43Sanitary Steam Laundry, Inc. vs. CA, 300 SCRA 20 & Josefina C.

Bernabe
c. Julieta, Ailyn & 45,830.45 (Exh. QQ)
MENDOZA, J.: Josefina Enriquez
and Josefina Valeiro
d. Leonor Macaspac 2,740.00
This case involves a collision between a Mercedes Benz panel truck of petitioner
e. Victor Rey Ignacio 14,820.64 (Exh. EEE)
Sanitary Steam Laundry and a Cimarron which caused the death of three persons and the
f. Rene Tablante 10,032.40 (Exh. QQQ)
injuries of several others. The accident took place at the Aguinaldo Highway in Imus, Cavite
g. Nenita Salonoy, widow; 20,000.00
on August 31, 1980. All the victims were riding in the Cimarron. One of those who died was the
and Manilyn, children
driver. The Regional Trial Court of Makati found petitioners driver to be responsible for the
Moral damages should also be awarded as follows:
vehicular accident and accordingly held petitioner liable to private respondents for P472,262.30
For the injuries sustained by:
in damages and attorneys fees. Its decision was affirmed in toto by the Court of Appeals. It is
a. Charito Estolano P10,000.00 (Exh. F)
here for a review of the appellate courts decision.
b. Julieta P. Enriquez 15,000.00 (Exh. MM)
The passengers of the Cimarron were mostly employees of the Project Management c. Ailyn C. Enriquez 8,000.00 (Exh. NN)
Consultants, Inc. (PMCI). They had just visited the construction site of a company project at d. Josefina R. Enriquez 10,000.00 (Exh. OO)
Lian, Batangas. The other passengers were family members and friends whom they invited to e. Josefina P. Valerio 2,000.00 (Exh. PP)
an excursion to the beach after the visit to the construction site. The group stayed at Lian beach f. Nenita Salonoy 20,000.00 (Exh. DD)
until 5:30 p.m., when they decided to go back to Manila. g. Nicanor Bernabe III 8,000.00 (Exh. Q)
h. Josephine Bernabe 2,000.00 (Exh. R)
The Cimarron, with Plate No. 840-4J, was owned by Salvador Salenga, father of one of i. John Joseph Bernabe 10,000.00
the employees of PMCI. Driving the vehicle was Rolando Hernandez. It appears that at about j. Manilyn G. Salonoy 10,000.00 (Exh. EE)
8:00 p.m., as it was traveling along Aguinaldo Highway in Imus, Cavite on its way back to k. Jack Salonoy 10,000.00 (Exh. JJ)
Manila, the Cimarron was hit on its front portion by petitioners panel truck, bearing Plate No. l. Leonor C. Macaspac 2,000.00 (Exh. AAA)
581 XM, which was traveling in the opposite direction. The panel truck was on its way to m. Victor Ignacio 8,000.00 (Exh. DDD)
petitioners plant in Dasmarias, Cavite after delivering some linen to the Makati Medical n. Rene Tablanta 8,000.00 (Exh. FFF)
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 that this caused
and finally the heirs of Jason Bernabe should be awarded the sum of P50,000.00 for the latters
his vehicle to swerve to the left and encroach on a portion of the opposite lane. As a result, his
death. The heirs of Dalmacio Salunoy should be given the sum of P100,000.00 for moral
panel truck collided with the Cimarron on the north-bound lane. damages and unearned income.
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 the Cimarron The foregoing considered, judgment is rendered in favor of plaintiffs ordering defendant to pay
were injured and taken to various hospitals. the amounts aforecited and to pay the further sum of P50,000.00 for attorneys fees and the
costs.
On December 4, 1980, private respondents filed this civil case for damages before the
then Court of First Instance of Rizal, Pasig Branch, against petitioner.
SO ORDERED.
On November 23, 1990, the Regional Trial Court of Makati, to which the case was
transferred following the reorganization of the judiciary, rendered judgment for private
respondents. The dispositive portion of its decision reads: As already stated, the Court of Appeals, to which the decision of the trial court was
appealed, affirmed the decision on January 26, 1995. Hence, this appeal.

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 as follows:
Actual or compensatory expenses:
First. Petitioner contends that the driver of the Cimarron was guilty of contributory
negligence and, therefore, its liability should be mitigated, if not totally extinguished. It claims
that the driver of the Cimarron was guilty of violation of traffic rules and regulations at the time
of the mishap. Hence, in accordance with Art. 2185 of the Civil Code, he was presumed to be
negligent.

a. Charito Estolano P35,813.87 (Exh. J) According to petitioner, the negligence consisted of the following:
b. Nicanor Bernabe III 20,024.94

1
 1. The Cimarron was overloaded because there were from 20 to 25 passengers maneuverability.[5] However, mere allegations such as these are not sufficient to discharge its
inside when the passenger capacity of the vehicle was only 17. burden of proving clearly that such alleged negligence was the contributing cause of the injury.

2. The front seat of the Cimarron was occupied by four adults, including the driver. 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]
3. The Cimarron had only one headlight on (its right headlight) as its left headlight
was not functioning. Q. You stated you were following a jeepney along the highway in Imus, Cavite, what
happened afterwards, if any?
Petitioner cites Art. III, 2 of R.A. No. 4136, known as the Land Transportation and Traffic
Code, which provides that No person operating any vehicle shall allow more passengers or A. The passenger jeepney I was following made a sudden stop so I stepped on the brakes.
more freight or cargo in his vehicle than its registered carry capacity and Art. IV, 3(e) which
states that Every motor vehicle of more than one meter of projected width, while in use on any Q. Upon stepping on your brakes, what happened if any?
public highway shall bear two headlights... which not later than one-half hour after sunset and
A. The Mercedes Benz (panel) suddenly swerved to the left, sir.
until at least one-half hour before sunrise and whenever weather conditions so require,
shall both be lighted. Q. How big was the swerving to the left?
Petitioner asserts that the fact that its panel truck encroached on a portion of the lane of A. The distance which my vehicle swerved beyond the middle line or center line to the left
the Cimarron does not show that its driver was negligent. Petitioner cites the case of Bayasen was about this distance, sir (witness demonstrating by using both hands the
v. Court of Appeals,[1] which allegedly held that the sudden swerving of a vehicle caused by its distance).
driver stepping on the brakes is not negligence per se. Petitioner further claims that even if
petitioners swerving to the lane of respondents were considered proof of negligence, this fact ATTY. ALILING:
would not negate the presumption of negligence on the part of the other driver arising from his
violations of traffic rules and regulations. Can we stipulate that it is 1 foot, Your Honor.
[2] ATTY. GONZALES:
Petitioner likewise invokes the ruling in Mckee v. Intermediate Appellate Court, in which
a driver who invaded the opposite lane and caused a collision between his car and a truck
coming from the opposite lane, was exonerated based on the doctrine of last clear chance, A little more, 1 1/2 feet.
which states that a person who has the last clear chance or opportunity of avoiding an accident,
ATTY. ALILING:
notwithstanding the negligent acts of his opponent, is solely responsible for the consequences
of the accident. 1 1/4 feet.
Petitioner contends that the ruling in that case should be applied to the present ATTY. GONZALES:
case. According to petitioner, although the driver of the panel truck was initially negligent, the
driver of the Cimarron had the last opportunity to avoid the accident. However, because of his Between 1 1/4 and 1 1/2 feet.
negligence (i.e., the aforementioned violations of traffic rules and regulations such as the use
of only one headlight at night and the overcrowding at the front seat of the vehicle), he was not The panel truck drivers testimony is consistent with the testimonies of private
able to avoid a collision with the panel truck. respondents that the panel truck went out of control and simply smashed into the Cimarron in
which they were riding. Thus, Nicanor Bernabe III testified:[7]
We find the foregoing contention to be without merit.
Q: And did you see how the accident happened?
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: I just saw a glare of light. That is all and then the impact.
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 Q: Where did you see that glare of light?
cause of the injury or that it substantially contributed thereto. Negligence, consisting in whole A: Coming in front ahead of us.
or in part, of violation of law, like any other negligence, is without legal consequence unless it
is a contributing cause of the injury.[3] Petitioner says that driving an overloaded vehicle with Q: When you say ahead of you, was it . . . ?
only one functioning headlight during nighttime certainly increases the risk of accident,[4] that
because the Cimarron had only one headlight, there was decreased visibility, and that the fact A: Towards us.
that the vehicle was overloaded and its front seat overcrowded decreased [its]
....

2
 Q: And from what did those glare of light come from?
A: Based on information I received, the light came from the headlights of a certain panel
owned by Sanitary Steam Laundry, Inc.
....
Q: You said that the lights were going towards you. Now, at what pace did these lights
come toward you?
A: Fast pace.
Charito Estolano, another passenger who was seated in front of the Cimarron, similarly
testified that they just saw the panel truck hurtling toward them. She said:[8]
Q Now, you said earlier that you were involved in an accident. What was that accident?
A An approaching vehicle hit us.
Q Now, why do you know that there was the approaching vehicle?
A There was a light which glared us and I knew that it came from a vehicle. We were
blinded.
Q Where was this vehicle headed for?
A Headed for Cavite.
Q Coming from?
A Coming from Manila, I think.
Q So that, actually, in relation to your vehicle, it was coming from the opposite direction?
A Yes, sir.
Q Now, you said that the light headed towards your vehicle. On which side of the highway
was your Tamaraw vehicle travelling at that time?
A We were on the right lane.
Q Did you actually see this light from the vehicle coming from the opposite direction
heading towards your vehicle?
A Yes, sir.
Q And what happened after that?
A After that, there was an impact.
Q All right. Will you tell the Court which bumped which?
A We were bumped by the vehicle which was coming from the opposite 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. Petitioners 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 petitioners 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.
All these point to the fact that the proximate cause of the accident was the negligence of
petitioners driver. As the trial court noted, the swerving of petitioners panel truck to the opposite
lane could mean not only that petitioners driver was running the vehicle at a very high speed
but that he was tailgating the passenger jeepney ahead of it as well.
Petitioners 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 petitioners 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.
Petitioners 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 the mishap. Everything happened
so quickly that before the passengers of the Cimarron knew it, the vehicle had been bumped
by the truck.
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, petitioners 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 Appeals position that it failed to exercise
due diligence in the selection and supervision of its employees by not requiring its prospective
3
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.
The petitioners contention has no merit. The Court of Appeals did not say that petitioners
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 petitioners 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 drivers 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. 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 defendants drivers 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
employees 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 drivers 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 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.[16] Here, the actual damages claimed by private
respondents were duly supported by receipts and appear to have been really incurred.
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.[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 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 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 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[19] 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 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:[20]
net earning life
capacity (x) = expectancy x [Gross annual income less reasonable & necessary living
expenses]
x = [2 (80-46)] x [P11,000 - P5,500]
3
= 22.6 x 5,500
= P124,300.00
In addition, the heirs of Dalmacio Salunoy should be paid P50,000.00 as death
indemnity.
Finally, the award of attorneys 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 attorneys fees
must be based on findings of fact and law, stated in the decision of the trial court. [21]
WHEREFORE, the decision of the Court of Appeals is MODIFIED in the sense that the
award of P100,000.00 denominated for moral damages and unearned income is deleted, and
in lieu thereof the amount of P124,300.00 for loss of earning capacity and the further amount
of P50,000.00 for death indemnity are awarded to the heirs of Dalmacio Salunoy and the award
of P50,000.00 for attorneys fees is disallowed. In all other respects the appealed decision is
AFFIRMED.
SO ORDERED.
4
 Teague vs. Fernandez 51 SCRA 181
June 4, 1973
MERCEDES M. TEAGUE, petitioner,
vs.
ELENA FERNANDEZ, et al., respondent.
Jose W. Diokno for petitioner.
Jose G. Gatchalian for respondents.
MAKALINTAL, J.:
The facts are stated in the decision of the Court of Appeals as follows:
The Realistic Institute, admittedly owned and operated by defendant-
appellee Mercedes M. Teague was a vocational school for hair and beauty
culture situated on the second floor of the Gil-Armi Building, a two-storey,
semi-concrete edifice (Exhs. "C", "C-1" to "C-5" and "4") located at the
corner of Quezon Boulevard and Soler Street, Quiapo, Manila. The said
second floor was unpartitioned, had a total area of about 400 square
meters, and although it had only one stairway, of about 1.50 meters in
width, it had eight windows, each of which was provided with two fire-
escape ladders (Exh. "4"), and the presence of each of said fire-exits was
indicated on the wall (Exh. "5").
At about four o'clock in the afternoon of October 24, 1955, a fire broke out
in a store for surplus materials located about ten meters away from the
institute. Soler Street lay between that store and the institute. Upon seeing
the fire, some of the students in the Realistic Institute shouted 'Fire! Fire!'
and thereafter, a panic ensued. Four instructresses and six assistant
instructress of the Institute were present and they, together with the
registrar, tried to calm down the students, who numbered about 180 at the
time, telling them not to be afraid because the Gil-Armi Building would not
get burned as it is made of concrete, and that the fire was anyway, across
the street. They told the students not to rush out but just to go down the
stairway two by two, or to use the fire-escapes. Mrs. Justitia Prieto, one of
the instructresses, took to the microphone so as to convey to the students
the above admonitions more effectively, and she even slapped three
students in order to quiet them down. Miss Frino Meliton, the registrar,
whose desk was near the stairway, stood up and tried with outstretched
arms to stop the students from rushing and pushing their way to the stairs.
The panic, however, could not be subdued and the students, with the
exception of the few who made use of fire-escapes kept on rushing and
pushing their way through the stairs, thereby causing stampede therein.
Indeed, no part of the Gil-Armi Building caught fire. But, after the panic
was over, four students, including Lourdes Fernandez, a sister of plaintiffs-
appellants, were found dead and several others injured on account of the
stampede.
xxx xxx xxx
The injuries sustained by Lourdes Fernandez consisted of lacerations in both eyes and on the
upper lip, contused abrasions in different parts of the body, internal hemorrhage and fractures
in the second and third right ribs. The cause of death, according to the autopsy report, was
"Shock due to traumatic fractures of the ribs with perinephric hematoma and lacerations of the
conjunctiva of both eyes."
The deceased's five brothers and sisters filed an action for damages against Mercedes M.
Teague as owner and operator of Realistic Institute. The Court of First Instance of Manila found
for the defendant and dismissed the case. The plaintiffs thereupon appealed to the Court of
Appeals, which by a divided vote of 3 to 2 (a special division of five members having been
constituted) rendered a judgment of reversal and sentenced the defendant to pay damages to
the plaintiffs in the sum of P11,000.00, plus interest at the legal rate from the date the complaint
was filed.
The case came up to this Court on a petition for review filed by the defendant below.
The decision of the appellate court declared that the defendant, hereinafter to be referred to as
the petitioner, was negligent and that such negligence was the proximate cause of the death
of Lourdes Fernandez. This finding of negligence is based primarily on the fact that the
provision of Section 491 Of the Revised Ordinances of the City of Manila had not been complied
with in connection with the construction and use of the Gil-Armi building where the petitioner's
vocational school was housed. This provision reads as follows:
Sec. 491. Firepro of partitions, exits and stairways. — ... All buildings and
separate sections of buildings or buildings otherwise known as
accessorias having less than three stories, having one or more persons
domiciled therein either temporarily or permanently, and all public or
quasi-public buildings having less than three stories, such as hospitals,
sanitarium, schools, reformatories, places of human detention, assembly
halls, clubs, restaurants or panciterias, and the like, shall be provided with
at least two unobstructed stairways of not less than one meter and twenty
centimeters in width and an inclination of not less than forty degrees from
the perpendicular, in case of large buildings more than two stairways shall
likewise be provided when required by the chief of the fire department,
said stairways shall be placed as far apart as possible.
The alleged violation of the ordinance above-quoted consisted in the fact that the second storey
of the Gil-Armi building had only one stairway, 1.5 meters wide, instead of two of at least 1.2
meters each, although at the time of the fire the owner of the building had a second stairway
under construction.
5
In ruling that such non-compliance with the City Ordinances was an act of negligence and that connection between the wrong done and the injurious consequence. The
such negligence was the proximate cause of the death of Lourdes Fernandez, reliance is based general principle is that the violation of a statute or ordinance is not
on a number of authorities in the American jurisdiction, thus: . rendered remote as the cause of an injury by the intervention of another
agency if the occurrence of the accident, in the manner in which it
happened, was the very thing which the statute or ordinance was intended
The mere fact of violation of a statute is not sufficient basis for an inference
to Prevent. (38 Am Jur 841).
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 The petitioner has raised a number of issues. The first is that Section 491 of the Revised
will be deemed to be proximate cause of the injury. (65 C.J.S. 1156). Ordinances of the City of Manila refers to public buildings and hence did not apply to the Gil-
Armi building which was of private ownership. It will be noted from the text of the ordinance,
however, that it is not ownership which determines the character of buildings subject to its
The generally accepted view is that violation of a statutory duty constitutes
requirements, but rather the use or the purpose for which a particular building is utilized. Thus
negligence, negligence as a matter or law, or, according to the decisions
the same may be privately owned, but if it is devoted to any one of the purposes mentioned in
on the question, negligence per se for the reason that non-observance of
the ordinance — for instance as a school, which the Realistic Institute precisely was — then
what the legislature has prescribed as a suitable precaution is failure to
the building is within the coverage of the ordinance. Indeed the requirement that such a building
observe that care which an ordinarily prudent man would observe, and,
should have two (2) separate stairways instead of only one (1) has no relevance or reasonable
when the state regards certain acts as so liable to injure others as to justify
relation to the fact of ownership, but does have such relation to the use or purpose for which
their absolute prohibition, doing the forbidden act is a breach of duty with
the building is devoted.
respect to those who may be injured thereby; or, as it has been otherwise
expressed, when the standard of care is fixed by law, failure to conform to
such standard is negligence, negligence per se or negligence in and of It is next contended that the obligation to comply with the ordinance devolved upon the owners
itself, in the absence of a legal excuse. According to this view it is of the building and therefore it is they and not the petitioner herein, who is a mere lessee, who
immaterial, where a statute has been violated, whether the act or omission should be liable for the violation. The contention ignores the fact that it was the use of the
constituting such violation would have been regarded as negligence in the building for school purposes which brought the same within the coverage of the ordinance; and
absence of any statute on the subject or whether there was, as a matter it was the petitioner and not the owners who was responsible for such use.
of fact, any reason to anticipate that injury would result from such violation.
.... (65 C.J.S. pp. 623-628).
The next issue, indeed the basic one, raised by the petitioner is whether or not the failure to
comply with the requirement of the ordinance was the proximate cause of the death of Lourdes
But the existence of an ordinance changes the situation. If a driver causes Fernandez. The case of Villanueva Vda. de Bataclan, et al. vs. Medina, G. R. No. L-10126,
an accident by exceeding the speed limit, for example, do not inquire October 22, 1957, is cited in support of the contention that such failure was not the proximate
whether his prohibited conduct was unreasonably dangerous. It is enough cause. It is there stated by this Court:
that it was prohibited. Violation of an ordinance intended to promote safety
is negligence. If by creating the hazard which the ordinance was intended
The proximate legal cause is that acting first and producing the injury,
to avoid it brings about the harm which the ordinance was intended to
either immediately or by settling other events in motion, all constituting a
prevent, it is a legal cause of the harm. This comes only to saying that in
natural and continuous chain of events, each having a close causal
such circumstances the law has no reason to ignore the causal relation
connection with its immediate predecessor, the final event in the chain
which obviously exists in fact. The law has excellent reason to recognize
immediately affecting the injury as a natural and probable result of the
it, since it is the very relation which the makers of the ordinance
cause which first acted, under such circumstances that the person
anticipated. This court has applied these principles to speed limits and
responsible for the first event should, as an ordinarily prudent and
other regulations of the manner of driving. (Ross vs. Hartman, 139 Fed.
intelligent person, have reasonable ground to expect at the moment of his
2d 14 at 15).
act or default that an injury to some person might probably result
therefrom.
... However, the fact that other happenings causing or contributing toward
an injury intervened between the violation of a statute or ordinance and
Having in view the decision just quoted, the petitioner relates the chain of events that resulted
the injury does not necessarily make the result so remote that no action
in the death of Lourdes Fernandez as follows: (1) violation of ordinance; (2) fire at a neighboring
can be maintained. The test is to be found not in the number of intervening
place; (3) shouts of "Fire!, Fire!"; (4) panic in the Institute; (5) stampede; and (6) injuries and
events or agents, but in their character and in the natural and probable
death.

