decision of the trial court, petitioner appealed to the CA.
In its Decision dated December 12, 2003, the CA affirmed the RTC's decision,
with certain modifications, as follows:
WHEREFORE, the appealed decision dated April 15, 1999 is
hereby AFFIRMED with modification that the award of attorney's fees
is hereby deleted and the rate of interest shall be six percent (6%) per
annum computed from the time of the filing of the complaint in the trial
court until the finality of the judgment. If the adjudged principal and
the interest remain unpaid thereafter, the interest rate shall be twelve
percent (12%) per annum computed from the time the judgment
becomes final and executory until it is fully satisfied.
SO ORDERED. 9
Petitioner filed a Motion for Reconsideration which the CA denied in its
Resolution dated February 18, 2004.
Hence, herein Petition for Review.
The issues raised by petitioner are purely legal:
Whether petitioner, as registered owner of a motor vehicle
that figured in aquasi-delict may be held liable, jointly and severally,
with the driver thereof, for the damages caused to third
parties. aSADIC
Whether petitioner, as a financing company, is absolved
from liability by the enactment of Republic Act (R.A.) No. 8556, or
the Financing Company Act of 1998.
Anent the first issue, the CA found petitioner liable for the damage caused by
the collision since under the Public Service Act, if the property covered by a franchise is
transferred or leased to another without obtaining the requisite approval, the transfer is not
binding on the Public Service Commission and, in contemplation of law, the grantee
continues to be responsible under the franchise in relation to the operation of the vehicle,
such as damage or injury to third parties due to collisions. 10
Petitioner claims that the CA's reliance on the Public Service Act is misplaced,
since the said law applies only to cases involving common carriers, or those which have
franchises to operate as public utilities. In contrast, the case before this Court involves a
private commercial vehicle for business use, which is not offered for service to the general
public. 11
Petitioner's contention has partial merit, as indeed, the vehicles involved in the
case at bar are not common carriers, which makes the Public Service Act
inapplicable. cSEAHa

However, the registered owner of the vehicle driven by a negligent driver may
still be held liable under applicable jurisprudence involving laws on compulsory motor
vehicle registration and the liabilities of employers for quasi-delicts under the Civil Code.
The principle of holding the registered owner of a vehicle liable for quasi-
delicts resulting from its use is well-established in jurisprudence. Erezo v. Jepte, 12 with
Justice Labrador as ponente, wisely explained the reason behind this principle, thus:
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 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. STCDaI
"'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).
With the above policy in mind, the question that defendant-
appellant poses is: should not the registered owner be allowed at the
trial to prove who the actual and real owner is, and in accordance with
such proof escape or evade responsibility and lay the same on the
person actually owning the vehicle? We hold with the trial court that
the law does not allow him to do so; the law, with its aim and policy in
mind, does not relieve him directly of the responsibility that the law
fixes and places upon him as an incident or consequence of
registration. Were a registered owner allowed to evade responsibility
by proving who the supposed transferee or owner is, it would be easy
213
for him, by collusion with others or otherwise, to escape said
responsibility and transfer the same to an indefinite person, or to one
who possesses no property with which to respond financially for the
damage or injury done. A victim of recklessness on the public
highways is usually without means to discover or identify the person
actually causing the injury or damage. He has no means other than by
a recourse to the registration in the Motor Vehicles Office to determine
who is the owner. The protection that the law aims to extend to him
would become illusory were the registered owner given the
opportunity to escape liability by disproving his ownership. If the
policy of the law is to be enforced and carried out, the registered
owner should not be allowed to prove the contrary to the prejudice of
the person injured, that is, to prove that a third person or another has
become the owner, so that he may thereby be relieved of the
responsibility to the injured person. SICDAa
The above policy and application of the law may appear
quite harsh and would seem to conflict with truth and justice. We do
not think it is so. A registered owner who has already sold or
transferred a vehicle has the recourse to a third-party complaint, in the
same action brought against him to recover for the damage or injury
done, against the vendee or transferee of the vehicle. The
inconvenience of the suit is no justification for relieving him of liability;
said inconvenience is the price he pays for failure to comply with the
registration that the law demands and requires.
In synthesis, we hold that the registered owner, the
defendant-appellant herein, is primarily responsible for the damage
caused to the vehicle of the plaintiff-appellee, but he (defendant-
appellant) has a right to be indemnified by the real or actual owner of
the amount that he may be required to pay as damage for the injury
caused to the plaintiff-appellant. 13
The case is still good law and has been consistently cited in subsequent
cases. 14 Thus, there is no good reason to depart from its tenets. ACTESI
For damage or injuries arising out of negligence in the operation of a motor
vehicle, the registered owner may be held civilly liable with the negligent driver either
1)subsidiarily, if the aggrieved party seeks relief based on a delict or crime under Articles
100 and 103 of the Revised Penal Code; or 2) solidarily, if the complainant seeks relief
based on a quasi-delict under Articles 2176 and 2180 of the Civil Code. It is the option of
the plaintiff whether to waive completely the filing of the civil action, or institute it with the
criminal action, or file it separately or independently of a criminal action; 15 his only
limitation is that he cannot recover damages twice for the same act or omission of the
defendant. 16
In case a separate civil action is filed, the long-standing principle is that the
registered owner of a motor vehicle is primarily and directly responsible for the
consequences of its operation, including the negligence of the driver, with respect to the
public and all third persons. 17 In contemplation of law, the registered owner of a motor
vehicle is the employer of its driver, with the actual operator and employer, such as a
lessee, being considered as merely the owner's agent. 18 This being the case, even if a
sale has been executed before a tortious incident, the sale, if unregistered, has no effect
as to the right of the public and third persons to recover from the registered owner. 19 The
public has the right to conclusively presume that the registered owner is the real owner,
and may sue accordingly. 20

In the case now before the Court, there is not even a sale of the vehicle involved,
but a mere lease, which remained unregistered up to the time of the occurrence of
thequasi-delict that gave rise to the case. Since a lease, unlike a sale, does not even
involve a transfer of title or ownership, but the mere use or enjoyment of property, there is
more reason, therefore, in this instance to uphold the policy behind the law, which is to
protect the unwitting public and provide it with a definite person to make accountable for
losses or injuries suffered in vehicular accidents. 21 This is and has always been the
rationale behind compulsory motor vehicle registration under the Land Transportation and
Traffic Code and similar laws, which, as early as Erezo, has been guiding the courts in their
disposition of cases involving motor vehicular incidents. It is also important to emphasize
that such principles apply to all vehicles in general, not just those offered for public service
or utility. 22
The Court recognizes that the business of financing companies has a legitimate
and commendable purpose. 23 In earlier cases, it considered a financial lease or financing
lease a legal contract, 24 though subject to the restrictions of the so-called Recto Law or
Articles 1484 and 1485 of the Civil Code. 25 In previous cases, the Court adopted the
statutory definition of a financial lease or financing lease, as: SCHIac
[A] mode of extending credit through a non-cancelable lease
contract under which the lessor purchases or acquires, at the instance
of the lessee, machinery, equipment, motor vehicles, appliances,
business and office machines, and other movable or immovable
property in consideration of the periodic payment by the lessee of a
fixed amount of money sufficient to amortize at least seventy (70%) of
the purchase price or acquisition cost, including any incidental
expenses and a margin of profit over an obligatory period of not less
than two (2) years during which the lessee has the right to hold and
use the leased property, . . . but with no obligation or option on his
part to purchase the leased property from the owner-lessor at the end
of the lease contract. 26
Petitioner presented a lengthy discussion of the purported trend in other
jurisdictions, which apparently tends to favor absolving financing companies from liability
for the consequences of quasi-delictual acts or omissions involving financially leased
property. 27 The petition adds that these developments have been legislated in our
jurisdiction in Republic Act (R.A.) No. 8556, 28 which provides:
Section 12. Liability of lessors. Financing companies shall
not be liable for loss, damage or injury caused by a motor vehicle,
aircraft, vessel, equipment, machinery or other property leased to a
third person or entity except when the motor vehicle, aircraft, vessel,
equipment or other property is operated by the financing company, its
employees or agents at the time of the loss, damage or
injury. IHCDAS
Petitioner's argument that the enactment of R.A. No. 8556, especially its
addition of the new Sec. 12 to the old law, is deemed to have absolved petitioner from
liability, fails to convince the Court.
These developments, indeed, point to a seeming emancipation of financing
companies from the obligation to compensate claimants for losses suffered from the
operation of vehicles covered by their lease. Such, however, are not applicable to
petitioner and do not exonerate it from liability in the present case.
The new law, R.A. No. 8556, notwithstanding developments in foreign
jurisdictions, do not supersede or repeal the law on compulsory motor vehicle registration.
214
No part of the law expressly repeals Section 5 (a) and (e) of R.A. No. 4136, as
amended, otherwise known as the Land Transportation and Traffic Code, to wit:
Sec. 5. Compulsory registration of motor vehicles. (a)
All motor vehicles and trailer of any type used or operated on or upon
any highway of the Philippines must be registered with the Bureau of
Land Transportation (now the Land Transportation Office,
per Executive Order No. 125, January 30, 1987, and Executive Order
No. 125-A, April 13, 1987) for the current year in accordance with the
provisions of this Act. ECDAcS
xxx xxx xxx
(e) Encumbrances of motor vehicles. Mortgages,
attachments, and other encumbrances of motor vehicles, in order to
be valid against third parties must be recorded in the Bureau (now
the Land Transportation Office). Voluntary transactions or voluntary
encumbrances shall likewise be properly recorded on the face of all
outstanding copies of the certificates of registration of the vehicle
concerned.
Cancellation or foreclosure of such mortgages,
attachments, and other encumbrances shall likewise be recorded, and
in the absence of such cancellation, no certificate of registration shall
be issued without the corresponding notation of mortgage,
attachment and/or other encumbrances.
xxx xxx xxx (Emphasis supplied)
Neither is there an implied repeal of R.A. No. 4136. As a rule, repeal by implication is
frowned upon, unless there is clear showing that the later statute is so irreconcilably
inconsistent and repugnant to the existing law that they cannot be reconciled and made to
stand together. 29 There is nothing in R.A. No. 4136 that is inconsistent and incapable of
reconciliation. EIAScH
Thus, the rule remains the same: a sale, lease, or financial lease, for that matter,
that is not registered with the Land Transportation Office, still does not bind third persons
who are aggrieved in tortious incidents, for the latter need only to rely on the public
registration of a motor vehicle as conclusive evidence of ownership. 30 A lease such as
the one involved in the instant case is an encumbrance in contemplation of law, which
needs to be registered in order for it to bind third parties. 31 Under this policy, the evil
sought to be avoided is the exacerbation of the suffering of victims of tragic vehicular
accidents in not being able to identify a guilty party. A contrary ruling will not serve the
ends of justice. The failure to register a lease, sale, transfer or encumbrance, should not
benefit the parties responsible, to the prejudice of innocent victims.
The non-registration of the lease contract between petitioner and its lessee
precludes the former from enjoying the benefits under Section 12 of R.A. No. 8556.
This ruling may appear too severe and unpalatable to leasing and financing
companies, but the Court believes that petitioner and other companies so situated are not
entirely left without recourse. They may resort to third-party complaints against their
lessees or whoever are the actual operators of their vehicles. In the case at bar, there is, in
fact, a provision in the lease contract between petitioner and SUGECO to the effect that
the latter shall indemnify and hold the former free and harmless from any "liabilities,
damages, suits, claims or judgments" arising from the latter's use of the motor
vehicle. 32 Whether petitioner would act against SUGECO based on this provision is its
own option. EIcSDC

