SECOND DIVISION

ALFREDO P. PACIS and CLEOPATRA D. PACIS,

Petitioners,

G.R. No. 169467

Present:
CARPIO, J., Chairperson,
BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.

- versus -

JEROME JOVANNE MORALES,

Respondent.
Promulgated:
February 25, 2010

x--------------------------------------------------x

DECISION

CARPIO, J.:

The Case

This petition for review[1] assails the 11 May 2005 Decision[2] and the 19 August 2005 Resolution of the Court of Appeals in CA-G.R. CV No. 60669.
The Facts
On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis (petitioners) filed with the trial court a civil case for damages against respondent Jerome
Jovanne Morales (respondent). Petitioners are the parents of Alfred Dennis Pacis, Jr. (Alfred), a 17-year old student who died in a shooting incident inside the
Top Gun Firearms and Ammunitions Store (gun store) in Baguio City. Respondent is the owner of the gun store.
The facts as found by the trial court are as follows:
On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a first year student at the Baguio Colleges Foundation taking up BS
Computer Science, died due to a gunshot wound in the head which he sustained while he was at the Top Gun Firearm[s] and Ammunition[s]
Store located at Upper Mabini Street, Baguio City. The gun store was owned and operated by defendant Jerome Jovanne Morales.
With Alfred Pacis at the time of the shooting were Aristedes Matibag and Jason Herbolario. They were sales agents of the defendant, and at that particular time,
the caretakers of the gun store.
The bullet which killed Alfred Dennis Pacis was fired from a gun brought in by a customer of the gun store for repair.
The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No. SN-H34194 (Exhibit Q), was left by defendant Morales in a drawer of a table located
inside the gun store.
Defendant Morales was in Manila at the time. His employee Armando Jarnague, who was the regular caretaker of the gun store was also not around. He left
earlier and requested sales agents Matibag and Herbolario to look after the gun store while he and defendant Morales were away. Jarnague entrusted to Matibag
and Herbolario a bunch of keys used in the gun store which included the key to the drawer where the fatal gun was kept.

It appears that Matibag and Herbolario later brought out the gun from the drawer and placed it on top of the table. Attracted by the sight of
the gun, the young Alfred Dennis Pacis got hold of the same. Matibag asked Alfred Dennis Pacis to return the gun. The latter followed and
handed the gun to Matibag. It went off, the bullet hitting the young Alfred in the head.
A criminal case for homicide was filed against Matibag before branch VII of this Court. Matibag, however, was acquitted of the charge against him because of
the exempting circumstance of accident under Art. 12, par. 4 of the Revised Penal Code.
By agreement of the parties, the evidence adduced in the criminal case for homicide against Matibag was reproduced and adopted by them as
part of their evidence in the instant case. [3]

On 8 April 1998, the trial court rendered its decision in favor of petitioners. The dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs [Spouses Alfredo P. Pacis and Cleopatra D. Pacis]
and against the defendant [Jerome Jovanne Morales] ordering the defendant to pay plaintiffs
(1) P30,000.00 as indemnity for the death of Alfred Pacis;
(2) P29,437.65 as actual damages for the hospitalization and burial
expenses incurred by the plaintiffs;
(3) P100,000.00 as compensatory damages;
(4) P100,000.00 as moral damages;
(5) P50,000.00 as attorneys fees.
SO ORDERED.[4]

Respondent appealed to the Court of Appeals. In its Decision [5] dated 11 May 2005, the Court of Appeals reversed the trial courts Decision and absolved
respondent from civil liability under Article 2180 of the Civil Code. [6]
Petitioners filed a motion for reconsideration, which the Court of Appeals denied in its Resolution dated 19 August 2005.
Hence, this petition.
The Trial Courts Ruling
The trial court held respondent civilly liable for the death of Alfred under Article 2180 in relation to Article 2176 of the Civil Code. [7] The trial court held that the
accidental shooting of Alfred which caused his death was partly due to the negligence of respondents employee Aristedes Matibag (Matibag). Matibag and Jason
Herbolario (Herbolario) were employees of respondent even if they were only paid on a commission basis. Under the Civil Code, respondent is liable for the
damages caused by Matibag on the occasion of the performance of his duties, unless respondent proved that he observed the diligence of a good father of a
family to prevent the damage. The trial court held that respondent failed to observe the required diligence when he left the key to the drawer containing the
loaded defective gun without instructing his employees to be careful in handling the loaded gun.
The Court of Appeals Ruling
The Court of Appeals held that respondent cannot be held civilly liable since there was no employer-employee relationship between respondent and Matibag. The
Court of Appeals found that Matibag was not under the control of respondent with respect to the means and methods in the performance of his work. There can
be no employer-employee relationship where the element of control is absent. Thus, Article 2180 of the Civil Code does not apply in this case and respondent
cannot be held liable.
Furthermore, the Court of Appeals ruled that even if respondent is considered an employer of Matibag, still respondent cannot be held liable since no negligence
can be attributed to him. As explained by the Court of Appeals:
Granting arguendo that an employer-employee relationship existed between Aristedes Matibag and the defendant-appellant, we find that no
negligence can be attributed to him.
Negligence is best exemplified in the case of Picart vs. Smith (37 Phil. 809). The test of negligence is this:
x x x. Could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person
injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on the actor to

refrain from that course or take precaution against its mischievous results, and the failure to do so constitutes negligence.
x x x.
Defendant-appellant maintains that he is not guilty of negligence and lack of due care as he did not fail to observe the diligence of a good
father of a family. He submits that he kept the firearm in one of his table drawers, which he locked and such is already an indication that he
took the necessary diligence and care that the said gun would not be accessible to anyone. He puts [sic] that his store is engaged in selling
firearms and ammunitions. Such items which are per se dangerous are kept in a place which is properly secured in order that the persons
coming into the gun store would not be able to take hold of it unless it is done intentionally, such as when a customer is interested to purchase
any of the firearms, ammunitions and other related items, in which case, he may be allowed to handle the same.
We agree. Much as We sympathize with the family of the deceased, defendant-appellant is not to be blamed. He exercised due diligence in
keeping his loaded gun while he was on a business trip in Manila. He placed it inside the drawer and locked it. It was taken away without his
knowledge and authority. Whatever happened to the deceased was purely accidental. [8]
The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN RENDERING THE DECISION AND RESOLUTION IN
QUESTION IN DISREGARD OF LAW AND JURISPRUDENCE BY REVERSING THE ORDER OF THE REGIONAL TRIAL
COURT (BRANCH 59) OF BAGUIO CITY NOTWITHSTANDING CLEAR, AUTHENTIC RECORDS AND TESTIMONIES
PRESENTED DURING THE TRIAL WHICH NEGATE AND CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE ERROR IN RENDERING THE DECISION AND RESOLUTION
IN QUESTION BY DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS THEREBY
IGNORING THE FACTUAL FINDINGS OF THE REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO CITY SHOWING
PETITIONERS CLEAR RIGHTS TO THE AWARD OF DAMAGES.[9]

The Ruling of the Court

We find the petition meritorious.
This case for damages arose out of the accidental shooting of petitioners son. Under Article 1161[10] of the Civil Code, petitioners may enforce their claim for
damages based on the civil liability arising from the crime under Article 100 [11] of the Revised Penal Code or they may opt to file an independent civil action for
damages under the Civil Code. In this case, instead of enforcing their claim for damages in the homicide case filed against Matibag, petitioners opted to file an
independent civil action for damages against respondent whom they alleged was Matibags employer. Petitioners based their claim for damages under Articles
2176 and 2180 of the Civil Code.
Unlike the subsidiary liability of the employer under Article 103 [12] of the Revised Penal Code, [13] the liability of the employer, or any person for that matter,
under Article 2176 of the Civil Code is primary and direct, based on a persons own negligence. Article 2176 states:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi-delict and is governed by the provisions
of this Chapter.

This case involves the accidental discharge of a firearm inside a gun store. Under PNP Circular No. 9, entitled the Policy on Firearms and Ammunition
Dealership/Repair, a person who is in the business of purchasing and selling of firearms and ammunition must maintain basic security and safety requirements of
a gun dealer, otherwise his License to Operate Dealership will be suspended or canceled. [14]
Indeed, a higher degree of care is required of someone who has in his possession or under his control an instrumentality extremely dangerous in character, such
as dangerous weapons or substances. Such person in possession or control of dangerous instrumentalities has the duty to take exceptional precautions to prevent

any injury being done thereby.[15] Unlike the ordinary affairs of life or business which involve little or no risk, a business dealing with dangerous weapons
requires the exercise of a higher degree of care.

As a gun store owner, respondent is presumed to be knowledgeable about firearms safety and should have known never to keep a loaded weapon in his store to
avoid unreasonable risk of harm or injury to others. Respondent has the duty to ensure that all the guns in his store are not loaded. Firearms should be stored
unloaded and separate from ammunition when the firearms are not needed for ready-access defensive use. [16] With more reason, guns accepted by the store for
repair should not be loaded precisely because they are defective and may cause an accidental discharge such as what happened in this case. Respondent was
clearly negligent when he accepted the gun for repair and placed it inside the drawer without ensuring first that it was not loaded. In the first place, the defective
gun should have been stored in a vault. Before accepting the defective gun for repair, respondent should have made sure that it was not loaded to prevent any
untoward accident. Indeed, respondent should never accept a firearm from another person, until the cylinder or action is open and he has personally checked that
the weapon is completely unloaded. [17] For failing to insure that the gun was not loaded, respondent himself was negligent. Furthermore, it was not shown in this
case whether respondent had a License to Repair which authorizes him to repair defective firearms to restore its original composition or enhance or upgrade
firearms.[18]
Clearly, respondent did not exercise the degree of care and diligence required of a good father of a family, much less the degree of care required of someone
dealing with dangerous weapons, as would exempt him from liability in this case.
WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005 Decision and the 19 August 2005 Resolution of the Court of Appeals in CAG.R. CV No. 60669. We REINSTATE the trial courts Decision dated 8 April 1998.

SO ORDERED.
G.R. No. L-4977

March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the city of Manila. Its power plant is situated at
the eastern end of a small island in the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat or by
crossing a footbridge, impassable for vehicles, at the westerly end of the island.
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age, the son of a mechanical engineer, more mature than the
average boy of his age, and having considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the footbridge to the Isla del Provisor, for the
purpose of visiting one Murphy, an employee of the defendant, who and promised to make them a cylinder for a miniature engine. Finding on inquiry that Mr.
Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and perhaps by the unusual interest which both seem to have taken in
machinery, spent some time in wandering about the company's premises. The visit was made on a Sunday afternoon, and it does not appear that they saw or
spoke to anyone after leaving the power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's coal, they walked across the open space in the neighborhood of the place
where the company dumped in the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the ground.
These caps are approximately of the size and appearance of small pistol cartridges and each has attached to it two long thin wires by means of which it may be
discharged by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in themselves a considerable explosive
power. After some discussion as to the ownership of the caps, and their right to take them, the boys picked up all they could find, hung them on stick, of which

each took end, and carried them home. After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went to the
home of the boy Manuel. The boys then made a series of experiments with the caps. They trust the ends of the wires into an electric light socket and obtained no
result. They next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a
knife, and finding that it was filled with a yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to the contents. An
explosion followed, causing more or less serious injuries to all three. Jessie, who when the boys proposed putting a match to the contents of the cap, became
frightened and started to run away, received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by several
particles of the metal capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the surgeons who were called in to care for
his wounds.
The evidence does definitely and conclusively disclose how the caps came to be on the defendant's premises, nor how long they had been there when the boys
found them. It appears, however, that some months before the accident, during the construction of the defendant's plant, detonating caps of the same size and kind
as those found by the boys were used in sinking a well at the power plant near the place where the caps were found; and it also appears that at or about the time
when these caps were found, similarly caps were in use in the construction of an extension of defendant's street car line to Fort William McKinley. The caps
when found appeared to the boys who picked them up to have been lying for a considerable time, and from the place where they were found would seem to have
been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant company to prohibit or prevent visitors from entering and walking about its premises unattended,
when they felt disposed so to do. As admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes crossed the foot bridge to
the islands;" and, we may add, roamed about at will on the uninclosed premises of the defendant, in the neighborhood of the place where the caps were found.
There is evidence that any effort ever was made to forbid these children from visiting the defendant company's premises, although it must be assumed that the
company or its employees were aware of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland transports. Later he took up work in his father's office,
learning mechanical drawing and mechanical engineering. About a month after his accident he obtained employment as a mechanical draftsman and continued in
that employment for six months at a salary of P2.50 a day; and it appears that he was a boy of more than average intelligence, taller and more mature both
mentally and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively established by the evidence of record, and are substantially admitted by
counsel. The only questions of fact which are seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant company's
premises were the property of the defendant, or that they had come from its possession and control, and that the company or some of its employees left them
exposed on its premises at the point where they were found.
The evidence in support of these allegations is meager, and the defendant company, apparently relying on the rule of law which places the burden of proof of
such allegations upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that plaintiff's evidence is
sufficient to sustain a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the McKinley extension of the defendant company's track; that
some of these caps were used in blasting a well on the company's premises a few months before the accident; that not far from the place where the caps were
found the company has a storehouse for the materials, supplies and so forth, used by it in its operations as a street railway and a purveyor of electric light; and
that the place, in the neighborhood of which the caps were found, was being used by the company as a sort of dumping ground for ashes and cinders. Fulminating
caps or detonators for the discharge by electricity of blasting charges by dynamite are not articles in common use by the average citizen, and under all the
circumstances, and in the absence of all evidence to the contrary, we think that the discovery of twenty or thirty of these caps at the place where they were found
by the plaintiff on defendant's premises fairly justifies the inference that the defendant company was either the owner of the caps in question or had the caps
under its possession and control. We think also that the evidence tends to disclose that these caps or detonators were willfully and knowingly thrown by the
company or its employees at the spot where they were found, with the expectation that they would be buried out of the sight by the ashes which it was engaged in
dumping in that neighborhood, they being old and perhaps defective; and, however this may be, we are satisfied that the evidence is sufficient to sustain a finding
that the company or some of its employees either willfully or through an oversight left them exposed at a point on its premises which the general public,
including children at play, where not prohibited from visiting, and over which the company knew or ought to have known that young boys were likely to roam
about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these conclusions are based by intimidating or rather assuming
that the blasting work on the company's well and on its McKinley extension was done by contractors. It was conclusively proven, however, that while the
workman employed in blasting the well was regularly employed by J. G. White and Co., a firm of contractors, he did the work on the well directly and
immediately under the supervision and control of one of defendant company's foremen, and there is no proof whatever in the record that the blasting on the
McKinley extension was done by independent contractors. Only one witness testified upon this point, and while he stated that he understood that a part of this
work was done by contract, he could not say so of his own knowledge, and knew nothing of the terms and conditions of the alleged contract, or of the relations of
the alleged contractor to the defendant company. The fact having been proven that detonating caps were more or less extensively employed on work done by the
defendant company's directions and on its behalf, we think that the company should have introduced the necessary evidence to support its contention if it wished
to avoid the not unreasonable inference that it was the owner of the material used in these operations and that it was responsible for tortious or negligent acts of
the agents employed therein, on the ground that this work had been intrusted to independent contractors as to whose acts the maxim respondent superior should
not be applied. If the company did not in fact own or make use of caps such as those found on its premises, as intimated by counsel, it was a very simple matter
for it to prove that fact, and in the absence of such proof we think that the other evidence in the record sufficiently establishes the contrary, and justifies the court
in drawing the reasonable inference that the caps found on its premises were its property, and were left where they were found by the company or some of its
employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the provisions of article 1089 of the Civil Code read together
with articles 1902, 1903, and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and omissions or by those in which any kind of fault or
negligence occurs.
ART. 1902 A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so
done.
ART. 1903 The obligation imposed by the preceding article is demandable, not only for personal acts and omissions, but also for those of the persons
for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live with them.
xxx