6
As thus projected the violation of the ordinance, it is argued, was only a remote cause, if at all,
and cannot be the basis of liability since there intervened a number of independent causes
which produced the injury complained of. A statement of the doctrine relied upon is found
in Manila Electric Co. vs. Remoquillo, L-8328, May 18, 1956, wherein this Court, citing Corpus
Juris said:
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. p. 931.)
that the ordinance in question had been violated. The violation, however, as an act of
negligence which gave rise to liability, was sufficiently comprehended within paragraph 7 of the
complaint, which reads: .
Par. 7. That the death of Lourdes Fernandez was due to the gross
negligence of the defendant who failed to exercise due care and diligence
for the safety of its students in not providing the building with adequate fire
exits and in not practicing fire drill exercises to avoid the stampede, aside
from the fact that the defendant did not have a permit to use the building
as a school-house.
The decision appealed from is affirmed, with costs.
Zaldivar, Fernando, Teehankee, Makasiar, Antonio and Esguerra, JJ., concur.
Castro and Barredo, JJ., reserve their votes.

According to the petitioner "the events of fire, panic and stampede were independent causes
with no causal connection at all with the violation of the ordinance." The weakness in the
argument springs from a faulty juxtaposition of the events which formed a chain and resulted
in the injury. It is true that the petitioner's non-compliance with the ordinance in question was
ahead of and prior to the other events in point of time, in the sense that it was coetaneous with
its occupancy of the building. But the violation was a continuing one, since the ordinance was
a measure of safety designed to prevent a specific situation which would pose a danger to the
occupants of the building. That situation was undue overcrowding in case it should become
necessary to evacuate the building, which, it could be reasonably foreseen, was bound to
happen under emergency conditions if there was only one stairway available. It is true that in
this particular case there would have been no overcrowding in the single stairway if there had
not been a fire in the neighborhood which caused the students to panic and rush headlong for
the stairs in order to go down. But it was precisely such contingencies or event that the authors
of the ordinance had in mind, for under normal conditions one stairway would be adequate for
the occupants of the building. Thus, as stated in 38 American Jurisprudence, page 841: "The
general principle is that the violation of a statute or ordinance is not rendered remote as the
cause of an injury by the intervention of another agency if the occurrence of the accident, in
the manner in which it happened, was the very thing which the statute or ordinance was
intended to prevent." To consider the violation of the ordinance as the proximate cause of the
injury does not portray the situation in its true perspective; it would be more accurate to say
that the overcrowding at the stairway was the proximate cause and that it was precisely what
the ordinance intended to prevent by requiring that there be two stairways instead of only one.
Under the doctrine of the cases cited by the respondents, the principle of proximate cause
applies to such violation.

A procedural point mentioned by the petitioner is that the complaint did not specifically allege

7
Africa vs. Caltex (Phil.) Inc. Mar 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF
DOMINGA ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-
appellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals, which
affirmed that of the Court of First Instance of Manila dismissing petitioners' second amended
complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that
in the afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner
of Antipolo street and Rizal Avenue, Manila. It started while gasoline was being hosed from a
tank truck into the underground storage, right at the opening of the receiving tank where the
nozzle of the hose was inserted. The fire spread to and burned several neighboring houses,
including the personal properties and effects inside them. Their owners, among them
petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged
owner of the station and the second as its agent in charge of operation. Negligence on the part
of both of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove negligence and
that respondents had exercised due care in the premises and with respect to the supervision
of their employees.
The first question before Us refers to the admissibility of certain reports on the fire prepared by
the Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of
the Philippines. Portions of the first two reports are as follows:
1. Police Department report: —
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while
Leandro Flores was transferring gasoline from a tank truck, plate No. T-
5292 into the underground tank of the Caltex Gasoline Station located at
the corner of Rizal Avenue and Antipolo Street, this City, an unknown
Filipino lighted a cigarette and threw the burning match stick near the main
valve of the said underground tank. Due to the gasoline fumes, fire
suddenly blazed. Quick action of Leandro Flores in pulling off the gasoline
hose connecting the truck with the underground tank prevented a terrific
explosion. However, the flames scattered due to the hose from which the
gasoline was spouting. It burned the truck and the following accessorias
and residences.
2. The Fire Department report: —
In connection with their allegation that the premises was (sic) subleased for the
installation of a coca-cola and cigarette stand, the complainants furnished this Office
a copy of a photograph taken during the fire and which is submitted herewith. it
appears in this picture that there are in the premises a coca-cola cooler and a rack
which according to information gathered in the neighborhood contained cigarettes
and matches, installed between the gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales regarding
the history of the gasoline station and what the chief of the fire department had told him on the
same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were
admitted by the trial court without objection on the part of respondents; secondly, that with
respect to the police report (Exhibit V-Africa) which appears signed by a Detective Zapanta
allegedly "for Salvador Capacillo," the latter was presented as witness but respondents waived
their right to cross-examine him although they had the opportunity to do so; and thirdly, that in
any event the said reports are admissible as an exception to the hearsay rule under section 35
of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of September
17, 1953 (pp. 167-170) shows that the reports in question, when offered as evidence, were
objected to by counsel for each of respondents on the ground that they were hearsay and that
they were "irrelevant, immaterial and impertinent." Indeed, in the court's resolution only Exhibits
J, K, K-5 and X-6 were admitted without objection; the admission of the others, including the
disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not
examined and he did not testify as to the facts mentioned in his alleged report (signed by
Detective Zapanta). All he said was that he was one of those who investigated "the location of
the fire and, if possible, gather witnesses as to the occurrence, and that he brought the report
with him. There was nothing, therefore, on which he need be cross-examined; and the contents
of the report, as to which he did not testify, did not thereby become competent evidence. And
even if he had testified, his testimony would still have been objectionable as far as information
gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial
evidence on their contents, fall within the scope of section 35, Rule 123, which provides that
8
"entries in official records made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry was
made by a public officer, or by another person specially enjoined by law to do so; (b) that it was
made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and (c) that the public officer or other person
had sufficient knowledge of the facts by him stated, which must have been acquired by him
personally or through official information (Moran, Comments on the Rules of Court, Vol. 3
[1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the material
facts recited in the reports as to the cause and circumstances of the fire were not within the
personal knowledge of the officers who conducted the investigation. Was knowledge of such
facts, however, acquired by them through official information? As to some facts the sources
thereof are not even identified. Others are attributed to Leopoldo Medina, referred to as an
employee at the gas station were the fire occurred; to Leandro Flores, driver of the tank truck
from which gasoline was being transferred at the time to the underground tank of the station;
and to respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any
reason as to the origin of the fire. To qualify their statements as "official information" acquired
by the officers who prepared the reports, the persons who made the statements not only must
have personal knowledge of the facts stated but must have the duty to give such statements
for record.1
The reports in question do not constitute an exception to the hearsay rule; the facts stated
therein were not acquired by the reporting officers through official information, not having been
given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the fire, the
doctrine of res ipsa loquitur should apply so as to presume negligence on the part of appellees.
Both the trial court and the appellate court refused to apply the doctrine in the instant case on
the grounds that "as to (its) applicability ... in the Philippines, there seems to he nothing
definite," and that while the rules do not prohibit its adoption in appropriate cases, "in the case
at bar, however, we find no practical use for such doctrine." The question deserves more than
such summary dismissal. The doctrine has actually been applied in this jurisdiction, in the case
of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20,
1949), wherein the decision of the Court of Appeals was penned by Mr. Justice J.B.L. Reyes
now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions
were loading grass between the municipalities of Bay and Calauan, in the province
of Laguna, with clear weather and without any wind blowing, an electric transmission
wire, installed and maintained by the defendant Philippine Power and Development
Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the
head of the plaintiff as he was about to board the truck. As a result, plaintiff received
the full shock of 4,400 volts carried by the wire and was knocked unconscious to the
ground. The electric charge coursed through his body and caused extensive and
serious multiple burns from skull to legs, leaving the bone exposed in some parts
and causing intense pain and wounds that were not completely healed when the
case was tried on June 18, 1947, over one year after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any
specific act of negligence, but the appellate court overruled the defense under the doctrine
of res ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's evidence to place
appellant on its defense. While it is the rule, as contended by the appellant, that in
case of noncontractual negligence, or culpa aquiliana, the burden of proof is on the
plaintiff to establish that the proximate cause of his injury was the negligence of the
defendant, it is also a recognized principal that "where the thing which caused injury,
without fault of the injured person, is under the exclusive control of the defendant
and the injury is such as in the ordinary course of things does not occur if he having
such control use proper care, it affords reasonable evidence, in the absence of the
explanation, that the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has observed due
care and diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L.
ed. 680.) This rule is known by the name of res ipsa loquitur (the transaction speaks
for itself), and is peculiarly applicable to the case at bar, where it is unquestioned
that the plaintiff had every right to be on the highway, and the electric wire was under
the sole control of defendant company. In the ordinary course of events, electric
wires do not part suddenly in fair weather and injure people, unless they are
subjected to unusual strain and stress or there are defects in their installation,
maintenance and supervision; just as barrels do not ordinarily roll out of the
warehouse windows to injure passersby, unless some one was negligent. (Byrne v.
Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that established that
rule). Consequently, in the absence of contributory negligence (which is admittedly
not present), the fact that the wire snapped suffices to raise a reasonable
presumption of negligence in its installation, care and maintenance. Thereafter, as
observed by Chief Baron Pollock, "if there are any facts inconsistent with negligence,
it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on
the Supreme Court, but we do not consider this a reason for not applying the particular doctrine
of res ipsa loquitur in the case at bar. Gasoline is a highly combustible material, in the storage
and sale of which extreme care must be taken. On the other hand, fire is not considered a
fortuitous event, as it arises almost invariably from some act of man. A case strikingly similar
to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So. 447:
9
 Arthur O. Jones is the owner of a building in the city of Hammon which in the year This statement of the rule of res ipsa loquitur has been widely approved and adopted
1934 was leased to the Shell Petroleum Corporation for a gasoline filling station. On by the courts of last resort. Some of the cases in this jurisdiction in which the doctrine
October 8, 1934, during the term of the lease, while gasoline was being transferred has been applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So.
from the tank wagon, also operated by the Shell Petroleum Corporation, to the 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101,
underground tank of the station, a fire started with resulting damages to the building 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents
owned by Jones. Alleging that the damages to his building amounted to $516.95, v. Page, 115 La. 560, 39 So. 599.
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
The principle enunciated in the aforequoted case applies with equal force here. The gasoline
entitled to a recovery and rendered judgment in his favor for $427.82. The Court of
station, with all its appliances, equipment and employees, was under the control of appellees.
Appeals for the First Circuit reversed this judgment, on the ground the testimony
A fire occurred therein and spread to and burned the neighboring houses. The persons who
failed to show with reasonable certainty any negligence on the part of the Shell
knew or could have known how the fire started were appellees and their employees, but they
Petroleum Corporation or any of its agents or employees. Plaintiff applied to this
gave no explanation thereof whatsoever. It is a fair and reasonable inference that the incident
Court for a Writ of Review which was granted, and the case is now before us for
happened because of want of care.
decision.1äwphï1.ñët

In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-
In resolving the issue of negligence, the Supreme Court of Louisiana held:
1 Africa) the following appears:

Plaintiff's petition contains two distinct charges of negligence — one relating to the
Investigation of the basic complaint disclosed that the Caltex Gasoline Station
cause of the fire and the other relating to the spreading of the gasoline about the
complained of occupies a lot approximately 10 m x 10 m at the southwest corner of
filling station.
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
Other than an expert to assess the damages caused plaintiff's building by the fire, where a great number of people mill around t
no witnesses were placed on the stand by the defendant.
until
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
gasoline
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 tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and
truck and while both the tank and the truck were in charge of and being operated by this constitute a secondary hazard to its operation which in turn endangers the entire
the agents or employees of the defendant, extended to the hose and tank truck, and neighborhood to conflagration.
was communicated from the burning hose, tank truck, and escaping gasoline to the
building owned by the plaintiff.
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
Predicated on these circumstances and the further circumstance of defendant's cannot avoid the flames from leaping over it in case of fire.
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. Records show that there have been two cases of fire which caused not only material
damages but desperation and also panic in the neighborhood.

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

10
The foregoing report, having been submitted by a police officer in the performance of his duties an admission that he was an agent of Caltex; (2) at the time of the fire Caltex owned the
on the basis of his own personal observation of the facts reported, may properly be considered gasoline station and all the equipment therein; (3) Caltex exercised control over Boquiren in
as an exception to the hearsay rule. These facts, descriptive of the location and objective the management of the state; (4) the delivery truck used in delivering gasoline to the station
circumstances surrounding the operation of the gasoline station in question, strengthen the had the name of CALTEX painted on it; and (5) the license to store gasoline at the station was
presumption of negligence under the doctrine of res ipsa loquitur, since on their face they called in the name of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit
for more stringent measures of caution than those which would satisfy the standard of due X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
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
In Boquiren's amended answer to the second amended complaint, he denied that he directed
gasoline tank wagon who, alone and without assistance, was transferring the contents thereof
one of his drivers to remove gasoline from the truck into the tank and alleged that the "alleged
into the underground storage when the fire broke out. He said: "Before loading the underground
driver, if one there was, was not in his employ, the driver being an employee of the Caltex
tank there were no people, but while the loading was going on, there were people who went to
(Phil.) Inc. and/or the owners of the gasoline station." It is true that Boquiren later on amended
drink coca-cola (at the coca-cola stand) which is about a meter from the hole leading to the
his answer, and that among the changes was one to the effect that he was not acting as agent
underground tank." He added that when the tank was almost filled he went to the tank truck to
of Caltex. But then again, in his motion to dismiss appellants' second amended complaint the
close the valve, and while he had his back turned to the "manhole" he, heard someone shout
ground alleged was that it stated no cause of action since under the allegations thereof he was
"fire."
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
Even then the fire possibly would not have spread to the neighboring houses were it not for complaint.
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
Caltex admits that it owned the gasoline station as well as the equipment therein, but claims
only 2-1/2 meters high, and beyond that height it consisted merely of galvanized iron sheets,
that the business conducted at the service station in question was owned and operated by
which would predictably crumple and melt when subjected to intense heat. Defendants'
Boquiren. But Caltex did not present any contract with Boquiren that would reveal the nature
negligence, therefore, was not only with respect to the cause of the fire but also with respect
of their relationship at the time of the fire. There must have been one in existence at that time.
to the spread thereof to the neighboring houses.
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
There is an admission on the part of Boquiren in his amended answer to the second amended intended to operate. This so-called license agreement (Exhibit 5-Caltex) was executed on
complaint that "the fire was caused through the acts of a stranger who, without authority, or November 29, 1948, but made effective as of January 1, 1948 so as to cover the date of the
permission of answering defendant, passed through the gasoline station and negligently threw fire, namely, March 18, 1948. This retroactivity provision is quite significant, and gives rise to
a lighted match in the premises." No evidence on this point was adduced, but assuming the the conclusion that it was designed precisely to free Caltex from any responsibility with respect
allegation to be true — certainly any unfavorable inference from the admission may be taken to the fire, as shown by the clause that Caltex "shall not be liable for any injury to person or
against Boquiren — it does not extenuate his negligence. A decision of the Supreme Court of property while in the property herein licensed, it being understood and agreed that LICENSEE
Texas, upon facts analogous to those of the present case, states the rule which we find (Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)."
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
But even if the license agreement were to govern, Boquiren can hardly be considered an
... we think it is the generally accepted rule as applied to torts that 'if the effects of the actor's
independent contractor. Under that agreement Boquiren would pay Caltex the purely nominal
negligent conduct actively and continuously operate to bring about harm to another, the fact
sum of P1.00 for the use of the premises and all the equipment therein. He could sell only
that the active and substantially simultaneous operation of the effects of a third person's
Caltex Products. Maintenance of the station and its equipment was subject to the approval, in
innocent, tortious or criminal act is also a substantial factor in bringing about the harm, does
other words control, of Caltex. Boquiren could not assign or transfer his rights as licensee
not protect the actor from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439).
without the consent of Caltex. The license agreement was supposed to be from January 1,
Stated in another way, "The intention of an unforeseen and unexpected cause, is not sufficient
1948 to December 31, 1948, and thereafter until terminated by Caltex upon two days prior
to relieve a wrongdoer from consequences of negligence, if such negligence directly and
written notice. Caltex could at any time cancel and terminate the agreement in case Boquiren
proximately cooperates with the independent cause in the resulting injury." (MacAfee, et al. vs.
ceased to sell Caltex products, or did not conduct the business with due diligence, in the
Traver's Gas Corporation, 153 S.W. 2nd 442.)
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
The next issue is whether Caltex should be held liable for the damages caused to appellants. Boquiren. The control was such that the latter was virtually an employee of the former.
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