The burden of registration of the lease contract is minuscule compared to the
chaos that may result if registered owners or operators of vehicles are freed from such
responsibility. Petitioner pays the price for its failure to obey the law on compulsory
registration of motor vehicles for registration is a pre-requisite for any person to even enjoy
the privilege of putting a vehicle on public roads.
WHEREFORE, the petition is DENIED. The Decision dated December 12, 2003
and Resolution dated February 18, 2004 of the Court of Appeals are AFFIRMED. cADEHI
Costs against petitioner.
SO ORDERED.
Ynares-Santiago, Chico-Nazario, Nachura and Reyes, JJ., concur.
||| (PCI Leasing and Finance, Inc. v. UCPB General Insurance Co., Inc., G.R. No. 162267, [July 4,
2008], 579 PHIL 418-432)
SECOND DIVISION
[G.R. No. 130003. October 20, 2004.]
JONAS AONUEVO, petitioner, vs. HON. COURT OF APPEALS and
JEROME VILLAGRACIA, respondents.
DECISION
TINGA, J p:
The bicycle provides considerable speed and freedom of movement to the rider. It derives a
certain charm from being unencumbered by any enclosure, affording the cyclist the perception
of relative liberty. It also carries some obvious risks on the part of the user and has become the
subject of regulation, if not by the government, then by parental proscription.
The present petition seeks to bar recovery by an injured cyclist of damages from the driver of
the car which had struck him. The argument is hinged on the cyclist's failure to install safety
devices on his bicycle. However, the lower courts agreed that the motorist himself caused the
collision with his own negligence. The facts are deceptively simple, but the resolution entails
thorough consideration of fundamental precepts on negligence.
The present petition raises little issue with the factual findings of the Regional Trial Court (RTC),
Branch 160, of Pasig City, as affirmed by the Court of Appeals. Both courts adjudged
petitioner, Jonas Aonuevo (Aonuevo), liable for damages for the injuries sustained by the
cyclist, Jerome Villagracia (Villagracia). Instead, the petition hinges on a sole legal question,
characterized as "novel" by the petitioner: whether Article 2185 of the New Civil Code, which
presumes the driver of a motor vehicle negligent if he was violating a traffic regulation at the
time of the mishap, should apply by analogy to non-motorized vehicles. 1
215
As found by the RTC, and affirmed by the Court of Appeals, the accident in question
occurred on 8 February 1989, at around nine in the evening, at the intersection of Boni Avenue
and Barangka Drive in Mandaluyong (now a city). Villagracia was traveling along Boni Avenue
on his bicycle, while Aonuevo, traversing the opposite lane, was driving his Lancer car with
plate number PJJ-359. The car was owned by Procter and Gamble Inc., the employer of
Aonuevo's brother, Jonathan. Aonuevo was in the course of making a left turn towards
Libertad Street when the collision occurred. Villagracia sustained serious injuries as a result,
which necessitated his hospitalization several times in 1989, and forced him to undergo four (4)
operations.
On 26 October 1989, Villagracia instituted an action for damages against Procter and Gamble
Phils., Inc. and Aonuevo before the RTC. 2 He had also filed a criminal complaint against
Aonuevo before the Metropolitan Trial Court of Mandaluyong, but the latter was subsequently
acquitted of the criminal charge. 3 Trial on the civil action ensued, and in a Decision dated 9
March 1990, the RTC rendered judgment against Procter and Gamble and Aonuevo, ordering
them to pay Villagracia the amounts of One Hundred Fifty Thousand Pesos (P150,000.00) for
actual damages, Ten Thousand Pesos (P10,000.00) for moral damages, and Twenty Thousand
Pesos (P20,000.00) for attorney's fees, as well as legal costs. 4Both defendants appealed to
the Court of Appeals.
In a Decision 5 dated 8 May 1997, the Court of Appeals Fourth Division affirmed the
RTC Decision in toto. 6 After the Court of Appeals denied the Motion for Reconsideration in
a Resolution 7 dated 22 July 1997, Procter and Gamble and Aonuevo filed their respective
petitions for review with this Court. Procter and Gamble's petition 8 was denied by this Court in
a Resolution dated 24 November 1997. Aonuevo's petition, on the other hand, was given due
course, 9 and is the subject of this Decision.
In arriving at the assailed Decision, the Court of Appeals affirmed the factual findings of the
RTC. Among them: that it was Aonuevo's vehicle which had struck Villagracia; 10 that
Aonuevo's vehicle had actually hit Villagracia's left mid-thigh, thus causing a comminuted
fracture; 11 that as testified by eyewitness Alfredo Sorsano, witness for Villagracia, Aonuevo
was "umaarangkada," or speeding as he made the left turn into Libertad; 12 that considering
Aonuevo's claim that a passenger jeepney was obstructing his path as he made the turn,
Aonuevo had enough warning to control his speed; 13 and that Aonuevo failed to exercise
the ordinary precaution, care and diligence required of him in order that the accident could
have been avoided. 14 Notably, Aonuevo, in his current petition, does not dispute the findings
of tortious conduct on his part made by the lower courts, hinging his appeal instead on the
alleged negligence of Villagracia. Aonuevo proffers no exculpatory version of facts on his part,
nor does he dispute the conclusions made by the RTC and the Court of Appeals. Accordingly,
the Court, which is not a trier of facts, 15 is not compelled to review the factual findings of the
lower courts, which following jurisprudence have to be received with respect and are in fact
generally binding. 16
Notwithstanding, the present petition presents interesting questions for resolution. Aonuevo's
arguments are especially fixated on a particular question of law: whether Article 2185 of the
New Civil Code should apply by analogy to non-motorized vehicles. 17 In the same vein,
Aonuevo insists that Villagracia's own fault and negligence serves to absolve the former of any
liability for damages. SaTAED
It is easy to discern why Aonuevo chooses to employ this line of argument. Aonuevo points
out that Villagracia's bicycle had no safety gadgets such as a horn or bell, or headlights, as
invoked by a 1948 municipal ordinance. 18 Nor was it duly registered with the Office of the
Municipal Treasurer, as required by the same ordinance. Finally, as admitted by Villagracia, his
bicycle did not have foot brakes. 19 Before this Court, Villagracia does not dispute these
allegations, which he admitted during the trial, but directs our attention instead to the findings
of Aonuevo's own negligence. 20 Villagracia also contends that, assuming there was

contributory negligence on his part, such would not exonerate Aonuevo from payment of
damages. The Court of Appeals likewise acknowledged the lack of safety gadgets on
Villagracia's bicycle, but characterized the contention as "off-tangent" and insufficient to
obviate the fact that it was Aonuevo's own negligence that caused the accident. 21
Aonuevo claims that Villagracia violated traffic regulations when he failed to register his
bicycle or install safety gadgets thereon. He posits that Article 2185 of the New Civil Code
applies by analogy. The provision reads:
Article 2185. Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation.
The provision was introduced for the first time in this jurisdiction with the adoption in 1950 of
the New Civil Code. 22 Its applicability is expressly qualified to motor vehicles only, and there is
no ground to presume that the law intended a broader coverage.
Still, Aonuevo hypothesizes that Article 2185 should apply by analogy to all types of
vehicles. 23 He points out that modern-day travel is more complex now than when the Code
was enacted, the number and types of vehicles now in use far more numerous than as of then.
He even suggests that at the time of the enactment of the Code, the legislators "must have
seen that only motor vehicles were of such public concern that they had to be specifically
mentioned," yet today, the interaction of vehicles of all types and nature has "inescapably
become matter of public concern" so as to expand the application of the law to be more
responsive to the times. 24
What Aonuevo seeks is for the Court to amend the explicit command of the legislature, as
embodied in Article 2185, a task beyond the pale of judicial power. The Court interprets, and
not creates, the law. However, since the Court is being asked to consider the matter, it might as
well examine whether Article 2185 could be interpreted to include non-motorized vehicles.
At the time Article 2185 was formulated, there existed a whole array of non-motorized vehicles
ranging from human-powered contraptions on wheels such as bicycles, scooters, and animal-
drawn carts such as calesas and carromata. These modes of transport were even more
prevalent on the roads of the 1940s and 1950s than they are today, yet the framers of the New
Civil Code chose then to exclude these alternative modes from the scope of Article 2185 with
the use of the term "motorized vehicles." If Aonuevo seriously contends that the application of
Article 2185 be expanded due to the greater interaction today of all types of vehicles, such
argument contradicts historical experience. The ratio of motorized vehicles as to non-motorized
vehicles, as it stood in 1950, was significantly lower than as it stands today. This will be
certainly affirmed by statistical data, assuming such has been compiled, much less confirmed
by persons over sixty. Aonuevo's characterization of a vibrant intra-road dynamic between
motorized and non-motorized vehicles is more aproposto the past than to the present.
There is a fundamental flaw in Aonuevo's analysis of Art. 2185, as applicable today. He
premises that the need for the distinction between motorized and non-motorized vehicles arises
from the relative mass of number of these vehicles. The more pertinent basis for the segregate
classification is the difference in type of these vehicles. A motorized vehicle operates by reason
of a motor engine unlike a non-motorized vehicle, which runs as a result of a direct exertion by
man or beast of burden of direct physical force. A motorized vehicle, unimpeded by the
limitations in physical exertion, is capable of greater speeds and acceleration than non-
motorized vehicles. At the same time, motorized vehicles are more capable of inflicting greater
injury or damage in the event of an accident or collision. This is due to a combination of factors
peculiar to the motor vehicle, such as the greater speed, its relative greater bulk of mass, and
greater combustability due to the fuels that they use.
216
There long has been judicial recognition of the peculiar dangers posed by the motor
vehicle. As far back as 1912, in U.S. v. Juanillo, 25 the Court has recognized that an automobile
is capable of great speed, greater than that of ordinary vehicles hauled by animals, "and
beyond doubt it is highly dangerous when used on country roads, putting to great hazard the
safety and lives of the mass of the people who travel on such roads." 26 In the same case, the
Court emphasized:
A driver of an automobile, under such circumstances, is required to use
a greater degree of care than drivers of animals, for the reason that the
machine is capable of greater destruction, and furthermore, it is
absolutely under the power and control of the driver; whereas, a horse or
other animal can and does to some extent aid in averting an accident. It
is not pleasant to be obliged to slow down automobiles to accommodate
persons riding, driving, or walking. It is probably more agreeable to send
the machine along and let the horse or person get out of the way in the
best manner possible; but it is well to understand, if this course is
adopted and an accident occurs, that the automobile driver will be called
upon to account for his acts. An automobile driver must at all times use
all the care and caution which a careful and prudent driver would have
exercised under the circumstances. 27
American jurisprudence has had occasion to explicitly rule on the relationship between the
motorist and the cyclist. Motorists are required to exercise ordinary or reasonable care to avoid
collision with bicyclists. 28 While the duty of using ordinary care falls alike on the motorist and
the rider or driver of a bicycle, it is obvious, for reasons growing out of the inherent differences
in the two vehicles, that more is required from the former to fully discharge the duty than from
the latter. 29
The Code Commission was cognizant of the difference in the natures and attached
responsibilities of motorized and non-motorized vehicles. Art. 2185 was not formulated to
compel or ensure obeisance by all to traffic rules and regulations. If such were indeed the evil
sought to be remedied or guarded against, then the framers of the Code would have expanded
the provision to include non-motorized vehicles or for that matter, pedestrians. Yet, that was
not the case; thus the need arises to ascertain the peculiarities attaching to a motorized vehicle
within the dynamics of road travel. The fact that there has long existed a higher degree of
diligence and care imposed on motorized vehicles, arising from the special nature of a motor
vehicle, leads to the inescapable conclusion that the qualification under Article 2185 exists
precisely to recognize such higher standard. Simply put, the standards applicable to motor
vehicle are not on equal footing with other types of vehicles.
Thus, we cannot sustain the contention that Art. 2185 should apply to non-motorized vehicles,
even if by analogy. There is factual and legal basis that necessitates the distinction under Art.
2185, and to adopt Aonuevo's thesis would unwisely obviate this distinction.
Even if the legal presumption under Article 2185 should not apply to Villagracia, this should not
preclude any possible finding of negligence on his part. While the legal argument as formulated
by Aonuevo is erroneous, his core contention that Villagracia was negligent for failure to
comply with traffic regulations warrants serious consideration, especially since the imputed
negligent acts were admitted by Villagracia himself.
The Civil Code characterizes negligence as the omission of that diligence which is required by
the nature of the obligation and corresponds with the circumstances of the persons, of the time
and of the place. 30 However, the existence of negligence in a given case is not determined by
the personal judgment of the actor in a given situation, but rather, it is the law which determines
what would be reckless or negligent. 31