xxx

xxx

Owners or directors of an establishment or enterprise are equally liable for damages caused by their employees in the service of the branches in which
the latter may be employed or on account of their duties.
xxx

xxx

xxx

The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a
family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused
1 By the explosion of machines which may not have been cared for with due diligence, and for kindling of explosive substances which may not have
been placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts proven at the trial do not established the liability of the
defendant company under the provisions of these articles, and since we agree with this view of the case, it is not necessary for us to consider the various
questions as to form and the right of action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would,
perhaps, be involved in a decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United States, the plaintiff in an action such as that
under consideration, in order to establish his right to a recovery, must establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising in the application of these principles to the particular facts
developed in the case under consideration.
It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point where they were found, or if their owner had
exercised due care in keeping them in an appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his own pleasure and
convenience, entered upon the defendant's premises, and strolled around thereon without the express permission of the defendant, and had he not picked up and
carried away the property of the defendant which he found on its premises, and had he not thereafter deliberately cut open one of the caps and applied a match to
its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon defendant company's premises, and the intervention of his
action between the negligent act of defendant in leaving the caps exposed on its premises and the accident which resulted in his injury should not be held to have
contributed in any wise to the accident, which should be deemed to be the direct result of defendant's negligence in leaving the caps exposed at the place where
they were found by the plaintiff, and this latter the proximate cause of the accident which occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts of last resort in the United States in the cases known as
the "Torpedo" and "Turntable" cases, and the cases based thereon.

In a typical cases, the question involved has been whether a railroad company is liable for an injury received by an infant of tender years, who from mere idle
curiosity, or for the purposes of amusement, enters upon the railroad company's premises, at a place where the railroad company knew, or had good reason to
suppose, children would be likely to come, and there found explosive signal torpedoes left unexposed by the railroad company's employees, one of which when
carried away by the visitor, exploded and injured him; or where such infant found upon the premises a dangerous machine, such as a turntable, left in such
condition as to make it probable that children in playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer injury in
playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was whether a railroad company was liable for in injury received
by an infant while upon its premises, from idle curiosity, or for purposes of amusement, if such injury was, under circumstances, attributable to the negligence of
the company), the principles on which these cases turn are that "while a railroad company is not bound to the same degree of care in regard to mere strangers who
are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its
negligence or from its tortious acts;" and that "the conduct of an infant of tender years is not to be judged by the same rule which governs that of adult. While it is
the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have
been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity
only, and this is to be determined in each case by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply criticized in several state courts, and the supreme court of
Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases, especially that laid down
in Railroad Company vs. Stout, in a very able decision wherein it held, in the language of the syllabus: (1) That the owner of the land is not liable to trespassers
thereon for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of children who are injured by
dangerous machinery naturally calculated to attract them to the premises; (3) that an invitation or license to cross the premises of another can not be predicated
on the mere fact that no steps have been taken to interfere with such practice; (4) that there is no difference between children and adults as to the circumstances
that will warrant the inference of an invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad
Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in the United States, citing and approving the doctrine laid down in England in the leading case
of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases in accord with that announced in the Railroad Company vs. Stout (supra), and the
Supreme Court of the United States, in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered
the doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the adjudged cases, both English and
American, formally declared that it adhered "to the principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own
pleasure, entered upon and visited the defendant's premises, without defendant's express permission or invitation, and while there, was by accident injured by
falling into a burning slack pile of whose existence he had no knowledge, but which had been left by defendant on its premises without any fence around it or
anything to give warning of its dangerous condition, although defendant knew or had reason the interest or curiosity of passers-by. On these facts the court held
that the plaintiff could not be regarded as a mere trespasser, for whose safety and protection while on the premises in question, against the unseen danger referred
to, the defendant was under no obligation to make provision.
We quote at length from the discussion by the court of the application of the principles involved to the facts in that case, because what is said there is strikingly
applicable in the case at bar, and would seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser, the defendant company owed
him no duty, and in no case could be held liable for injuries which would not have resulted but for the entry of plaintiff on defendant's premises.
We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case now before us, they require us to hold that the defendant
was guilty of negligence in leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could have forbidden all persons from
coming to its coal mine for purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to
visit its mine, and witness its operation. It knew that the usual approach to the mine was by a narrow path skirting its slack pit, close to its depot
building, at which the people of the village, old and young, would often assemble. It knew that children were in the habit of frequenting that locality
and playing around the shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety of these children would have suggested
that they were in danger from being so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain prevailed) a mass of
burning coals into which a child might accidentally fall and be burned to death. Under all the circumstances, the railroad company ought not to be
heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty,
or for whose protection it was under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited with flesh, in his own ground, so near to a highway, or to
the premises of another, that dogs passing along the highway, or kept in his neighbors premises, would probably be attracted by their instinct into the
traps, and in consequence of such act his neighbor's dogs be so attracted and thereby injured, an action on the case would lie. "What difference," said
Lord Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means of his instinct which he can not resist, and putting him
there by manual force?" What difference, in reason we may observe in this case, is there between an express license to the children of this village to
visit the defendant's coal mine, in the vicinity of its slack pile, and an implied license, resulting from the habit of the defendant to permit them, without

objection or warning, to do so at will, for purposes of curiosity or pleasure? Referring it the case of Townsend vs. Wathen, Judge Thompson, in his work
on the Law of Negligence, volume 1, page 305, note, well says: "It would be a barbarous rule of law that would make the owner of land liable for
setting a trap thereon, baited with stinking meat, so that his neighbor's dog attracted by his natural instinct, might run into it and be killed, and which
would exempt him from liability for the consequence of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor's child
attracted to it and tempted to intermeddle with it by instincts equally strong, might thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs. Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who are chargeable with a duty of care and
caution toward them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which
would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should
expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit the premises of another, says:
In the case of young children, and other persons not fully sui juris, an implied license might sometimes arise when it would not on behalf of others.
Thus leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purpose, may be equivalent to an
invitation to them to make use of it; and, perhaps, if one were to throw away upon his premises, near the common way, things tempting to children, the
same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in the cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co.
vs. McDonald (supra) is not less cogent and convincing in this jurisdiction than in that wherein those cases originated. Children here are actuated by similar
childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found whenever the
public is permitted to congregate. The movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them
to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore,
whereon things attractive to children are exposed, or upon which the public are expressly or impliedly permitted to enter or upon which the owner knows or
ought to know children are likely to roam about for pastime and in play, " must calculate upon this, and take precautions accordingly." In such cases the owner of
the premises can not be heard to say that because the child has entered upon his premises without his express permission he is a trespasser to whom the owner
owes no duty or obligation whatever. The owner's failure to take reasonable precautions to prevent the child from entering his premises at a place where he
knows or ought to know that children are accustomed to roam about of to which their childish instincts and impulses are likely to attract them is at least
equivalent to an implied license to enter, and where the child does enter under such conditions the owner's failure to take reasonable precautions to guard the
child against injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, responsible, if the child is actually
injured, without other fault on its part than that it had entered on the premises of a stranger without his express invitation or permission. To hold otherwise would
be expose all the children in the community to unknown perils and unnecessary danger at the whim of the owners or occupants of land upon which they might
naturally and reasonably be expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has a right to do what will with his own property or that children
should be kept under the care of their parents or guardians, so as to prevent their entering on the premises of others is of sufficient weight to put in doubt. In this
jurisdiction as well as in the United States all private property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights
and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and except as to infants of very tender years it would be absurd and
unreasonable in a community organized as is that in which we lived to hold that parents or guardian are guilty of negligence or imprudence in every case wherein
they permit growing boys and girls to leave the parental roof unattended, even if in the event of accident to the child the negligence of the parent could in any
event be imputed to the child so as to deprive it a right to recover in such cases a point which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation or permission would not have relieved defendant
from responsibility for injuries incurred there by plaintiff, without other fault on his part, if such injury were attributable to the negligence of the defendant, we
are of opinion that under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the proximate
cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of the defendant," and, on the other hand,
we are satisfied that plaintiffs action in cutting open the detonating cap and putting match to its contents was the proximate cause of the explosion and of the
resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's youth the intervention of his action between the negligent act
of the defendant in leaving the caps exposed on its premises and the explosion which resulted in his injury should not be held to have contributed in any wise to
the accident; and it is because we can not agree with this proposition, although we accept the doctrine of the Turntable and Torpedo cases, that we have thought
proper to discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co. vs. Stout (supra), "While it is the general rule in
regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be
determined in each case by the circumstances of the case." As we think we have shown, under the reasoning on which rests the doctrine of the Turntable and
Torpedo cases, no fault which would relieve defendant of responsibility for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown
boy of 15 years of age, because of his entry upon defendant's uninclosed premises without express permission or invitation' but it is wholly different question
whether such youth can be said to have been free from fault when he willfully and deliberately cut open the detonating cap, and placed a match to the contents,
knowing, as he undoubtedly did, that his action would result in an explosion. On this point, which must be determined by "the particular circumstances of this
case," the doctrine laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the "Torpedo" and

analogous cases which our attention has been directed, the record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of such tender
years that they were held not to have the capacity to understand the nature or character of the explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally and physically than the average boy of his age;
he had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record discloses
throughout that he was exceptionally well qualified to take care of himself. The evidence of record leaves no room for doubt that, despite his denials on the
witness stand, he well knew the explosive character of the cap with which he was amusing himself. The series of experiments made by him in his attempt to
produce an explosion, as described by the little girl who was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity,
followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the application of a match to the contents
of the caps, show clearly that he knew what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be
dangerous, in view of the fact that the little girl, 9 years of age, who was within him at the time when he put the match to the contents of the cap, became
frightened and ran away.
True, he may not have known and probably did not know the precise nature of the explosion which might be expected from the ignition of the contents of the
cap, and of course he did not anticipate the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might be expected from
his act, and yet he willfully, recklessly, and knowingly produced the explosion. It would be going far to say that "according to his maturity and capacity" he
exercised such and "care and caution" as might reasonably be required of him, or that defendant or anyone else should be held civilly responsible for injuries
incurred by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the nature and consequences of his own
acts, so as to make it negligence on his part to fail to exercise due care and precaution in the commission of such acts; and indeed it would be impracticable and
perhaps impossible so to do, for in the very nature of things the question of negligence necessarily depends on the ability of the minor to understand the character
of his own acts and their consequences; and the age at which a minor can be said to have such ability will necessarily depends of his own acts and their
consequences; and at the age at which a minor can be said to have such ability will necessarily vary in accordance with the varying nature of the infinite variety
of acts which may be done by him. But some idea of the presumed capacity of infants under the laws in force in these Islands may be gathered from an
examination of the varying ages fixed by our laws at which minors are conclusively presumed to be capable of exercising certain rights and incurring certain
responsibilities, though it can not be said that these provisions of law are of much practical assistance in cases such as that at bar, except so far as they illustrate
the rule that the capacity of a minor to become responsible for his own acts varies with the varying circumstances of each case. Under the provisions of the Penal
Code a minor over fifteen years of age is presumed to be capable of committing a crime and is to held criminally responsible therefore, although the fact that he
is less than eighteen years of age will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child may,
under certain circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the appointment of a guardian
(Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of contracting a legal marriage (Civil
Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the danger to which he exposed himself when he put the
match to the contents of the cap; that he was sui juris in the sense that his age and his experience qualified him to understand and appreciate the necessity for the
exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be
held to have been the direct and immediate result of his own willful and reckless act, so that while it may be true that these injuries would not have been incurred
but for the negligence act of the defendant in leaving the caps exposed on its premises, nevertheless plaintiff's own act was the proximate and principal cause of
the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his own fault, and that he can not demand reparation therefor from
another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own acts the grievance should be against himself and not against another. (Law 2,
tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his own acts the grievance should be against himself and not against another. (Law
2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly lays down the law touching contributory negligence in this jurisdiction,
nevertheless, the interpretation placed upon its provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover damages from the defendant, in whole or in part, for the injuries
sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is directly in point. In that case the court said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of obligation when between such negligence and
the injury there exists the relation of cause and effect; but if the injury produced should not be the result of acts or omissions of a third party, the latter
has no obligation to repair the same, although such acts or omission were imprudent or unlawful, and much less when it is shown that the immediate
cause of the injury was the negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or negligence is not sufficient without proof that it, and no other
cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455),
commenting on the decision of March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when between it and the damage there
exists the relation of cause and effect; but if the damage caused does not arise from the acts or omissions of a third person, there is no obligation to
make good upon the latter, even though such acts or omissions be imprudent or illegal, and much less so when it is shown that the immediate cause of
the damage has been the recklessness of the injured party himself.
And again
In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is apparent that it is duty of him who shall claim
damages to establish their existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898, have especially supported the
principle, the first setting forth in detail the necessary points of the proof, which are two: An act or omission on the part of the person who is to be
charged with the liability, and the production of the damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or effect between the act or omission and the damage; the latter must be the direct
result of one of the first two. As the decision of March 22, 1881, said, it is necessary that the damages result immediately and directly from an act
performed culpably and wrongfully; "necessarily presupposing a legal ground for imputability." (Decision of October 29, 1887.)
Negligence is not presumed, but must be proven by him who alleges it. (Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in this court in the maturely considered case of Rakes vs.
Atlantic, Gulf and Pacific Co. (supra), wherein we held that while "There are many cases (personal injury cases) was exonerated," on the ground that "the
negligence of the plaintiff was the immediate cause of the casualty" (decisions of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in
Alcubilla's Index of that year); none of the cases decided by the supreme court of Spain "define the effect to be given the negligence of its causes, though not the
principal one, and we are left to seek the theory of the civil law in the practice of other countries;" and in such cases we declared that law in this jurisdiction to
require the application of "the principle of proportional damages," but expressly and definitely denied the right of recovery when the acts of the injured party
were the immediate causes of the accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple.
Distinction must be made between the accident and the injury, between the event itself, without which there could have been no accident, and those acts
of the victim not entering into it, independent of it, but contributing to his own proper hurt. For instance, the cause of the accident under review was the
displacement of the crosspiece or the failure to replace it. This produces the event giving occasion for damagesthat is, the sinking of the track and the
sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element of the
damage which came to himself. Had the crosspiece been out of place wholly or partly through his act or omission of duty, that would have been one of
the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the principal occurrence, as one of
its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the
amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the accident which resulted in plaintiff's injury, was in his own
act in putting a match to the contents of the cap, and that having "contributed to the principal occurrence, as one of its determining factors, he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon defendant's premises the detonating caps, the property of
defendant, and carrying the relation of cause and effect between the negligent act or omission of the defendant in leaving the caps exposed on its premises and the
injuries inflicted upon the plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo cases, such action on the part of an infant of very
tender years would have no effect in relieving defendant of responsibility, but whether in view of the well-known fact admitted in defendant's brief that "boys are
snappers-up of unconsidered trifles," a youth of the age and maturity of plaintiff should be deemed without fault in picking up the caps in question under all the
circumstances of this case, we neither discuss nor decide.