11
 Taking into consideration the fact that the operator owed his position to the company property was worth P4,000.00. We agree that the court erred, since it is of common knowledge
and the latter could remove him or terminate his services at will; that the service that the assessment for taxation purposes is not an accurate gauge of fair market value, and
station belonged to the company and bore its tradename and the operator sold only in this case should not prevail over positive evidence of such value. The heirs of Ong are
the products of the company; that the equipment used by the operator belonged to therefore entitled to P10,000.00.
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
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable
operator and conducted periodic inspection of the company's gasoline and service
solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and
station; that the price of the products sold by the operator was fixed by the company
P10,000.00, respectively, with interest from the filing of the complaint, and costs.
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. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P.,
Zaldivar and Sanchez, JJ., concur.
Dizon, J., took no part.
To determine the nature of a contract courts do not have or are not bound to rely
upon the name or title given it by the contracting parties, should thereby a
controversy as to what they really had intended to enter into, but the way the Footnotes
contracting parties do or perform their respective obligations stipulated or agreed
upon may be shown and inquired into, and should such performance conflict with 1
the name or title given the contract by the parties, the former must prevail over the Thus, for instance, the record of a justice of the peace of marriage certificates
latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance Company of transmitted to him by the corresponding priest is admissible. The justice of the peace
has no personal knowledge of the marriage, but it was reported to him by a priest
Newark, New Jersey, 100 Phil. 757).
whose duty it was, under the law, to make the report for record purposes. Similarly,
the tax records of a provincial assessor are admissible even if the assessments were
The written contract was apparently drawn for the purpose of creating the apparent made by subordinates. So also are entries of marriages made by a municipal
relationship of employer and independent contractor, and of avoiding liability for the treasurer in his official record, because he acquires knowledge thereof by virtue of a
negligence of the employees about the station; but the company was not satisfied to statutory duty on the part of those authorized to solemnize marriages to send a copy
allow such relationship to exist. The evidence shows that it immediately assumed of each marriage contract solemnized by them to the local civil registrar. (See Moran,
control, and proceeded to direct the method by which the work contracted for should Comments on the Rules of Court, Vol. 3 [1957] pp. 389-395.)
be performed. By reserving the right to terminate the contract at will, it retained the
means of compelling submission to its orders. Having elected to assume control and
to direct the means and methods by which the work has to be performed, it must be
held liable for the negligence of those performing service under its direction. We think
the evidence was sufficient to sustain the verdict of the jury. (Gulf Refining Company
v. Rogers, 57 S.W. 2d, 183).

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

As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount
of P2,000.00 collected by them on the insurance of the house. The deduction is now challenged
as erroneous on the ground that Article 2207 of the New Civil Code, which provides for the
subrogation of the insurer to the rights of the insured, was not yet in effect when the loss took
place. However, regardless of the silence of the law on this point at that time, the amount that
should be recovered be measured by the damages actually suffered, otherwise the principle
prohibiting unjust enrichment would be violated. With respect to the claim of the heirs of Ong
P7,500.00 was adjudged by the lower court on the basis of the assessed value of the property
destroyed, namely, P1,500.00, disregarding the testimony of one of the Ong children that said