Aonuevo asserts that Villagracia was negligent as the latter had transgressed a municipal
ordinance requiring the registration of bicycles and the installation of safety devices thereon.
This view finds some support if anchored on the long standing principle of negligence per
se. TEIHDa
The generally accepted view is that the violation of a statutory duty constitutes negligence,
negligence as a matter of law, or negligence per se. 32 In Teague v. Fernandez, 33 the Court
cited with approval American authorities elucidating on the rule:
"The mere fact of violation of a statute is not sufficient basis for an
inference that such violation was the proximate cause of the injury
complained. However, if the very injury has happened which was
intended to be prevented by the statute, it has been held that violation of
the statute will be deemed to be the proximate cause of the injury." (65
C.J.S. 1156)
"The generally accepted view is that violation of a statutory duty
constitutes negligence, negligence as a matter of law, or, according to
the decisions on the question, negligenceper se, for the reason that non-
observance of what the legislature has prescribed as a suitable
precaution is failure to observe that care which an ordinarily prudent man
would observe, and, when the state regards certain acts as so liable to
injure others as to justify their absolute prohibition, doing the forbidden
act is a breach of duty with respect to those who may be injured thereby;
or, as it has been otherwise expressed, when the standard of care is
fixed by law, failure to conform to such standard is negligence,
negligenceper se or negligence in and of itself, in the absence of a legal
excuse. According to this view it is immaterial, where a statute has been
violated, whether the act or omission constituting such violation would
have been regarded as negligence in the absence of any statute on the
subject or whether there was, as a matter of fact, any reason to
anticipate that injury would result from such violation. . . ." (65 C.J.S. pp.
623628)
"But the existence of an ordinance changes the situation. If a driver
causes an accident by exceeding the speed limit, for example, we do not
inquire whether his prohibited conduct was unreasonably dangerous. It
is enough that it was prohibited. Violation of an ordinance intended to
promote safety is negligence. If by creating the hazard which the
ordinance was intended to avoid it brings about the harm which the
ordinance was intended to prevent, it is a legal cause of the harm. This
comes only to saying that in such circumstances the law has no reason
to ignore the causal relation which obviously exists in fact. The law has
excellent reason to recognize it, since it is the very relation which the
makers of the ordinance anticipated. This court has applied these
principles to speed limits and other regulations of the manner of driving."
(Ross vs. Hartman, 139 Fed. 2d 14 at 15).
". . . However, the fact that other happenings causing or contributing
toward an injury intervened between the violation of a statute or
ordinance and the injury does not necessarily make the result so remote
that no action can be maintained. The test is to be found not in the
number of intervening events or agents, but in their character and in the
natural and probable connection between the wrong done and the
injurious consequence. The general principle is that the violation of a
statute or ordinance is not rendered remote as the cause of an injury by
217
the intervention of another agency if the occurrence of the accident, in
the manner in which it happened, was the very thing which the statute or
ordinance was intended to prevent." (38 Am Jur 841) 34
In Teague, the owner of a vocational school stricken by a fire resulting in fatalities was found
negligent, based on her failure to provide adequate fire exits in contravention of a Manila city
ordinance. 35 In F.F. Cruz and Co., Inc. v. Court of Appeals, 36 the failure of the petitioner to
construct a firewall in accordance with city ordinances sufficed to support a finding of
negligence. 37 In Cipriano v. Court of Appeals, 38 the Court found that the failure of the
petitioner to register and insure his auto rustproofing shop in accordance with the statute
constituted negligence per se, thus holding him liable for damages for the destruction by fire of
a customer's vehicle garaged therein.
Should the doctrine of negligence per se apply to Villagracia, resulting from his violation of an
ordinance? It cannot be denied that the statutory purpose for requiring bicycles to be equipped
with headlights or horns is to promote road safety and to minimize the occurrence of road
accidents involving bicycles. At face value, Villagracia's mishap was precisely the danger
sought to be guarded against by the ordinance he violated. Aonuevo argues that Villagracia's
violation should bar the latter's recovery of damages, and a simplistic interpretation of
negligence per se might vindicate such an argument.
But this is by no means a simple case. There is the fact which we consider as proven, that
Aonuevo was speeding as he made the left turn, and such negligent act was the proximate
cause of the accident. This reckless behavior would have imperiled anyone unlucky enough
within the path of Aonuevo's car as it turned into the intersection, whether they are fellow
motorists, pedestrians, or cyclists. We are hard put to conclude that Villagracia would have
avoided injury had his bicycle been up to par with safety regulations, especially considering that
Aonuevo was already speeding as he made the turn, or before he had seen Villagracia. Even
assuming that Aonuevo had failed to see Villagracia because the bicycle was not equipped
with headlights, such lapse on the cyclist's part would not have acquitted the driver of his duty
to slow down as he proceeded to make the left turn.
This Court has appreciated that negligence per se, arising from the mere violation of a traffic
statute, need not be sufficient in itself in establishing liability for damages. In Sanitary Steam
Laundry, Inc. v. Court of Appeals, 39 a collision between a truck and a privately-owned
Cimarron van caused the death of three of the van's passengers. The petitioner therein, the
owner of the truck, argued that the driver of the Cimarron was committing multiple violations of
the Land Transportation and Traffic Code 40 at the time of the accident. Among these
violations: the Cimarron was overloaded at the time of the accident; the front seat of the van
was occupied by four adults, including the driver; and the van had only one functioning
headlight. Similar as in this case, petitioner therein invoked Article 2185 and argued that the
driver of the Cimarron should be presumed negligent. The Court, speaking through Justice
Mendoza, dismissed these arguments:
[It] has not been shown how the alleged negligence of the Cimarron
driver contributed to the collision between the vehicles. Indeed,
petitioner has the burden of showing a causal connection between the
injury received and the violation of the Land Transportation and Traffic
Code. He must show that the violation of the statute was the proximate
or legal cause of the injury or that it substantially contributed thereto.
Negligence, consisting in whole or in part, of violation of law, like any
other negligence, is without legal consequence unless it is a contributing
cause of the injury. Petitioner says that "driving an overloaded vehicle
with only one functioning headlight during nighttime certainly increases

the risk of accident," that because the Cimarron had only one headlight,
there was "decreased visibility," and that the fact that the vehicle was
overloaded and its front seat overcrowded "decreased its
maneuverability." However, mere allegations such as these are not
sufficient to discharge its burden of proving clearly that such alleged
negligence was the contributing cause of the injury. 41
Sanitary Steam 42 is controlling in this case. The bare fact that Villagracia was violating a
municipal ordinance at the time of the accident may have sufficiently established some degree
of negligence on his part, but such negligence is without legal consequence unless it is shown
that it was a contributing cause of the injury. If anything at all, it is but indicative of Villagracia's
failure in fulfilling his obligation to the municipal government, which would then be the proper
party to initiate corrective action as a result. But such failure alone is not determinative of
Villagracia's negligence in relation to the accident. Negligence is relative or comparative,
dependent upon the situation of the parties and the degree of care and vigilance which the
particular circumstances reasonably require. 43 To determine if Villagracia was negligent, it is
not sufficient to rely solely on the violations of the municipal ordinance, but imperative to
examine Villagracia's behavior in relation to the contemporaneous circumstances of the
accident.
The rule on negligence per se must admit qualifications that may arise from the logical
consequences of the facts leading to the mishap. The doctrine (and Article 2185, for that
matter) is undeniably useful as a judicial guide in adjudging liability, for it seeks to impute
culpability arising from the failure of the actor to perform up to a standard established by a legal
fiat. But the doctrine should not be rendered inflexible so as to deny relief when in fact there is
no causal relation between the statutory violation and the injury sustained. Presumptions in law,
while convenient, are not intractable so as to forbid rebuttal rooted in fact. After all, tort law is
remunerative in spirit, aiming to provide compensation for the harm suffered by those whose
interests have been invaded owing to the conduct of others. 44
Under American case law, the failures imputed on Villagracia are not grievous enough so as to
negate monetary relief. In the absence of statutory requirement, one is not negligent as a matter
of law for failing to equip a horn, bell, or other warning device onto a bicycle. 45 In most cases,
the absence of proper lights on a bicycle does not constitute negligence as a matter of
law 46 but is a question for the jury whether the absence of proper lights played a causal part in
producing a collision with a motorist. 47 The absence of proper lights on a bicycle at night, as
required by statute or ordinance, may constitute negligence barring or diminishing recovery if
the bicyclist is struck by a motorist as long as the absence of such lights was a proximate
cause of the collision; 48 however, the absence of such lights will not preclude or diminish
recovery if the scene of the accident was well illuminated by street lights, 49 if substitute lights
were present which clearly rendered the bicyclist visible, 50 if the motorist saw the bicycle in
spite of the absence of lights thereon, 51 or if the motorist would have been unable to see the
bicycle even if it had been equipped with lights. 52 A bicycle equipped with defective or
ineffective brakes may support a finding of negligence barring or diminishing recovery by an
injured bicyclist where such condition was a contributing cause of the accident. 53
The above doctrines reveal a common thread. The failure of the bicycle owner to comply with
accepted safety practices, whether or not imposed by ordinance or statute, is not sufficient to
negate or mitigate recovery unless a causal connection is established between such failure and
the injury sustained. The principle likewise finds affirmation in Sanitary Steam, wherein we
declared that the violation of a traffic statute must be shown as the proximate cause of the
injury, or that it substantially contributed thereto. 54 Aonuevo had the burden of clearly
proving that the alleged negligence of Villagracia was the proximate or contributory cause of
the latter's injury.
On this point, the findings of the Court of Appeals are well-worth citing:
218
[As] admitted by appellant Aonuevo, he first saw appellee Villagracia at
a distance of about ten (10) meters before the accident. Corollarily,
therefore, he could have avoided the accident had he [stopped]
alongside with an earlier (sic) jeep which was already at a full stop giving
way to appellee. But according to [eyewitness] Sorsano, he saw
appellant Aonuevo "umaarangkada" and hit the leg of Villagracia (TSN
March 14, 1990 p. 30). This earlier (sic) jeep at a full stop gave way to
Villagracia to proceed but Aonuevo at an unexpected motion
(umarangkada) came out hitting Villagracia (TSN March 9, 1990 p. 49).
Appellant Aonuevo admitted that he did not blow his horn when he
crossed Boni Avenue (TSN March 21, 1990 p. 47). 55
By Aonuevo's own admission, he had seen Villagracia at a good distance of ten (10) meters.
Had he been decelerating, as he should, as he made the turn, Aonuevo would have had ample
opportunity to avoid hitting Villagracia. Moreover, the fact that Aonuevo had sighted Villagracia
before the accident would negate any possibility that the absence of lights on the bike
contributed to the cause of the accident. 56 A motorist has been held liable for injury to or
death of a bicyclist where the motorist turned suddenly into the bicyclist so as to cause a
collision. 57
Neither does Aonuevo attempt before this Court to establish a causal connection between the
safety violations imputed to Villagracia and the accident itself. Instead, he relied on a putative
presumption that these violations in themselves sufficiently established negligence appreciable
against Villagracia. Since the onus on Aonuevo is to conclusively prove the link between the
violations and the accident, we can deem him as having failed to discharge his necessary
burden of proving Villagracia's own liability.
Neither can we adjudge Villagracia with contributory negligence. The leading case in
contributory negligence, Rakes v. Atlantic Gulf 58 clarifies that damages may be mitigated if the
claimant "in conjunction with the occurrence, [contributes] only to his injury." 59 To hold a
person as having contributed to his injuries, it must be shown that he performed an act that
brought about his injuries in disregard of warnings or signs of an impending danger to health
and body. 60 To prove contributory negligence, it is still necessary to establish a causal link,
although not proximate, between the negligence of the party and the succeeding injury. In a
legal sense, negligence is contributory only when it contributes proximately to the injury, and
not simply a condition for its occurrence. 61
As between Aonuevo and Villagracia, the lower courts adjudged Aonuevo as solely
responsible for the accident. The petition does not demonstrate why this finding should be
reversed. It is hard to imagine that the same result would not have occurred even if Villagracia's
bicycle had been equipped with safety equipment. Aonuevo himself admitted having seen
Villagracia from ten (10) meters away, thus he could no longer claim not having been sufficiently
warned either by headlights or safety horns. The fact that Aonuevo was recklessly speeding as
he made the turn likewise leads us to believe that even if Villagracia's bicycle had been
equipped with the proper brakes, the cyclist would not have had the opportunity to brake in
time to avoid the speeding car. Moreover, it was incumbent on Aonuevo to have established
that Villagracia's failure to have installed the proper brakes contributed to his own injury. The
fact that Aonuevo failed to adduce proof to that effect leads us to consider such causal
connection as not proven.
All told, there is no reason to disturb the assailed judgment.
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is AFFIRMED.
Costs against petitioner.

SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ ., concur.
||| (Aonuevo v. Court of Appeals, G.R. No. 130003, [October 20, 2004], 483 PHIL 756-774)
THIRD DIVISION
[G.R. No. 52732. August 29, 1988.]
F.F. CRUZ and CO., INC., petitioner, vs. THE COURT OF APPEALS,
GREGORIO MABLE as substituted by his wife LUZ ALMONTE
MABLE and children DOMING, LEONIDAS, LIGAYA, ELENA,
GREGORIO, JR., SALOME, ANTONIO, and BERNARDO all surnamed
MABLE, respondents.
Luis S. Topacio for petitioner.
Mauricio M. Monta for respondents.
SYLLABUS
1.CIVIL LAW; DAMAGES; DOCTRINE OF RES IPSA LOQUITOR, APPLIED; NEGLIGENCE NOT
PRESUMED. The facts of the case call for the application of the doctrine, considering that in
the normal course of operations of a furniture manufacturing shop, combustible material such
as wood chips, sawdust, paint, varnish and fuel and lubricants for machinery may be found
thereon. It must also be noted that negligence or want of care on the part of petitioner or its
employees was not merely presumed. Even without applying the doctrine of res ipsa loquitur,
petitioner's failure to construct a firewall in accordance with city ordinances would suffice to
support a finding of negligence.
2.REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF THE COURT OF APPEALS
GENERALLY NOT DISTURBED. Since the amount of the loss sustained by private
respondents constitutes a finding of fact, such finding by the Court of Appeals should not be
disturbed by this Court more so when there is no showing of arbitrariness.
3.CIVIL LAW; DAMAGES; DEFICIENCY BETWEEN AMOUNT INDEMNIFIED BY INSURER AND
THE AMOUNT OF LOSS SUSTAINED MAY BE RECOVERED FROM PERSON CAUSING THE
LOSS. Private respondents have been indemnified by their insurer in the amount of
P35,000.00 for the damage caused to their house and its contents. Hence, the Court holds that
in accordance with Article 2207 of the Civil Code the amount of P35,000.00 should be
deducted from the amount awarded as damages. Having been indemnified by their insurer,
private respondents are only entitled to recover the deficiency from petitioner.
4.ID.; SUBROGATION; INSURER ENTITLED THERETO UNDER ART. 2207. The insurer, if it
is so minded, may seek reimbursement of the amount it indemnified private respondents from
petitioner. This is the essence of its right to be subrogated to the rights of the insured, as
219
expressly provided in Article 2207. Upon payment of the loss incurred by the insured, the
insurer is entitled to be subrogated pro tanto to any right of action which the insured may have
against the third person whose negligence or wrongful act caused the loss [Fireman's Fund
Insurance Co. v. Jamila & Co., Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA 323.]
5.ID.; ID.; EXERCISE OF RIGHT, DISCRETIONARY; INSURER, REAL PARTY IN INTEREST
WITH REGARD TO INDEMNITY AWARDED TO THE INSURED. Under Article 2207, the real
party in interest with regard to the indemnity received by the insured is the insurer [Phil. Air
Lines, Inc. v. Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or not the insurer should
exercise the rights of the insured to which it had been subrogated lies solely within the former's
sound discretion. Since the insurer is not a party to the case, its identity is not of record and no
claim is made on its behalf, the private respondent's insurer has to claim his right to
reimbursement of the P35,000.00 paid to the insured.
DECISION
CORTES, J p:
This petition to review the decision of the Court of Appeals puts in issue the application of the
common law doctrine of res ipsa loquitur. prcd
The essential facts of the case are not disputed.
The furniture manufacturing shop of petitioner in Caloocan City was situated adjacent to the
residence of private respondents. Sometime in August 1971, private respondent Gregorio
Mable first approached Eric Cruz, petitioner's plant manager, to request that a firewall be
constructed between the shop and private respondents' residence. The request was repeated
several times but they fell on deaf ears. In the early morning of September 6, 1974, fire broke
out in petitioner's shop. Petitioner's employees, who slept in the shop premises, tried to put out
the fire, but their efforts proved futile. The fire spread to private respondents' house. Both the
shop and the house were razed to the ground. The cause of the conflagration was never
discovered. The National Bureau of Investigation found specimens from the burned structures
negative for the presence of inflammable substances.
Subsequently, private respondents collected P35,000.00 on the insurance on their house and
the contents thereof.
On January 23, 1975, private respondents filed an action for damages against petitioner,
praying for a judgment in their favor awarding P150,000.00 as actual damages, P50,000.00 as
moral damages, P25,000.00 as exemplary damages, P20,000.00 as attorney's fees and costs.
The Court of First Instance held for private respondents:
WHEREFORE, the Court hereby renders judgment, in favor of plaintiffs,
and against the defendant:
1.Ordering the defendant to pay to the plaintiffs the amount of
P80,000.00 for damages suffered by said plaintiffs for the loss of their
house, with interest of 6% from the date of the filing of the Complaint on
January 23, 1975, until fully paid;
2.Ordering the defendant to pay to the plaintiffs the sum of P50,000.00
for the loss of plaintiffs' furnitures, religious images, silverwares,

chinawares, jewelries, books, kitchen utensils, clothing and other
valuables, with interest of 6% from date of the filing of the Complaint on
January 23, 1975, until fully paid;
3.Ordering the defendant to pay to the plaintiffs the sum of P5,000.00 as
moral damages, P2,000.00 as exemplary damages, and P5,000.00 as
and by way of attorney's fees;
4.With costs against the defendant;
5.Counterclaim is ordered dismissed, for lack of merit. [CA Decision, pp.
1-2; Rollo, pp. 29-30.]
On appeal, the Court of Appeals, in a decision promulgated on November 19, 1979, affirmed
the decision of the trial court but reduced the award of damages:
WHEREFORE, the decision declaring the defendants liable is affirmed.
The damages to be awarded to plaintiff should be reduced to
P70,000.00 for the house and P50,000.00 for the furniture and other
fixtures with legal interest from the date of the filing of the complaint until
full payment thereof [CA Decision, p. 7; Rollo, p. 35.]
A motion for reconsideration was filed on December 3, 1979 but was denied in a resolution
dated February 18, 1980. Hence, petitioner filed the instant petition for review on February 22,
1980.
After the comment and reply were filed, the Court resolved to deny the petition for lack of merit
on June 11, 1980. However, petitioner filed a motion for reconsideration, which was granted,
and the petition was given due course on September 12, 1980. After the parties filed their
memoranda, the case was submitted for decision on January 21, 1981.
Petitioner contends that the Court of Appeals erred:
1.In not deducting the sum of P35,000.00, which private respondents recovered on the
insurance on their house, from the award of damages.
2.In awarding excessive and/or unproved damages.
3.In applying the doctrine of res ipsa loquitur to the facts of the instant case.
The pivotal issue in this case is the applicability of the common law doctrine of res ipsa
loquitur, the issue of damages being merely consequential. In view thereof, the errors assigned
by petitioner shall be discussed in the reverse order. prcd
1.The doctrine of res ipsa loquitur, whose application to the instant case petitioner objects to,
may be stated as follows:
Where the thing which caused the injury complained of is shown to be
under the management of the defendant or his servants and the accident
is such as in the ordinary course of things does not happen if those who
have its management or control use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant, that the
accident arose from want of care. [Africa v. Caltex (Phil.), Inc., G.R. No.
L-12986, March 31, 1966, 16 SCRA 448.]
Thus, in Africa, supra, where fire broke out in a Caltex service station while gasoline from a tank
truck was being unloaded into an underground storage tank through a hose and the fire spread
220
to and burned neighboring houses, this Court, applying the doctrine of res ipsa
loquitur, adjudged Caltex liable for the loss.
The facts of the case likewise call for the application of the doctrine, considering that in the
normal course of operations of a furniture manufacturing shop, combustible material such as
wood chips, sawdust, paint, varnish and fuel and lubricants for machinery may be found
thereon.
It must also be noted that negligence or want of care on the part of petitioner or its employees
was not merely presumed. The Court of Appeals found that petitioner failed to construct a
firewall between its shop and the residence of private respondents as required by a city
ordinance; that the fire could have been caused by a heated motor or a lit cigarette; that
gasoline and alcohol were used and stored in the shop; and that workers sometimes smoked
inside the shop [CA Decision, p. 5; Rollo, p. 33.]
Even without applying the doctrine of res ipsa loquitur, petitioner's failure to construct a firewall
in accordance with city ordinances would suffice to support a finding of negligence.
Even then the fire possibly would not have spread to the neighboring
houses were it not for another negligent omission on the part of
defendants, namely, their failure to provide a concrete wall high enough
to prevent the flames from leaping over it. As it was the concrete wall
was only 2-1/2 meters high, and beyond that height it consisted merely
of galvanized iron sheets, which would predictably crumble and melt
when subjected to intense heat. Defendant's negligence, therefore, was
not only with respect to the cause of the fire but also with respect to the
spread thereof to the neighboring houses. [Africa Y. Caltex (Phil.)
Inc., supra; Emphasis supplied.]
In the instant case, with more reason should petitioner be found guilty of negligence since it
had failed to construct a firewall between its property and private respondents' residence which
sufficiently complies with the pertinent city ordinances. The failure to comply with an ordinance
providing for safety regulations had been ruled by the Court as an act of negligence [Teague v.
Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA 181.]
The Court of Appeals, therefore, had more than adequate basis to find petitioner liable for the
loss sustained by private respondents. cdll
2.Since the amount of the loss sustained by private respondents constitutes a finding of fact,
such finding by the Court of Appeals should not be disturbed by this Court [M.D. Transit & Taxi
Co., Inc. v. Court of Appeals, G.R. No. L-23882, February 17, 1968, 22 SCRA 559], more so
when there is no showing of arbitrariness.
In the instant case, both the CFI and the Court of Appeals, were in agreement as to the value of
private respondents' furniture and fixtures and personal effects lost in the fire (i.e. P50,000.00).
With regard to the house, the Court of Appeals reduced the award to P70,000.00 from
P80,000.00. Such cannot be categorized as arbitrary considering that the evidence shows that
the house was built in 1951 for P40,000.00 and, according to private respondents, its
reconstruction would cost P246,000.00. Considering the appreciation in value of real estate and
the diminution of the real value of the peso, the valuation of the house at P70,000.00 at time it
was razed cannot be said to be excessive.
3.While this Court finds that petitioner is liable for damages to private respondents as found by
the Court of Appeals, the fact that private respondents have been indemnified by their insurer in
the amount of P35,000.00 for the damage caused to their house and its contents has not