10

Twenty days after the date of this decision let judgment be entered reversing the judgment of the court below, without costs to either party in this instance, and
ten days thereafter let the record be returned to the court wherein it originated, where the judgment will be entered in favor of the defendant for the costs in first
instance and the complaint dismissed without day. So ordered.
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., concurs in the result.
G.R. No. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR, respondents.

DAVIDE, JR., J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek the reversal of the 17 June 1996 decision 1 of the Court of Appeals in
C.A. G.R. No. CV 37937 and the resolution 2 denying their motion for reconsideration. The assailed decision set aside the 15 January 1992 judgment of the
Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and attorney's fees to private respondents
Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the
store's branch manager, operations manager, and supervisor, respectively. Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvel's Department Store, Makati City. CRISELDA was signing her credit
card slip at the payment and verification counter when she felt a sudden gust of wind and heard a loud thud. She looked behind her. She then beheld her daughter
ZHIENETH on the floor, her young body pinned by the bulk of the store's gift-wrapping counter/structure. ZHIENETH was crying and screaming for help.
Although shocked, CRISELDA was quick to ask the assistance of the people around in lifting the counter and retrieving ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic slate. The injuries she sustained took their toil on her young body. She died fourteen (14) days after the
accident or on 22 May 1983, on the hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained. The provisional medical certificate 5 issued by ZHIENETH's attending doctor described the
extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the hospitalization, medical bills and wake and funeral
expenses 6 which they had incurred. Petitioners refused to pay. Consequently, private respondents filed a complaint for damages, docketed as Civil Case No. 7119
wherein they sought the payment of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for attorney's fees and an unspecified amount for
loss of income and exemplary damages.

11

In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death of ZHIENETH. They claimed that CRISELDA was
negligent in exercising care and diligence over her daughter by allowing her to freely roam around in a store filled with glassware and appliances. ZHIENETH
too, was guilty of contributory negligence since she climbed the counter, triggering its eventual collapse on her. Petitioners also emphasized that the counter was
made of sturdy wood with a strong support; it never fell nor collapsed for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good father of a family in the selection, supervision and
control of its employees. The other petitioners likewise raised due care and diligence in the performance of their duties and countered that the complaint was
malicious for which they suffered besmirched reputation and mental anguish. They sought the dismissal of the complaint and an award of moral and exemplary
damages and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and counterclaim after finding that the preponderance of the evidence favored petitioners. It ruled that the
proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it. It believed petitioners' witnesses who testified that ZHIENETH clung to
the counter, afterwhich the structure and the girl fell with the structure falling on top of her, pinning her stomach. In contrast, none of private respondents'
witnesses testified on how the counter fell. The trial court also held that CRISELDA's negligence contributed to ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned that the counter was situated at the end or corner of the 2nd floor as a precautionary measure
hence, it could not be considered as an attractive nuisance. 8The counter was higher than ZHIENETH. It has been in existence for fifteen years. Its structure was
safe and well-balanced. ZHIENETH, therefore, had no business climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court its findings that: (1) the proximate cause of the fall of the counter was
ZHIENETH's misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter; and
(4) petitioners were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to the conclusive presumption that a child below nine (9) years is incapable of
contributory negligence. And even if ZHIENETH, at six (6) years old, was already capable of contributory negligence, still it was physically impossible for her to
have propped herself on the counter. She had a small frame (four feet high and seventy pounds) and the counter was much higher and heavier than she was. Also,
the testimony of one of the store's former employees, Gerardo Gonzales, who accompanied ZHIENETH when she was brought to the emergency room of the
Makati Medical Center belied petitioners' theory that ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was asked by the doctor what
she did, ZHIENETH replied, "[N]othing, I did not come near the counter and the counter just fell on me." 9 Accordingly, Gonzales' testimony on ZHIENETH's
spontaneous declaration should not only be considered as part ofres gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of ZHIENETH at the precise moment that she was signing
the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of ZHIENETH's death, was petitioners' negligence in failing to institute measures to
have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised purely factual issues which could no longer be disturbed. They explained that ZHIENETH's
death while unfortunate and tragic, was an accident for which neither CRISELDA nor even ZHIENETH could entirely be held faultless and blameless. Further,
petitioners adverted to the trial court's rejection of Gonzales' testimony as unworthy of credence.
As to private respondent's claim that the counter should have been nailed to the ground, petitioners justified that it was not necessary. The counter had been in
existence for several years without any prior accident and was deliberately placed at a corner to avoid such accidents. Truth to tell, they acted without fault or
negligence for they had exercised due diligence on the matter. In fact, the criminal case 10 for homicide through simple negligence filed by private respondents
against the individual petitioners was dismissed; a verdict of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and reversed the appealed judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The counter was shaped like an inverted "L" 11 with a top wider than the base. It was top heavy and the weight of
the upper portion was neither evenly distributed nor supported by its narrow base. Thus, the counter was defective, unstable and dangerous; a downward pressure
on the overhanging portion or a push from the front could cause the counter to fall. Two former employees of petitioners had already previously brought to the
attention of the management the danger the counter could cause. But the latter ignored their concern. The Court of Appeals faulted the petitioners for this
omission, and concluded that the incident that befell ZHIENETH could have been avoided had petitioners repaired the defective counter. It was inconsequential
that the counter had been in use for some time without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the incident, was absolutely incapable of negligence or other
tort. It reasoned that since a child under nine (9) years could not be held liable even for an intentional wrong, then the six-year old ZHIENETH could not be made
to account for a mere mischief or reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of the ordinary in momentarily
allowing ZHIENETH to walk while she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them biased and prejudiced. It instead gave credit to the testimony of
disinterested witness Gonzales. The Court of Appeals then awarded P99,420.86 as actual damages, the amount representing the hospitalization expenses incurred

12

by private respondents as evidenced by the hospital's statement of account. 12 It denied an award for funeral expenses for lack of proof to substantiate the same.
Instead, a compensatory damage of P50,000 was awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, 13 thus:
WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is entered against [petitioners],
ordering them to pay jointly and severally unto [private respondents] the following:
1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with legal interest
(6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest (6% p.a.)
from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney's fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the same was denied in the Court of Appeals' resolution

14

of 16 July 1997.

Petitioners now seek the reversal of the Court of Appeals' decision and the reinstatement of the judgment of the trial court. Petitioners primarily argue that the
Court of Appeals erred in disregarding the factual findings and conclusions of the trial court. They stress that since the action was based on tort, any finding of
negligence on the part of the private respondents would necessarily negate their claim for damages, where said negligence was the proximate cause of the injury
sustained. The injury in the instant case was the death of ZHIENETH. The proximate cause was ZHIENETH's act of clinging to the counter. This act in turn
caused the counter to fall on her. This and CRISELDA's contributory negligence, through her failure to provide the proper care and attention to her child while
inside the store, nullified private respondents' claim for damages. It is also for these reasons that parents are made accountable for the damage or injury inflicted
on others by their minor children. Under these circumstances, petitioners could not be held responsible for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated from Syvel's at the time he testified; hence, his testimony might have been tarnished
by ill-feelings against them.
For their part, private respondents principally reiterated their arguments that neither ZHIENETH nor CRISELDA was negligent at any time while inside the
store; the findings and conclusions of the Court of Appeals are substantiated by the evidence on record; the testimony of Gonzales, who heard ZHIENETH
comment on the incident while she was in the hospital's emergency room should receive credence; and finally, ZHIENETH's part of the res gestae declaration
"that she did nothing to cause the heavy structure to fall on her" should be considered as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to negligence; and (2) in case of a finding of negligence,
whether the same was attributable to private respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due and
reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. 15 It is "a fortuitous circumstance, event or happening; an
event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens." 16
On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a prudent and reasonable man would not do. 17 Negligence is "the failure to observe, for the protection
of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers
injury." 18
Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care,
which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence. 19
The test in determining the existence of negligence is enunciated in the landmark case of Plicart v. Smith, 20 thus: Did the defendant in doing the alleged negligent
act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH's death could only be attributed to negligence.

13

We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice anything while the child was being treated?
A At the emergency room we were all surrounding the child. And when the doctor asked the child "what did you do," the
child said "nothing, I did not come near the counter and the counter just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should be admitted as) part of theres gestae under Section 42, Rule 130 of the
Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with
respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act
material to the issue, and giving it a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and
admissions. 23 All that is required for their admissibility as part of the res gestaeis that they be made or uttered under the influence of a startling event before the
declarant had the time to think and concoct a falsehood as witnessed by the person who testified in court. Under the circumstances thus described, it is
unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she trusted with her life. We therefore accord credence
to Gonzales' testimony on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through their negligence or
omission to secure or make stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep and maintain the structurally unstable gift-wrapping counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the second floor, will you please describe the gift wrapping counter,
were you able to examine?
A Because every morning before I start working I used to clean that counter and since not nailed and it was only standing
on the floor, it was shaky.
xxx xxx xxx
Q Will you please describe the counter at 5:00 o'clock [sic] in the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside the verification counter. And since the top of it was
heavy and considering that it was not nailed, it can collapse at anytime, since the top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond of putting display decorations
on tables, he even told me that I would put some decorations. But since I told him that it not [sic] nailed and it is shaky he
told me "better inform also the company about it." And since the company did not do anything about the counter, so I also
did not do anything about the counter. 24 [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:

14

Q Will you please described [sic] to the honorable Court the counter where you were assigned in January 1983?
xxx xxx xxx
A That counter assigned to me was when my supervisor ordered me to carry that counter to another place. I told him that
the counter needs nailing and it has to be nailed because it might cause injury or accident to another since it was shaky.
Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will you please describe that
to the honorable Court?
A I told her that the counter wrapper [sic] is really in good [sic] condition; it was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?
A She told me "Why do you have to teach me. You are only my subordinate and you are to teach me?" And she even got
angry at me when I told her that.
xxx xxx xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of the management do to that
(sic)
xxx xxx xxx
Witness:
None, sir. They never nailed the counter. They only nailed the counter after the accident happened. 25 [Emphasis
supplied]
Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed by the unstable counter. Yet, neither initiated any
concrete action to remedy the situation nor ensure the safety of the store's employees and patrons as a reasonable and ordinary prudent man would have done.
Thus, as confronted by the situation petitioners miserably failed to discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the former's testimonies were biased and tainted with partiality.
Therefore, the allegation that Gonzales and Guevarra's testimonies were blemished by "ill feelings" against petitioners since they (Gonzales and Guevarra)
were already separated from the company at the time their testimonies were offered in court was but mere speculation and deserved scant consideration.
It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general rule disturb the findings of the trial court, which is
in a better position to determine the same. The trial court has the distinct advantage of actually hearing the testimony of and observing the deportment of the
witnesses. 26However, the rule admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate some facts or
circumstances of weight and substance which could affect the result of the case. 27 In the instant case, petitioners failed to bring their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of
contributory negligence. In his book, 28 former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account,
exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and
under fifteen years of age, unless it is shown that he has acted with discernment. Since negligence may be a felony and aquasi-delict and
required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed
to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine
but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be
conclusively presumed incapable of contributory negligence as a matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter, no injury should have occurred if we accept
petitioners' theory that the counter was stable and sturdy. For if that was the truth, a frail six-year old could not have caused the counter to collapse. The physical
analysis of the counter by both the trial court and Court of Appeals and a scrutiny of the evidence 29 on record reveal otherwise, i.e., it was not durable after all.

15

Shaped like an inverted "L," the counter was heavy, huge, and its top laden with formica. It protruded towards the customer waiting area and its base was not
secured. 30
CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to CRISELDA's waist, later to the latter's
hand. 31 CRISELDA momentarily released the child's hand from her clutch when she signed her credit card slip. At this precise moment, it was reasonable and
usual for CRISELDA to let go of her child. Further, at the time ZHIENETH was pinned down by the counter, she was just a foot away from her mother; and the
gift-wrapping counter was just four meters away from CRISELDA. 32 The time and distance were both significant. ZHIENETH was near her mother and did not
loiter as petitioners would want to impress upon us. She even admitted to the doctor who treated her at the hospital that she did not do anything; the counter just
fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R.
No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
G.R. No. L-33722 July 29, 1988
FEDERICO YLARDE and ADELAIDA DORONIO petitioners,
vs.
EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents.
Buenaventura C. Evangelista for petitioners.
Modesto V. Cabanela for respondent Edgardo Aquino.
Manuel P. Pastor for respondent Mauro Soriano.

GANCAYCO, J.:
In this petition for review on certiorari seeking the reversal of the decision of the Court of Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs.
Edgardo Aquino, et al.," a case which originated from the Court of First Instance of Pangasinan, We are again caned upon determine the responsibility of the
principals and teachers towards their students or pupils.
In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary School, a public educational institution located in Tayug, PangasinanPrivate respondent Edgardo Aquino was a teacher therein. At that time, the school was fittered with several concrete blocks which were remnants of the old
school shop that was destroyed in World War II. Realizing that the huge stones were serious hazards to the schoolchildren, another teacher by the name of Sergio
Banez started burying them one by one as early as 1962. In fact, he was able to bury ten of these blocks all by himself.
Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his male pupils, aged ten to eleven, after class dismissal on October 7,
1963. Being their teacher-in-charge, he ordered them to dig beside a one-ton concrete block in order to make a hole wherein the stone can be buried. The work
was left unfinished. The following day, also after classes, private respondent Aquino called four of the original eighteen pupils to continue the digging. These
four pupils Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito Ylarde, dug until the excavation was one meter and forty centimeters deep. At
this point, private respondent Aquino alone continued digging while the pupils remained inside the pit throwing out the loose soil that was brought about by the
digging.
When the depth was right enough to accommodate the concrete block, private respondent Aquino and his four pupils got out of the hole. Then, said private
respondent left the children to level the loose soil around the open hole while he went to see Banez who was about thirty meters away. Private respondent wanted
to borrow from Banez the key to the school workroom where he could get some rope. Before leaving. , private respondent Aquino allegedly told the children "not
to touch the stone."
A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara and Ylarde, playfully jumped into the pit. Then, without any warning
at all, the remaining Abaga jumped on top of the concrete block causing it to slide down towards the opening. Alonso and Alcantara were able to scramble out of
the excavation on time but unfortunately fo Ylarde, the concrete block caught him before he could get out, pinning him to the wall in a standing position. As a
result thereof, Ylarde sustained the following injuries:
1. Contusion with hematoma, left inguinal region and suprapubic region.