12
Hidalgo Enterprises vs. Baladan 91 Phil 488
FACTS:
Guillermo Balandan and his wife is claiming damages in the sum of P2,000 for the death of
their son, Mario. Petitioner was the owner of an Ice plant, who had in their premises 2 tanks
filled of water, 9 feet deep. The factory was fenced but Ingress and egress was easily made
because the gates were always open and there was no guard assigned in the said gate. Also
the tanks didn’t have any barricade or fence. One day when Mario was playing with his friend,
they saw the tank inside the factory and began playing and swimming inside it. While bathing,
Mario sank to the bottom of the tank, only to be fished out later, already as a cadaver, having
died of ‘asphyxia secondary to drowning.’ The lower decided in the favor of the parents saying
that the petitioner is liable for damages due to the doctrine of attractive nuisance.
ISSUE: Whether or not the doctrine of attractive nuisance is applicable in this case?
RULING: NO.
The doctrine of attractive nuisance states that “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. American Jurisprudence shows us that 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. In the case bar, the
tanks themselves cannot fall under such doctrine thus the petitioners cannot be held liable for
Mario’s death.
Air France vs Carrascoso, L21438, Sept. 28, 1996
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael
Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages;
P393.20 representing the difference in fare between first class and tourist class for the portion
of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date
of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane
ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other
respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left
Manila for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent,
Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket
from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class", but
at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first
class" seat that he was occupying because, in the words of the witness Ernesto G.
Cuento, there was a "white man", who, the Manager alleged, had a "better right" to
the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be
expected, refused, and told defendant's Manager that his seat would be taken over
his dead body; a commotion ensued, and, according to said Ernesto G. Cuento,
"many of the Filipino passengers got nervous in the tourist class; when they found
out that Mr. Carrascoso was having a hot discussion with the white man [manager],
they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat
to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff
reluctantly gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent
Court of Appeals. Petitioner charges that respondent court failed to make complete findings of
fact on all the issues properly laid before it. We are asked to consider facts favorable to
petitioner, and then, to overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any
court of record without expressing therein clearly and distinctly the facts and the law on which
it is based". 5 This is echoed in the statutory demand that a judgment determining the merits of
the case shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that
"Every decision of the Court of Appeals shall contain complete findings of fact on all issues
properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law,
however, solely insists that a decision state the "essential ultimate facts" upon which the court's
13
conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and
piece of evidence 10 presented by one party and the other upon the issues raised. Neither is it
to be burdened with the obligation "to specify in the sentence the facts" which a party
"considered as proved". 11 This is but a part of the mental process from which the Court draws
the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if
not confusion, may result. So long as the decision of the Court of Appeals contains the
necessary facts to warrant its conclusions, it is no error for said court to withhold therefrom
"any specific finding of facts with respect to the evidence for the defense". Because as this
Court well observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify
(in the decision) the contentions of the appellant and the reasons for refusing to believe them
is not sufficient to hold the same contrary to the requirements of the provisions of law and the
Constitution". It is in this setting that in Manigque, it was held that the mere fact that the findings
"were based entirely on the evidence for the prosecution without taking into consideration or
even mentioning the appellant's side in the controversy as shown by his own testimony", would
not vitiate the judgment. 13 If the court did not recite in the decision the testimony of each
witness for, or each item of evidence presented by, the defeated party, it does not mean that
the court has overlooked such testimony or such item of evidence. 14 At any rate, the legal
presumptions are that official duty has been regularly performed, and that all the matters within
an issue in a case were laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written
statement of the ultimate facts as found by the court ... and essential to support the decision
and judgment rendered thereon". 16They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has been declared as
"one which does not call for an examination of the probative value of the evidence presented
by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment
of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately
the business of this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of
Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a
first class ticket. But petitioner asserts that said ticket did not represent the true and complete
intent and agreement of the parties; that said respondent knew that he did not have confirmed
reservations for first class on any specific flight, although he had tourist class protection; that,
accordingly, the issuance of a first class ticket was no guarantee that he would have a first
class ride, but that such would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before
the Court of Appeals under its third assignment of error, which reads: "The trial court erred in
finding that plaintiff had confirmed reservations for, and a right to, first class seats on the
"definite" segments of his journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a 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 tickets it never meant to honor at all. It received the
corresponding amount in payment of first-class tickets and yet it allowed the
passenger to be at the mercy of its employees. It is more in keeping with the ordinary
course of business that the company should know whether or riot the tickets it issues
are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's
contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question.
Apart from his testimony, see plaintiff's Exhibits "A", "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 OK
mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga
that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was
subject to confirmation in Hongkong. The court cannot give credit to the testimony of said
witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-
l", "B", "B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the
plaintiff was issued, and paid for, a first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that
the reservation for a "first class" accommodation for the plaintiff was confirmed. The court
cannot believe that after such confirmation defendant had a verbal understanding with plaintiff
that the "first class" ticket issued to him by defendant would be subject to confirmation in
Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the
amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was
affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment
of affirmance has merged the judgment of the lower court. 24Implicit in that affirmance is a
determination by the Court of Appeals that the proceeding in the Court of First Instance was
free from prejudicial error and "all questions raised by the assignments of error and all
questions that might have been raised are to be regarded as finally adjudicated against the
appellant". So also, the judgment affirmed "must be regarded as free from all error". 25 We
reached this policy construction because nothing in the decision of the Court of Appeals on this
point would suggest that its findings of fact are in any way at war with those of the trial court.
Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those
which were made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger
have? It will always be an easy matter for an airline aided by its employees, to strike out the
very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What
if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written
document speaks a uniform language; that spoken word could be notoriously unreliable. If only
to achieve stability in the relations between passenger and air carrier, adherence to the ticket
so issued is desirable. Such is the case here. The lower courts refused to believe the oral
evidence intended to defeat the covenants in the ticket.
14
The foregoing are the considerations which point to the conclusion that there are facts upon
which the Court of Appeals predicated the finding that respondent Carrascoso had a first class
ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to
Beirut leg of the flight. 27 We perceive no "welter of distortions by the Court of Appeals of
petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to
petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to
provoke an issue". 29And this because, as petitioner states, Carrascoso went to see the
Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again
to see the Manager". 30 Why, then, was he allowed to take a first class seat in the plane at
Bangkok, if he had no seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim
is that Carrascoso's action is planted upon breach of contract; that to authorize an award for
moral damages there must be an averment of fraud or bad faith;31 and that the decision of the
Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint
bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines
for a valuable consideration, the latter acting as general agents for and in behalf of
the defendant, under which said contract, plaintiff was entitled to, as defendant
agreed to furnish plaintiff, First Class passage on defendant's plane during the entire
duration of plaintiff's tour of Europe with Hongkong as starting point up to and until
plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon
to Bangkok, defendant furnished to the plaintiff First Class accommodation but only
after protestations, arguments and/or insistence were made by the plaintiff with
defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished
plaintiff only 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 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 disposition; but defendant did neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior reservation was made by the
white man. Hence, if the employees of the defendant at Bangkok sold a first-class
ticket to him when all the seats had already been taken, surely the plaintiff should
not have been picked out as the one to suffer the consequences and to be subjected
to the humiliation and indignity of being ejected from his seat in the presence of
others. Instead of explaining to the white man the improvidence committed by
defendant's employees, the manager adopted the more drastic step of ousting the
plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in
our belief that this probably was what happened there, by the testimony of
defendant's witness Rafael Altonaga who, when asked to explain the meaning of the
letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed
for first class. Likewise, Zenaida Faustino, another witness for defendant, who was
the chief of the Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation
the passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247,
June 19, 1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man"
have a "better right" to the seat occupied by Mr. Carrascoso? The record
is silent. The defendant airline did not prove "any better", nay, any right on
the part of the "white man" to the "First class" seat that the plaintiff was
occupying and for which he paid and was issued a corresponding "first
class" ticket.
15
 If there was a justified reason for the action of the defendant's Manager in
Bangkok, the defendant could have easily proven it by having taken the
testimony of the said Manager by deposition, but defendant did not do so;
the presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances,
the Court is constrained to find, as it does find, that the Manager of the
defendant airline in Bangkok not merely asked but threatened the plaintiff
to throw him out of the plane if he did not give up his "first class" seat
because the said Manager wanted to accommodate, using the words of
the witness Ernesto G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted portion first
transcribed did not use the term "bad faith". But can it be doubted that the recital of
facts therein points to bad faith? The manager not only prevented Carrascoso from
enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly
ejected him from his seat, made him suffer the humiliation of having to go to the
tourist class compartment - just to give way to another passenger whose right thereto
has not been established. Certainly, this is bad faith. Unless, of course, bad faith has
assumed a meaning different from what is understood in law. For, "bad faith"
contemplates a "state of mind affirmatively operating with furtive design or with some
motive of self-interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in
the judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of
transportation with plaintiff in bad faith, with the aggravating circumstances
that defendant's Manager in Bangkok went to the extent of threatening the
plaintiff in the presence of many passengers to have him thrown out of the
airplane to give the "first class" seat that he was occupying to, again using
the words of the witness Ernesto G. Cuento, a "white man" whom he
(defendant's Manager) wished to accommodate, and the defendant has
not proven that this "white man" had any "better right" to occupy the "first
class" seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be essayed.
It is well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his
employer, must answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that
is contrary to morals, good customs or public policy shall compensate the latter for
the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the
provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other
contractual relation. 43 And this, because of the relation which an air-carrier sustains with the
public. Its business is mainly with the travelling public. It invites people to avail of the comforts
and advantages it offers. The contract of air carriage, therefore, generates a relation attended
with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give
ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the
carrier's employees with kindness, respect, courtesy and due consideration. They are entitled
to be protected against personal misconduct, injurious language, indignities and abuses from
such employees. So it is, that any rule or discourteous conduct on the part of employees
towards a passenger gives the latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of
contract and a tort, giving a right of action for its agent in the presence of third persons to falsely
notify her that the check was worthless and demand payment under threat of ejection, though
the language used was not insulting and she was not ejected." 46 And this, because, although
the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the
act that breaks the contract may be also a tort". 47 And in another case, "Where a passenger
on a railroad train, when the conductor came to collect his fare tendered him the cash fare to
a point where the train was scheduled not to stop, and told him that as soon as the train reached
such point he would pay the cash fare from that point to destination, there was nothing in the
conduct of the passenger which justified the conductor in using insulting language to him, as
by calling him a lunatic," 48 and the Supreme Court of South Carolina there held the carrier
liable for the mental suffering of said passenger.1awphîl.nèt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of
Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a violation
of public duty by the petitioner air carrier — a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already — that was already in the trip — I could not help it. So one
of the flight attendants approached me and requested from me my ticket and I said,
What for? and she said, "We will note that you transferred to the tourist class". I said,
"Nothing of that kind. That is tantamount to accepting my transfer." And I also said,
"You are not going to note anything there because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have
enough leg room, I stood up and I went to the pantry that was next to me and the
purser was there. He told me, "I have recorded the incident in my notebook." He read
it and translated it to me — because it was recorded in French — "First class
passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene."
Mr. VALTE —
I move to strike out the last part of the testimony of the witness because the best
evidence would be the notes. Your Honor.
COURT —
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his
notebook reading "First class passenger was forced to go to the tourist class against his will,
and that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony
above] which is incompetent. We do not think so. The subject of inquiry is not the entry, but the
ouster incident. Testimony on the entry does not come within the proscription of the best
evidence rule. Such testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact
of the startling occurrence was still fresh and continued to be felt. The excitement had not as
yet died down. Statements then, in this environment, are admissible as part of the res
gestae. 50 For, they grow "out of the nervous excitement and mental and physical condition of
the declarant". 51 The utterance of the purser regarding his entry in the notebook was
16
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 attorney's fees is fully established. The grant of exemplary damages justifies a
similar judgment for attorneys' fees. The least that can be said is that the courts below felt that
it is but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with
the tradition that discretion well exercised — as it was here — should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages,
and P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial
court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense
suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the
reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible
error. We accordingly vote to affirm the same. Costs against petitioner. So ordered.
Ramos vs. CA, GR No.124354, December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians
of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON
RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS, DELOS SANTOS
MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
DECISION
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health
and welfare of their patients. If a doctor fails to live up to this precept, he is made accountable
for his acts. A mistake, through gross negligence or incompetence or plain human error, may
spell the difference between life and death. In this sense, the doctor plays God on his patients
fate.[1]
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist
and a hospital should be made liable for the unfortunate comatose condition of a patient
scheduled for cholecystectomy.[2]
Petitioners seek the reversal of the decision[3] of the Court of Appeals, dated 29 May
1995, which overturned the decision[4]of the Regional Trial Court, dated 30 January 1992,
finding private respondents liable for damages arising from negligence in the performance of
their professional duties towards petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. A) robust
woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to
pains allegedly caused by the presence of a stone in her gall bladder (TSN, January 13, 1988,
pp. 4-5), she was as normal as any other woman. Married to Rogelio E. Ramos, an executive
of Philippine Long Distance Telephone Company, she has three children whose names are
Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989,
pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought professional
advice. She was advised to undergo an operation for the removal of a stone in her gall bladder
(TSN, January 13, 1988, p. 5). She underwent a series of examinations which included blood
and urine tests (Exhs. A and C) which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she
and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN,
February 20, 1990, p. 3), one of the defendants in this case, on June 10, 1985. They agreed
that their date at the operating table at the DLSMC (another defendant), would be on June 17,
1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a cholecystectomy operation
after examining the documents (findings from the Capitol Medical Center, FEU Hospital and
DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the
anesthesiologists fee and which was to be paid after the operation (TSN, October 19, 1989,
pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-
4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of the
DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19, 1989, p. 11).
17
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the
operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical Center, was also there for moral support. She
reiterated her previous request for Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by Herminda as they went down from
her room to the operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was
also with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda saw about two
or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer
anesthesia. Although not a member of the hospital staff, Herminda introduced herself as Dean
of the College of Nursing at the Capitol Medical Center who was to provide moral support to
the patient, to them. Herminda was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was
not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz
about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then went back to the
patient who asked, Mindy, wala pa ba ang Doctor? The former replied, Huwag kang mag-
alaala, darating na iyon (ibid.).
Thereafter, Herminda went out of the operating room and informed the patients husband,
Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the operating
room, the patient told her, Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor. So, she
went out again and told Rogelio about what the patient said (id., p. 15). Thereafter, she returned
to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was already dying [and] waiting for the arrival of the
doctor even as he did his best to find somebody who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife,
who was inside the operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon,
he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka
to arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked, Nandiyan na si Dr. Hosaka, dumating na raw. Upon
hearing those words, he went down to the lobby and waited for the operation to be completed
(id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard
somebody say that Dr. Hosaka is already here. She then saw people inside the operating room
moving, doing this and that, [and] preparing the patient for the operation (TSN, January 13,
1988, p. 16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating
the hapless patient. She thereafter heard Dr. Gutierrez say, ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O lumalaki ang tiyan (id., p. 17). Because of the remarks of Dra.
Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She thereafter noticed
bluish discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw
this anesthesiologist trying to intubate the patient. The patients nailbed became bluish and the
patient was placed in a trendelenburg position - a position where the head of the patient is
placed in a position lower than her feet which is an indication that there is a decrease of blood
supply to the patients brain (Id., pp. 19-20). Immediately thereafter, she went out of the
operating room, and she told Rogelio E. Ramos that something wrong was x x x happening
(Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being
rushed towards the door of the operating room. He also saw several doctors rushing towards
the operating room.When informed by Herminda Cruz that something wrong was happening,
he told her (Herminda) to be back with the patient inside the operating room (TSN, October 19,
1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg
position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the
patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter
informed the former that something went wrong during the intubation. Reacting to what was
told to him, Rogelio reminded the doctor that the condition of his wife would not have happened,
had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to
the patient. The doctors explained that the patient had bronchospasm (TSN, November 15,
1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November
15, 1985, the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting
to P93,542.25 which is the subject of a promissory note and affidavit of undertaking executed
by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of June 17, 1985, she
has been in a comatose condition. She cannot do anything. She cannot move any part of her
body. She cannot see or hear. She is living on mechanical means. She suffered brain damage
as a result of the absence of oxygen in her brain for four to five minutes (TSN, November 9,
1989, pp. 21-22). After being discharged from the hospital, she has been staying in their
residence, still needing constant medical attention, with her husband Rogelio incurring a
monthly expense ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-
34). She was also diagnosed to be suffering from diffuse cerebral parenchymal damage (Exh.
G; see also TSN, December 21, 1989, p. 6).[5]
Thus, on 8 January 1986, petitioners filed a civil case[6] for damages with the Regional
Trial Court of Quezon City against herein private respondents alleging negligence in the
management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlindas
injury. Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to
prove that the damage sustained by Erlinda was due to lack of oxygen in her brain caused by
the faulty management of her airway by private respondents during the anesthesia phase. On
the other hand, private respondents primarily relied on the expert testimony of Dr. Eduardo
Jamora, a pulmonologist, to the effect that the cause of brain damage was Erlindas allergic
reaction to the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered
judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the
aforecited provisions of law and jurisprudence to the case at bar, this Court finds and so holds
that defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very
least, negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable
care in not only intubating the patient, but also in not repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10), without due regard to the fact that the patient was inside the
operating room for almost three (3) hours. For after she committed a mistake in intubating [the]
patient, the patient's nailbed became bluish and the patient, thereafter, was placed in
trendelenburg position, because of the decrease of blood supply to the patient's brain. The
evidence further shows that the hapless patient suffered brain damage because of the absence
18
of oxygen in her (patient's) brain for approximately four to five minutes which, in turn, caused
the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta
Gutierrez whom he had chosen to administer anesthesia on the patient as part of his obligation
to provide the patient a `good anesthesiologist', and for arriving for the scheduled operation
almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence
of the doctors in their `practice of medicine' in the operating room. Moreover, the hospital is
liable for failing through its responsible officials, to cancel the scheduled operation after Dr.
Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have acted
with due care and prudence in rendering medical services to plaintiff-patient. For if the patient
was properly intubated as claimed by them, the patient would not have become comatose. And,
the fact that another anesthesiologist was called to try to intubate the patient after her (the
patient's) nailbed turned bluish, belie their claim. Furthermore, the defendants should have
rescheduled the operation to a later date. This, they should have done, if defendants acted with
due care and prudence as the patient's case was an elective, not an emergency case.
xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and
against the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the
former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned
from November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to its
being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000.00 by
way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED.[7]
Private respondents seasonably interposed an appeal to the Court of Appeals. The
appellate court rendered a Decision, dated 29 May 1995, reversing the findings of the trial
court. The decretal portion of the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and
the complaint below against the appellants is hereby ordered DISMISSED. The counterclaim
of appellant De Los Santos Medical Center is GRANTED but only insofar as appellees are
hereby ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal interest for
justice must be tempered with mercy.
SO ORDERED.[8]
The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio
Ramos who was mistakenly addressed as Atty. Rogelio Ramos. No copy of the decision,
however, was sent nor received by the Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay,
only on 20 June 1995, or four (4) days before the expiration of the reglementary period for filing
a motion for reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a
motion for extension of time to file a motion for reconsideration.The motion for reconsideration
was submitted on 4 July 1995. However, the appellate court denied the motion for extension
of time in its Resolution dated 25 July 1995.[9] Meanwhile petitioners engaged the services of
another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a
motion to admit the motion for reconsideration contending that the period to file the appropriate
pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court
of the Court of Appeals had not yet served a copy thereof to the counsel on record. Despite
this explanation, the appellate court still denied the motion to admit the motion for
reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground
that the fifteen-day (15) period for filing a motion for reconsideration had already expired, to
wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration
cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the
other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of the decision
as early as June 9, 1995. Computation wise, the period to file a Motion for Reconsideration
expired on June 24. The Motion for Reconsideration, in turn, was received by the Court of
Appeals already on July 4, necessarily, the 15-day period already passed. For that alone, the
latter should be denied.
Even assuming admissibility of the Motion for Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.
SO ORDERED.[10]
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next
day, or on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to
file the present petition for certiorari under Rule 45. The Court granted the motion for extension
of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15)
period counted from the receipt of the resolution of the Court of Appeals within which to submit
the petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within
the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE
THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.[11]
Before we discuss the merits of the case, we shall first dispose of the procedural issue
on the timeliness of the petition in relation to the motion for reconsideration filed by petitioners
with the Court of Appeals. In their Comment,[12] private respondents contend that the petition
should not be given due course since the motion for reconsideration of the petitioners on the
decision of the Court of Appeals was validly dismissed by the appellate court for having been
filed beyond the reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the
motion for reconsideration is attributable to the fact that the decision of the Court of Appeals
was not sent to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy
of the decision of the appellate court was instead sent to and received by petitioner Rogelio
Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based
on the other communications received by petitioner Rogelio Ramos, the appellate court
apparently mistook him for the counsel on record. Thus, no copy of the decision of the appellate
court was furnished to the counsel on record. Petitioner, not being a lawyer and unaware of
the prescriptive period for filing a motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.
19
 It is elementary that when a party is represented by counsel, all notices should be sent
to the partys lawyer at his given address. With a few exceptions, notice to a litigant without
notice to his counsel on record is no notice at all. In the present case, since a copy of the
decision of the appellate court was not sent to the counsel on record of petitioner, there can be
no sufficient notice to speak of. Hence, the delay in the filing of the motion for reconsideration
cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a
second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on
25 July 1995, and denied the motion for reconsideration of petitioner, we believe that the receipt
of the former should be considered in determining the timeliness of the filing of the present
petition. Based on this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the
case. For a more logical presentation of the discussion we shall first consider the issue on the
applicability of the doctrine of res ipsa loquitur to the instant case. Thereafter, the first two
assigned errors shall be tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction
speaks for itself. The phrase res ipsa loquitur is a maxim for the rule that the fact of the
occurrence of an injury, taken with the surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a
question of fact for defendant to meet with an explanation. [13] Where the thing which caused
the injury complained of is shown to be under the management of the defendant or his servants
and the accident is such as in ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from or was caused by the defendants
want of care.[14]
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter
of common knowledge and experience, the very nature of certain types of occurrences may
justify an inference of negligence on the part of the person who controls the instrumentality
causing the injury in the absence of some explanation by the defendant who is charged with
negligence.[15] It is grounded in the superior logic of ordinary human experience and on the
basis of such experience or common knowledge, negligence may be deduced from the mere
occurrence of the accident itself.[16] Hence, res ipsa loquitur isapplied in conjunction with the
doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and,
as such, does not create or constitute an independent or separate ground of liability. [17] Instead,
it is considered as merely evidentiary or in the nature of a procedural rule. [18] It is regarded as
a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and
relieves a plaintiff of, the burden of producing specific proof of negligence. [19] In other words,
mere invocation and application of the doctrine does not dispense with the requirement of proof
of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present
along with the proof of the accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof.[20] Still, before resort to the doctrine may
be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of
someones negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant
or defendants; and
3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated.[21]
In the above requisites, the fundamental element is the control of the instrumentality
which caused the damage.[22] Such element of control must be shown to be within the dominion
of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury
or damage, must show a situation where it is applicable, and must establish that the essential
elements of the doctrine were present in a particular incident. [23]
Medical malpractice[24]cases do not escape the application of this doctrine. Thus, res
ipsa loquitur has been applied when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference of negligence as the cause of that
harm.[25] The application of res ipsa loquitur in medical negligence cases presents a question
of law since it is a judicial function to determine whether a certain set of circumstances does,
as a matter of law, permit a given inference.[26]
Although generally, expert medical testimony is relied upon in malpractice suits to prove
that a physician has done a negligent act or that he has deviated from the standard medical
procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert
medical testimony is dispensed with because the injury itself provides the proof of
negligence.[27] The reason is that the general rule on the necessity of expert testimony applies
only to such matters clearly within the domain of medical science, and not to matters that are
within the common knowledge of mankind which may be testified to by anyone familiar with the
facts.[28] Ordinarily, only physicians and surgeons of skill and experience are competent to
testify as to whether a patient has been treated or operated upon with a reasonable degree of
skill and care. However, testimony as to the statements and acts of physicians and surgeons,
external appearances, and manifest conditions which are observable by any one may be given
by non-expert witnesses.[29] Hence, in cases where the res ipsa loquitur is applicable, the court
is permitted to find a physician negligent upon proper proof of injury to the patient, without the
aid of expert testimony, where the court from its fund of common knowledge can determine the
proper standard of care.[30] Where common knowledge and experience teach that a resulting
injury would not have occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but how and why
it occurred.[31] When the doctrine is appropriate, all that the patient must do is prove a nexus
between the particular act or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce expert medical testimony
to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no
other way, under usual and ordinary conditions, by which the patient can obtain redress for
injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an operation, [32] injuries
sustained on a healthy part of the body which was not under, or in the area, of
treatment,[33] removal of the wrong part of the body when another part was
intended,[34] knocking out a tooth while a patients jaw was under anesthetic for the removal of
his tonsils,[35] and loss of an eye while the patient plaintiff was under the influence of anesthetic,
during or following an operation for appendicitis,[36] among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably
enlarged, it does not automatically apply to all cases of medical negligence as to mechanically
shift the burden of proof to the defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a
rule to be cautiously applied, depending upon the circumstances of each case. It is generally
restricted to situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional care were not as
20
such as would ordinarily have followed if due care had been exercised.[37] A distinction must be
made between the failure to secure results, and the occurrence of something more unusual
and not ordinarily found if the service or treatment rendered followed the usual procedure of
those skilled in that particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon which involves the
merits of a diagnosis or of a scientific treatment.[38] The physician or surgeon is not required at
his peril to explain why any particular diagnosis was not correct, or why any particular scientific
treatment did not produce the desired result.[39] Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result of an operation or treatment was
not accomplished.[40] The real question, therefore, is whether or not in the process of the
operation any extraordinary incident or unusual event outside of the routine performance
occurred which is beyond the regular scope of customary professional activity in such
operations, which, if unexplained would themselves reasonably speak to the average man as
the negligent cause or causes of the untoward consequence. [41] If there was such extraneous
interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon
to explain the matter, by evidence of exculpation, if he could.[42]
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter
be explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder
operation presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell,[43] where the Kansas
Supreme Court in applying the res ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered his person over to
the care, custody and control of his physician who had complete and exclusive control over
him, but the operation was never performed. At the time of submission he was neurologically
sound and physically fit in mind and body, but he suffered irreparable damage and injury
rendering him decerebrate and totally incapacitated. The injury was one which does not
ordinarily occur in the process of a mastoid operation or in the absence of negligence in the
administration of an anesthetic, and in the use and employment of an endoctracheal
tube. Ordinarily a person being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia in the absence of negligence. Upon these facts
and under these circumstances a layman would be able to say, as a matter of common
knowledge and observation, that the consequences of professional treatment were not as such
as would ordinarily have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was under
the influence of anesthetics and unconscious, and the circumstances are such that the true
explanation of event is more accessible to the defendants than to the plaintiff for they had the
exclusive control of the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of
action is stated under the doctrine of res ipsa loquitur.[44]
Indeed, the principles enunciated in the aforequoted case apply with equal force here. In
the present case, Erlinda submitted herself for cholecystectomy and expected a routine
general surgery to be performed on her gall bladder. On that fateful day she delivered her
person over to the care, custody and control of private respondents who exercised complete
and exclusive control over her. At the time of submission, Erlinda was neurologically sound
and, except for a few minor discomforts, was likewise physically fit in mind and body. However,
during the administration of anesthesia and prior to the performance of cholecystectomy she
suffered irreparable damage to her brain. Thus, without undergoing surgery, she went out of
the operating room already decerebrate and totally incapacitated. Obviously, brain damage,
which Erlinda sustained, is an injury which does not normally occur in the process of a gall
bladder operation. In fact, this kind of situation does not happen in the absence of negligence
of someone in the administration of anesthesia and in the use of endotracheal tube. Normally,
a person being put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia if the proper procedure was followed. Furthermore, the
instruments used in the administration of anesthesia, including the endotracheal tube, were all
under the exclusive control of private respondents, who are the physicians-in-charge. Likewise,
petitioner Erlinda could not have been guilty of contributory negligence because she was under
the influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or
destroyed while the patient is unconscious and under the immediate and exclusive control of
the physicians, we hold that a practical administration of justice dictates the application of res
ipsa loquitur. Upon these facts and under these circumstances the Court would be able to say,
as a matter of common knowledge and observation, if negligence attended the management
and care of the patient. Moreover, the liability of the physicians and the hospital in this case is
not predicated upon an alleged failure to secure the desired results of an operation nor on an
alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever
performed on Erlinda. Thus, upon all these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not
saying that the doctrine is applicable in any and all cases where injury occurs to a patient while
under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own
light and scrutinized in order to be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of
negligence allowed therein, the Court now comes to the issue of whether the Court of Appeals
erred in finding that private respondents were not negligent in the care of Erlinda during the
anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence
was the proximate cause of Erlindas comatose condition. Corollary thereto, we shall also
determine if the Court of Appeals erred in relying on the testimonies of the witnesses for the
private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the
testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony
of Dra. Gutierrez, the Court of Appeals rationalized that she was candid enough to admit that
she experienced some difficulty in the endotracheal intubation[45]of the patient and thus, cannot
be said to be covering her negligence with falsehood. The appellate court likewise opined that
private respondents were able to show that the brain damage sustained by Erlinda was not
caused by the alleged faulty intubation but was due to the allergic reaction of the patient to the
drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert
witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean
Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to
the wrongful insertion of the tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict
in favor of respondents physicians and hospital and absolved them of any liability towards
Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents
were unable to disprove the presumption of negligence on their part in the care of Erlinda and
their negligence was the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific
evidence of the pathogenesis of the injury but also in providing the Court the legal nexus upon
which liability is based. As will be shown hereinafter, private respondents own testimonies
21
which are reflected in the transcript of stenographic notes are replete of signposts indicative of
their negligence in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the
anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed to properly
intubate the patient. This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol
Medical Center School of Nursing and petitioner's sister-in-law, who was in the operating room
right beside the patient when the tragic event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the stretcher holding the left hand of
the patient and all of a sudden I heard some remarks coming from Dra. Perfecta
Gutierrez herself. She was saying Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan.
xxx
ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
After hearing the phrase lumalaki ang tiyan, what did you notice on the person of the
patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patients nailbed
became bluish and I saw the patient was placed in trendelenburg position.
xxx
Q: Do you know the reason why the patient was placed in that trendelenburg position?
A: As far as I know, when a patient is in that position, there is a decrease of blood supply
to the brain.[46]
xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by
declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is not
taught as part of nursing procedures and techniques. Indeed, we take judicial notice of the fact
that nurses do not, and cannot, intubate. Even on the assumption that she is fully capable of
determining whether or not a patient is properly intubated, witness Herminda Cruz, admittedly,
did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there
is no evidence that she ever auscultated the patient or that she conducted any type of
examination to check if the endotracheal tube was in its proper place, and to determine the
condition of the heart, lungs, and other organs. Thus, witness Cruz's categorical statements
that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra.
Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases. [47]
In other words, what the Court of Appeals is trying to impress is that being a nurse, and
considered a layman in the process of intubation, witness Cruz is not competent to testify on
whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz
is not an anesthesiologist, she can very well testify upon matters on which she is capable of
observing such as, the statements and acts of the physician and surgeon, external
appearances, and manifest conditions which are observable by any one.[48] This is precisely
allowed under the doctrine of res ipsa loquitur where the testimony of expert witnesses is not
required. It is the accepted rule that expert testimony is not necessary for the proof of
negligence in non-technical matters or those of which an ordinary person may be expected to
have knowledge, or where the lack of skill or want of care is so obvious as to render expert
testimony unnecessary.[49] We take judicial notice of the fact that anesthesia procedures have
become so common, that even an ordinary person can tell if it was administered properly. As
such, it would not be too difficult to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long
experience and scholarship led to her appointment as Dean of the Capitol Medical Center
School of Nursing, was fully capable of determining whether or not the intubation was a
success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois;
staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna
College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of
Nursing.[50]Reviewing witness Cruz' statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would
have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied
that she was able to demonstrate through her testimony what truly transpired on that fateful
day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who
admitted that she experienced difficulty in inserting the tube into Erlindas trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you
did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the ...
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said mahirap yata ito, what were you referring to?
A: Mahirap yata itong i-intubate, that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away.[51]
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense
that she encountered hardship in the insertion of the tube in the trachea of Erlinda because it
22
was positioned more anteriorly (slightly deviated from the normal anatomy of a
person)[52] making it harder to locate and, since Erlinda is obese and has a short neck and
protruding teeth, it made intubation even more difficult.
The argument does not convince us. If this was indeed observed, private respondents
adduced no evidence demonstrating that they proceeded to make a thorough assessment of
Erlindas airway, prior to the induction of anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the observation was made only as an
afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is
universally observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation
and preparation for anesthesia begins when the anesthesiologist reviews the patients medical
records and visits with the patient, traditionally, the day before elective surgery. [53] It includes
taking the patients medical history, review of current drug therapy, physical examination and
interpretation of laboratory data.[54] The physical examination performed by the
anesthesiologist is directed primarily toward the central nervous system, cardiovascular
system, lungs and upper airway.[55] A thorough analysis of the patient's airway normally
involves investigating the following: cervical spine mobility, temporomandibular mobility,
prominent central incisors, diseased or artificial teeth, ability to visualize uvula and the
thyromental distance.[56] Thus, physical characteristics of the patients upper airway that could
make tracheal intubation difficult should be studied.[57] Where the need arises, as when initial
assessment indicates possible problems (such as the alleged short neck and protruding teeth
of Erlinda) a thorough examination of the patients airway would go a long way towards
decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first
time on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations
with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the physiological make-up and needs of
Erlinda. She was likewise not properly informed of the possible difficulties she would face
during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her
patient for the first time only an hour before the scheduled operative procedure was, therefore,
an act of exceptional negligence and professional irresponsibility. The measures cautioning
prudence and vigilance in dealing with human lives lie at the core of the physicians centuries-
old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of
her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing
around with the trial court's ignorance of clinical procedure, hoping that she could get away
with it. Respondent Dra. Gutierrez tried to muddle the difference between an elective surgery
and an emergency surgery just so her failure to perform the required pre-operative evaluation
would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so
you can introduce yourself to establish good doctor-patient relationship and gain the trust and
confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure of the
anesthesiologist and in my case, with elective cases and normal cardio-pulmonary clearance
like that, I usually don't do it except on emergency and on cases that have an abnormalities
(sic).[58]
However, the exact opposite is true. In an emergency procedure, there is hardly enough
time available for the fastidious demands of pre-operative procedure so that an
anesthesiologist is able to see the patient only a few minutes before surgery, if at all. Elective
procedures, on the other hand, are operative procedures that can wait for days, weeks or even
months. Hence, in these cases, the anesthesiologist possesses the luxury of time to make a
proper assessment, including the time to be at the patient's bedside to do a proper interview
and clinical evaluation. There is ample time to explain the method of anesthesia, the drugs to
be used, and their possible hazards for purposes of informed consent. Usually, the pre-
operative assessment is conducted at least one day before the intended surgery, when the
patient is relaxed and cooperative.
Erlindas case was elective and this was known to respondent Dra. Gutierrez. Thus, she
had all the time to make a thorough evaluation of Erlindas case prior to the operation and
prepare her for anesthesia.However, she never saw the patient at the bedside. She herself
admitted that she had seen petitioner only in the operating room, and only on the actual date
of the cholecystectomy. She negligently failed to take advantage of this important
opportunity. As such, her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative
evaluation of the patient which, in turn, resulted to a wrongful intubation, we now determine if
the faulty intubation is truly the proximate cause of Erlindas comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led
to Erlindas coma was due to bronchospasm[59] mediated by her allergic response to the drug,
Thiopental Sodium, introduced into her system. Towards this end, they presented Dr. Jamora,
a Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty
Board of Internal Medicine, who advanced private respondents' theory that the oxygen
deprivation which led to anoxic encephalopathy,[60] was due to an unpredictable drug reaction
to the short-acting barbiturate. We find the theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology
simply because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could
not have been capable of properly enlightening the court about anesthesia practice and
procedure and their complications. Dr. Jamora is likewise not an allergologist and could not
therefore properly advance expert opinion on allergic-mediated processes. Moreover, he is not
a pharmacologist and, as such, could not have been capable, as an expert would, of explaining
to the court the pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium
(Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamoras testimony as an expert
witness in the anesthetic practice of Pentothal administration is further supported by his own
admission that he formulated his opinions on the drug not from the practical experience gained
by a specialist or expert in the administration and use of Sodium Pentothal on patients, but only
from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal
as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you have read
from books and not by your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
23
 Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
Q: And because they have used it on you and on account of your own personal experience
you feel that you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims.[61]
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls
within the fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The
resulting anoxic encephalopathy belongs to the field of neurology. While admittedly, many
bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine,
Dr. Jamora's field, the anesthetic drug-induced, allergic mediated bronchospasm alleged in this
case is within the disciplines of anesthesiology, allergology and pharmacology. On the basis of
the foregoing transcript, in which the pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the appellate court erred in giving weight
to Dr. Jamoras testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence[62]regarding expert witnesses states:
Sec. 49. Opinion of expert witness. - The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may
be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of
the subject matter about which he or she is to testify, either by the study of recognized
authorities on the subject or by practical experience.[63] Clearly, Dr. Jamora does not qualify as
an expert witness based on the above standard since he lacks the necessary knowledge, skill,
and training in the field of anesthesiology.Oddly, apart from submitting testimony from a
specialist in the wrong field, private respondents intentionally avoided providing testimony by
competent and independent experts in the proper areas.
Moreover, private respondents theory, that Thiopental Sodium may have produced
Erlinda's coma by triggering an allergic mediated response, has no support in evidence. No
evidence of stridor, skin reactions, or wheezing - some of the more common accompanying
signs of an allergic reaction - appears on record. No laboratory data were ever presented to
the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-
mediated bronchospasm happens only very rarely. If courts were to accept private
respondents' hypothesis without supporting medical proof, and against the weight of available
evidence, then every anesthetic accident would be an act of God. Evidently, the Thiopental-
allergy theory vigorously asserted by private respondents was a mere afterthought. Such an
explanation was advanced in order to absolve them of any and all responsibility for the patients
condition.
In view of the evidence at hand, we are inclined to believe petitioners stand that it was
the faulty intubation which was the proximate cause of Erlindas comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces injury, and without which the result
would not have occurred.[64] An injury or damage is proximately caused by an act or a failure
to act, whenever it appears from the evidence in the case, that the act or omission played a
substantial part in bringing about or actually causing the injury or damage; and that the injury
or damage was either a direct result or a reasonably probable consequence of the act or
omission.[65] It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at hand, faulty intubation is
undeniably the proximate cause which triggered the chain of events leading to Erlindas brain
damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was
a failure. This fact was likewise observed by witness Cruz when she heard respondent Dra.
Gutierrez remarked, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan. Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The
development of abdominal distention, together with respiratory embarrassment indicates that
the endotracheal tube entered the esophagus instead of the respiratory tree. In other words,
instead of the intended endotracheal intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates that air has entered the gastrointestinal
tract through the esophagus instead of the lungs through the trachea. Entry into the esophagus
would certainly cause some delay in oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention had been observed during the first
intubation suggests that the length of time utilized in inserting the endotracheal tube (up to the
time the tube was withdrawn for the second attempt) was fairly significant. Due to the delay in
the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. [66] As stated in the
testimony of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the
nailbeds of Erlinda were already blue.[67] However, private respondents contend that a second
intubation was executed on Erlinda and this one was successfully done. We do not think so. No
evidence exists on record, beyond private respondents' bare claims, which supports the
contention that the second intubation was successful. Assuming that the endotracheal tube
finally found its way into the proper orifice of the trachea, the same gave no guarantee of
oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed
immediately after the second intubation. Proceeding from this event (cyanosis), it could not be
claimed, as private respondents insist, that the second intubation was accomplished. Even
granting that the tube was successfully inserted during the second attempt, it was obviously
too late. As aptly explained by the trial court, Erlinda already suffered brain damage as a result
of the inadequate oxygenation of her brain for about four to five minutes.[68]
The above conclusion is not without basis. Scientific studies point out that intubation
problems are responsible for one-third (1/3) of deaths and serious injuries associated with
anesthesia.[69]Nevertheless, ninety-eight percent (98%) or the vast majority of difficult
intubations may be anticipated by performing a thorough evaluation of the patients airway prior
to the operation.[70] As stated beforehand, respondent Dra. Gutierrez failed to observe the
proper pre-operative protocol which could have prevented this unfortunate incident. Had
appropriate diligence and reasonable care been used in the pre-operative evaluation,
respondent physician could have been much more prepared to meet the contingency brought
about by the perceived anatomic variations in the patients neck and oral area, defects which
would have been easily overcome by a prior knowledge of those variations together with a
change in technique.[71] In other words, an experienced anesthesiologist, adequately alerted
by a thorough pre-operative evaluation, would have had little difficulty going around the short
neck and protruding teeth.[72] Having failed to observe common medical standards in pre-
operative management and intubation, respondent Dra. Gutierrez negligence resulted in
cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the
surgical team. As the so-called captain of the ship,[73] it is the surgeons responsibility to see to
it that those under him perform their task in the proper manner. Respondent Dr. Hosakas
negligence can be found in his failure to exercise the proper authority (as the captain of the
operative team) in not determining if his anesthesiologist observed proper anesthesia
protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient.Furthermore, it does not escape us
that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the
24
same time as Erlindas cholecystectomy, and was in fact over three hours late for the latters
operation. Because of this, he had little or no time to confer with his anesthesiologist regarding
the anesthesia delivery. This indicates that he was remiss in his professional duties towards
his patient.Thus, he shares equal responsibility for the events which resulted in Erlindas
condition.
We now discuss the responsibility of the hospital in this particular incident. The unique
practice (among private hospitals) of filling up specialist staff with attending and visiting
consultants,[74] who are allegedly not hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. However, the difficulty is only more
apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of
consultants and in the conduct of their work within the hospital premises. Doctors who apply
for consultant slots, visiting or attending, are required to submit proof of completion of
residency, their educational qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in most cases, and references. These
requirements are carefully scrutinized by members of the hospital administration or by a review
committee set up by the hospital who either accept or reject the application. [75]This is
particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally
required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns
and residents, moderate grand rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to these, the physicians performance
as a specialist is generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending
and visiting consultant staff. While consultants are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the patients condition, the control
exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and
their attending and visiting physicians. This being the case, the question now arises as to
whether or not respondent hospital is solidarily liable with respondent doctors for petitioners
condition.[76]
The basis for holding an employer solidarily responsible for the negligence of its
employee is found in Article 2180 of the Civil Code which considers a person accountable not
only for his own acts but also for those of others based on the formers responsibility under a
relationship of patria potestas.[77] Such responsibility ceases when the persons or entity
concerned prove that they have observed the diligence of a good father of the family to prevent
damage.[78] In other words, while the burden of proving negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or
employer) who should prove that they observed the diligence of a good father of a family to
prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility
over respondent physicians, failed to adduce evidence showing that it exercised the diligence
of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence
with regard to the degree of supervision which it exercised over its physicians. In neglecting to
offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its
burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital
is consequently solidarily responsible with its physicians for Erlindas condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying
on the testimonies of the witnesses for the private respondents. Indeed, as shown by the above
discussions, private respondents were unable to rebut the presumption of negligence. Upon
these disquisitions we hold that private respondents are solidarily liable for damages under
Article 2176[79] of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total
of P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff,
subject to its being updated covering the period from 15 November 1985 up to 15 April 1992,
based on monthly expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of
its decision would be grossly inadequate to cover the actual costs of home-based care for a
comatose individual.The calculated amount was not even arrived at by looking at the actual
cost of proper hospice care for the patient. What it reflected were the actual expenses incurred
and proved by the petitioners after they were forced to bring home the patient to avoid mounting
hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a
hospice specializing in the care of the chronically ill for the purpose of providing a proper milieu
adequate to meet minimum standards of care. In the instant case for instance, Erlinda has to
be constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding
is done by nasogastric tube. Food preparation should be normally made by a dietitian to
provide her with the correct daily caloric requirements and vitamin supplements. Furthermore,
she has to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by
a pulmonary therapist to prevent the accumulation of secretions which can lead to respiratory
complications.
Given these considerations, the amount of actual damages recoverable in suits arising
from negligence should at least reflect the correct minimum cost of proper care, not the cost of
the care the family is usually compelled to undertake at home to avoid bankruptcy. However,
the provisions of the Civil Code on actual or compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are
those suffered by him as he has duly proved. The Civil Code provides:
Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of
litigation, the injury suffered as a consequence of an act of negligence has been completed
and that the cost can be liquidated. However, these provisions neglect to take into account
those situations, as in this case, where the resulting injury might be continuing and possible
future complications directly arising from the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to
adequately and correctly respond to the injury caused, should be one which compensates for
pecuniary loss incurred and proved, up to the time of trial; and one which would meet pecuniary
loss certain to be suffered but which could not, from the nature of the case, be made with
certainty.[80] In other words, temperate damages can and should be awarded on top of actual
25
or compensatory damages in instances where the injury is chronic and continuing. And
because of the unique nature of such cases, no incompatibility arises when both actual and
temperate damages are provided for. The reason is that these damages cover two distinct
phases.
As it would not be equitable - and certainly not in the best interests of the administration
of justice - for the victim in such cases to constantly come before the courts and invoke their
aid in seeking adjustments to the compensatory damages previously awarded - temperate
damages are appropriate. The amount given as temperate damages, though to a certain extent
speculative, should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a
comatose patient who has remained in that condition for over a decade. Having premised our
award for compensatory damages on the amount provided by petitioners at the onset of
litigation, it would be now much more in step with the interests of justice if the value awarded
for temperate damages would allow petitioners to provide optimal care for their loved one in a
facility which generally specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without the aid of professionals, for
anything less would be grossly inadequate. Under the circumstances, an award
of P1,500,000.00 in temperate damages would therefore be reasonable.[81]
In Valenzuela vs. Court of Appeals,[82] this Court was confronted with a situation where
the injury suffered by the plaintiff would have led to expenses which were difficult to estimate
because while they would have been a direct result of the injury (amputation), and were certain
to be incurred by the plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic
amputation of her left lower extremity at the distal left thigh just above the
knee. Because of this, Valenzuela will forever be deprived of the full ambulatory
functions of her left extremity, even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization (which was paid for by Li), she
will be required to undergo adjustments in her prosthetic devise due to the shrinkage
of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical
and occupational rehabilitation and therapy. During her lifetime, the prosthetic
devise will have to be replaced and readjusted to changes in the size of her lower
limb effected by the biological changes of middle-age, menopause and
aging. Assuming she reaches menopause, for example, the prosthetic will have to
be adjusted to respond to the changes in bone resulting from a precipitate decrease
in calcium levels observed in the bones of all post-menopausal women. In other
words, the damage done to her would not only be permanent and lasting, it would
also be permanently changing and adjusting to the physiologic changes which her
body would normally undergo through the years. The replacements, changes, and
adjustments will require corresponding adjustive physical and occupational
therapy. All of these adjustments, it has been documented, are painful.
x x x.
A prosthetic devise, however technologically advanced, will only allow a reasonable
amount of functional restoration of the motor functions of the lower limb. The
sensory functions are forever lost.The resultant anxiety, sleeplessness,
psychological injury, mental and physical pain are inestimable.[83]
The injury suffered by Erlinda as a consequence of private respondents negligence is
certainly much more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has
been in a comatose state for over fourteen years now. The burden of care has so far been
heroically shouldered by her husband and children, who, in the intervening years have been
deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner
would be virtually impossible to quantify. Even the temperate damages herein awarded would
be inadequate if petitioners condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victims actual injury would not
even scratch the surface of the resulting moral damage because it would be highly speculative
to estimate the amount of emotional and moral pain, psychological damage and injury suffered
by the victim or those actually affected by the victims condition.[84] The husband and the
children, all petitioners in this case, will have to live with the day to day uncertainty of the
patients illness, knowing any hope of recovery is close to nil. They have fashioned their daily
lives around the nursing care of petitioner, altering their long term goals to take into account
their life with a comatose patient. They, not the respondents, are charged with the moral
responsibility of the care of the victim. The familys moral injury and suffering in this case is
clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages
would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are
hereby awarded. Considering the length and nature of the instant suit we are of the opinion
that attorneys fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because
physicians are not insurers of life and, they rarely set out to intentionally cause injury or death
to their patients.However, intent is immaterial in negligence cases because where negligence
exists and is proven, the same automatically gives the injured a right to reparation for the
damage caused.
Established medical procedures and practices, though in constant flux are devised for
the purpose of preventing complications. A physicians experience with his patients would
sometimes tempt him to deviate from established community practices, and he may end a
distinguished career using unorthodox methods without incident. However, when failure to
follow established procedure results in the evil precisely sought to be averted by observance
of the procedure and a nexus is made between the deviation and the injury or damage, the
physician would necessarily be called to account for it. In the case at bar, the failure to observe
pre-operative assessment protocol which would have influenced the intubation in a salutary
way was fatal to private respondents case.
WHEREFORE, the decision and resolution of the appellate court appealed from are
hereby modified so as to award in favor of petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00 as actual damages computed as of the date of
promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner
Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages,
3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damages and
attorneys fees; and, 5) the costs of the suit.
SO ORDERED.
26
 Ramos vs. CA GR No 124354, April 11, 2002
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians
of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS, and RON
RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS, DE LOS SANTOS
MEDICAL CENTER, DR. ORLINO HOSAKA and DR. PERFECTA
GUTIERREZ, respondents.
RESOLUTION
KAPUNAN, J.:
Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta
Gutierrez move for a reconsideration of the Decision, dated December 29, 1999, of this Court
holding them civilly liable for petitioner Erlinda Ramos comatose condition after she delivered
herself to them for their professional care and management.
For better understanding of the issues raised in private respondents respective motions,
we will briefly restate the facts of the case as follows:
Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help,
was advised to undergo an operation for the removal of a stone in her gall bladder
(cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed to perform the
operation on her. The operation was scheduled for June 17, 1985 at 9:00 in the morning at
private respondent De Los Santos Medical Center (DLSMC). Since neither petitioner Erlinda
nor her husband, petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended
to them the services of Dr. Gutierrez.
Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation.
By 7:30 in the morning of the following day, petitioner Erlinda was already being prepared for
operation. Upon the request of petitioner Erlinda, her sister-in-law, Herminda Cruz, who was
then Dean of the College of Nursing at the Capitol Medical Center, was allowed to accompany
her inside the operating room.
At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to
get in touch with him by phone. Thereafter, Dr. Gutierrez informed Cruz that the operation might
be delayed due to the late arrival of Dr. Hosaka. In the meantime, the patient, petitioner Erlinda
said to Cruz, Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor.
By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already
wanted to pull out his wife from the operating room. He met Dr. Garcia, who remarked that he
was also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the hospital at around
12:10 in the afternoon, or more than three (3) hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about Dr. Hosakas arrival.
While she held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate the patient. Cruz
heard Dr. Gutierrez utter: ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan. Cruz noticed a bluish discoloration of Erlindas nailbeds on her left hand. She (Cruz)
then heard Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When
he arrived, Dr. Calderon attempted to intubate the patient. The nailbeds of the patient remained
bluish, thus, she was placed in a trendelenburg position a position where the head of the patient
is placed in a position lower than her feet. At this point, Cruz went out of the operating room to
express her concern to petitioner Rogelio that Erlindas operation was not going well.
Cruz quickly rushed back to the operating room and saw that the patient was still in
trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being wheeled to the
Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio that his wife had
bronchospasm. Erlinda stayed in the ICU for a month. She was released from the hospital only
four months later or on November 15, 1985.Since the ill-fated operation, Erlinda remained in
comatose condition until she died on August 3, 1999.[1]
Petitioners filed with the Regional Trial Court of Quezon City a civil case for damages
against private respondents. After due trial, the court a quo rendered judgment in favor of
petitioners. Essentially, the trial court found that private respondents were negligent in the
performance of their duties to Erlinda. On appeal by private respondents, the Court of Appeals
reversed the trial courts decision and directed petitioners to pay their unpaid medical bills to
private respondents.
Petitioners filed with this Court a petition for review on certiorari. The private respondents
were then required to submit their respective comments thereon. On December 29, 1999, this
Court promulgated the decision which private respondents now seek to be reconsidered. The
dispositive portion of said Decision states:
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby
modified so as to award in favor of petitioners, and solidarily against private respondents the
following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of
this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda
Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3)
P1,500,000.00 as temperate damages; 4) P100,000.00 each exemplary damages and
attorneys fees; and 5) the costs of the suit.[2]
In his Motion for Reconsideration, private respondent Dr. Hosaka submits the following
as grounds therefor:
I
THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR
WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON THE BASIS OF THE
CAPTAIN-OF-THE-SHIP DOCTRINE.
II
THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT
DR. HOSAKA LIABLE DESPITE THE FACT THAT NO NEGLIGENCE CAN BE
ATTRIBUTABLE TO HIM.
27
 III
ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA IS
LIABLE, THE HONORABLE SUPREME COURT ERRED IN AWARDING
DAMAGES THAT WERE CLEARLY EXCESSIVE AND WITHOUT LEGAL
BASIS.[3]
Private respondent Dr. Gutierrez, for her part, avers that:
A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
OVERLOOKED THE FACT THAT THE COURT OF APPEALS DECISION
DATED 29 MAY 1995 HAD ALREADY BECOME FINAL AND EXECUTORY AS
OF 25 JUNE 1995, THEREBY DEPRIVING THIS HONORABLE COURT OF
JURISDICTION OVER THE INSTANT PETITION;
B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
OVERLOOKED SEVERAL MATERIAL FACTUAL CIRCUMSTANCES WHICH,
IF PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER
CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS WERE NOT
GUILTY OF ANY NEGLIGENCE IN RESPECT OF THE INSTANT CASE;
B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS
SUFFICIENTLY DISCHARGED THE BURDEN OF
EVIDENCE BY SUBSTANTIAL PROOF OF HER
COMPLIANCE WITH THE STANDARDS OF DUE CARE
EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL
SPECIALIZATION.
B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS
SUFFICIENTLY DISCHARGED THE BURDEN OF
EVIDENCE BY SUBSTANTIAL PROOF OF HER HAVING
SUCCESSFULLY INTUBATED PATIENT ERLINDA RAMOS
C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO
MUCH RELIANCE ON THE TESTIMONY OF PETITIONERS WITNESS
HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL
CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY
D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED
THE EXPERT TESTIMONY OF DR. JAMORA AND DRA. CALDERON
E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
AWARDED DAMAGES TO PETITIONERS DESPITE THE FACT THAT THERE
WAS NO NEGLIGENCE ON THE PART OF RESPONDENT DOCTOR.[4]
Private respondent De Los Santos Medical Center likewise moves for reconsideration
on the following grounds:
I
THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE
INSTANT PETITION AS THE DECISION OF THE HONORABLE COURT OF
APPEALS HAD ALREADY BECOME FINAL AND EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN
EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN
RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS. ORLINO
HOSAKA AND PERFECTA GUTIERREZ
III
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT
RESPONDENT DE LOS SANTOS MEDICAL CENTER IS SOLIDARILY LIABLE
WITH RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED IN INCREASING THE AWARD
OF DAMAGES IN FAVOR OF PETITIONERS.[5]
In the Resolution of February 21, 2000, this Court denied the motions for reconsideration
of private respondents Drs. Hosaka and Gutierrez. They then filed their respective second
motions for reconsideration. The Philippine College of Surgeons filed its Petition-in-Intervention
contending in the main that this Court erred in holding private respondent Dr. Hosaka liable
under the captain of the ship doctrine. According to the intervenor, said doctrine had long been
abandoned in the United States in recognition of the developments in modern medical and
hospital practice.[6] The Court noted these pleadings in the Resolution of July 17, 2000.[7]
On March 19, 2001, the Court heard the oral arguments of the parties, including the
intervenor. Also present during the hearing were the amicii curiae: Dr. Felipe A. Estrella, Jr.,
Consultant of the Philippine Charity Sweepstakes, former Director of the Philippine General
Hospital and former Secretary of Health; Dr. Iluminada T. Camagay, President of the Philippine
Society of Anesthesiologists, Inc. and Professor and Vice-Chair for Research, Department of
Anesthesiology, College of Medicine-Philippine General Hospital, University of the Philippines;
and Dr. Lydia M. Egay, Professor and Vice-Chair for Academics, Department of
Anesthesiology, College of Medicine-Philippine General Hospital, University of the Philippines.
The Court enumerated the issues to be resolved in this case as follows:
28
 1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR
NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS
LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER)
IS LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR
VISITING CONSULTANT SURGEON AND ANESTHESIOLOGIST.[8]
We shall first resolve the issue pertaining to private respondent Dr. Gutierrez. She
maintains that the Court erred in finding her negligent and in holding that it was the faulty
intubation which was the proximate cause of Erlindas comatose condition. The following
objective facts allegedly negate a finding of negligence on her part: 1) That the outcome of the
procedure was a comatose patient and not a dead one; 2) That the patient had a cardiac arrest;
and 3) That the patient was revived from that cardiac arrest.[9] In effect, Dr. Gutierrez insists
that, contrary to the finding of this Court, the intubation she performed on Erlinda was
successful.
Unfortunately, Dr. Gutierrez claim of lack of negligence on her part is belied by the
records of the case. It has been sufficiently established that she failed to exercise the standards
of care in the administration of anesthesia on a patient. Dr. Egay enlightened the Court on what
these standards are:
x x x What are the standards of care that an anesthesiologist should do before we administer
anesthesia? The initial step is the preparation of the patient for surgery and this is a pre-
operative evaluation because the anesthesiologist is responsible for determining the medical
status of the patient, developing the anesthesia plan and acquainting the patient or the
responsible adult particularly if we are referring with the patient or to adult patient who may
not have, who may have some mental handicaps of the proposed plans. We do pre-operative
evaluation because this provides for an opportunity for us to establish identification and
personal acquaintance with the patient. It also makes us have an opportunity to alleviate
anxiety, explain techniques and risks to the patient, given the patient the choice and
establishing consent to proceed with the plan. And lastly, once this has been agreed upon by
all parties concerned the ordering of pre-operative medications. And following this line at the
end of the evaluation we usually come up on writing, documentation is very important as far
as when we train an anesthesiologist we always emphasize this because we need records for
our protection, well, records. And it entails having brief summary of patient history and
physical findings pertinent to anesthesia, plan, organize as a problem list, the plan anesthesia
technique, the plan post operative, pain management if appropriate, special issues for this
particular patient. There are needs for special care after surgery and if it so it must be written
down there and a request must be made known to proper authorities that such and such care
is necessary. And the request for medical evaluation if there is an indication. When we ask
for a cardio-pulmonary clearance it is not in fact to tell them if this patient is going to be fit for
anesthesia, the decision to give anesthesia rests on the anesthesiologist. What we ask them
is actually to give us the functional capacity of certain systems which maybe affected by the
anesthetic agent or the technique that we are going to use. But the burden of responsibility in
terms of selection of agent and how to administer it rest on the anesthesiologist.[10]
The conduct of a preanesthetic/preoperative evaluation prior to an operation, whether
elective or emergency, cannot be dispensed with.[11] Such evaluation is necessary for the
formulation of a plan of anesthesia care suited to the needs of the patient concerned.
Pre-evaluation for anesthesia involves taking the patients medical history, reviewing his
current drug therapy, conducting physical examination, interpreting laboratory data, and
determining the appropriate prescription of preoperative medications as necessary to the
conduct of anesthesia.[12]
Physical examination of the patient entails not only evaluating the patients central
nervous system, cardiovascular system and lungs but also the upper airway. Examination of
the upper airway would in turn include an analysis of the patients cervical spine mobility,
temporomandibular mobility, prominent central incisors, deceased or artificial teeth, ability to
visualize uvula and the thyromental distance.[13]
Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation on
Erlinda. As she herself admitted, she saw Erlinda for the first time on the day of the operation
itself, one hour before the scheduled operation. She auscultated[14] the patients heart and lungs
and checked the latters blood pressure to determine if Erlinda was indeed fit for
operation.[15] However, she did not proceed to examine the patients airway. Had she been able
to check petitioner Erlindas airway prior to the operation, Dr. Gutierrez would most probably
not have experienced difficulty in intubating the former, and thus the resultant injury could have
been avoided. As we have stated in our Decision:
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time
on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations
with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the physiological make-up and needs of
Erlinda. She was likewise not properly informed of the possible difficulties she would face
during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing
her patient for the first time only an hour before the scheduled operative procedure was,
therefore, an act of exceptional negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives lie at the core of the physicians
centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a
clear indicia of her negligence.[16]
Further, there is no cogent reason for the Court to reverse its finding that it was the faulty
intubation on Erlinda that caused her comatose condition. There is no question that Erlinda
became comatose after Dr. Gutierrez performed a medical procedure on her. Even the counsel
of Dr. Gutierrez admitted to this fact during the oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this involves a comatose
patient?
ATTY. GANA:
Yes, Your Honor.
29
 CHIEF JUSTICE: All right, let us qualify an allergic reaction. In medical terminology an allergic reaction
is something which is not usual response and it is further qualified by the release of
How do you mean by that, a comatose, a comatose after any other acts were done a hormone called histamine and histamine has an effect on all the organs of the body
by Dr. Gutierrez or comatose before any act was done by her? generally release because the substance that entered the body reacts with the
particular cell, the mass cell, and the mass cell secretes this histamine. In a way it is
ATTY. GANA: some form of response to take away that which is not mine, which is not part of the
No, we meant comatose as a final outcome of the procedure. body. So, histamine has multiple effects on the body. So, one of the effects as you
will see you will have redness, if you have an allergy you will have tearing of the
CHIEF JUSTICE: eyes, you will have swelling, very crucial swelling sometimes of the larynges which
is your voice box main airway, that swelling may be enough to obstruct the entry of
Meaning to say, the patient became comatose after some intervention, professional air to the trachea and you could also have contraction, constriction of the smaller
acts have been done by Dr. Gutierrez? airways beyond the trachea, you see you have the trachea this way, we brought
some visual aids but unfortunately we do not have a projector. And then you have
ATTY. GANA: the smaller airways, the bronchi and then eventually into the mass of the lungs you
have the bronchus. The difference is that these tubes have also in their walls
Yes, Your Honor.
muscles and this particular kind of muscles is smooth muscle so, when histamine is
CHIEF JUSTICE: released they close up like this and that phenomenon is known as bronco
spasm. However, the effects of histamine also on blood vessels are different. They
In other words, the comatose status was a consequence of some acts performed dilate blood vessel open up and the patient or whoever has this histamine release
by D. Gutierrez? has hypertension or low blood pressure to a point that the patient may have decrease
blood supply to the brain and may collapse so, you may have people who have
ATTY. GANA: this.[20]
It was a consequence of the well, (interrupted) These symptoms of an allergic reaction were not shown to have been extant in Erlindas
case. As we held in our Decision, no evidence of stridor, skin reactions, or wheezing some of
CHIEF JUSTICE: the more common accompanying signs of an allergic reaction appears on record. No laboratory
An acts performed by her, is that not correct? data were ever presented to the court.[21]

ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.[17]
What is left to be determined therefore is whether Erlindas hapless condition was due to
any fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was under the latters
care. Dr. Gutierrez maintains that the bronchospasm and cardiac arrest resulting in the patients
comatose condition was brought about by the anaphylactic reaction of the patient to Thiopental
Sodium (pentothal).[18] In the Decision, we explained why we found Dr. Gutierrez theory
unacceptable. In the first place, Dr. Eduardo Jamora, the witness who was presented to
support her (Dr. Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an
authority on anesthesia practice and procedure and their complications.[19]
Secondly, there was no evidence on record to support the theory that Erlinda developed
an allergic reaction to pentothal. Dr. Camagay enlightened the Court as to the manifestations
of an allergic reaction in this wise:
DR. CAMAGAY:
Dr. Gutierrez, however, insists that she successfully intubated Erlinda as evidenced by
the fact that she was revived after suffering from cardiac arrest. Dr. Gutierrez faults the Court
for giving credence to the testimony of Cruz on the matter of the administration of anesthesia
when she (Cruz), being a nurse, was allegedly not qualified to testify thereon. Rather, Dr.
Gutierrez invites the Courts attention to her synopsis on what transpired during Erlindas
intubation:
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by
slow IV. 02 was started by mask. After pentothal injection this was
followed by IV injection of Norcuron 4mg. After 2 minutes 02 was
given by positive pressure for about one minute. Intubation with
endotracheal tube 7.5 m in diameter was done with slight difficulty
(short neck & slightly prominent upper teeth) chest was examined
for breath sounds & checked if equal on both sides. The tube was
then anchored to the mouth by plaster & cuff inflated. Ethrane 2%
with 02 4 liters was given. Blood pressure was checked 120/80 &
heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02
given alone. Cyanosis disappeared. Blood pressure and heart
beats stable.