escaped the attention of the Court. Hence, the Court holds that in accordance with Article 2207
of the Civil Code the amount of P35,000.00 should be deducted from the amount awarded as
damages. Said article provides:
Art. 2207.If the plaintiff's property has been insured, and he has received
indemnity from the insurance company for the injury or loss arising out of
the wrong or breach of contract complained of, the insurance company
is subrogated to the rights of the insured against the wrongdoer or the
person who violated the contract. If the amount paid by the insurance
company does not fully cover the injury or loss, the aggrieved party shall
be entitled to recover the deficiency from the person causing the loss or
injury. (Emphasis supplied.)
The law is clear and needs no interpretation. Having been indemnified by their insurer, private
respondents are only entitled to recover the deficiency from petitioner. LLphil
On the other hand, the insurer, if it is so minded, may seek reimbursement of the amount it
indemnified private respondents from petitioner. This is the essence of its right to be
subrogated to the rights of the insured, as expressly provided in Article 2207. Upon payment of
the loss incurred by the insured, the insurer is entitled to be subrogated pro tanto to any right of
action which the insured may have against the third person whose negligence or wrongful act
caused the loss [Fireman's Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L-27427, April 7,
1976, 70 SCRA 323.]
Under Article 2207, the real party in interest with regard to the indemnity received by the
insured is the insurer [Phil. Air Lines, Inc. v. Heald Lumber Co., 101 Phil. 1031, (1957).] Whether
or not the insurer should exercise the rights of the insured to which it had been subrogated lies
solely within the former's sound discretion. Since the insurer is not a party to the case, its
identity is not of record and no claim is made on its behalf, the private respondent's insurer has
to claim his right to reimbursement of the P35,000.00 paid to the insured.
WHEREFORE, in view of the foregoing, the decision of the Court of Appeals is hereby
AFFIRMED with the following modifications as to the damages awarded for the loss of private
respondents' house, considering their receipt of P35,000.00 from their insurer: (1) the damages
awarded for the loss of the house is reduced to P35,000.00; and (2) the right of the insurer to
subrogation and thus seek reimbursement from petitioner for the P35,000.00 it had paid private
respondents is recognized.
SO ORDERED. prLL
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
||| (F.F. Cruz v. Court of Appeals, G.R. No. 52732, [August 29, 1988])
SECOND DIVISION
[G.R. No. 107968. October 30, 1996.]
ELIAS S. CIPRIANO and/or E. S. CIPRIANO
ENTERPRISES, petitioner, vs. THE COURT OF APPEALS and MACLIN
ELECTRONICS, INC., respondents.
221
Jose F. Manacop for petitioner.
O.F. Santos & P.C. Nolasco for private respondent.
SYLLABUS
1. CIVIL LAW; QUASI-DELICTS; A VIOLATION OF A STATUTORY DUTY IS NEGLIGENCE PER
SE. We have already held that violation of a statutory duty is negligence per se. In F.F .Cruz
and Co., Inc. vs. Court of Appeals, we held the owner of a furniture shop liable for the
destruction of the plaintiff's house in a fire which started in his establishment in view of his
failure to comply with an ordinance which required the construction of a firewall. In Teague
vs. Fernandez, we stated that where the very injury which was intended to be prevented by the
ordinance has happened, non-compliance with the ordinance was not only an act of
negligence, but also the proximate cause of the death. Indeed, the existence of a contract
between petitioner and private respondent does not bar a finding of negligence under the
principles of quasi-delict, as we recently held in Fabre vs. Court of Appeals. Petitioner's
negligence is the source of his obligation. He is not being held liable for breach of his
contractual obligation due to negligence but for his negligence in not complying with a duty
imposed on him by law. It is therefore immaterial that the loss occasioned to private respondent
was due to a fortuitous event, since it was petitioner's negligence in not insuring against the
risk which was the proximate cause of the loss.
2. ID.; DAMAGES; AWARD OF ATTORNEY'S FEES; THE REASONS OR GROUNDS THEREFOR
MUST BE STATED IN THE TEXT OF THE DECISION. We think that the Court of Appeals
erred in sustaining the award of attorney's fees by the lower court. It is now settled that the
reasons or grounds for an award of attorney's fees must be set forth in the decision of the
court. They cannot be left to inference as the appellate court held in this case. The reason for
this is that it is not sound policy to penalize the right to litigate. An award of attorney's fees,
being an exception to this policy and limited to the grounds enumerated in the law, must be
fully justified in the decision. It can not simply be inserted as an item of recoverable damages in
the judgment of the court. Since in this case there is no justification for the award of attorney's
fees in the decision of the trial court, it was error for the Court of Appeals to sustain such
award.
DECISION
MENDOZA, J p:
This is a petition for review of the decision 1 of the Court of Appeals in CA-G.R. CV No. 36045
which affirmed in toto the decision of Branch 58 2 of the Quezon City Regional Trial Court,
ordering the petitioner to pay P252,155.00 to private respondent for the loss of the latter's
vehicle while undergoing rustproofing and P10,000.00 in attorney's fees.
The facts of the case are as follows:
Petitioner Elias S. Cipriano is the owner of E.S. Cipriano Enterprises, which is engaged in the
rustproofing of vehicles, under the style Mobilkote. On April 30, 1991, private respondent
Maclin Electronics, Inc., through an employee, brought a 1990 model Kia Pride People's car to

petitioner's shop for rustproofing. The car had been purchased the year before from the
Integrated Auto Sales , Inc. for P252,155.00.
The vehicle was received in the shop under Job Order No. 123581, 3 which showed the date it
was received for rustproofing as well its condition at the time. Neither the time of acceptance
nor the hour of release, however, was specified. According to the petitioner, the car was
brought to this shop at 10 o'clock in the morning of April 30, 1991 and was ready for release
later that afternoon, as it took only six hours to complete the process of rustproofing.
In the afternoon of May 1, 1991, fire broke out at the Lambat restaurant, which petitioner also
owned, adjoining his Mobilkote rustproofing shop. The fire destroyed both the shop and the
restaurant, including private respondents' Kia Pride. The car had been kept inside the building,
allegedly to protect it from theft. Petitioner claimed that despite efforts to save the vehicle, there
was simply not enough time to get it out of the building, unlike three other cars which had been
saved because they were parked near the entrance of the garage. 4
On May 8, 1991, private respondent sent a letter to petitioner, demanding reimbursement for
the value of the Kia Pride. In reply, petitioner denied liability on the ground that the fire was a
fortuitous event. This prompted private respondent to bring this suit for the value of its vehicle
and for damages against petitioner. Private respondent alleged that its vehicle was lost due to
the negligence and imprudence of the petitioner, citing petitioner's failure to register his
business with the Department of Trade and Industry under P.D. No. 1572and to insure it as
required in the rules implementing the Decree. 5
In his Answer, petitioner invoked Art. 1174 of the Civil Code and denied liability for the loss
which he alleged was due to a fortuitous event. He later testified that he employed an
electrician who regularly inspected the lighting in his restaurant and rustproofing shop. In
addition, he claimed he had installed fire-fighting devices and that the fire was an accident
entirely independent of his will and devoid of any negligence on his part. He further averred that
private respondent's car was ready for release as early as afternoon of April 30, 1991 and that it
was private respondent's delay in claiming it that was the cause of the loss.
Petitioner explained that rustproofing involved spraying asphalt-like materials underneath a
motor vehicle so that rust will not corrode its body and that the materials and chemicals used
for this purpose are not inflammable. Therefore, he could not be made to assume the risk of
loss due to fire. He also claimed that he was not required to register his business with the
Department of Trade and Industry, because he was not covered by P.D. No. 1572.
On the other hand, private respondent argued that petitioner was liable for the loss of the car
even if it was caused by a fortuitous event. It contended that the nature of petitioner's business
required him to assume the risk because under P.D. No. 1572, petitioner was required to insure
his property as well as those of his customers.
The trial court sustained the private respondent's contention that the "failure of defendant to
comply with P.D. No. 1572 is in effect a manifest act of negligence which renders defendant
[petitioner herein] liable for the loss of the car even if the same was caused by fire," 6 even as it
ruled that the business of rustproofing is "definitely covered" by P.D. No. 1572. Since petitioner
did not register his business and insure it, he must bear the cost of loss of his customers. As
already noted, the court ordered petitioner to pay private respondent P252,155.00 with interest
at 6% per annum from the filing of the case and attorney's fees in the amount of P10,000.00.
On appeal, the decision was affirmed. The Court of Appeals ruled that the provisions of the Civil
Code relied upon by the petitioner are not applicable to this case, and that the law applicable to
the case is P.D. No. 1572, the purpose of which is to protect customers who entrust their
properties to service and repair enterprises. The Court of Appeals held that by virtue of the
provisions of P.D. No. 1572 and its implementing rules and regulations which require fire
222
insurance coverage prior to accreditation, owners of service and repair enterprises
assume the risk of loss of their customer's property. The appellate court stated:
Defendant-appellant was operating the business of rustproofing of cars and other motor
vehicles illegally at the time of the fire in question; i.e. without the necessary accreditation and
license from the Department of Trade and Industry, and it is for this reason that it did not carry
at least a fire insurance coverage to protect the vehicles entrusted to it by its customers.
Therefore, it must bear the consequences of such illegal operation, including the risk of losses
or injuries to the vehicles of its customers brought about by unforeseen or fortuitous events like
the fire that gutted its shop and completely burned appellee's car while said vehicle was in its
possession. 7
The Court of Appeals also affirmed the award of attorney's fees, ruling that although the lower
court did not expressly and specifically state the reason for the award, the basis therefore could
be inferred from the finding that petitioner unjustly refused to pay private respondent's valid
and demandable claim. Said the appellate court:
Such wanton, reckless, and illegal operation of appellant's business resulted in appellee's lack
of protection from the fire that gutted appellant's shop and which completely burned its car
while in appellant's possession for rustproofing. Yet appellant adamantly and stubbornly
refused to pay appellee the value of its lost car. It was, therefore, correctly ordered by the
court a quo to pay appellee reasonable attorney's fees as it had unjustly and unreasonably
refused to satisfy the latter's plainly valid, just, and demandable claim, compelling said appellee
to file this action to protect its interests (Art. 2208, pars. (2) and (5), New Civil Code). 8
Hence, this appeal. Petitioner contends that the fire which destroyed private respondent's car
was a fortuitous event for which he cannot be held responsible. In support of his argument, he
cites the following provisions of the Civil Code:
ART. 1174. Except in cases expressly specified by the law, or when it is
otherwise declared by stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen, or which, though foreseen, were
inevitable.
ART. 1262. An obligation which consists in the delivery of a determinate
thing shall be extinguished if it should be lost or destroyed without the
fault of the debtor, and before he has incurred in delay.
When by law or stipulation, the obligor is liable even for fortuitous
events, the loss of the thing does not extinguish the obligation, and he
shall be responsible for damages. The same rule applies when the nature
of the obligation requires the assumption of risk.
The contention is without merit. The issue in this case is whether petitioner was required to
insure his business and the vehicles received by him in the course of his business and, if so,
whether his failure to do so constituted negligence, rendering him liable for loss due to the risk
required to be insured against. We hold that both questions must be answered in the
affirmative.
We have already held that violation of a statutory duty is negligence per se. In F.F. Cruz and
Co., Inc. v. Court of Appeals, 9 we held the owner of a furniture shop liable for the destruction
of the plaintiff's house in a fire which started in his establishment in view of his failure to comply
with an ordinance which required the construction of a firewall. In Teague v. Fernandez, 10 we
stated that where the very injury which was intended to be prevented by the ordinance has