16

2. Contusion with ecchymosis entire scrotal region.

3. Lacerated wound, left lateral aspect of penile skin with phimosis
4. Abrasion, gluteal region, bilateral.
5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about 2 liters.
6. Fracture, simple, symphesis pubis
7. Ruptured (macerated) urinary bladder with body of bladder almost entirely separated from its neck.
REMARKS:
1. Above were incurred by crushing injury.
2. Prognosis very poor.
(Sgd.) MELQUIADES A. BRAVO
Physician on Duty. 1
Three days later, Novelito Ylarde died.
Ylarde's parents, petitioners in this case, filed a suit for damages against both private respondents Aquino and Soriano. The lower court dismissed the complaint
on the following grounds: (1) that the digging done by the pupils is in line with their course called Work Education; (2) that Aquino exercised the utmost
diligence of a very cautious person; and (3) that the demise of Ylarde was due to his own reckless imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower court.
Petitioners base their action against private respondent Aquino on Article 2176 of the Civil Code for his alleged negligence that caused their son's death while the
complaint against respondent Soriano as the head of school is founded on Article 2180 of the same Code.
Article 2176 of the Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre- existing contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
On the other hand, the applicable provision of Article 2180 states:
Art. 2180. x x x
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so
long as they remain in their custody. 3
The issue to be resolved is whether or not under the cited provisions, both private respondents can be held liable for damages.
As regards the principal, We hold that he cannot be made responsible for the death of the child Ylarde, he being the head of an academic school and not a school
of arts and trades. This is in line with Our ruling in Amadora vs. Court of Appeals, 4 wherein this Court thoroughly discussed the doctrine that under Article 2180
of the Civil Code, it is only the teacher and not the head of an academic school who should be answerable for torts committed by their students. This Court went
on to say that in a school of arts and trades, it is only the head of the school who can be held liable. In the same case, We explained:
After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question should apply
to all schools, academic as well as non-academic. Where the school is academic rather than technical or vocational in nature, responsibility
for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the

17

general rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the
general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in
which case it is the head thereof who shall be answerable. Following the canon ofreddendo singula sinquilis 'teachers' should apply to the
words "pupils and students' and 'heads of establishments of arts and trades to the word "apprentices."
Hence, applying the said doctrine to this case, We rule that private respondent Soriano, as principal, cannot be held liable for the reason that the school he heads
is an academic school and not a school of arts and trades. Besides, as clearly admitted by private respondent Aquino, private respondent Soriano did not give any
instruction regarding the digging.
From the foregoing, it can be easily seen that private respondent Aquino can be held liable under Article 2180 of the Civil Code as the teacher-in-charge of the
children for being negligent in his supervision over them and his failure to take the necessary precautions to prevent any injury on their persons. However, as
earlier pointed out, petitioners base the alleged liability of private respondent Aquino on Article 2176 which is separate and distinct from that provided for in
Article 2180.
With this in mind, the question We need to answer is this: Were there acts and omissions on the part of private respondent Aquino amounting to fault or
negligence which have direct causal relation to the death of his pupil Ylarde? Our answer is in the affirmative. He is liable for damages.
From a review of the record of this case, it is very clear that private respondent Aquino acted with fault and gross negligence when he: (1) failed to avail himself
of services of adult manual laborers and instead utilized his pupils aged ten to eleven to make an excavation near the one-ton concrete stone which he knew to be
a very hazardous task; (2) required the children to remain inside the pit even after they had finished digging, knowing that the huge block was lying nearby and
could be easily pushed or kicked aside by any pupil who by chance may go to the perilous area; (3) ordered them to level the soil around the excavation when it
was so apparent that the huge stone was at the brink of falling; (4) went to a place where he would not be able to check on the children's safety; and (5) left the
children close to the excavation, an obviously attractive nuisance.
The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has a direct causal connection to the death of the child Ylarde. Left
by themselves, it was but natural for the children to play around. Tired from the strenuous digging, they just had to amuse themselves with whatever they found.
Driven by their playful and adventurous instincts and not knowing the risk they were facing three of them jumped into the hole while the other one jumped on the
stone. Since the stone was so heavy and the soil was loose from the digging, it was also a natural consequence that the stone would fall into the hole beside it,
causing injury on the unfortunate child caught by its heavy weight. Everything that occurred was the natural and probable effect of the negligent acts of private
respondent Aquino. Needless to say, the child Ylarde would not have died were it not for the unsafe situation created by private respondent Aquino which
exposed the lives of all the pupils concerned to real danger.
We cannot agree with the finding of the lower court that the injuries which resulted in the death of the child Ylarde were caused by his own reckless imprudence,
It should be remembered that he was only ten years old at the time of the incident, As such, he is expected to be playful and daring. His actuations were natural to
a boy his age. Going back to the facts, it was not only him but the three of them who jumped into the hole while the remaining boy jumped on the block. From
this, it is clear that he only did what any other ten-year old child would do in the same situation.
In ruling that the child Ylarde was imprudent, it is evident that the lower court did not consider his age and maturity. This should not be the case. The degree of
care required to be exercised must vary with the capacity of the person endangered to care for himself. A minor should not be held to the same degree of care as
an adult, but his conduct should be judged according to the average conduct of persons of his age and experience. 5 The standard of conduct to which a child must
conform for his own protection is that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the
same or similar circumstances. 6Bearing this in mind, We cannot charge the child Ylarde with reckless imprudence.
The court is not persuaded that the digging done by the pupils can pass as part of their Work Education. A single glance at the picture showing the excavation and
the huge concrete block 7 would reveal a dangerous site requiring the attendance of strong, mature laborers and not ten-year old grade-four pupils. We cannot
comprehend why the lower court saw it otherwise when private respondent Aquino himself admitted that there were no instructions from the principal requiring
what the pupils were told to do. Nor was there any showing that it was included in the lesson plan for their Work Education. Even the Court of Appeals made
mention of the fact that respondent Aquino decided all by himself to help his co-teacher Banez bury the concrete remnants of the old school shop. 8 Furthermore,
the excavation should not be placed in the category of school gardening, planting trees, and the like as these undertakings do not expose the children to any risk
that could result in death or physical injuries.
The contention that private respondent Aquino exercised the utmost diligence of a very cautious person is certainly without cogent basis. A reasonably prudent
person would have foreseen that bringing children to an excavation site, and more so, leaving them there all by themselves, may result in an accident. An
ordinarily careful human being would not assume that a simple warning "not to touch the stone" is sufficient to cast away all the serious danger that a huge
concrete block adjacent to an excavation would present to the children. Moreover, a teacher who stands in loco parentis to his pupils would have made sure that
the children are protected from all harm in his company.
We close by categorically stating that a truly careful and cautious person would have acted in all contrast to the way private respondent Aquino did. Were it not
for his gross negligence, the unfortunate incident would not have occurred and the child Ylarde would probably be alive today, a grown- man of thirty-five. Due
to his failure to take the necessary precautions to avoid the hazard, Ylarde's parents suffered great anguish all these years.

18

WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the questioned judgment of the respondent court is REVERSED and SET ASIDE
and another judgment is hereby rendered ordering private respondent Edagardo Aquino to pay petitioners the following:
(1) Indemnity for the death of Child Ylarde P30,000.00
(2) Exemplary damages 10,000.00
(3) Moral damages 20,000.00
SO ORDERED.
G.R. No. 130068 October 1, 1998
FAR EASTERN SHIPPING COMPANY, petitioner,
vs.
COURT OF APPEALS and PHILIPPINE PORTS AUTHORITY, respondents.
G.R. No. 130150 October, 1998
MANILA PILOTS ASSOCIATION, petitioner,
vs.
PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING COMPANY, respondents.

REGALADO, J.:
These consolidated petitions for review on certiorari seek in unison to annul and set aside the decision 1 of respondent Court of Appeals of November 15, 1996
and its resolution 2 dated July 31, 1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company,
Senen C. Gavino and Manila Pilots' Association, Defendants-Appellants," which affirmed with modification the judgment of the trial court holding the
defendants-appellants therein solidarily liable for damages in favor of herein private respondent.
There is no dispute about the facts as found by the appellate court,
thus
. . . On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, owned and operated by the Far Eastern Shipping
Company (FESC for brevity's sake), arrived at the Port of Manila from Vancouver, British Columbia at about 7:00 o'clock in the morning.
The vessel was assigned Berth 4 of the Manila International Port, as its berthing space. Captain Roberto Abellana was tasked by the
Philippine Port Authority to supervise the berthing of the vessel. Appellant Senen Gavino was assigned by the Appellant Manila Pilots'
Association (MPA for brevity's sake) to conduct docking maneuvers for the safe berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge, with the master of the vessel, Victor Kavankov,
beside him. After a briefing of Gavino by Kavankov of the particulars of the vessel and its cargo, the vessel lifted anchor from the quarantine
anchorage and proceeded to the Manila International Port. The sea was calm and the wind was ideal for docking maneuvers.
When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half mile from the pier, Gavino ordered the engine
stopped. When the vessel was already about 2,000 feet from the pier, Gavino ordered the anchor dropped. Kavankov relayed the orders to the
crew of the vessel on the bow. The left anchor, with two (2) shackles, were dropped. However, the anchor did not take hold as expected. The
speed of the vessel did not slacken. A commotion ensued between the crew members. A brief conference ensued between Kavankov and the
crew members. When Gavino inquired what was all the commotion about, Kavankov assured Gavino that there was nothing to it.
After Gavino noticed that the anchor did not take hold, he ordered the engines half-astern. Abellana, who was then on the pier apron, noticed
that the vessel was approaching the pier fast. Kavankov likewise noticed that the anchor did not take hold. Gavino thereafter gave the "fullastern" code. Before the right anchor and additional shackles could be dropped, the bow of the vessel rammed into the apron of the pier
causing considerable damage to the pier. The vessel sustained damage too, (Exhibit "7-Far Eastern Shipping). Kavankov filed his sea protest
(Exhibit "1-Vessel"). Gavino submitted his report to the Chief Pilot (Exhibit "1-Pilot") who referred the report to the Philippine Ports
Authority (Exhibit 2-Pilot"). Abellana likewise submitted his report of the incident (Exhibit "B").
Per contract and supplemental contract of the Philippine Ports Authority and the contractor for the rehabilitation of the damaged pier, the
same cost the Philippine Ports Authority the amount of P1,126,132.25 (Exhibits "D" and "E"). 3

19

On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor General, filed before the Regional Trial Court of Manila, Branch 39,
a complaint for a sum of money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the Manila Pilots' Association, docketed as Civil Case No. 8314958, 4 praying that the defendants therein be held jointly and severally liable to pay the plaintiff actual and exemplary damages plus costs of suit. In a decision
dated August 1, 1985, the trial court ordered the defendants therein jointly and severally to pay the PPA the amount of P1,053,300.00 representing actual damages
and the costs of suit. 5
The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot of a commercial vessel, under compulsory pilotage, solely liable
for the damage caused by the vessel to the pier, at the port of destination, for his negligence? and (2) Would the owner of the vessel be liable likewise if the
damage is caused by the concurrent negligence of the master of the vessel and the pilot under a compulsory pilotage?
As stated at the outset, respondent appellate court affirmed the findings of the court a quo except that if found no employer-employee relationship existing
between herein private respondents Manila Pilots' Association (MPA, for short) and Capt. Gavino. 6 This being so, it ruled instead that the liability of MPA is
anchored, not on Article 2180 of the Civil Code, but on the provisions of Customs Administrative Order No. 15-65, 7 and accordingly modified said decision of
the trial court by holding MPA, along with its co-defendants therein, still solidarily liable to PPA but entitled MPA to reimbursement from Capt. Gavino for such
amount of the adjudged pecuniary liability in excess of the amount equivalent to seventy-five percent (75%) of its prescribed reserve
fund. 8
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the Court of Appeals and both of them elevated their respective plaints
to us via separate petitions for review on certiorari.
In G. R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed that the Court of Appeals seriously erred:
1. in not holding Senen C. Gavino and the Manila Pilots' Association as the parties solely responsible for the resulting damages sustained by
the pier deliberately ignoring the established jurisprudence on the matter;
2. in holding that the master had not exercised the required diligence demanded from him by the circumstances at the time the incident
happened;
3. in affirming the amount of damages sustained by the respondent Philippine Ports Authority despite a strong and convincing evidence that
the amount is clearly exorbitant and unreasonable;
4. in not awarding any amount of counterclaim prayed for by the petitioner in its answer; and
5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila Pilots' Association in the event that it be held
liable. 9
Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of the incident, it was the compulsory pilot, Capt. Gavino, who was
in command and had complete control in the navigation and docking of the vessel. It is the pilot who supersedes the master for the time being in the command
and navigation of a ship and his orders must be obeyed in all respects connected with her navigation. Consequently, he was solely responsible for the damage
caused upon the pier apron, and not the owners of the vessel. It claims that the master of the boat did not commit any act of negligence when he failed to
countermand or overrule the orders of the pilot because he did not see any justifiable reason to do so. In other words, the master cannot be faulted for relying
absolutely on the competence of the compulsory pilot. If the master does not observe that a compulsory pilot is incompetent or physically incapacitated, the
master is justified in relying on the pilot. 10
Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent court on the solidary liability of FESC, MPA and Capt. Gavino,
stresses the concurrent negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov, * shipmaster of MV Pavlodar, as the basis of their solidary
liability for damages sustained by PPA. It posits that the vessel was being piloted by Capt. Gavino with Capt. Kabankov beside him all the while on the bridge of
the vessel, as the former took over the helm of MV Pavlodar when it rammed and damaged the apron of the pier of Berth No. 4 of the Manila International Port.
Their concurrent negligence was the immediate and proximate cause of the collision between the vessel and the pier Capt. Gavino, for his negligence in the
conduct of docking maneuvers for the safe berthing of the vessel; and Capt. Kabankov, for failing to countermand the orders of the harbor pilot and to take over
and steer the vessel himself in the face of imminent danger, as well as for merely relying on Capt. Gavino during the berthing procedure. 11
On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later transferred to the Third Division. MPA, now as petitioner in this
case, avers that respondent court's errors consisted in disregarding and misinterpreting Customs Administrative Order No. 15-65 which limits the liability of
MPA. Said pilots' association asseverates that it should not be held solidarily liable with Capt. Gavino who, as held by respondent court is only a member, not an
employee, thereof. There being no employer-employee relationship, neither can MPA be held liable for any vicarious liability for the respective exercise of
profession by its members nor be considered a joint tortfeasor as to be held jointly and severally liable. 12 It further argues that there was erroneous reliance on
Customs Administrative Order No. 15-65 and the constitution and by-laws of MPA, instead of the provisions of the Civil Code on damages which, being a
substantive law, is higher in category than the aforesaid constitution and by-laws of a professional organization or an administrative order which bears no
provision classifying the nature of the liability of MPA for the negligence its member pilots. 13