30
 12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales
all over the chest. D_5%_H20 & 1 ampule of aminophyline by fast
drip was started. Still the cyanosis was persistent. Patient was
connected to a cardiac monitor. Another ampule of of [sic]
aminophyline was given and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac
injection of adrenalin was given & heart beat reappeared in less
than one minute. Sodium bicarbonate & another dose of solu cortef
was given by IV. Cyanosis slowly disappeared & 02 continuously
given & assisted positive pressure. Laboratory exams done (see
results in chart).
Patient was transferred to ICU for further management.[22]
From the foregoing, it can be allegedly seen that there was no withdrawal (extubation)
of the tube. And the fact that the cyanosis allegedly disappeared after pure oxygen was
supplied through the tube proved that it was properly placed.
The Court has reservations on giving evidentiary weight to the entries purportedly
contained in Dr. Gutierrez synopsis. It is significant to note that the said record prepared by Dr.
Gutierrez was made only after Erlinda was taken out of the operating room. The standard
practice in anesthesia is that every single act that the anesthesiologist performs must be
recorded. In Dr. Gutierrez case, she could not account for at least ten (10) minutes of what
happened during the administration of anesthesia on Erlinda. The following exchange between
Dr. Estrella, one of the amicii curiae, and Dr. Gutierrez is instructive:
DR. ESTRELLA
You mentioned that there were two (2) attempts in the intubation period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the first attempt was the tube inserted or was the
laryngoscope only inserted, which was inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right somewhere in the re-direct, a certain
lawyer, you were asked that you did a first attempt and the question was did you
withdraw the tube? And you said you never withdrew the tube, is that right?
A Yes.
Q Yes. And so if you never withdrew the tube then there was no, there was no insertion
of the tube during that first attempt. Now, the other thing that we have to settle here
is when cyanosis occurred, is it recorded in the anesthesia record when the
cyanosis, in your recording when did the cyanosis occur?
A (sic)
Q Is it a standard practice of anesthesia that whatever you do during that period or from
the time of induction to the time that you probably get the patient out of the
operating room that every single action that you do is so recorded in your
anesthesia record?
A I was not able to record everything I did not have time anymore because I did that after
the, when the patient was about to leave the operating room. When there was
second cyanosis already that was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at 12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was oxygenated for around one to two
minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start giving the pentothal very slowly
and that was around one minute.
Q So, that is about 12:13 no, 12:15, 12:17?
A Yes, and then, after one minute another oxygenation was given and after (interrupted)
Q 12:18?
A Yes, and then after giving the oxygen we start the menorcure which is a relaxant. After
that relaxant (interrupted)
Q After that relaxant, how long do you wait before you do any manipulation?
A Usually you wait for two minutes or three minutes.
Q So, if our estimate of the time is accurate we are now more or less 12:19, is that right?
A Maybe.
Q 12:19. And at that time, what would have been done to this patient?
A After that time you examine the, if there is relaxation of the jaw which you push it
downwards and when I saw that the patient was relax because that monorcure is a
relaxant, you cannot intubate the patient or insert the laryngoscope if it is not
31
 keeping him relax. So, my first attempt when I put the laryngoscope on I saw the
trachea was deeply interiorly. So, what I did ask mahirap ata ito ah. So, I removed
the laryngoscope and oxygenated again the patient.
Q So, more or less you attempted to do an intubation after the first attempt as you
claimed that it was only the laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the laryngoscope and now possible intubation?
A Yes.
Q And at that point, you made a remark, what remark did you make?
A I said mahirap ata ito when the first attempt I did not see the trachea right away. That
was when I (interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away within two to three seconds.
Q At what point, for purposes of discussion without accepting it, at what point did you
make the comment na mahirap ata to intubate, mali ata ang pinasukan
A I did not say mali ata ang pinasukan I never said that.
Q Well, just for the information of the group here the remarks I am making is based on
the documents that were forwarded to me by the Supreme Court. That is why for
purposes of discussion I am trying to clarify this for the sake of enlightenment. So,
at what point did you ever make that comment?
A Which one, sir?
Q The mahirap intubate ito assuming that you (interrupted)
A Iyon lang, that is what I only said mahirap intubate (interrupted)
Q At what point?
A When the first attempt when I inserted the laryngoscope for the first time.
Q So, when you claim that at the first attempt you inserted the laryngoscope, right?
A Yes.
Q But in one of the recordings somewhere at the, somewhere in the transcript of records
that when the lawyer of the other party try to inquire from you during the first
attempt that was the time when mayroon ba kayong hinugot sa tube, I do not
remember the page now, but it seems to me it is there. So, that it was on the
second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time 12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and looking at the anesthesia records
from 12:20 to 12:30 there was no recording of the vital signs. And can we presume
that at this stage there was already some problems in handling the patient?
A Not yet.
Q But why are there no recordings in the anesthesia record?
A I did not have time.
Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the witness is laughing)
Q No, I am just asking. Remember I am not here not to pin point on anybody I am here
just to more or less clarify certainty more ore less on the record.
A Yes, Sir.
Q And so it seems that there were no recording during that span of ten (10)
minutes. From 12:20 to 12:30, and going over your narration, it seems to me that
the cyanosis appeared ten (10) minutes after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going over the
record ano, kung mali ito kuwan eh di ano. So, ganoon po ano, that it seems to me
that there is no recording from 12:20 to 12:30, so, I am just wondering why there
were no recordings during the period and then of course the second cyanosis, after
the first cyanosis. I think that was the time Dr. Hosaka came in?
A No, the first cyanosis (interrupted).[23]
We cannot thus give full credence to Dr. Gutierrez synopsis in light of her admission that
it does not fully reflect the events that transpired during the administration of anesthesia on
Erlinda. As pointed out by Dr. Estrella, there was a ten-minute gap in Dr. Gutierrez synopsis,
32
i.e., the vital signs of Erlinda were not recorded during that time. The absence of these data is
particularly significant because, as found by the trial court, it was the absence of oxygen supply
for four (4) to five (5) minutes that caused Erlindas comatose condition.
On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As we
stated in the Decision, she is competent to testify on matters which she is capable of observing
such as, the statements and acts of the physician and surgeon, external appearances and
manifest conditions which are observable by any one.[24] Cruz, Erlindas sister-in-law, was with
her inside the operating room.Moreover, being a nurse and Dean of the Capitol Medical Center
School of Nursing at that, she is not entirely ignorant of anesthetic procedure. Cruz narrated
that she heard Dr. Gutierrez remark, Ang hirap ma-intubate nito, mali yata ang pagkakapasok.
O lumalaki ang tiyan. She observed that the nailbeds of Erlinda became bluish and thereafter
Erlinda was placed in trendelenburg position.[25] Cruz further averred that she noticed that the
abdomen of Erlinda became distended.[26]
The cyanosis (bluish discoloration of the skin or mucous membranes caused by lack of
oxygen or abnormal hemoglobin in the blood) and enlargement of the stomach of Erlinda
indicate that the endotracheal tube was improperly inserted into the esophagus instead of the
trachea. Consequently, oxygen was delivered not to the lungs but to the gastrointestinal tract.
This conclusion is supported by the fact that Erlinda was placed in trendelenburg position. This
indicates that there was a decrease of blood supply to the patients brain. The brain was thus
temporarily deprived of oxygen supply causing Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not normally happen absent any negligence
in the administration of anesthesia and in the use of an endotracheal tube. As was noted in our
Decision, the instruments used in the administration of anesthesia, including the endotracheal
tube, were all under the exclusive control of private respondents Dr. Gutierrez and Dr.
Hosaka.[27] In Voss vs. Bridwell,[28]which involved a patient who suffered brain damage due to
the wrongful administration of anesthesia, and even before the scheduled mastoid operation
could be performed, the Kansas Supreme Court applied the doctrine of res ipsa
loquitur, reasoning that the injury to the patient therein was one which does not ordinarily take
place in the absence of negligence in the administration of an anesthetic, and in the use and
employment of an endotracheal tube. The court went on to say that [o]rdinarily a person being
put under anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these facts and under these circumstances, a
layman would be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have followed if
due care had been exercised.[29] Considering the application of the doctrine of res ipsa loquitur,
the testimony of Cruz was properly given credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred in finding him negligent as
a surgeon by applying the Captain-of-the-Ship doctrine.[30] Dr. Hosaka argues that the trend in
United States jurisprudence has been to reject said doctrine in light of the developments in
medical practice. He points out that anesthesiology and surgery are two distinct and specialized
fields in medicine and as a surgeon, he is not deemed to have control over the acts of Dr.
Gutierrez. As anesthesiologist, Dr. Gutierrez is a specialist in her field and has acquired skills
and knowledge in the course of her training which Dr. Hosaka, as a surgeon, does not
possess.[31] He states further that current American jurisprudence on the matter recognizes that
the trend towards specialization in medicine has created situations where surgeons do not
always have the right to control all personnel within the operating room, [32] especially a fellow
specialist.[33]
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,[34] which involved a
suit filed by a patient who lost his voice due to the wrongful insertion of the endotracheal tube
preparatory to the administration of anesthesia in connection with the laparotomy to be
conducted on him. The patient sued both the anesthesiologist and the surgeon for the injury
suffered by him. The Supreme Court of Appeals of West Virginia held that the surgeon could
not be held liable for the loss of the patients voice, considering that the surgeon did not have a
hand in the intubation of the patient. The court rejected the application of the Captain-of-the-
Ship Doctrine, citing the fact that the field of medicine has become specialized such that
surgeons can no longer be deemed as having control over the other personnel in the operating
room. It held that [a]n assignment of liability based on actual control more realistically reflects
the actual relationship which exists in a modern operating room. [35] Hence, only the
anesthesiologist who inserted the endotracheal tube into the patients throat was held liable for
the injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with the Captain-of-the-Ship
doctrine does not mean that this Court will ipso facto follow said trend. Due regard for the
peculiar factual circumstances obtaining in this case justify the application of the Captain-of-
the-Ship doctrine. From the facts on record it can be logically inferred that Dr. Hosaka
exercised a certain degree of, at the very least, supervision over the procedure then being
performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the services of Dr. Gutierrez. In
effect, he represented to petitioners that Dr. Gutierrez possessed the necessary competence
and skills. Drs. Hosaka and Gutierrez had worked together since 1977. Whenever Dr. Hosaka
performed a surgery, he would always engage the services of Dr. Gutierrez to administer the
anesthesia on his patient.[36]
Second, Dr. Hosaka himself admitted that he was the attending physician of
Erlinda. Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave instructions
to call for another anesthesiologist and cardiologist to help resuscitate Erlinda.[37]
Third, it is conceded that in performing their responsibilities to the patient, Drs. Hosaka
and Gutierrez worked as a team. Their work cannot be placed in separate watertight
compartments because their duties intersect with each other. [38]
While the professional services of Dr. Hosaka and Dr. Gutierrez were secured primarily
for their performance of acts within their respective fields of expertise for the treatment of
petitioner Erlinda, and that one does not exercise control over the other, they were certainly
not completely independent of each other so as to absolve one from the negligent acts of the
other physician.
That they were working as a medical team is evident from the fact that Dr. Hosaka was
keeping an eye on the intubation of the patient by Dr. Gutierrez, and while doing so, he
observed that the patients nails had become dusky and had to call Dr. Gutierrezs attention
thereto. The Court also notes that the counsel for Dr. Hosaka admitted that in practice, the
33
anesthesiologist would also have to observe the surgeons acts during the surgical process and CHIEF JUSTICE:
calls the attention of the surgeon whenever necessary[39] in the course of the treatment. The
duties of Dr. Hosaka and those of Dr. Gutierrez in the treatment of petitioner Erlinda are In other words, I understand that in this particular case that was the case, three
therefore not as clear-cut as respondents claim them to be. On the contrary, it is quite apparent hours waiting and the patient was already on the operating table (interrupted)
that they have a common responsibility to treat the patient, which responsibility necessitates
that they call each others attention to the condition of the patient while the other physician is DR. CAMAGAY:
performing the necessary medical procedures. Yes.
It is equally important to point out that Dr. Hosaka was remiss in his duty of attending to CHIEF JUSTICE:
petitioner Erlinda promptly, for he arrived more than three (3) hours late for the scheduled
operation. The cholecystectomy was set for June 17, 1985 at 9:00 a.m., but he arrived at Would you therefore conclude that the surgeon contributed to the aggravation of
DLSMC only at around 12:10 p.m. In reckless disregard for his patients well being, Dr. Hosaka the anxiety of the patient?
scheduled two procedures on the same day, just thirty minutes apart from each other, at
different hospitals. Thus, when the first procedure (protoscopy) at the Sta. Teresita Hospital DR. CAMAGAY:
did not proceed on time, Erlinda was kept in a state of uncertainty at the DLSMC.
That this operation did not take place as scheduled is already a source of anxiety
The unreasonable delay in petitioner Erlindas scheduled operation subjected her to and most operating tables are very narrow and that patients are usually at risk of
continued starvation and consequently, to the risk of acidosis,[40] or the condition of decreased falling on the floor so there are restraints that are placed on them and they are
alkalinity of the blood and tissues, marked by sickly sweet breath, headache, nausea and never, never left alone in the operating room by themselves specially if they are
vomiting, and visual disturbances.[41] The long period that Dr. Hosaka made Erlinda wait for already pre-medicated because they may not be aware of some of their movement
him certainly aggravated the anxiety that she must have been feeling at the time. It could be that they make which would contribute to their injury.
safely said that her anxiety adversely affected the administration of anesthesia on her. As
explained by Dr. Camagay, the patients anxiety usually causes the outpouring of adrenaline CHIEF JUSTICE:
which in turn results in high blood pressure or disturbances in the heart rhythm:
In other words due diligence would require a surgeon to come on time?
DR. CAMAGAY:
DR. CAMAGAY:
x x x Pre-operative medication has three main functions: One is to alleviate
I think it is not even due diligence it is courtesy.
anxiety. Second is to dry up the secretions and Third is to relieve pain. Now, it is very
important to alleviate anxiety because anxiety is associated with the outpouring of CHIEF JUSTICE:
certain substances formed in the body called adrenalin. When a patient is anxious
there is an outpouring of adrenalin which would have adverse effect on the Courtesy.
patient. One of it is high blood pressure, the other is that he opens himself to
disturbances in the heart rhythm, which would have adverse implications. So, we DR. CAMAGAY:
would like to alleviate patients anxiety mainly because he will not be in control of his
body there could be adverse results to surgery and he will be opened up; a knife is And care.
going to open up his body. x x x[42] CHIEF JUSTICE:
Dr. Hosaka cannot now claim that he was entirely blameless of what happened to Duty as a matter of fact?
Erlinda. His conduct clearly constituted a breach of his professional duties to Erlinda:
DR. CAMAGAY:
CHIEF JUSTICE:
Yes, Your Honor.[43]
Two other points. The first, Doctor, you were talking about anxiety, would you
consider a patient's stay on the operating table for three hours sufficient enough to Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation of
aggravate or magnify his or her anxiety? petitioner Erlinda is violative, not only of his duty as a physician to serve the interest of his
patients with the greatest solicitude, giving them always his best talent and skill, [44] but also of
DR. CAMAGAY: Article 19 of the Civil Code which requires a person, in the performance of his duties, to act
Yes. with justice and give everyone his due.