happened, non-compliance with the ordinance was not only an act of negligence, but also the
proximate cause of the death.
Indeed, the existence of a contract between petitioner and private respondent does not bar a
finding of negligence under the principles of quasi-delict, as we recently held in Fabre v. Court
of Appeals. 11 Petitioner's negligence is the source of his obligation. He is not being held liable
for breach of his contractual obligation due to negligence but for his negligence in not
complying with a duty imposed on him by law. It is therefore immaterial that the loss
occasioned to private respondent was due to a fortuitous event, since it was petitioner's
negligence in not insuring against the risk which was the proximate cause of the loss.
Thus, P.D. No. 1572, 1 requires service and repair enterprises for motor vehicles, like that of
petitioner's, to register with the Department of Trade and Industry. As condition for such
registration or accreditation, Ministry Order No. 32 requires covered enterprises to secure
insurance coverage. Rule III of this Order provides in pertinent parts. 12
1 REQUIREMENTS FOR ACCREDITATION
1) Enterprise applying for original accreditation shall submit the following:
1.1. List of machineries/equipment/tools in useful condition;
1.2. List of certified engineers/accredited technicians
mechanics with their personal data;
1.3. Copy of insurance Policy of the shop covering the property
entrusted by its customer for repair, service or
maintenance together with a copy of the official
receipt covering the full payment of premium;
1.4. Copy of Bond referred to under Section 7, Rule III of this
Rules and Regulations;
1.5. Written service warranty in the form prescribed by the
Bureau;
1.6. Certificate issued by the Securities and Exchange
Commission and Articles of Incorporation or
Partnership in case of corporation or partnership;
1.7. Such other documents which the Director may require
from time to time.
8 INSURANCE POLICY
The insurance policy for the following risks like theft, pilferage, fire, flood
and loss should cover exclusively the machines, motor vehicles, heavy
equipment, engines, electronics, electrical, airconditioners, refrigerators,
office machines and data processing equipment, medical and dental
equipment, other consumer mechanical and industrial equipment stored
for repair and/or service in the premises of the applicant.
There is thus a statutory duty imposed on petitioner and it is for his failure to comply with this
duty that he was guilty of negligence rendering him liable for damages to private respondent.
While the fire in this case may be considered a fortuitous event, 13 this circumstance cannot
exempt petitioner from liability for loss.
223
We think, however, that the Court of Appeals erred in sustaining the award of attorney's
fees by the lower court. It is now settled that the reasons or grounds for an award of attorney's
fees must be set forth in the decision of the court. 14 They cannot be left to inference as the
appellate court held in this case. The reason for this is that it is not sound policy to penalize the
right to litigate. An award of attorney's fees being an exception to this policy and limited to the
grounds enumerated in the law, 15 must be fully justified in the decision. It can not simply be
inserted as an item of recoverable damages in the judgment of the court. Since in this case
there is no justification for the award of attorney's fees in the decision of the trial court, it was
error for the Court of Appeals to sustain such award.
WHEREFORE, the decision, dated November 18, 1992, of the Court of Appeals is AFFIRMED,
with the modification that the award of attorney's fees is DELETED.
SO ORDERED.
Regalado, Romero, Puno, and Torres, Jr., JJ ., concur.
||| (Cipriano v. Court of Appeals, G.R. No. 107968, [October 30, 1996], 331 PHIL 1019-1028)
SECOND DIVISION
[G.R. No. 119092. December 10, 1998.]
SANITARY STEAM LAUNDRY, INC., petitioner, vs. THE COURT OF
APPEALS, NICANOR BERNABE III, JOSEFINA BERNABE, in their
individual capacities and as HEIRS OF JASON BERNABE, JOHN
JOSEPH BERNABE, VICTOR IGNACIO, JULIETA ENRIQUEZ and
RAMON ENRIQUEZ, RENE TABLANTE, LEOMAR MACASPAC, JR.,
CHARITO ESTOLANO, NENITA SALUNOY, in their individual
capacities and as HEIRS OF DALMACIO SALUNOY, respondents.
SYLLABUS
1. CIVIL LAW; QUASI-DELICTS; NEGLIGENCE CONSISTING OF VIOLATION OF
LAW IS WITHOUT LEGAL CONSEQUENCE UNLESS IT IS THE CONTRIBUTING CAUSE
OF THE INJURY. First of all it has not been shown how the alleged negligence of the
Cimarron driver contributed to the collision between the vehicles. Indeed, petitioner has
the burden of showing a causal connection between the injury received and the violation
of the Land Transportation and Traffic Code. He must show that the violation of the statute
was the proximate or legal cause of the injury or that it substantially contributed thereto.
Negligence, consisting in whole or in part, of violation of law, like any other negligence, is
without legal consequence unless it is a contributing cause of the injury. Petitioner says
that "driving an overloaded vehicle with only one functioning headlight during nighttime
certainly increases the risk of accident," that because the Cimarron had only one
headlight, there was "decreased visibility," and that the fact that the vehicle was
overloaded and its front seat overcrowded "decreased [its] maneuverability." However,
mere allegations such as these are not sufficient to discharge its burden of proving clearly
that such alleged negligence was the contributing cause of the injury. cdasia

2. ID.; ID.; REQUIREMENT OF PASSING PSYCHOLOGICAL AND PHYSICAL
TESTS PRIOR TO EMPLOYMENT, A RELIABLE INDICATOR OF EXERCISE OF DUE
DILIGENCE. The petitioner's contention has no merit. The Court of Appeals did not say
that petitioner's failure to submit NBI and police clearances of its driver was proof that
petitioner failed to exercise due diligence in the selection of its employees. What the Court
of Appeals said was that petitioner's policy of requiring prospective employees to submit
NBI and police clearance and to have at least two (2) years experience as driver prior to
employment was not enough to prove the exercise of due diligence and that even this
policy petitioner failed to prove by its failure to present the driver's NBI and police records
during the trial. With respect to the requirement of passing psychological and physical
tests prior to his employment, although no law requires it, such circumstance would
certainly be a reliable indicator of the exercise of due diligence.
3. ID.; ID.; EMPLOYERS MUST EXERT EXTRA CARE IN THE SELECTION AND
SUPERVISION OF THEIR EMPLOYEE DRIVER. Indeed, driving exacts a more than
usual toll on the senses. Accordingly, it behooves employers to exert extra care in the
selection and supervision of their-employees. They must go beyond the minimum
requirements fixed by law. In this case, David Bautista, the office manager of petitioner in
its Dasmarias plant, said that petitioner has a policy of requiring job applicants to submit
clearances from the police and the NBI. In the case of the applicants for the position of
driver they are required to have at least two (2) years driving experience and to be holders
of a professional driver's license for at least two years. But the supposed company
policies on employment were not in writing. Nor did Bautista show in what manner he
supervised the drivers to ensure that they drove their vehicles in a safe way.
4. ID.; DAMAGES; ACTUAL DAMAGES; COMPETENT PROOF OF THE ACTUAL
AMOUNT OF LOSS, REQUIRED TO JUSTIFY AWARD THEREOF. With respect to the
question of damages, we find no reversible error committed in the award of actual
damages to private respondents. To justify an award of actual damages, there must be
competent proof of the actual amount of loss. Credence can be given only to claims which
are duly supported by receipts. Here, the actual damages claimed by private respondents
were duly supported by receipts and appear to have been really incurred.
5. ID.; ID.; MORAL DAMAGES; AWARDED TO ALLEVIATE MORAL SUFFERING
UNDERGONE DUE TO DEFENDANT'S CULPABLE ACTION. As to the moral damages
awarded, we find them to be reasonable and necessary in view of the circumstances of
this case. Moral damages are awarded to allow the victims to obtain means, diversion, or
amusement to alleviate the moral suffering they had undergone due to the defendants
culpable action. In this case, private respondents doubtless suffered some ordeal because
some of them lost their loved ones, while others lost their future. Within the meaning of Art.
2217 of the Civil Code, they suffered sleepless nights, mental anguish, serious anxiety,
and wounded feelings. An award of moral damages in their favor is thus justified. TEcHCA
6. ID.; ID.; INDEMNITY FOR LOSS OF EARNING CAPACITY, COMPUTATION
THEREOF; P50,000.00 DEATH INDEMNITY, PROPER IN CASE AT BAR. The award of
P50,000.00 to the heirs of Jason Bernabe as death indemnity is likewise in accordance
with law. However, the award of P100,000 to the heirs of Dalmacio Salunoy, denominated
in the decision of the trial court as "moral damages and unearned income" cannot be
upheld. The heirs were already included among those awarded moral damages. Marilyn
Salunoy was ordered to be paid P10,000. Jack Salunoy, P10,000, and their mother Nenita
Salunoy, P20,000, as moral damages. The amount of P100,000 was presumably awarded
primarily for loss of earning capacity but even then the amount must be modified. In
accordance with our cases on this question, the formula for determining the life
expectancy of Dalmacio Salunoy must be determined by applying the formula 2/3
multiplied by (80 minus the age of the deceased). Since Salunoy was 46 years of age at
the time of his death, as stated in his death certificate, then his life expectancy was 22.6
years, or up to 68 years old. Next, his net earnings must be computed. At the time of his
224
death, Dalmacio Salunoy was earning more than P900.00 a month as bookkeeper at
the PMCI so that his annual gross earnings was about P11,000.00. From this amount,
about 50% should be deducted as reasonable and necessary living expenses because it
seems his wife occasionally finds work and thus helps in the household expenses. Based
on the foregoing, his net earning capacity was P124,300.00 computed as follows:
net earning life Gross reasonable/
capacity (x) = expectancy x annual less necessary
income living
expenses
x = [2/3(80-46)] x [P11,00-P5,500]
= 22.6 x 5,500
= P124,300.00.
In addition, the heirs of Dalmacio Salunoy should be paid P50,000.00 as death
indemnity.
7. ID.; ID.; ATTORNEY'S FEES; AWARD THEREOF MUST BE BASED ON
FINDINGS OF FACT AND LAW. The award of attorney's fees should be disallowed as
the trial court did not give any justification for granting it in its decision. It is now settled
that awards of attorney's fees must be based on findings of fact and law, stated in the
decision of the trial court. EcHIAC
DECISION
MENDOZA, J p:
This case involves a collision between a Mercedes Benz panel truck of petitioner
Sanitary Steam Laundry and a Cimarron which caused the death of three persons and the
injuries of several others. The accident took place at the Aguinaldo Highway in Imus,
Cavite on August 31, 1980. All the victims were riding in the Cimarron. One of those who
died was the driver. The Regional Trial Court of Makati found petitioner's driver to be
responsible for the vehicular accident and accordingly held petitioner liable to private
respondents for P472,262.30 in damages and attorney's fees. Its decision was affirmed in
toto by the Court of Appeals. It is here for a review of the appellate court's decision. LLphil
The passengers of the Cimarron were mostly employees of the Project
Management Consultants, Inc. (PMCI). They had just visited the construction site of a
company project at Lian, Batangas. The other passengers were family members and
friends whom they invited to an excursion to the beach after the visit to the construction
site. The group stayed at Lian beach until 5:30 p.m., when they decided to go back to
Manila. LLjur
The Cimarron, with Plate No. 840-4J, was owned by Salvador Salenga, father of
one of the employees of PMCI. Driving the vehicle was Rolando Hernandez. It appears
that at about 8:00 p.m., as it was traveling along Aguinaldo Highway in Imus, Cavite on its
way back to Manila, the Cimarron was hit on its front portion by petitioner's panel truck,
bearing Plate No. 581 XM, which was traveling in the opposite direction. The panel truck
was on its way to petitioner's plant in Dasmarias, Cavite after delivering some linen to the
Makati Medical Center. The driver, Herman Hernandez, claimed that a jeepney in front of
him suddenly stopped. He said he stepped on the brakes to avoid hitting the jeepney and
 225
that this caused his vehicle to swerve to the left and encroach on a portion of the opposite The foregoing considered, judgment is rendered in favor of
lane. As a result, his panel truck collided with the Cimarron on the north-bound lane. plaintiffs ordering defendant to pay the amounts aforecited and to pay
the further sum of P50,000.00 for attorney's fees and the costs.
The driver of the Cimarron, Rolando Hernandez, and two of his passengers,
namely, Jason Bernabe and Dalmacio Salunoy, died. Several of the other passengers of SO ORDERED.
the Cimarron were injured and taken to various hospitals.
As already stated, the Court of Appeals, to which the decision of the trial court
On December 4, 1980, private respondents filed this civil case for damages was appealed, affirmed the decision on January 26, 1995. Hence, this appeal. prcd
before the then Court of First Instance of Rizal, Pasig Branch, against petitioner. cdll
First. Petitioner contends that the driver of the Cimarron was guilty of
On November 23, 1990, the Regional Trial Court of Makati, to which the case contributory negligence and, therefore, its liability should be mitigated, if not totally
was transferred following the reorganization of the judiciary, rendered judgment for private extinguished. It claims that the driver of the Cimarron was guilty of violation of traffic rules
respondents. The dispositive portion of its decision reads: and regulations at the time of the mishap. Hence, in accordance with Art. 2185 of the Civil
Code, he was presumed to be negligent.
It is for the reasons stated above that the court is persuaded
to award the damages incurred by the plaintiffs as proved in the trial According to petitioner, the negligence consisted of the following:
as follows:
1. The Cimarron was overloaded because there were from 20 to 25 passengers
Actual or compensatory expenses: LexLib inside when the passenger capacity of the vehicle was only 17.
a. Charito Estolano P35,813.87 (Exh. J) 2. The front seat of the Cimarron was occupied by four adults, including the
b. Nicanor Bernabe III 20,024.94 driver.
& Josefina C. Bernabe
c. Julieta, Ailyn & 45,830.45 (Exh. QQ) 3. The Cimarron had only one headlight on (its right headlight) as its left
Josefina Enriquez headlight was not functioning.
and Josefina Valerio Petitioner cites Art. III, 2 of R.A. No. 4136, known as the Land Transportation
d. Leonor Macaspac 2,740.00 and Traffic Code, which provides that "No person operating any vehicle shall allow more
e. Victor Rey Ignacio 14,820.64 (Exh. EEE) passengers or more freight or cargo in his vehicle than its registered carry capacity" and
f. Rene Tablante 10,032.40 (Exh. QQQ) Art. IV, 3(e) which states that "Every motor vehicle of more than one meter of projected
g. Nenita Salonoy, widow; 20,000.00 width, while in use on any public highway shall bear two headlights . . . which not later
and Jack & Manilyn, LexLib than one-half hour after sunset and until at least one-half hour before sunrise and
children whenever weather conditions so require, shall both be lighted." cda
Moral damages should also be awarded as follows: Petitioner asserts that the fact that its panel truck encroached on a portion of
For the injuries sustained by: the lane of the Cimarron does not show that its driver was negligent. Petitioner cites the
case of Bayasen v. Court of Appeals 1 which allegedly held that the sudden swerving of a
a. Charito Estolano P10,000.00 (Exh. F) vehicle caused by its driver stepping on the brakes is not negligence per se. Petitioner
b. Julieta P. Enriquez 15,000.00 (Exh. MM) further claims that even if petitioner's swerving to the lane of respondents were considered
c. Ailyn C. Enriquez 8,000.00 (Exh. NN) proof of negligence, this fact would not negate the presumption of negligence on the part
d. Josefina R. Enriquez 10,000.00 (Exh. OO) of the other driver arising from his violations of traffic rules and regulations.
e. Josefina P. Valerio 2,000.00 (Exh. PP)
f. Nenita Salonoy 20,000.00 (Exh. DD) Petitioner likewise invokes the ruling in Mckee v. Intermediate Appellate
g. Nicanor Bernabe III 8,000.00 (Exh. Q) Court, 2 in which a driver who invaded the opposite lane and caused a collision between
h. Josephine Bernabe 2,000.00 (Exh. R) his car and a truck coming from the opposite lane, was exonerated based on the doctrine
i. John Joseph Bernabe 10,000.00 of last clear chance, which states that a person who has the last clear chance or
j. Manilyn G. Salonoy 10,000.00 (Exh. EE) opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent, is
k. Jack Salonoy 10,000.00 (Exh. JJ) solely responsible for the consequences of the accident. LLphil
l. Leonor C. Macaspac 2,000.00 (Exh. AAA) Petitioner contends that the ruling in that case should be applied to the present
m. Victor Ignacio 8,000.00 (Exh. DDD) case. According to petitioner, although the driver of the panel truck was initially negligent,
n. Rene Tablante 8,000.00 (Exh. FFF) the driver of the Cimarron had the last opportunity to avoid the accident. However,
and finally the heirs of Jason Bernabe should be awarded because of his negligence (i.e., the aforementioned violations of traffic rules and
the sum of P50,000.00 for the latter's death. The heirs of Dalmacio regulations such as the use of only one headlight at night and the overcrowding at the
Salunoy should be given the sum of P100,000.00 for moral damages front seat of the vehicle), he was not able to avoid a collision with the panel truck. cdll
and unearned income. prcd We find the foregoing contention to be without merit.
First of all, it has not been shown how the alleged negligence of the Cimarron
driver contributed to the collision between the vehicles. Indeed, petitioner has the burden
 226
of showing a causal connection between the injury received and the violation of the Land A: Towards us.
Transportation and Traffic Code. He must show that the violation of the statute was the
proximate or legal cause of the injury or that it substantially contributed thereto. xxx xxx xxx
Negligence, consisting in whole or in part, of violation of law, like any other negligence, is
Q: And from what did those glare of light come from?
without legal consequence unless it is a contributing cause of the injury. 3 Petitioner says
that "driving an overloaded vehicle with only one functioning headlight during nighttime A: Based on information I received, the light came from the headlights of
certainly increases the risk of accident," 4 that because the Cimarron had only one a certain panel owned by Sanitary Steam Laundry, Inc.
headlight, there was "decreased visibility," and that the fact that the vehicle was
overloaded and its front seat overcrowded "decreased [its] maneuverability." 5 However, xxx xxx xxx
mere allegations such as these are not sufficient to discharge its burden of proving clearly
that such alleged negligence was the contributing cause of the injury. cdll Q: You said that the lights were going towards you. Now, at what pace
did these lights come toward you? LexLib
Furthermore, based on the evidence in this case, there was no way either driver
could have avoided the collision. The panel truck driver testified: 6 A: Fast pace."
Q. You stated you were following a jeepney along the highway in Imus, Charito Estolano, another passenger who was seated in front of the Cimarron,
Cavite, what happened afterwards, if any? similarly testified that they just saw the panel truck hurtling toward them. She said: 8
A. The passenger jeepney I was following made a sudden stop so I Q Now, you said earlier that you were involved in an accident. What was
stepped on the brakes. that accident?