20

As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage services since July 28, 1994 and has ceased to be a member of
petitioner pilots' association. He is not joined as a petitioner in this case since his whereabouts are unknown. 14
FESC's comment thereto relied on the competence of the Court of Appeals in construing provisions of law or administrative orders as bases for ascertaining the
liability of MPA, and expressed full accord with the appellate court's holding of solidary liability among itself, MPA and Capt. Gavino. It further avers that the
disputed provisions of Customs Administrative Order No. 15-65 clearly established MPA's solidary liability. 15
On the other hand, public respondent PPA, likewise through representations by the Solicitor General, assumes the same supportive stance it took in G.R. No.
130068 in declaring its total accord with the ruling of the Court of Appeals that MPA is solidarily liable with Capt. Gavino and FESC for damages, and in its
application to the fullest extent of the provisions of Customs Administrative Order No. 15-65 in relation to MPA's constitution and by-laws which spell out the
conditions of and govern their respective liabilities. These provisions are clear and unambiguous as regards MPA's liability without need for interpretation or
construction. Although Customs Administrative Order No. 15-65 is a mere regulation issued by an administrative agency pursuant to delegated legislative
authority to fix details to implement the law, it is legally binding and has the same statutory force as any valid statute. 16
Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated with G.R. No. 130068. 18
Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that the conduct of the respective counsel for FESC and PPA leaves
much to be desired, to the displeasure and disappointment of this Court.
Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former Circular No. 28-91 which provided for what has come to be known as the
certification against forum shopping as an additional requisite for petitions filed with the Supreme Court and the Court of Appeals, aside from the other
requirements contained in pertinent provisions of the Rules of Court therefor, with the end in view of preventing the filing of multiple complaints involving the
same issues in the Supreme Court, Court of Appeals or different divisions thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42 provides:
xxx xxx xxx
The petitioner shall also submit together with the petition a certification under oath that he has not theretofore commenced any other action
involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there
is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding
has been filed or is pending before the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. (Emphasis ours.)
For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically requires that such petition shall contain a sworn certification
against forum shopping as provided in the last paragraph of Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty. Herbert A. Tria, is the counsel of record for FESC in both G.R.
No. 130068 and G.R. No. 130150.
G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing by FESC through counsel on August 22, 1997 of a verified
motion for extension of time to file its petition for thirty (30) days from August 28, 1997 or until September 27, 1997. 20 Said motion contained the following
certification against forum shopping 21 signed by Atty. Herbert A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court
of Appeals, or any other tribunal or agency; that to the best of my own knowledge, no such action or proceeding is pending in the Supreme
Court, the Court of Appeals, or any other tribunal or agency; that if I/we should thereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I/we undertake to report that fact within
five (5) days therefrom to this Honorable Court.
This motion having been granted, FESC subsequently filed its petition on September 26, 1997, this time bearing a "verification and certification against
forum-shopping" executed by one Teodoro P. Lopez on September 24, 1997, 22 to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING

21

in compliance with Section 4(e), Rule 45 in relation

to Section 2, Rule 42 of the Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state:
1. That I am the Manager, Claims Department of Filsov Shipping Company, the local agent of petitioner in this case.
2. That I have caused the preparation of this Petition for Review on Certiorari.
3. That I have read the same and the allegations therein contained are true and correct based on the records of this case.
4. That I certify that petitioner has not commenced any other action or proceeding involving the same issues in the Supreme Court or Court of
Appeals, or any other tribunal or agency, that to the best of my own knowledge, no such action or proceeding is pending in the Supreme
Court, the Court of Appeals or any other tribunal or agency, that if I should thereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to report the fact within five
(5) days therefrom to this Honorable Court. (Italics supplied for emphasis.)
Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending with the Third Division was duly filed on August 29, 1997 with a
copy thereof furnished on the same date by registered mail to counsel for FESC. 23 Counsel of record for MPA. Atty. Jesus P. Amparo, in his verification
accompanying said petition dutifully revealed to the Court that
xxx xxx xxx
3. Petitioner has not commenced any other action or proceeding involving the same issues in this Honorable Court, the Court of Appeals or
different Divisions thereof, or any other tribunal or agency,but to the best of his knowledge, there is an action or proceeding pending in this
Honorable Court, entitled Far Eastern Shipping Co., Petitioner, vs. Philippine Ports Authority and Court of Appeals with a Motion for
Extension of time to file Petition For Review by Certiorari filed sometime on August 18, 1987. If undersigned counsel will come to know of
any other pending action or claim filed or pending he undertakes to report such fact within five (5) days to this Honorable Court. 24 (Emphasis
supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29, 1997 and taking judicial notice of the average period of time it
takes local mail to reach its destination, by reasonable estimation it would be fair to conclude that when FESC filed its petition in G.R. No. 130068 on September
26, 1997, it would already have received a copy of the former and would then have knowledge of the pendency of the other petition initially filed with the First
Division. It was therefore incumbent upon FESC to inform the Court of that fact through its certification against forum shopping. For failure to make such
disclosure, it would appear that the aforequoted certification accompanying the petition in G.R. No. 130068 is defective and could have been a ground for
dismissal thereof.
Even assuming that FESC had not yet received its copy of MPA's petition at the time it filed its own petition and executed said certification, its signatory did state
"that if I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or any other
tribunal or agency, I undertake to report the fact within five (5) days therefrom to this Honorable Court." 25 Scouring the records page by page in this case, we
find that no manifestation concordant with such undertaking was then or at any other time thereafter ever filed by FESC nor was there any attempt to bring such
matter to the attention of the Court. Moreover, it cannot feign non-knowledge of the existence of such other petition because FESC itself filed the motion for
consolidation in G.R. No. 130150 of these two cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario, displays an unprofessional tendency of taking the Rules for granted,
in this instance exemplified by its pro forma compliance therewith but apparently without full comprehension of and with less than faithful commitment to its
undertakings to this Court in the interest of just, speedy and orderly administration of court proceedings.
As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the court. 26 He is an officer of the court exercising a privilege which is
indispensable in the administration of justice. 27 Candidness, especially towards the courts, is essential for the expeditious administration of justice. Courts are
entitled to expect only complete honesty from lawyers appearing and pleading before them. 28 Candor in all dealings is the very essence of honorable membership
in the legal profession. 29 More specifically, a lawyer is obliged to observe the rules of procedure and not to misuse them to defeat the ends of justice. 30 It
behooves a lawyer, therefore, to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. 31 Being an officer of the
court, a lawyer has a responsibility in the proper administration of justice. Like the court itself, he is an instrument to advance its ends the speedy, efficient,
impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but
should likewise avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in
the speedy and efficient administration of justice. 32

22

Sad to say, the members of said law firm sorely failed to observe their duties as responsible members of the Bar. Their actuations are indicative of their
predisposition to take lightly the avowed duties of officers of the Court to promote respect for law and for legal processes. 33 We cannot allow this state of things
to pass judicial muster.
In view of the fact that at around the time these petitions were commenced, the 1997 Rules of Civil Procedure had just taken effect, the Court treated infractions
of the new Rules then with relative liberality in evaluating full compliance therewith. Nevertheless, it would do well to remind all concerned that the penal
provisions of Circular No. 28-91 which remain operative provides, inter alia:
3. Penalties.
xxx xxx xxx
(c) The submission of a false certification under Par. 2 of the Circular shall likewise constitute contempt of court, without prejudice to the
filing of criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings.
It must be stressed that the certification against forum shopping ordained under the Rules is to be executed by the petitioner, and not by counsel. Obviously it is
the petitioner, and not always the counsel whose professional services have been retained for a particular case, who is in the best position to know whether he or
it actually filed or caused the filing of a petition in that case. Hence, a certification against forum shopping by counsel is a defective certification. It is clearly
equivalent to non-compliance with the requirement under Section 2, Rule 42 in relation to Section 4, Rule 45, and constitutes a valid cause for dismissal of the
petition.
Hence, the initial certification appended to the motion for extension of time to file petition in G.R. No. 130068 executed in behalf of FESC by Atty. Tria is
procedurally deficient. But considering that it was a superfluity at that stage of the proceeding, it being unnecessary to file such a certification with a mere motion
for extension, we shall disregard such error. Besides, the certification subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect to a certain
extent, despite the inaccuracies earlier pointed out. In the same vein, we shall consider the verification signed in behalf of MPA by its counsel, Atty. Amparo, in
G.R. No. 130150 as substantial compliance inasmuch as it served the purpose of the Rules of informing the Court of the pendency of another action or
proceeding involving the same issues.
It bears stressing that procedural rules are instruments in the speedy and efficient administration of justice. They should be used to achieve such end and not to
derail it. 34
Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor General at the time, the same legal team of the Office of the Solicitor
General (OSG, for short) composed of Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, with the addition of Assistant Solicitor
General Pio C. Guerrero very much later in the proceedings, represented PPA throughout the appellate proceedings in both G.R. No. 130068 and G.R. No.
130150 and was presumably fully acquainted with the facts and issues of the case, it took the OSG an inordinately and almost unreasonably long period of time
to file its comment, thus unduly delaying the resolution of these cases. It took several changes of leadership in the OSG from Silvestre H. Bello III to Romeo
C. dela Cruz and, finally, Ricardo P. Galvez before the comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning that no further extensions shall be granted, and personal service
on the Solicitor General himself of the resolution requiring the filing of such comment before the OSG indulged the Court with the long required comment on
July 10, 1998. 35This, despite the fact that said office was required to file its comment way back on November 12, 1997. 36 A closer scrutiny of the records
likewise indicates that petitoner FESC was not even furnished a copy of said comment as required by Section 5, Rule 42. Instead, a copy thereof was
inadvertently furnished to MPA which, from the point of view of G.R. No. 130068, was a non-party. 37 The OSG fared slightly better in G.R. No. 130150 in that it
took only six (6) extensions, or a total of 180 days, before the comment was finally filed. 38 And while it properly furnished petitioner MPA with a copy of its
comment, it would have been more desirable and expedient in this case to have furnished its therein co-respondent FESC with a copy thereof, if only as a matter
of professional courtesy. 39
This undeniably dilatory disinclination of the OSG to seasonably file required pleadings constitutes deplorable disservice to the tax-paying public and can only
be categorized as censurable inefficiency on the part of the government law office. This is most certainly professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take the inititive of filing a motion for consolidation in either G.R. No. 130068 or G.R. No. 130150,
considering its familiarity with the background of the case and if only to make its job easier by having to prepare and file only one comment. It could not have
been unaware of the pendency of one or the other petition because, being counsel for respondent in both cases, petitioner is required to furnish it with a copy of
the petition under pain of dismissal of the petition for failure otherwise. 40
Besides, in G.R. 130068, it prefaces its discussions thus
Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants in the case before the respondent Court of Appeals, has
taken a separate appeal from the said decision to this Honorable Court, which was docketed as G.R. No. 130150 and entitled "Manila Pilots'
Association, Petitioner, versus Philippine Ports Authority and Far Eastern Shipping Co., Respondents." 41

23

Similarly, in G.R. No. 130150, it states

Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal from the said decision to this Honorable Court, docketed
as G.R. No. 130068, entitled "Far Eastern Shipping Co. vs. Court of Appeals and Philippine Ports Authority." 42
We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of its cases and an almost reflexive propensity to move for
countless extensions, as if to test the patience of the Court, before favoring it with the timely submission of required pleadings.
It must be emphasized that the Court can resolve cases only as fast as the respective parties in a case file the necessary pleadings. The OSG, by needlessly
extending the pendency of these cases through its numerous motions for extension, came very close to exhausting this Court's forbearance and has regrettably
fallen short of its duties as the People's Tribune.
The OSG is reminded that just like other members of the Bar, the canons under the Code of Professional Responsibility apply with equal force on lawyers in
government service in the discharge of their official tasks. 43These ethical duties are rendered even more exacting as to them because, as government counsel,
they have the added duty to abide by the policy of the State to promote a high standard of ethics in public service. 44 Furthermore, it is incumbent upon the OSG,
as part of the government bureaucracy, to perform and discharge its duties with the highest degree of professionalism, intelligence and skill 45 and to extend
prompt, courteous and adequate service to the public. 46
Now, on the merits of the case. After a judicious examination of the records of this case, the pleadings filed, and the evidence presented by the parties in the two
petitions, we find no cogent reason to reverse and set aside the questioned decision. While not entirely a case of first impression, we shall discuss the
issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the matters raised in both petitions beg for validation and updating of well-worn
maritime jurisprudence. Thereby, we shall write finis to the endless finger-pointing in this shipping mishap which has been stretched beyond the limits of judicial
tolerance.
The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage pursuant to Section 8, Article III of Philippine Ports Authority
Administrative Order No. 03-85, 47 which provides that:
Sec. 8. Compulsor Pilotage Service. For entering a harbor and anchoring thereat, or passing through rivers or straits within a pilotage
district, as well as docking and undocking at any pier/wharf, or shifting from one berth or another, every vessel engaged in coastwise and
foreign trade shall be under compulsory pilotage. . . .
In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot and the master have been specified by the same regulation in
this wise:
Sec. 11. Control of vessels and liability for damage. On compulsory pilotage grounds, the Harbor Pilot providing the service to a vessel
shall be responsible for the damage caused to a vessel or to life and property at ports due to his negligence or fault. He can only be absolved
from liability if the accident is caused by force majeure or natural calamities provided he has exercised prudence and extra diligence to
prevent or minimize damage.
The Master shall retain overall command of the vessel even on pilotage grounds whereby he can countermand or overrule the order or
command of the Harbor Pilot on beard. In such event, any damage caused to a vessel or to life and property at ports by reason of the fault or
negligence of the Master shall be the responsibility and liability of the registered owner of the vessel concerned without prejudice to recourse
against said Master.
Such liability of the owner or Master of the vessel or its pilots shall be determined by competent authority in appropriate proceedings in the
light of the facts and circumstances of each particular case.
Sec. 32. Duties and responsibilities of the Pilot or Pilots' Association. The duties and responsibilities of the Harbor Pilot shall be as
follows:
xxx xxx xxx
f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a pilot thereof until he leaves it anchored
or berthed safely; Provided, however, that his responsibility shall cease at the moment the Master neglects or refuses to carry out hisorder.
Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in Chapter I thereof for the responsibilities of pilots:
Par. XXXIX. A Pilot shall be held responsible for the direction of a vessel from the time he assumes control thereof until he leaves it
anchored free from shoal: Provided, That his responsibility shall cease at the moment the master neglects or refuses to carry out his
instructions.