34
 Anent private respondent DLSMCs liability for the resulting injury to petitioner Erlinda,
we held that respondent hospital is solidarily liable with respondent doctors therefor under
Article 2180 of the Civil Code[45] since there exists an employer-employee relationship between
private respondent DLSMC and Drs. Gutierrez and Hosaka:
In other words, private hospitals, hire, fire and exercise real control over their attending and
visiting consultant staff. While consultants are not, technically employees, x x x the control
exercised, the hiring and the right to terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception of the payment of wages. In
assessing whether such a relationship in fact exists, the control test is determining. x x x[46]
DLSMC however contends that applying the four-fold test in determining whether such
a relationship exists between it and the respondent doctors, the inescapable conclusion is that
DLSMC cannot be considered an employer of the respondent doctors.
It has been consistently held that in determining whether an employer-employee
relationship exists between the parties, the following elements must be present: (1) selection
and engagement of services; (2) payment of wages; (3) the power to hire and fire; and (4) the
power to control not only the end to be achieved, but the means to be used in reaching such
an end.[47]
DLSMC maintains that first, a hospital does not hire or engage the services of a
consultant, but rather, accredits the latter and grants him or her the privilege of maintaining a
clinic and/or admitting patients in the hospital upon a showing by the consultant that he or she
possesses the necessary qualifications, such as accreditation by the appropriate board
(diplomate), evidence of fellowship and references.[48] Second, it is not the hospital but the
patient who pays the consultants fee for services rendered by the latter. [49] Third, a hospital
does not dismiss a consultant; instead, the latter may lose his or her accreditation or privileges
granted by the hospital.[50] Lastly, DLSMC argues that when a doctor refers a patient for
admission in a hospital, it is the doctor who prescribes the treatment to be given to said
patient. The hospitals obligation is limited to providing the patient with the preferred room
accommodation, the nutritional diet and medications prescribed by the doctor, the equipment
and facilities necessary for the treatment of the patient, as well as the services of the hospital
staff who perform the ministerial tasks of ensuring that the doctors orders are carried out
strictly.[51]
After a careful consideration of the arguments raised by DLSMC, the Court finds that
respondent hospitals position on this issue is meritorious. There is no employer-employee
relationship between DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC
solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code.
As explained by respondent hospital, that the admission of a physician to membership
in DLSMCs medical staff as active or visiting consultant is first decided upon by the Credentials
Committee thereof, which is composed of the heads of the various specialty departments such
as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head
of the particular specialty applied for as chairman. The Credentials Committee then
recommends to DLSMC's Medical Director or Hospital Administrator the acceptance or
rejection of the applicant physician, and said director or administrator validates the committee's
recommendation.[52] Similarly, in cases where a disciplinary action is lodged against a
consultant, the same is initiated by the department to whom the consultant concerned belongs
and filed with the Ethics Committee consisting of the department specialty heads. The medical
director/hospital administrator merely acts as ex-officio member of said committee.
Neither is there any showing that it is DLSMC which pays any of its consultants for
medical services rendered by the latter to their respective patients. Moreover, the contract
between the consultant in respondent hospital and his patient is separate and distinct from the
contract between respondent hospital and said patient. The first has for its object the rendition
of medical services by the consultant to the patient, while the second concerns the provision
by the hospital of facilities and services by its staff such as nurses and laboratory personnel
necessary for the proper treatment of the patient.
Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda
was due to a failure on the part of respondent DLSMC to provide for hospital facilities and staff
necessary for her treatment.
For these reasons, we reverse the finding of liability on the part of DLSMC for the injury
suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to modify the award of damages to petitioners
in view of the supervening event of petitioner Erlindas death. In the assailed Decision, the Court
awarded actual damages of One Million Three Hundred Fifty Two Thousand Pesos
(P1,352,000.00) to cover the expenses for petitioner Erlindas treatment and care from the date
of promulgation of the Decision up to the time the patient expires or survives. [53] In addition
thereto, the Court awarded temperate damages of One Million Five Hundred Thousand Pesos
(P1,500,000.00) in view of the chronic and continuing nature of petitioner Erlindas injury and
the certainty of further pecuniary loss by petitioners as a result of said injury, the amount of
which, however, could not be made with certainty at the time of the promulgation of the
decision. The Court justified such award in this manner:
Our rules on actual or compensatory damages generally assume that at the time of litigation,
the injury suffered as a consequence of an act of negligence has been completed and that
the cost can be liquidated.However, these provisions neglect to take into account those
situations, as in this case, where the resulting injury might be continuing and possible future
complications directly arising from the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately
and correctly respond to the injury caused, should be one which compensates for pecuniary
loss incurred and proved, up to the time of trial; and one which would meet pecuniary loss
certain to be suffered but which could not, from the nature of the case, be made with
certainty. In other words, temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and continuing. And because
of the unique nature of such cases, no incompatibility arises when both actual and temperate
damages are provided for. The reason is that these damages cover two distinct phases.
As it would not be equitableand certainly not in the best interests of the administration of
justicefor the victim in such cases to constantly come before the courts and invoke their aid in
35
seeking adjustments to the compensatory damages previously awardedtemperate damages
are appropriate. The amount given as temperate damages, though to a certain extent
speculative, should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a
comatose patient who has remained in that condition for over a decade. Having premised our
award for compensatory damages on the amount provided by petitioners at the onset of
litigation, it would be now much more in step with the interests of justice if the value awarded
for temperate damages would allow petitioners to provide optimal care for their loved one in a
facility which generally specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without the aid of professionals, for
anything less would be grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be reasonable. [54]
However, subsequent to the promulgation of the Decision, the Court was informed by
petitioner Rogelio that petitioner Erlinda died on August 3, 1999.[55] In view of this supervening
event, the award of temperate damages in addition to the actual or compensatory damages
would no longer be justified since the actual damages awarded in the Decision are sufficient to
cover the medical expenses incurred by petitioners for the patient. Hence, only the amounts
representing actual, moral and exemplary damages, attorneys fees and costs of suit should be
awarded to petitioners.
WHEREFORE, the assailed Decision is hereby modified as follows:
(1) Private respondent De Los Santos Medical Center is hereby absolved from liability
arising from the injury suffered by petitioner Erlinda Ramos on June 17, 1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby
declared to be solidarily liable for the injury suffered by petitioner Erlinda on June 17, 1985 and
are ordered to pay petitioners
(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorneys fees; and
(e) the costs of the suit.
SO ORDERED.
Rodrigueza vs. Manila Railroad Co., GR No. 15688, Nov. 19,
1921
STREET, J.:
This action was instituted jointly by Remigio Rodrigueza and three others in the Court of First
Instance of the Province of Albay to recover a sum of money of the Manila Railroad Company
as damages resulting from a fire kindled by sparks from a locomotive engine under the
circumstances set out below. Upon hearing the cause upon the complaint, answer and an
agreed statement of facts, the trial judge rendered judgment against the defendant company
in favor of the plaintiffs and awarded to them the following sums respectively as damages, to
wit, (1) to Remigio Rodrigueza, P3,000; (2) to Domingo Gonzaga, P400; (3) to Cristina Luna,
P300; and (4) to Perfecta Losantas, P150; all with lawful interest from March 21, 1919. From
this judgment the defendant appealed.
The facts as appearing from the agreed statement, in relation with the complaint, are to the
effect that the defendant Railroad Company operates a line through the district of Daraga in
the municipality of Albay; that on January 29, 1918, as one of its trains passed over said line,
a great quantity of sparks were emitted from the smokestack of the locomotive, and fire was
thereby communicated to four houses nearby belonging to the four plaintiffs respectively, and
the same were entirely consumed. All of these houses were of light construction with the
exception of the house of Remigio Rodrigueza, which was of strong materials, though the roof
was covered with nipa and cogon. The fire occurred immediately after the passage of the train,
and a strong wind was blowing at the time. It does not appear either in the complaint or in the
agreed statement whose house caught fire first, though it is stated in the appellant's brief that
the fire was first communicated to the house of Remigio Rodrigueza, from whence it spread to
the others.
In the fourth paragraph of the complaint which is admitted to be true it is alleged that the
defendant Railroad Company was conspicuously negligent in relation to the origin of said fire,
in the following respects, namely, first, in failing to exercise proper supervision over the
employees in charge of the locomotive; secondly, in allowing the locomotive which emitted
these sparks to be operated without having the smokestack protected by some device for
arresting sparks; thirdly, in using in its locomotive upon this occasion Bataan coal, a fuel of
known inferior quality which, upon combustion, produces sparks in great quantity.
The sole ground upon which the defense is rested is that the house of Remigio Rodrigueza
stood partly within the limits of the land owned by the defendant company, though exactly how
far away from the company's track does not appear. It further appears that, after the railroad
track was laid, the company notified Rodrigueza to get his house off the land of the company
and to remove it from its exposed position. Rodrigueza did not comply with this suggestion,
though he promised to put an iron roof on his house, which he never did. Instead, he changed
the materials of the main roof to nipa, leaving the kitchen and media-aguas covered with cogon.
Upon this fact it is contended for the defense that there was contributory negligence on the part
of Remigio Rodrigueza in having his house partly on the premises of the Railroad Company,
and that for this reason the company is not liable. This position is in our opinion untenable for
the reasons which we shall proceed to state.
36
In the first place, it will be noted that the fact suggested as constituting a defense to this action
could not in any view of the case operate as a bar to a recovery by the three plaintiffs other
than Remigio Rodrigueza, even assuming that the fire was first communicated to his house;
for said three plaintiffs are in nowise implicated in the act which supposedly constitutes the
defense. In this connection it will be observed that the right of action of each of these plaintiffs
is totally distinct from that of his coplaintiff, so much so that each might have sued separately,
and the defendant, if it had seen fit to do so, might in this case have demurred successfully to
the complaint for misjoinder of parties plaintiff. The fact that the several rights of action of the
different plaintiffs arose simultaneously out of one act of the defendant is not sufficient of itself
to require, or even permit, the joinder of such parties as coplaintiffs in a single action (30 Cyc,
114) if objection had been made thereto. Domingo Gonzaga, Cristina Luna, and Perfecta
Losantas are therefore entitled to recover upon the admitted fact that this fire originated in the
negligent acts of the defendant; and the circumstance that the fire may have been
communicated to their houses through the house of Remigio Rodrigueza, instead of having
been directly communicated from the locomotive, is immaterial. (See 38 Am. Dec, 64, 77;[1] 11
R. C. L., 968-971; Kansas City, etc. Railroad Co. vs. Blaker, 64 L. R. A., 81; Pennsylvania
Railroad Co. vs. Hope, 80 Pa. St., 373; 21 Am. Rep., 100.)
could at any time have removed said house in the exercise of the power of eminent domain,
but it elected not to do so.
Questions similar to that now before us have been under the consideration of American courts
many times, and their decisions are found to be uniformly favorable to recovery where the
property destroyed has been placed in whole or in part on the right of way of the railroad
company with its express or implied consent. (L. R. Martin Timber Co. vs. Great Northern
Railway Co., 123 Minn., 423; Ann. Cas., 1915A, p. 496, note; Burroughs vs. Housatonic R. R.
Co., 15 Conn., 124; 38 Am. Dec, 64, 74; Southern Ry. Co. vs. Patterson, 105 Va., 6; 8 Ann.
Cas., 44.) And the case for the plaintiff is apparently stronger where the company constructs
its line in proximity to a house already built and fails to condemn it and remove it from its right
of way.
From what has been said it is apparent that the judgment appealed from is in all respects in
conformity with the law, and the same is accordingly affirmed, with costs. So ordered.