Q. Upon stepping on your brakes, what happened if any? A An approaching vehicle hit us.

A. The Mercedes Benz (panel) suddenly swerved to the left, sir. Q Now, why do you know that there was the approaching vehicle?

Q. How big was the swerving to the left? A There was a light which glared us and I knew that it came from a
vehicle. We were blinded.
A. The distance which my vehicle swerved beyond the middle line or
center line to the left was about this distance, sir (witness Q Where was this vehicle headed for? LibLex
demonstrating by using both hands the distance). prLL
A Headed for Cavite.
ATTY. ALILING
Q Coming from?
Can we stipulate that it is 1 foot. Your Honor.
A Coming from Manila, I think.
ATTY. GONZALES:
Q So that, actually, in relation to your vehicle, it was coming from the
A little more, 1 1/2 feet. opposite direction?

ATTY. ALILING: A Yes, sir.

1 1/4 feet. Q Now, you said that the light headed towards your vehicle. On which
side of the highway was your Tamaraw vehicle travelling at
ATTY. GONZALES: that time?
Between 1 1/4 and 1 1/2 feet. A We were on the right lane.
The panel truck driver's testimony is consistent with the testimonies of private Q Did you actually see this light from the vehicle coming from the
respondents that the panel truck went out of control and simply smashed into the opposite direction heading towards your vehicle?
Cimarron in which they were riding. Thus, Nicanor Bernabe III testified: 7
A Yes. sir. LLjur
Q: And did you see how the accident happened?
Q And what happened after that?
A: I just saw a glare of light. That is all and then the impact.
A After that, that was an impact.
Q: Where did you see that glare of light? cdphil
Q All right. Will you tell the Court which bumped which?
A: Coming in front ahead of us.
A We were bumped by the vehicle which was coming from the opposite
Q: When you say ahead of you, was it . . . ?
direction.

The foregoing testimonies show that the driver of the panel truck lost control of
his vehicle and bumped the Cimarron. Hence, even if both headlights of the Cimarron
were lighted, it would have been bumped just the same because the driver of the panel
truck could not stop despite the fact that he applied the brakes. Petitioner's contention
that because of "decreased visibility," caused by the fact that the Cimarron allegedly had
only one headlight on, its driver failed to see the Cimarron is without any basis in fact. Only
its driver claimed that the Cimarron had only one headlight on. The police investigator did
not state in his report or in his testimony that the Cimarron had only one headlight on.
Nor is there any basis in fact for petitioner's contention that because of
overcrowding in the front seat of the Cimarron there was "decreased maneuverability"
which prevented the Cimarron driver from avoiding the panel truck. There is absolutely no
basis for this claim. There is nothing in the testimonies of the passengers of the Cimarron,
particularly Charito Estolano, who was seated in front, which suggest that the driver had
no elbow room for maneuvering the vehicle. To the contrary, from the testimony of some
of the witnesses, 9 it appears that the driver of the Cimarron tried to avoid the collision but
because of the emergency created by the speeding panel truck coming from the opposite
direction he was not able to fully move his Cimarron away from the path of the oncoming
vehicle. We are convinced that no "maneuvering" which the Cimarron driver could have
done would have avoided a collision with the panel truck, given the suddenness of the
events. Clearly, the overcrowding in the front seat was immaterial. Cdpr
All these point to the fact that the proximate cause of the accident was the
negligence of petitioner's driver. As the trial court noted, the swerving of petitioner's panel
truck to the opposite lane could mean not only that petitioner's driver was running the
vehicle at a very high speed but that he was tailgating the passenger jeepney ahead of it
as well.
Petitioner's driver claimed that the distance between the panel truck and the
passenger jeepney in front was about 12 meters. 10 If this was so, he would have had no
difficulty bringing his panel truck to a stop. It is very probable that the driver did not really
apply his brakes (which is why there were no skid marks) but that finding the jeepney in
front of him to be in close proximity, he tried to avoid hitting it by swerving his vehicle to
the left. In the process, however, he invaded a portion of the opposite lane and
consequently hit the Cimarron. Indeed, the panel truck driver testified that his vehicle was
running at the speed of 60 miles per hour. 11 He tried to correct himself when asked by
petitioner's counsel whether the panel truck speedometer indicated miles or kilometers by
saying that the speedometer measured kilometers and not miles, but on cross examination
his testimony got muddled. 12
Be that as it may, whether the driver meant 60 miles per hour (which could be
96.77 kilometers per hour) or 60 kilometers per hour, the fact remains that the panel truck
was overspeeding because the maximum allowable speed for trucks and buses on open
country roads, such as the Aguinaldo Highway in Imus, Cavite, is only 50 kilometers per
hour. 13
The case of Bayasen, which petitioner invokes, cannot apply to this case. There
was no swerving of the vehicle in that case but skidding, and it was caused by the fact
that the road was wet and slippery. In this case, the road was dry and safe. There was no
reason for the vehicle to swerve because of road condition. The only explanation for this
occurrence was human error.
Petitioner's reliance on the McKee case is also misplaced. In that case, the
driver of the vehicle at fault, a truck, had an opportunity to avoid the collision but he
ignored the signals from the other vehicle, a car, to slow down and allow it to safely pass
the bridge. In this case, there was no such opportunity given the Cimarron on the night of
227
the mishap. Everything happened so quickly that before the passengers of the
Cimarron knew it, the vehicle had been bumped by the truck. cdll
Second. On its liability as employer of the negligent driver, petitioner contends
that the non-submission of the NBI clearance and police clearance of its driver does not
mean that it failed to exercise the diligence of a good father of the family in the selection
and supervision of its employees. It argues that there is no law requiring employees to
submit NBI and police clearance prior to their employment. Hence, petitioner's failure to
require submission of these documents does not mean that it did not exercise due
diligence in the selection and supervision of its employees. On the other hand, it asserts
that its employment of Herman Hernandez as a driver means that he had passed the
screening tests of the company, including submission of the aforementioned documents.
Petitioner maintains that the presumption is that the said driver submitted NBI and police
clearance.
Petitioner likewise contends that the Court of Appeal's position that it failed to
exercise due diligence in the selection and supervision of its employees by not requiring its
prospective employees to undergo psychological and physical tests before employment
has no basis in law because there is no law requiring such tests prior to hiring
employees.llcd
The petitioner's contention has no merit. The Court of Appeals did not say that
petitioner's failure to submit NBI and police clearances of its driver was proof that
petitioner failed to exercise due diligence in the selection of its employees. What the Court
of Appeals said was that petitioner's policy of requiring prospective employees to submit
NBI and police clearance and to have at least two (2) years experience as driver prior to
employment was not enough to prove the exercise of due diligence and that even this
policy petitioner failed to prove by its failure to present the driver's NBI and police records
during the trial. prcd
With respect to the requirement of passing psychological and physical tests
prior to his employment, although no law requires it, such circumstance would certainly be
a reliable indicator of the exercise of due diligence. As the trial court said: 14
. . . No tests of skill, physical as well as mental and
emotional, were conducted on their would-be employees. No on-the-
job training and seminars reminding employees, especially drivers, of
road courtesies and road rules and regulations were done. There were
no instructions given to defendant's driver's as to how to react in
cases of emergency nor what to do after an emergency occurs. There
was even failure on the part of defendant to present its concerned
employee's 204 file. All these could only mean failure on the part of
defendant to exercise the diligence required of it of a good father of a
family in the selection and supervision of its employees.
Indeed, driving exacts a more than usual toll on the senses. 15 Accordingly, it behooves
employers to exert extra care in the selection and supervision of their employees. They
must go beyond the minimum requirements fixed by law. In this case, David Bautista, the
office manager of petitioner in its Dasmarias plant, said that petitioner has a policy of
requiring job applicants to submit clearances from the police and the NBI. In the case of
applicants for the position of driver they are required to have at least two (2) years driving
experience and to be holders of a professional driver's license for at least two years. But
the supposed company policies on employment were not in writing. Nor did Bautista show
in what manner he supervised the drivers to ensure that they drove their vehicles in a safe
way.
Third. With respect to the question of damages, we find no reversible error
committed in the award of actual damages to private respondents. To justify an award of
 228
actual damages, there must be competent proof of the actual amount of loss. Credence Salunoy and the award of P50,000.00 for attorney's fees is disallowed. In all other
can be given only to claims which are duly supported by receipts. 16 Here, the actual respects the appealed decision is AFFIRMED. LLjur
damages claimed by private respondents were duly supported by receipts and appear to
have been really incurred. cda SO ORDERED.