24

xxx xxx xxx

Par. XLIV. Pilots shall properly and safely secure or anchor vessels under their control when requested to do so by the master of such
vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt. Gavino solely responsible for the damages cause to the pier. It avers
that since the vessel was under compulsory pilotage at the time with Capt. Gavino in command and having exclusive control of the vessel during the docking
maneuvers, then the latter should be responsible for damages caused to the pier. 48 It likewise holds the appellate court in error for holding that the master of the
ship, Capt. Kabankov, did not exercise the required diligence demanded by the circumstances. 49
We start our discussion of the successive issues bearing in mind the evidentiary rule in American jurisprudence that there is a presumption of fault against a
moving vessel that strikes a stationary object such as a dock or navigational aid. In admiralty, this presumption does more than merely require the ship to go
forward and produce some evidence on the presumptive matter. The moving vessel must show that it was without fault or that the collision was occasioned by the
fault of the stationary object or was the result of inevitable accident. It has been held that such vessel must exhaust every reasonable possibility which the
circumstances admit and show that in each, they did all that reasonable care required. 50 In the absence of sufficient proof in rebuttal, the presumption of fault
attaches to a moving vessel which collides with a fixed object and makes a prima facie case of fault against the vessel. 51 Logic and experience support this
presumption:
The common sense behind the rule makes the burden a heavy one. Such accidents simply do not occur in the ordinary course of things unless
the vessel has been mismanaged in some way. It is nor sufficient for the respondent to produce witnesses who testify that as soon as the
danger became apparent everything possible was done to avoid an accident. The question remains, How then did the collision occur? The
answer must be either that, in spite of the testimony of the witnesses, what was done was too little or too late or, if not, then the vessel was at
fault for being in a position in which an unavoidable collision would occur. 52
The task, therefore, in these cases is to pinpoint who was negligent the master of the ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of ports, or in certain waters. In a broad sense, the term "pilot"
includes both (1) those whose duty it is to guide vessels into or out of ports, or in particular waters and (2) those entrusted with the navigation of vessels on the
high seas. 53However, the term "pilot" is more generally understood as a person taken on board at a particular place for the purpose of conducting a ship through a
river, road or channel, or from a port. 54
Under English and American authorities, generally speaking, the pilot supersedes the master for the time being in the command and navigation of the ship, and
his orders must be obeyed in all matters connected with her navigation. He becomes the master pro hac vice and should give all directions as to speed, course,
stopping and reversing anchoring, towing and the like. And when a licensed pilot is employed in a place where pilotage is compulsory, it is his duty to insist on
having effective control of the vessel, or to decline to act as pilot. Under certain systems of foreign law, the pilot does not take entire charge of the vessel, but is
deemed merely the adviser of the master, who retains command and control of the navigation even in localities where pilotage is compulsory. 55
It is quite common for states and localities to provide for compulsory pilotage, and safety laws have been enacted requiring vessels approaching their ports, with
certain exceptions, to take on board pilots duly licensed under local law. The purpose of these laws is to create a body of seamen thoroughly acquainted with the
harbor, to pilot vessels seeking to enter or depart, and thus protect life and property from the dangers of navigation. 56
In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65 prescribes the rules for compulsory pilotage in the covered
pilotage districts, among which is the Manila Pilotage District,
viz.
PARAGRAPH I. Pilotage for entering a harbor and anchoring thereat, as well as docking and undocking in any pier or shifting from one
berth to another shall be compulsory, except Government vessels and vessels of foreign governments entitled to courtesy, and other vessels
engaged solely in river or harbor work, or in a daily ferry service between ports which shall be exempt from compulsory pilotage provisions
of these regulations: provided, however, that compulsory pilotage shall not apply in pilotage districts whose optional pilotage is allowed
under these regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila International Port. Upon assuming such office as compulsory pilot,
Capt. Gavino is held to the universally accepted high standards of care and diligence required of a pilot, whereby he assumes to have skill and knowledge in
respect to navigation in the particular waters over which his license extends superior to and more to be trusted than that of the master. 57A pilot 57 should have a
thorough knowledge of general and local regulations and physical conditions affecting the vessel in his charge and the waters for which he is licensed, such as a
particular harbor or river.
He is not held to the highest possible degree of skill and care, but must have and exercise the ordinary skill and care demanded by the circumstances, and usually
shown by an expert in his profession. Under extraordinary circumstancesm, a pilot must exercise extraordinary care. 58

25

In Atlee vs. The Northwesrern Union Packet Company. 59 Mr. Justice Miller spelled out in great detail the duties of a pilot:
. . . (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the topography through which he steers his
vessel. In the long course of a thousand miles in one of these rivers, he must be familiar with the appearance of the shore on each side of the
river as he goes along. Its banks, towns, its landings, its houses and trees, are all landmarks by which he steers his vessel. The compass is of
little use to him. He must know where the navigable channel is, in its relation to all these external objects, especially in the night. He must
also be familiar with all dangers that are permanently located in the course of the river, as sand-bars, snags, sunken rocks or trees or
abandoned vessels orbarges. All this he must know and remember and avoid. To do this, he must be constantly informed of the changes in the
current of the river, of the sand-bars newly made,of logs or snags, or other objects newly presented, against which his vessel might be injured.
xxx xxx xxx
It may be said that this is exacting a very high order of ability in a pilot. But when we consider the value of the lives and property committed
to their control, for in this they are absolute masters, the high compensation they receive, the care which Congress has taken to secure by
rigid and frequent examinations and renewal of licenses, this very class of skill, we do not think we fix the standard too high.
Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to such strict standard of care and diligence required of pilots in the
performance of their duties. Witness this testimony of Capt. Gavino:
Court: You have testified before that the reason why the vessel bumped the pier was because the anchor was not released
immediately or as soon as you have given the order. Do you remember having srated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to understand that if that anchor was released immediately at the time you
gave the order, the incident would not have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my part because there was a commotion between the officers who
are in charge of the dropping of the anchor and the captain. I could not understand their language, it was in Russian, so I
presumed the anchor was not dropped on time.
Q So, you are not sure whether it was really dropped on time or not?
A I am not sure, your Honor.
xxx xxx xxx
Q You are not even sure what could have caused the incident. What factor could have caused the incident?
A Well, in this case now, because either the anchor was not dropped on time or the anchor did not hold, that was the cause
of the incident, your Honor. 60
It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for the possibly injurious consequences his commands as pilot may
have. Prudence required that he, as pilot, should have made sure that his directions were promptly and strictly followed. As correctly noted by the trial court
Moreover, assuming that he did indeed give the command to drop the anchor on time, as pilot he should have seen to it that the order was
carried out, and he could have done this in a number of ways, one of which was to inspect the bow of the vessel where the anchor mechanism
was installed. Of course, Captain Gavino makes reference to a commotion among the crew members which supposedly caused the delay in
the execution of the command. This account was reflected in the pilot's report prepared four hours later, but Capt. Kavankov, while not
admitting whether or not such a commotion occurred, maintained that the command to drop anchor was followed "immediately and
precisely." Hence, the Court cannot give much weight or consideration to this portion of Gavino's testimony." 61
An act may be negligent if it is done without the competence that a reasonable person in the position of the actor would recognize as necessary to prevent it from
creating an unreasonable risk of harm to another. 62 Those who undertake any work calling for special skills are required not only to exercise reasonable care in
what they do but also possess a standard minimum of special knowledge and ability. 63

26

Every man who offers his services to another, and is employed, assumes to exercise in the employment such skills he possesses, with a reasonable degree of
diligence. In all these employments where peculiar skill is requisite, if one offers his services he is understood as holding himself out to the public as possessing
the degree of skill commonly possessed by others in the same employment, and if his pretensions are unfounded he commits a species of fraud on every man who
employs him in reliance on his public profession. 64
Furthermore, there is an obligation on all persons to take the care which, under ordinary circumstances of the case, a reasonable and prudent man would take, and
the omission of that care constitutes negligence. 65Generally, the degree of care required is graduated according to the danger a person or property attendant upon
the activity which the actor pursues or the instrumentality which he uses. The greater the danger the greater the degree of care required. What is ordinary under
extraordinary of conditions is dictated by those conditions; extraordinary risk demands extraordinary care. Similarly, the more imminent the danger, the higher
the degree of care. 66
We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino was indeed negligent in the performance of his duties:
xxx xxx xxx
. . . As can be gleaned from the logbook, Gavino ordered the left anchor and two (2) shackles dropped at 8:30 o'clock in the morning. He
ordered the engines of the vessel stopped at 8:31 o'clock. By then,Gavino must have realized that the anchor did not hit a hard object and was
not clawed so as to reduce the momentum of the vessel. In point of fact, the vessel continued travelling towards the pier at the same speed.
Gavino failed to react, At 8:32 o'clock, the two (2) tugboats began to push the stern part of the vessel from the port side bur the momentum of
the vessel was not contained. Still, Gavino did not react. He did not even order the other anchor and two (2) more shackles dropped to arrest
the momentum of the vessel. Neither did he order full-astern. It was only at 8:34 o'clock, or four (4) minutes, after the anchor was dropped
that Gavino reacted. But his reaction was even (haphazard) because instead of arresting fully the momentum of the vessel with the help of the
tugboats, Gavino ordered merely "half-astern". It took Gavino another minute to order a "full-astern". By then, it was too late. The vessel's
momentum could no longer be arrested and, barely a minute thereafter, the bow of the vessel hit the apron of the pier. Patently, Gavino
miscalculated. He failed to react and undertake adequate measures to arrest fully the momentum of the vessel after the anchor failed to claw
to the seabed. When he reacted, the same was even (haphazard). Gavino failed to reckon the bulk of the vessel, its size and its cargo. He
erroneously believed that only one (1) anchor would suffice and even when the anchor failed to claw into the seabed or against a hard object
in the seabed, Gavino failed to order the other anchor dropped immediately. His claim that the anchor was dropped when the vessel was only
1,000 feet from the pier is but a belated attempt to extricate himself from the quagmire of his own insouciance and negligence. In sum, then,
Appellants' claim that the incident was caused by "force majeure" is barren of factual basis.
xxx xxx xxx
The harbor pilots are especially trained for this job. In the Philippines, one may not be a harbor pilot unless he passed the required
examination and training conducted then by the Bureau of Custom, under Customs Administrative Order No. 15-65, now under the
Philippine Ports Authority under PPA Administrative Order 63-85, Paragraph XXXIX of the Customs Administrative Order No. 15-65
provides that "the pilot shall be held responsible for the direction of the vessel from the time he assumes control thereof, until he leaves it
anchored free from shoal: Provided, that his responsibility shall cease at the.moment the master neglects or refuse(s) to carry out his
instructions." The overall direction regarding the procedure for docking and undocking the vessel emanates from the harbor pilot. In the
present recourse, Gavino failed to live up to his responsibilities and exercise reasonable care or that degree of care required by the exigencies
of the occasion. Failure on his part to exercise the degree of care demanded by the circumstances is negligence (Reese versus Philadelphia &
RR Co. 239 US 363, 60 L ed. 384, 57 Am Jur, 2d page 418). 67
This affirms the findings of the trial court regarding Capt. Gavino's negligence:
This discussion should not however, divert the court from the fact that negligence in manuevering the vessel must be attributed to Capt.
Senen Gavino. He was an experienced pilot and by this time should have long familiarized himself with the depth of the port and the distance
he could keep between the vessel and port in order to berth safely. 68
The negligence on the part of Capt. Gavino is evident; but Capt. Kabancov is no less responsible for the allision. His unconcerned lethargy as master of the ship
in the face of troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a pilot is in sole command of the ship 69 and supersedes the master for the time being in the command and
navigation of a ship and that he becomes master pro hac vice of a vessel piloted by him, 70 there is overwhelming authority to the effect that the master does not
surrender his vessel to the pilot and the pilot is not the master. The master is still in command of the vessel notwithstanding the presence of a pilot. There are
occasions when the master may and should interfere and even displace the pilot, as when the pilot is obviously incompetent or intoxicated and the circumstances
may require the master to displace a compulsory pilot because of incompetency or physical incapacity. If, however, the master does nor observe that a
compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot, but not blindly. 71
The master is not wholly absolved from his duties while a pilot is on board his vessel, and may advise with or offer suggestions to him. He is still in command of
the vessel, except so far as her navigation is concerned, and must cause the ordinary work of the vessel to be properly carried on and the usual precaution taken.

27

Thus, in particular, he is bound to see that there is sufficient watch on deck, and that the men are attentive to their duties, also that engines are stopped, towlines
cast off, and the anchors clear and ready to go at the pilot's order. 72
A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge of his duties as master of the ship, leaving the entire docking
procedure up to the pilot, instead of maintaining watchful vigilance over this risky maneuver:
Q Will you please tell us whether you have the right to intervene in docking of your ship in the harbor?
A No sir, I have no right to intervene in time of docking, only in case there is imminent danger to the vessel and to the
pier.
Q Did you ever intervene during the time that your ship was being docked by Capt. Gavino?
A No sir, I did not intervene at the time when the pilot was docking my ship.
Q Up to the time it was actually docked at the pier, is that correct?
A No sir, I did not intervene up to the very moment when the vessel was docked.
xxx xxx xxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there anything unusual that happened during the docking?
A Yes sir, our ship touched ihe pier and the pier was damaged.
Court (to the witness)
Q When you said touched the pier, are you leading the court to understand that your ship bumped the pier?
A I believe that my vessel only touched the pier but the impact was very weak.
Q Do you know whether the pier was damaged as a result of that slight or weak impact?
A Yes sir, after the pier was damaged.
xxx xxx xxx
Q Being most concerned with the safety of your vessel, in the maneuvering of your vessel to the port, did you observe
anything irregular in the maneuvering by Capt. Gavino at the time he was trying to cause the vessel to be docked at the
pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety maneuver of the ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the court to understand that there was nothing irregular in the docking of
the ship?
A Yes sir, during the initial period of the docking, there was nothing unusual that happened.
Q What about in the last portion of the docking of the ship, was there anything unusual or abnormal that happened?