With respect to the case of Remigio Rodrigueza it is to be inferred that his house stood upon
this ground before the Railroad Company laid its line over this course; and at any rate there is
no proof that this plaintiff had unlawfully intruded upon the railroad's property in the act of
building his house. What really occurred undoubtedly is that the company, upon making this
extension, had acquired the land only, leaving the owner of the house free to remove it. Hence
he cannot be considered to have been a trespasser in the beginning. Rather, he was there at
the sufferance of the defendant company, and so long as his house remained in this exposed
position, he undoubtedly assumed the risk of any loss that might have resulted from fires
occasioned by the defendant's locomotives if operated and managed with ordinary care. But
he cannot be held to have assumed the risk of any damage that might result from the unlawful
negligent acts of the defendant. Nobody is bound to anticipate and defend himself against the
possible negligence of another. Rather he has a right to assume that the other will use the care
of the ordinarily prudent man. (Philadelphia & Reading Railroad Co. vs. Hendrickson, 80 Pa.
St., 182; 21 Am. Rep., 97.)

In the situation now under consideration the proximate and only cause of the damage that
occurred was the negligent act of the defendant in causing this fire. The circumstance that
Remigio Rodrigueza's house was partly on the property of the defendant company and
therefore in dangerous proximity to passing locomotives was an antecedent condition that may
in fact have made the disaster possible, but that circumstance cannot be imputed to him as
contributory negligence destructive of his right of action, because, first, that condition was not
created by himself; secondly, because his house remained on this ground by the toleration,
and therefore with the consent of the Railroad Company; and thirdly, because even supposing
the house to be improperly there, this fact would not justify the defendant in negligently
destroying it. (Grand Trunk Railway of Canada vs. Richardson, 91 U. S., 454; 23 L. ed., 356;
Norfolk etc. Ry. Co. vs. Perrow, 101 Va., 345, 350.)

The circumstance that the defendant company, upon planting its line near Remigio
Rodrigueza's house, had requested or directed him to remove it, did not convert his occupancy
into a trespass, or impose upon him any additional responsibility over and above what the law
itself imposes in such situation. In this connection it must be remembered that the company

37
 Allied Banking Corp vs. CA, 1989
G.R. No. L-85868 October 13, 1989
ALLIED BANKING CORPORATION, petitioner,
vs.
COURT OF APPEALS AND JOSELITO Z. YUJUICO, respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioner.
Balgos & Perez Law Offices for respondents.
GANCAYCO, J.:
What started as a simple collection suit and which developed into an
intricate question of procedure is the focus of this petition for review
on certiorari.
The present petition seeks the reversal of the decision of the Court of
Appeals in CA-G.R. SP No. 14759 dated September 5, 1988
entitled "Joselito Z. Yujuico vs. Hon. Domingo D. Panis, RTC Judge of
Manila Branch LXI and Allied Banking Corp. 1 and the resolution dated
November 9,1988 denying petitioner's motion for reconsideration of the said
decision.2
The antecedent facts of the case are as follows:
On April 1, 1976, private respondent Joselito Z. Yujuico obtained a loan from
the General Bank and Trust Company (GENBANK) in the amount of Five
Hundred Thousand pesos (P500,000.00), payable on or before April 1,
1977. As evidence thereof, private respondent issued a corresponding
promissory note in favor of GENBANK. At the time private respondent
incurred the obligation, he was then a ranking officer of GENBANK and a
member of the family owning the controlling interest in the said bank.
On March 25,1977, the Monetary Board of the Central Bank issued
Resolution No. 675 forbidding GENBANK from doing business in the
Philippines. This was followed by Resolution No. 677 issued by the
Monetary Board on March 29, 1977 ordering the liquidation of GENBANK.
It appears that in a Memorandum of Agreement dated May 9, 1977 executed
by and between Allied Banking Corporation (ALLIED) and Arnulfo Aurellano
as Liquidator of GENBANK, ALLIED acquired all the assets and assumed
the liabilities of GENBANK, which includes the receivable due from private
respondent under the promissory note.
Upon failing to comply with the obligation under the promissory note,
petitioner ALLIED, on February 7, 1979, filed a complaint against private
respondent for the collection of a sum of money. This case was docketed
as Civil Case No. 121474 before the then Court of First Instance of Manila
(now Regional Trial Court).
Sometime in 1987 and in the course of the proceedings in the court below,
private respondent, then defendant in the court below, filed a Motion to
Admit Amended/Supplemental Answer and Third-Party Complaint. Private
respondent sought to implead the Central Bank and Arnulfo Aurellano as
third-party defendants. It was alleged in the third-party complaint that by
reason of the tortious interference by the Central Bank with the affairs of
GENBANK, private respondent was prevented from performing his
obligation under the loan such that he should not now be held liable thereon.
Acting on the motion and on the opposition filed thereto, the Regional Trial
Court through the Hon. Judge Felix B. Mintu issued an order dated August
13,1987 denying the admission of the third- party complaint but admitting
private respondent's amended/supplemental answer.
When the case was re-raffled to Branch 61 of the Regional Trial Court of
Manila, presiding Judge Domingo D. Panis, on February 29, 1 988,
reiterated the order denying the admission of private respondent's third-
party complaint and admitting the amended/supplemental answer. When
both parties filed their respective motions for partial reconsideration, the
Hon. Judge Panis issued an order dated April 18, 1988 denying both
motions.
38
Thereupon, private respondent filed with the Court of Appeals a petition for
certiorari 3 on June 1, 1988 questioning the orders of Hon. Judge Panis
dated February 29, 1988 denying private respondent's motion to admit third-
party complaint, and April 18, 1988 denying private respondent's motion for
partial reconsideration of the February 29,1988 order.
On September 5, 1988, the Court of Appeals rendered the assailed
decision, the dispositive portion of which reads:
WHEREFORE, finding grave abuse of discretion on the
part of the respondent Judge, the Order of February 29,
1988 as well as that of April 18, 1988 insofar as it denies
petitioner's motion to admit his third party complaint, is
hereby declared null and void. Respondent judge is hereby
ordered to admit the proposed third-party complaint. Cost
de oficio.
SO ORDERED.4
A motion for reconsideration thereof filed by petitioner was denied in a
resolution dated November 9, 1988. Petitioner assigns the following errors:
I complaint?; and (b) assuming that there is, has the cause of action under
RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN HOLDING
THAT HON. JUDGE PANIS COMMITTED GRAVE ABUSE OF
DISCRETION IN DENYING ADMISSION TO PRIVATE RESPONDENTS
THIRD-PARTY COMPLAINT, CONSIDERING THAT:
A. PRIVATE RESPONDENT'S
PROPOSED THIRD-PARTY COMPLAINT
DOES NOT STATE A CAUSE OF
ACTION IN RESPECT OF PETITIONERS
CLAIM.
B. THE ALLEGED CAUSE OF ACTION
SET FORTH IN PRIVATE
RESPONDENTS PROPOSED THIRD-
PARTY COMPLAINT HAS ALREADY
PRESCRIBED.
C. THE ADMISSION OF PRIVATE
RESPONDENT'S PROPOSED THIRD-
PARTY COMPLAINT WILL ONLY CAUSE
FURTHER UNNECESSARY DELAY IN
THE DISPOSITION OF THE CASE OF
PETITIONER AGAINST PRIVATE
RESPONDENT.
II
CONTRARY TO THE RULING OF RESPONDENT COURT OF APPEALS,
THE RULE PRESCRIBING THAT DEFENSES NOT RAISED IN THE
COURT BELOW CANNOT BE RAISED FOR THE FIRST TIME ON
APPEAL IS NOT APPLICABLE TO SPECIAL CIVIL ACTIONS
OF CERTIORARI.5
From the foregoing assignment of errors, petitioner would like Us to resolve
the following issues: (a) Is there a proper ground to admit the third-party
the third-party complaint prescribed?
A third-party complaint is a procedural device whereby a "third-party who is
neither a party nor privy to the act or deed complained of by the plaintiff,
may be brought into the case with leave of court, by the defendant, who acts
as third-party plaintiff to enforce against such third-party defendant a right
for contribution, indemnity, subrogation or any other relief, in respect of the
plaintiff s claim .6 The third party complaint is actually independent of,
separate and distinct from the plaintiffs complaint. Such that, were it not for
this provision of the Rules of Court, it would have to be filed separately from
the original complaint by the defendant against the third-party.7
After going through the records of this case, this Court finds that the third-
party plaintiffs claim is premised not only on what was alleged as the tortious
39
interference by the third-party defendants with the affairs of GENBANK.
More importantly, attention should have been focused on the fact that this
allegation is wedded to a decision rendered by the Court of Appeals in CA-
G.R. CV No. 03642 which affirmed the decision of the Regional Trial Court
in Special Proceedings No. 107812.8 We quote the pertinent portion of the
affirmed decision, to wit:
Based on the foregoing facts, the Court finds the liquidation
of GBTC as embodied in Annex "A" and Annex "B" of the
petition, which merely adopted the bid of the Lucio Tan
group as the liquidation plan of GBTC as plainly arbitrary
and made in bad faith and therefore the same must be
annulled and set aside. ... 9 (Italics supplied).
This decision, which declared as null and void the liquidation of GENBANK,
prompted private respondent herein to file a third-party complaint against
the Central Bank and Arnulfo Aurellano on the theory that he has a right to
proceed against them in respect of ALLIED's claim. In the words of private
respondent, he "[s]eeks to transfer liability for the default imputed against
him by the petitioner to the proposed third-party defendants because of their
tortious acts which prevented him from performing his obligations. 10 Thus, if
at the outset the issue appeared to be a simple maker's liability on a
promissory note, it became complex by the rendition of the aforestated
decision.
As early as Capayas vs. Court of First Instance of Albay,11 this Court had
already outlined the tests to determine whether the claim for indemnity in a
third-party claim is "in respect of plaintiff's claim." They are: (a) whether it
arises out of the same transaction on which the plaintiffs claim is based, or
whether the third-party's claim, although arising out of another or different
contract or transaction, is connected with the plaintiffs claim; (b) whether the
third-party defendant would be liable to the plaintiff or to the defendant for
all or part of the plaintiffs claim against the original defendant, although the
third-party defendant's liability arises out of another transaction; or (c)
whether the third-party defendant may assert any defense which the third-
party plaintiff has, or may have against plaintiff s claim.12
While the claim of third-party plaintiff, private respondent herein, does not
fall under test (c), there is no doubt that such claim can be accommodated
under tests (a) and (b) above-mentioned. Whether or not this Court agrees
with the petitioner's assertion that the claim does not "arise out of the same
transaction on which the plaintiff s claim is based," it cannot be denied that
the third-party's claim (although arising out of another or different contract
or transaction) is connected with plaintiffs claim. The judgement of the Court
of Appeals in CA-G.R. CV No. 03642 is the substantive basis of private
respondent's proposed third-party complaint. Put differently, there is merit
in private respondent's position that if held liable on the promissory note,
they are seeking, by means of the third-party complaint, to transfer unto the
third-party defendants liability on the note by reason of the illegal liquidation
of GENBANK which, in the first place, was the basis for the assignment of
the promissory note. If there was any confusion at all on the ground/s
alleged in the third-party complaint, it was the claim of third-party plaintiff for
other damages in addition to any amount which he may be called upon to
pay under the original complaint.13 While these allegations in the proposed
third-party complaint may cause delay in the disposition of the main suit, it
cannot, however, be outrightly asserted that it would not serve any purpose.
It is one thing to say that a third-party defendant may be held liable to
indemnify or reimburse the third-party plaintiff "in respect of plaintiffs claim,"
but it is quite another to state that a third-party defendant may be held liable
to a third-party plaintiff. The second instance may not carry with it the
necessary connection to the main cause of action and, therefore, is not
allowed by the Rules for it introduces a controversy that is entirely foreign
to and distinct from the main cause. The first instance is allowable and
should be allowed if it will help in clarifying in a single proceeding the
multifarious issues involved arising from a single transaction.
It is this Court's pronouncement that the first instance is applicable in the
present situation.
As to the issue of prescription, it is the position of petitioner that the cause
of action alleged in the third-party complaint has already prescribed.14 Being
founded on what was termed as tortious interference," petitioner asserts that
under the applicable provisions of the Civil Code on quasi-delict 15 the action
against third-party defendants should have been filed within four (4) years
40
from the date the cause of action accrued. On the theory that the cause of SO ORDERED.
action accrued on March 25, 1977, the date when the Monetary Board
ordered GENBANK to desist from doing business in the Philippines,
petitioner maintains that the claim should have been filed at the latest on
March 25, 1981.16 On the other hand, private respondent relies on the
"Doctrine of Relations" or "Relations Back Doctrine"17 to support his claim
that the cause of action as against the proposed third-party defendant
accrued only on December 12,1986 when the decision in CA-G.R. CV No.
03642 became final and executory. Thus, it is contended that while the third
party complaint was filed only on June 17,1987, it must be deemed to have
been instituted on February 7, 1979 when the complaint in the case was
filed.

There can be no question in this case that the action for damages instituted
by private respondent arising from the quasi-delict or alleged tortious
interference" should be filed within four (4) years from the day the cause of
action accrued.18

In the case of Español vs. Chairman, Philippine Veterans

Administration,19 this Court ruled that it is from the date of the act or
omission violative of the right of a party when the cause of action arises and
it is from this date that the prescriptive period must be reckoned.

Thus, while technically the third party complaint in this case may be admitted
as above discussed, however, since the cause of action accrued on March
25, 1980 when the Monetary Board ordered the General Bank to desist from
doing business in the Philippines while the third party complaint was filed
only on June 17, 1987, consequently, the action has prescribed. The third
party complaint should not be admitted.

WHEREFORE, the petition is GRANTED. The decision of the respondent

Court of Appeals dated September 5, 1988 and its resolution dated
November 9, 1988 denying the motion for reconsideration filed by petitioner
are hereby reversed and set aside and declared null and void, and another
judgment is hereby rendered sustaining the orders of the trial court of
February 29,1988 and April 18,1988, denying the admission of the third
party complaint. No pronouncement as to costs.

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