As to the moral damages awarded, we find them to be reasonable and Bellosillo, Puno and Martinez, JJ ., concur.
necessary in view of the circumstances of this case. Moral damages are awarded to allow ||| (Sanitary Steam Laundry, Inc. v. Court of Appeals, G.R. No. 119092, [December 10, 1998],
the victims to obtain means, diversion, or amusement to alleviate the moral suffering they 360 PHIL 199-217)
had undergone due to the defendant's culpable action. 17 In this case, private
respondents doubtless suffered some ordeal because some of them lost their loved ones,
while others lost their future. Within the meaning of Art. 2217 of the Civil Code, they
suffered sleepless nights, mental anguish, serious anxiety, and wounded feelings. An EN BANC
award of moral damages in their favor is thus justified.
The award of P50,000.00 to the heirs of Jason Bernabe as death indemnity is [G.R. No. L-11394. September 9, 1958.]
likewise in accordance with law. 18 However, the award of P100,000 to the heirs of
Dalmacio Salunoy, denominated in the decision of the trial court as "moral damages and
unearned income" cannot be upheld. The heirs were already included among those MANUEL S. ARANETA, ET AL., plaintiffs-appellants, vs.
awarded moral damages. Marilyn Salunoy was ordered to be paid P10,000, Jack Salunoy, JUAN ARREGLADO, ET AL., defendants-appellees.
P10,000, and their mother Nenita Salunoy, P20,000, as moral damages. The amount of
P100,000 was presumably awarded primarily for loss of earning capacity but even then the
amount must be modified. In accordance with our cases 19 on this question, the formula Honorio Poblador, Jr., Paredes, Balcoff & Poblador and Andal, Endaya
for determining the life expectancy of Dalmacio Salunoy must be determined by applying & Araneta for appellants.
the formula 2/3 multiplied by (80 minus the age of the deceased). Since Salunoy was 46
years of age at the time of his death, as stated in his death certificate, then his life Laurel Law Offices for appellees.
expectancy was 22.6 years, or up to 68 years old. LLphil
Next, his net earnings must be computed. At the time of his death, Dalmacio
Salunoy was earning more than P900.00 a month as bookkeeper at the PMCI so that his SYLLABUS
annual gross earnings was about P11,000.00. From this amount, about 50% should be
deducted as reasonable and necessary living expenses because it seems his wife
occasionally finds work and thus helps in the household expenses. 1. DAMAGES; MORAL DAMAGES IN CASE OF PHYSICAL INJURIES; PARTY
ENTITLED TO RECOVERY. Moral damages in case of physical injuries are only
Based on the foregoing, his net earning capacity was P124,300.00 computed as recoverable by the party who suffered them and not by his next of kin, unless there is
follows: 20 express statutory provision to the contrary. (Strebel vs. Figueras, 96 Phil., 321)
net earning life Gross reasonable & 2. ID.; ID.; NECESSITY AND COST OF PLASTIC OPERATION. The father's
capacity (x) = expectancy x annual less necessary failure to submit the son to a plastic operation as soon as possible does not prove that
income living such treatment is not called for or that its cost, if actually necessary, should not enter in
expenses the assessment of the damages to which the injured party is entitled.
x = [2 (80-46)] x [P11,000 P5,500]

3
= 22.6 x 5,500
DECISION
= P124,300.00
In addition, the heirs of Dalmacio Salunoy should be paid P50,000.00 as death
indemnity. prcd
REYES, J.B.L., J p:
Finally, the award of attorney's fees should be disallowed as the trial court did
not give any justification for granting it in its decision. It is now settled that awards of
attorney's fees must be based on findings of fact and law, stated in the decision of the trial Manuel S. Araneta and Benjamin Araneta, father and son, appeal from a
court. 21 decision of the Court of First Instance of Manila (in its case No. 24322) sentencing
defendants Juan Arreglado, his wife, and his son, Jos Dario Arreglado, to pay the former
WHEREFORE, the decision of the Court of Appeals is MODIFIED in the sense only P3,943 damages in lieu of the P112,000 claimed in the complaint.
that the award of P10,000.00 denominated "for moral damages and unearned income" is
deleted, and lieu thereof the amount of P124,300.00 for loss of earning capacity and the The basic facts of the case are not in dispute: On March 7, 1951, while plaintiff
further amount of P50,000.00 for death indemnity are awarded to the heirs of Dalmacio Benjamin Araneta was talking with the other students of the Ateneo de Manila while
 229
seated atop a low ruined wall bordering the Ateneo grounds along Dakota Street, in the may, if it was necessary; and the fact that he has waited and waited in
City of Manila, Dario Arreglado, a former student of the Ateneo, chanced to pass by. the opinion of the court would prove that after all plastic surgery was not
Those on the wall called Dario and conversed with him, and in the course of their talk, and is not very necessary." (Rec. App., p. 63)
twitted him on his leaving the Ateneo and enrolling in the De La Salle College.
The father's failure to submit his son to a plastic operation as soon as possible
Apparently, Arregladoresented the banter and suddenly pulling from his pocket a
does not prove that such treatment is not called for. The damage to the jaw and the
Japanese Lugar pistol (licensed in the name of his father Juan Arreglado), fired the same
existence of the scar in Benjamin Araneta's face are physical facts that can not be
at Araneta, hitting him in the lower jaw, and causing him to drop backward, bleeding
reasoned out of existence. That the injury should be treated in order to restore him as far
profusely. Helped by his friends, the injured lad was taken first to the school infirmary and
as possible to his original condition is undeniable. The father's delay, or even his
later to the Singian Hospital, where he lay hovering between life and death for three days.
negligence, should not be allowed to prejudice the son who has no control over the
The vigor of youth came to his rescue; he rallied and after some time finally recovered, the
parent's action nor impair his right to a full indemnity.
gunshot wound left him with a degenerative injury to the jawbone (mandible) and a scar in
the lower portion of the face, where the bullet had plowed through. The behavior of We do not believe that plaintiffs-appellants should recover the cost of a plastic
Benjamn was likewise affected, he becoming inhibited and morose after leaving the operation and surgical treatment in the United States, since their own experts asserted
hospital. that the operation could be competently performed here by local practitioners. Still, taking
into account the necessity and cost of corrective measures to fully repair the damage; the
Dario Arreglado was indicted for frustrated homicide (Criminal Case No. 15143,
pain suffered by the injured party; his feelings of inferiority due to consciousness of his
of Manila) and pleaded guilty; but in view of his youth, Dario being only 14 years of age,
present deformity, as well as the voluntary character of the injury inflicted; and further
the court suspended the proceedings as prescribed by Article 80 of the Revised Penal
considering that a repair, however skillfully conducted, is never equivalent to the original
Code, and ordered him committed to the care of Mr. Deogracias Lerma, under the
state, we are of the opinion that the indemnity granted by the trial court should be
supervision of the Commissioner of Social Welfare, conformably to Republic Act No. 47.
increased to a total of P18,000.
Because Arreglado observed proper conduct and discipline while on probation, the court,
upon recommendation of the Social Welfare Administrator, finally discharged him on May It is also the hope of the Court that the award in the present case will remind
22, 1953, and quashed the criminal case. licensed possessors of firearms of their peremptory duty to adequately safeguard such
dangerous weapons at all times, and to take all requisite measures to prevent minors and
Thereafter, on October 13, 1954, an action was instituted by Araneta and his
other unauthorized parties from having access thereto. Competent observers have
father against Juan Arreglado, his wife, and their son, Dario, to recover material, moral and
recently called attention to the fact that the growing teen-age hooliganism in our society is
exemplary damages. After trial, the Court of First Instance found that Dario Arreglado's
principally due to parent's complacency in and neglect of their progeny.
father had acted negligently in allowing his son to have access to the pistol used to injure
Benjamin Araneta, and sentenced defendants to pay P3,943, damages and attorney's Appellants complain that the court should have allowed more than P500 to
fees, as stated at the beginning of this decision. The trial Judge also overruled the claim of compensate Benjamin's lost school year. We find this complaint unjustified, since the
the defense that because the court failed to award any damages to Araneta in the criminal damages due to the lost schooling and the resulting reduction in the lad's future earning
case, a separate civil action for their recovery is now foreclosed. The Arreglados did not capacity are manifestly speculative, and may not exist at all. Moreover, the record does
appeal the decision but the Aranetas did; and in view of the amount originally claimed not show facts sufficient to justify a larger award on this account.
(P112,000), the case was taken directly to this Court.
As to the moral damages for pain, anxiety and suffering undergone by the father,
We agree with the appellants that the damages awarded by the lower court for Manuel Araneta, our ruling in Strebel vs. Figueras, 96 Phil., 321, has settled that question.
the injuries suffered by Benjamin Araneta are inadequate. In allowing not more than We held there that moral damages in case of physical injuries are only recoverable by the
P1,000 as compensation for the "permanent deformity and something like an inferiority party who suffered them and not by his next of kin, unless there is statutory provision to
complex" as well as for the "pathological condition on the left side of the jaw" caused to the contrary.
said plaintiff, the court below overlooked the clear evidence on record that to arrest the
Wherefore, the decision appealed from is affirmed with the modification that
degenerative process taking place in the mandible and restore the injured boy to a nearly
plaintiff Benjamin Araneta shall recover damages in the amount of Eighteen Thousand
normal condition, surgical intervention was needed, for which the doctor's charges would
Pesos (P18,000.00) from defendants Dario Arreglado and his parents Mr. and Mrs.
amount to P3,000, exclusive of hospitalization fees, expenses and medicines.
Juan Arreglado, who shall answer in solidum for the payment of the indemnity, pursuant to
Furthermore, the operation, according to Dr. Dio, would probably have to be repeated in
order to effectuate a complete cure, while removal of the scar on the face obviously Article 2194 of the Civil Code of the Philippines. Costs against appellees. So ordered.
demanded plastic surgery. Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo and Endencia,
JJ., concur.
We are not impressed by the reasoning of the court a quo in refusing to consider
the cost of plastic treatment as a proper element of the indemnity for damages. It argued
that
||| (Araneta v. Arreglado, G.R. No. L-11394, [September 9, 1958], 104 PHIL 529-533)
". . . if this was really necessary it is peculiar that the father,
Manuel S. Araneta, would have allowed himself to wait for the outcome
of this case in order to secure funds to bring his son to America; it is
admitted that plaintiff is a man of much more than moderate means and
no father in his position would have let pass the present situation; he
would without loss of time, have taken his son to America, cost what it