28

A None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold the vessel.
Q You want us to understand, Mr. Witness, that the dropping of the anchor of the vessel was nor timely?
A I don't know the depth of this port but I think, if the anchor was dropped earlier and with more shackles, there could not
have been an incident.
Q So you could not precisely tell the court that the dropping of the anchor was timery because you are not well aware of
the seabed, is that correct?
A Yes sir, that is right.
xxx xxx xxx
Q Alright, Capt. Kavankov, did you come to know later whether the anchor held its ground so much so that the vessel
could not travel?
A It is difficult for me to say definitely. I believe that the anchor did not hold the ship.
Q You mean you don't know whether the anchor blades stuck to the ground to stop the ship from further moving?
A Yes sir, it is possible.
Q What is possible?
A I think, the 2 shackles were not enough to hold the vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold the ship, did you not make any protest to the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent whether the 2 shackles were also dropped to hold the ship?
A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be an experienced pilot and he should be
more aware as to the depths of the harbor and the ground and I was confident in his actions.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the bridge of the vessel before the inicident happened, were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from that point of view?
A That is right.
Q Whatever the piler can read from the panel of the bridge, you also could read, is that correct?

29

A What is the meaning of panel?

Q All indications necessary for men on the bridge to be informed of the movements of the ship?
A That is right.
Q And whatever sound the captain . . . Capt. Gavino would hear from the bridge, you could also hear?
A That is right.
Q Now, you said that when the command to lower the anchor was given, it was obeyed, is that right?
A This command was executed by the third mate and boatswain.
Court (to the witness)
Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with the duties of the pilot and that, in your
opinion, you can only intervene if the ship is placed in imminent danger, is that correct?
A That is right, I did say that.
Q In your observation before the incident actually happened, did you observe whether or not the ship, before the actual
incident, the ship was placed in imminent danger?
A No sir, I did not observe.
Q By that answer, are you leading the court to understand that because you did not intervene and because you believed
that it was your duty to intervene when the vessel is placed in imminent danger to which you did not observe any
imminent danger thereof, you have not intervened in any manner to the command of the pilot?
A That is right, sir.
xxx xxx xxx
Q Assuminp that you disagreed with the pilot regarding the step being taken by the pilot in maneuvering the vessel,
whose command will prevail, in case of imminent danger to the vessel?
A I did nor consider the situation as having an imminent danger. I believed that the vessel will dock alongside the pier.
Q You want us to understand that you did not see an imminent danger to your ship, is that what you mean?
A Yes sir, up to the very last moment, I believed that there was no imminent danger.
Q Because of that, did you ever intervene in the command of the pilot?
A Yes sir, I did not intervene because I believed that the command of the pilot to be correct.
Solicitor Abad (to the witness)
Q As a captain of M/V Pavlodar, you consider docking maneuvers a serious matter, is it not?
A Yes sir, that is right.
Q Since it affects not only the safety of the port or pier, but also the safety of the vessel and the cargo, is it not?
A That is right.

30

Q So that, I assume that you were watching Capt. Gavino very closely at the time he was making his commands?
A I was close to him, I was hearing his command and being executed.
Q And that you were also alert for any possible mistakes he might commit in the maneuvering of the vessel?
A Yes sir, that is right.
Q But at no time during the maneuver did you issue order contrary to the orders Capt. Gavino made?
A No sir.
Q So that you were in full accord with all of Capt. Gavino's orders?
A Yes sir.
Q Because, otherwise, you would have issued order that would supersede his own order?
A In that case, I should t,ke him away from his command or remove the command from him.
Court (to the witness)
Q You were in full accord with the steps being taken by Capt. Gavino because you relied on his knowledge, on his
familiarity of the seabed and shoals and other surroundings or conditions under the sea, is that correct?
A Yes sir, that is right.
xxx xxx xxx
Solicitor Abad (to the witness)
Q And so after the anchors were ordered dropped and they did not take hold of the seabed, you were alerted that there
was danger already on hand?
A No sir, there was no imminent danger to the vessel.
Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottom and it did not, there was no
danger to the ship?
A Yes sir, because the anchor dragged on the ground later.
Q And after a few moments when the anchor should have taken hold the seabed bur not done (sic), as you expected, you
already were alerted that there was danger to the ship, is that correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A Yes sir, I was alerted.
Q And this alert vou assumed was the ordinary alertness that you have for normal docking?
A Yes sir, I mean that it was usual condition of any man in time of docking to be alert.
Q And that is the same alertness when the anchor did not hold onto the ground, is that correct?
A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground.

31

Q Since, as you said that you agreed all the while with the orders of Capt. Gavino, you also therefore agreed with him in
his failure to take necessary precaution against the eventuality that the anchor will not hold as expected?
Atty. Del Rosario:
May I ask that the question . . .
Solicitor Abad:
Never mind, I will reform the question.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel did not hold the ground as expected?
A Yes sir, that is my opinion. 73
Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the situation:
Q Now, after the anchor was dropped, was there any point in time that you felt that the vessel was in imminent danger.
A No, at that time, the vessel was not in imminent, danger, sir. 74
This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt. Gavino's anxious assessment of the situation:
Q When a pilot is on board a vessel, it is the piler's command which should be followed at that moment until the vessel is,
or goes to port or reaches port?
A Yes, your Honor, but it does not take away from the Captain his prerogative to countermand the pilot.
Q In what way?
A In any case, which he thinks the pilot is not maneuvering correctly, the Captain always has the prerogative to
countermand the pilot's order.
Q But insofar as competence, efficiency and functional knowledee of the seabed which are vital or decisive in the safety
(sic) bringing of a vessel to the port, he is not competent?
A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, the safety of the vessel rest(s) upon the
Captain, the Master of the vessel.
Q In this case, there was not a disagreement between you and the Captain of the vessel in the bringing of the vessel to
port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:

32

In fact, the Master of the vessel testified here that he was all along in conformity with the orders you, gave to him, and, as
matter of fact, as he said, he obeyed all your orders. Can you tell, if in the course of giving such normal orders for the
saf(e) docking of the MV Pavlodar, do you remember of any instance that the Master of the vessel did not obey your
command for the safety docking of the MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court that there was no disagreement insofar as the bringing of the vessel safely
to the port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do you remember of a time during the course of the docking that the
MV Pavlodar was in imminent danger of bumping the pier?
A When we were about more than one thousand meters from the pier, I think, the anchor was not holding, so I
immediately ordered to push the bow at a fourth quarter, at the back of the vessel in order to swing the bow away from
the pier and at the same time, I ordered for a full astern of the engine. 75
These conflicting reactions can only imply, at the very least, unmindful disregard or, worse, neglectful relinquishment of duty by the shipmaster,
tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been charged with the task of docking the vessel in the berthing space, it is undisputed that the
master of the vessel had the corresponding duty to countermand any of the orders made by the pilot, and even maneuver the vessel himself, in
case of imminent danger to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all throughour the man(eu)vering procedures he did not notice anything was going
wrong, and even observed that the order given to drop the anchor was done at the proper time. He even ventured the opinion that the accident
occurred because the anchor failed to take hold but that this did not alarm him because.there was still time to drop a second anchor.
Under normal circumstances, the abovementioned facts would have caused the master of a vessel to take charge of the situation and see to the
man(eu)vering of the vessel himself. Instead, Capt. Kavankov chose to rely blindly upon his pilot, who by this time was proven ill-equipped
to cope with the situation.
xxx xxx xxx
It is apparent that Gavino was negligent but Far Eastern's employee Capt. Kavankov was no lesss responsible for as master of the vessel he
stood by the pilot during the man(eu)vering procedures and was privy to every move the latter made, as well as the vessel's response to each
of the commands. His choice to rely blindly upon the pilot's skills, to the point that despite being appraised of a notice of alert he continued to
relinquish control of the vessel to Gavino, shows indubitably that he was not performing his duties with the diligence required of him and
therefore may be charged with negligence along with defend;int Gavino. 76
As correctly affirmed by the Court of Appeals
We are in full accord with the findings and disquisitions of the Court a quo.
In the present recourse, Captain Viktor Kavankov had been a mariner for thirty-two years before the incident. When Gavino was (in) the
command of the vessel, Kavankov was beside Gavino, relaying the commands or orders of Gavino to the crewmembers-officers of the vessel
concerned. He was thus fully aware of the docking maneuvers and procedure Gavino undertook to dock the vessel. Irrefragably, Kavankov
was fully aware of the bulk and size of the vessel and its cargo as well as the weight of the vessel. Kavankov categorically admitted that,
when the anchor and two (2) shackles were dropped to the sea floor, the claws of the anchor did not hitch on to any hard object in the seabed.
The momentum of the vessel was not arrested. The use of the two (2) tugboats was insufficient. The momentum of the vessel, although a little
bit arrested, continued (sic) the vessel going straightforward with its bow towards the port (Exhibit "A-1 ). There was thus a need for the
vessel to move "full-astern" and to drop the other anchor with another shackle or two (2), for the vessel to avoid hitting the pier. Kavankov

33

refused to act even as Gavino failed to act. Even as Gavino gave mere "half-astern" order, Kavankov supinely stood by. The vessel was
already about twenty (20) meters away from the pier when Gavino gave the "full-astern" order. Even then, Kavankov did nothing to prevent
the vessel from hitting the pier simply because he relied on the competence and plan of Gavino. While the "full-astern'' maneuver
momentarily arrested the momentum of the vessel, it was, by then, too late. All along, Kavankov stood supinely beside Gavino, doing nothing
but relay the commands of Gavino. Inscrutably, then, Kavankov was negligent.
xxx xxx xxx
The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of the vessel. It has been held that the
incompetence of the navigator, the master of the vessel or its crew makes the vessel unseaworthy (Tug Ocean Prince versus United States of
America, 584 F. 2nd, page 1151). Hence, the Appellant FESC is likewise liable for the damage sustained by the Appellee. 77
We find strong and well-reasoned support in time-tested American maritime jurisprudence, on which much of our laws and jurisprudence on the matter are based,
for the conclusions of the Court of Appeals adjudging both Capt. Gavino and Capt. Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in The Steamship China vs. Walsh, 78 that it is the duty of the master to interfere
in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the
same power to displace the pilot that he has to remove any subordinate officer of the vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that:
Nor are rye satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel. While the pilot doubtless supersedes the
master for the time being in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her
navigation, the master is not wholly absolved from his duties while the pilot is on board, and may advise with him, and even displace him in
case he is intoxicated or manifestly incompetent. He is still in command of the vessel, except so far as her navigation is concerned, and bound
to see that there is a sufficient watch on deck, and that the men are attentive to their duties.
. . . (N)orwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not to abandon the vessel entirely to the pilot;
but that there are certain duties he has to discharge (notwithstanding there is a pilot on board) for the benefit of the owners. . . . that in well
conducted ships the master does not regard the presence of a duly licensed pilot in compulsory pilot waters as freeing him from every,
obligation to attend to the safety of the vessel; but that, while the master sees that his officers and crew duly attend to the pilot's orders, he
himself is bound to keep a vigilant eye on the navigation of the vessel, and, when exceptional circumstances exist, not only to urge upon the
pilot to use every precaution, but to insist upon such being taken. 79 (Italics for emphasis.)
In Jure vs. United Fruit Co., 80 which, like the present petitions, involved compulsory pilotage, with a similar scenario where at and prior to the time of injury, the
vessel was in the charge of a pilot with the master on the bridge of the vessel beside said pilot, the court therein ruled:
The authority of the master of a vessel is not in complete abeyance while a pilot, who is required by law to be accepted, is in discharge of his
functions. . . . It is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he
does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any
subordinate officer of the vessel. He may exercise it, or not, according to his discretion. There was evidence to support findings that piaintiff's
injury was due to the negligent operation of the Atenas, and that the master of that vessel was negligent in failing to take action to avoid
endangering a vessel situated as the City of Canton was and persons or property thereon.
A phase of the evidence furnished support for the inferences . . . that he negligently failed to suggest to the pilot the danger which was
disclosed, and means of avoiding such danger; and that the master's negligence in failing to give timelt admonition to the pilot proximately
contributed to the injury complained of. We are of opinion that the evidence mentioned tended to prove conduct of the pilot, known to the
master, giving rise to a case of danger or great necessity, calling for the intervention of the master. A master of a vessel is not without fault in
acquiescing in canduct of a pilot which involves apparent and avoidable danger, whether such danger is to the vessel upon which the pilot is,
or to another vessel, or persons or property thereon or on shore. (Emphasis ours.)
Still in another case involving a nearly identical setting, the captain of a vessel alongside the compulsory pilot was deemed to be negligent, since, in the words of
the court, "he was in a position to exercise his superior authority if he had deemed the speed excessive on the occasion in question. I think it was clearly
negligent of him not to have recognized the danger to any craft moored at Gravell Dock and that he should have directed the pilot to reduce his speed as required
by the local governmental regulations. His failure amounted to negligence and renders the respondent liable." 81 (Emphasis supplied.) Though a compulsory pilot
might be regarded as an independent contractor, he is at all times subject to the ultimate control of the ship's master. 82
In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him to navigate it, if the master observes that the pilot is incompetent
or physically incapable, then it is the dury of the master to refuse to permit the pilot to act. But if no such reasons are present, then the master is justified in
relying upon the pilot, but not blindly. Under the circumstances of this case, if a situation arose where the master, exercising that reasonable vigilance which the
master of a ship should exercise, observed, or should have observed, that the pilot was so navigating the vessel that she was going, or was likely to go, into

34

danger, and there was in the exercise of reasonable care and vigilance an opportunity for the master to intervene so as to save the ship from danger, the master
should have acted accordingly. 83 The master of a vessel must exercise a degree of vigilance commensurate with the circumstances. 84
Inasmuch as the matter of negligence is a question of fact, 85 we defer to the findings of the trial court, especially as this is affirmed by the Court of
Appeals. 86 But even beyond that, our own evaluation is that Capt. Kabankov's shared liability is due mainly to the fact that he failed to act when the perilous
situation should have spurred him into quick and decisive action as master of the ship. In the face of imminent or actual danger, he did not have to wait for the
happenstance to occur before countermanding or overruling the pilot. By his own admission, Capt. Kabankov concurred with Capt. Gavino's decisions, and this is
precisely the reason why he decided not to countermand any of the latter's orders. Inasmuch as both lower courts found Capt. Gavino negligent, by expressing
full agreement therewith Capt. Kabankov was just as negligent as Capt. Gavino.
In general, a pilot is personally liable for damages caused by his own negligence or default to the owners of the vessel, and to third parties for damages sustained
in a collision. Such negligence of the pilot in the performance of duty constitutes a maritime tort. 87 At common law, a shipowner is not liable for injuries inflicted
exclusively by the negligence of a pilot accepted by a vessel compulsorily. 88 The exemption from liability for such negligence shall apply if the pilot is actually
in charge and solely in fault. Since, a pilot is responsible only for his own personal negligence, he cannot be held accountable for damages proximately caused by
the default of others, 89 or, if there be anything which concurred with the fault of the pilot in producing the accident, the vessel master and owners are liable.
Since the colliding vessel is prima facie responsible, the burden of proof is upon the party claiming benefit of the exemption from liability. It must be shown
affirmatively that the pilot was at fault, and that there was no fault on the part of the officers or crew, which might have been conducive to the damage. The fact
that the law compelled the master to take the pilot does not exonerate the vessel from liability. The parties who suffer are entitled to have their remedy against the
vessel that occasioned the damage, and are not under necessity to look to the pilot from whom redress is not always had for compensation. The owners of the
vessel are responsible to the injured party for the acts of the pilot, and they must be left to recover the amount as well as they can against him. It cannot be
maintained that the circumstance of having a pilot on board, and acting in conformity to his directions operate as a discharge of responsibility of the
owners. 90 Except insofar as their liability is limited or exempted by statute, the vessel or her owner are liable for all damages caused by the negligence or other
wrongs of the owners or those in charge of the vessel. Where the pilot of a vessel is not a compulsory one in the sense that the owner or master of the vessel are
bound to accept him, but is employed voluntarily, the owners of the vessel are, all the more, liable for his negligent act. 91
In the United States, the owners of a vessel are not personally liable for the negligent acts of a compulsory pilot, but by admiralty law, the fault or negligence of a
compulsory pilot is imputable to the vessel and it may be held liable therefor in rem. Where, however, by the provisions of the statute the pilot is compulsory
only in the sense that his fee must be paid, and is not in compulsory charge of the vessel, there is no exemption from liability. Even though the pilot is
compulsory, if his negligence was not the sole cause of the injury, but the negligence of the master or crew contributed thereto, the owners are liable. 92 But the
liability of the ship in rem does not release the pilot from the consequences of his own negligence. 93 The rationale for this rule is that the master is not entirely
absolved of responsibility with respect to navigation when a compulsory pilot is in charge. 94
By way of validation and in light of the aforecited guidepost rulings in American maritime cases, we declare that our rulings during the early years of this century
in City of Manila vs. Gambe, 95 China Navigation Co., Ltd. vs. Vidal,96 and Yap Tica & Co. vs. Anderson, et al. 97 have withstood the proverbial test of time and
remain good and relevant case law to this day.
City of Manila stands for the doctrine that the pilot who was in command and complete control of a vessel, and not the owners, must be held responsible for an
accident which was solely the result of the mistake of the pilot in not giving proper orders, and which did not result from the failure of the owners to equip the
vessel with the most modern and improved machinery. In China Navigation Co., the pilot deviated from the ordinary and safe course, without heeding the
warnings of the ship captain. It was this careless deviation that caused the vessel to collide with a pinnacle rock which, though uncharted, was known to pilots
and local navigators. Obviously, the captain was blameless. It was the negligence of the pilot alone which was the proximate cause of the collision. The Court
could not but then rule that
The pilot in the case at bar having deviated from the usual and ordinary course followed by navigators in passing through the strait in
question, without a substantial reason, was guilty of negligence, and that negligence having been the proximate cause of the damages, he is
liable for such damages as usually and naturally flow therefrom. . . .
. . . (T)he defendant should have known of the existence and location of the rock upon which the vessel struck while under his control and
management. . . . .
Consistent with the pronouncements in these two earlier cases, but on a slightly different tack, the Court in Yap Tico & Co. exonerated the pilot from liability for
the accident where the orders of the pilot in the handling of the ship were disregarded by the officers and crew of the ship. According to the Court, a pilot is ". . .
responsible for a full knowledge of the channel and the navigation only so far as he can accomplish it through the officers and crew of the ship, and I don't see
chat he can be held responsible for damage when the evidence shows, as it does in this case, that the officers and crew of the ship failed to obey his orders."
Nonetheless, it is possible for a compulsory pilot and the master of the vessel to be concurrently negligent and thus share the blame for the resulting damage as
joint tortfeasors, 98 but only under the circumstances obtaining in and demonstrated by the instant petitions.
It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient that his negligence,
concurring with one or more efficient causes other than piaintiff's, is the proximate cause of the injury. Accordingly, where several causes combine to produce
injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the person charged with
injury is an efficient cause without which the injury would not have resulted to as great an extent, and that such cause is not attributable to the person injured. It is
no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone, without the negligence or wrongful acts of the

35

other concurrent rortfeasor. 99 Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have
happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the
circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same. No actor's
negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result
and is liable as though his acts were the sole cause of the injury. 100
There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage. Where the concurrent or
successive negligent acts or omissions of two or more persons, although acting independently, are in combination the direct and proximate cause of a single
injury to a third person, it is impossible to determine in what proportion each contributed to the injury and either of them is responsible for the whole injury.
Where their concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting damage
under Article 2194 101 of the Civil Code. 102
As for the amount of damages awarded by the trial court, we find the same to be reasonable. The testimony of Mr. Pascual Barral, witness for PPA, on cross and
redirect examination, appears to be grounded on practical considerations:
Q So that the cost of the two additional piles as well as the (two) square meters is already included in this P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent only for the six piles that was damaged as well as the
corresponding two piles.
A The area was corresponding, was increased by almost two in the actual payment. That was why the contract was
decreased, the real amount was P1,124,627.40 and the final one is P1,300,999.77.
Q Yes, but that P1,300,999.77 included the additional two new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place in 1980 and you started the repair and reconstruction in 1982,
that took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing damage in 1980 was aggravated for the 2 year period that the
damage portion was not repaired?
A I don't think so because that area was at once marked and no vehicles can park, it was closed.
Q Even if or even natural elements cannot affect the damage?
A Cannot, sir.
xxx xxx xxx

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Q You said in the cross-examination that there were six piles damaged by the accident, but that in the reconstruction of
the pier, PPA drove and constructed 8 piles. Will you explain to us why there was change in the number of piles from the
original number?
A In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive piles at the same point. You have to
redesign the driving of the piles. We cannot drive the piles at the same point where the piles are broken or damaged or
pulled out. We have to redesign, and you will note that in the reconstruction, we redesigned such that it necessitated 8
plies.
Q Why not, why could you not drive the same number of piles and on the same spot?
A The original location was already disturbed. We cannot get required bearing capacity. The area is already disturbed.
Q Nonetheless, if you drove the original number of piles, six, on different places, would not that have sustained the same
load?
A It will not suffice, sir. 103
We quote the findings of the lower court with approval.
With regards to the amount of damages that is to be awarded to plaintiff, the Court finds that the amount of P1,053,300.00 is justified. Firstly,
the doctrine of res ipsa loquitur best expounded upon in the landmark case of Republic vs. Luzon Stevedoring Corp. (21 SCRA 279)
establishes the presumption that in the ordinary course of events the ramming of the dock would not have occurred if proper care was used.
Secondly, the various estimates and plans justify the cost of the port construction price. The new structure constructed not only replaced the
damaged one but was built of stronger materials to forestall the possibility of any similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00 which represents actual damages caused by the damage
to Berth 4 of the Manila International Port. Co-defendants Far Eastern Shipping, Capt. Senen Gavino and Manila Pilots Association are
solidariiy liable to pay this amount to plaintiff. 104
The Solicitor General rightly commented that the adjudicated amount of damages represents the proportional cost of repair and rehabilitation of the
damaged section of the pier. 105
Except insofar as their liability is limited or exempted by statute, the vessel or her owners are liable for all damages caused by the negligence or other wrongs of
the owners or those in charge of the vessel. As a general rule, the owners or those in possession and control of a vessel and the vessel are liable for all natural and
proximate damages caused to persons or property by reason of her negligent management or navigation. 106
FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not only because it appears to be a mere afterthought, being tardily
raised only in this petition, but also because there is no allegation or evidence on record about Berth No. 4 being unsafe and unreliable, although perhaps it is a
modest pier by international standards. There was, therefore, no error on the part of the Court of Appeals in dismissing FESC's counterclaim.
II. G.R. No. 130150
This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and solidarily liable with its member pilot. Capt. Gavino, in the
absence of employer-employee relationship and in applying Customs Administrative Order No. 15-65, as basis for the adjudged solidary liability of MPA and
Capt. Gavino.
The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are:
PAR. XXVII. In all pilotage districts where pilotage is compulsory, there shall be created and maintained by the pilots or pilots'
association, in the manner hereinafter prescribed, a reserve fund equal to P1,000.00 for each pilot thereof for the purpose of paying claims for
damages to vessels or property caused through acts or omissions of its members while rendered in compulsory pilotage service. In Manila,
the reserve fund shall be P2,000.00 for each pilot.
PAR. XXVIII. A pilots' association shall not be liable under these regulations for damage to any vessel, or other property, resulting from
acts of a member of an association in the actual performance of his duty for a greater amount than seventy-five per centum (75%) of its
prescribed reserve fund; it being understood that if the association is held liable for an amount greater than the amount above-stated, the
excess shall be paid by the personal funds of the member concerned.

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PAR. XXXI. If a payment is made from the reserve fund of an association on account of damages caused by a member thereof, and he
shall have been found at fault, such member shall reimburse the association in the amount so paid as soon as practicable; and for this purpose,
not less than twenty-five per centum of his dividends shall be retained each month until the full amount has been returned to the reserve fund.
PAR. XXXIV. Nothing in these regulations shall relieve any pilots' association or members thereof, individually or collectively, from civil
responsibility for damages to life or property resulting from the acts of members in the performance of their duties.
Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timery amended this applicable maritime regulation, state:
Art. IV
Sec. 17. Pilots' Association The Pilots in a Pilotage District shall organize themselves into a Pilots' Association or firm, the members of
which shall promulgate their own By-Laws not in conflict with the rules and regulations promulgated by the Authority. These By-Laws shall
be submitted not later than one (1) month after the organization of the Pilots' Association for approval by the General Manager of the
Authority. Subsequent amendments thereto shall likewise be submitted for approval.
Sec. 25. Indemnity Insurance and Reserve Fund
a) Each Pilots' Association shall collectively insure its membership at the rate of P50,000.00 each
member to cover in whole or in part any liability arising from any accident resulting in damage to
vessel(s), port facilities and other properties and/or injury to persons or death which any member may
have caused in the course of his performance of pilotage duties. . . . .
b) The Pilotage Association shall likewise set up and maintain a reserve fund which shall answer for
any part of the liability referred to in the immediately preceding paragraph which is left unsatisfied
by the insurance proceeds, in the following manner:
1) Each pilot in the Association shall contribute from his own account an amount
of P4,000.00 (P6,000.00 in the Manila Pilotage District) to the reserve fund. This
fund shall not be considered part of the capital of the Association nor charged as
an expense thereof.
2) Seventy-five percent (75 %) of the reserve fund shall be set aside for use in the
payment of damages referred to above incurred in the actual performance of
pilots' duties and the excess shall be paid from the personal funds of the member
concerned.
xxx xxx xxx
5) If payment is made from the reserve fund of an Association on account of
damage caused by a member thereof who is found at fault, he shall reimburse the
Association in the amount so paid as soon as practicable; and for this purpose, not
less than twenty-five percentum (25 %) of his dividend shall be retained each
month until the full amount has been returned to the reserve fund. Thereafter, the
pilot involved shall be entitled to his full dividend.
6) When the reimbursement has been completed as prescribed in the preceding
paragraph, the ten percentum (10%) and the interest withheld from the shares of
the other pilots in accordance with paragraph (4) hereof shall be returned to them.
c) Liability of Pilots' Association Nothing in these regulations shall relieve any Pilots' Association
or members thereof, individually or collectively, from any civil, administrative and/or criminal
responsibility for damages to life or property resulting from the individual acts of its members as well
as those of the Association's employees and crew in the performance of their duties.
The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of FESC, MPA and Capt. Gavino, correctly based MPA' s liability
not on the concept of employer-employee relationship between Capt. Gavino and itself, but on the provisions of Customs Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a quo, the Appellant Gavino was not and has never been
an employee of the MPA but was only a member thereof. The Court a quo, it is noteworthy, did not state the factual basis on which it
anchored its finding that Gavino was the employee of MPA. We are in accord with MPA's pose. Case law teaches Us that, for an employer-

38

employee relationship to exist, the confluence of the following elements must be established: (1) selection and engagement of employees; (2)
the payment of wages; (3) the power of dismissal; (4) the employer's power to control the employees with respect to the means and method
by which the work is to be performed (Ruga versus NLRC, 181 SCRA 266).
xxx xxx xxx
The liability of MPA for damages is not anchored on Article 2180 of the New Civil Code as erroneously found and declared by the Court a
quo but under the provisions of Customs Administrative Order No. 15-65, supra, in tandem with the by-laws of the MPA. 107
There being no employer-employee relationship, clearly Article 2180 108 of the Civil Code is inapplicable since there is no vicarious liability of an employer to
speak of. It is so stated in American law, as follows:
The well established rule is that pilot associations are immune to vicarious liability for the tort of their members. They are not the employer
of their members and exercise no control over them once they take the helm of the vessel. They are also not partnerships because the
members do not function as agents for the association or for each other. Pilots' associations are also not liable for negligently assuring the
competence of their members because as professional associations they made no guarantee of the professional conduct of their members to
the general public. 109
Where under local statutes and regulations, pilot associations lack the necessary legal incidents of responsibility, they have been held not liable for damages
caused by the default of a member pilot. 110 Whether or not the members of a pilots' association are in legal effect a copartnership depends wholly on the powers
and duties of the members in relation to one another under the provisions of the governing statutes and regulations. The relation of a pilot to his association is not
that of a servant to the master, but of an associate assisting and participating in a common purpose. Ultimately, the rights and liabilities between a pilots'
association and an individual member depend largely upon the constitution, articles or by-laws of the association, subject to appropriate government
regulations. 111
No reliance can be placed by MPA on the cited American rulings as to immunity from liability of a pilots' association in ljght of existing positive regulation under
Philippine law. The Court of Appeals properly applied the clear and unequivocal provisions of Customs Administrative Order No. 15-65. In doing so, it was just
being consistent with its finding of the non-existence of employer-employee relationship between MPA and Capt. Gavino which precludes the application of
Article 2180 of the Civil Code.
True. Customs Administrative Order No. 15-65 does not categorically characterize or label MPA's liability as solidary in nature. Nevertheless, a careful reading
and proper analysis of the correlated provisions lead to the conclusion that MPA is solidarily liable for the negligence of its member pilots, without prejudice to
subsequent reimbursement from the pilot at fault.
Art. 1207 of the Civil Code provides that there is solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation
requires solidarity. Plainly, Customs Administrative Order No. 15-65, which as an implementing rule has the force and effect of law, can validly provide for
solidary liability.We note the Solicitor General's comment hereon, to wit:
. . . Customs Administrative Order No. 15-65 may be a mere rule and regulation issued by an administrative agency pursuant to a delegated
authority to fix "the details" in the execution or enforcement of a policy set out in the law itself. Nonetheless, said administrative order, which
adds to the procedural or enforcing provisions of substantive law, is legally binding and receives the same statutory force upon going into
effect. In that sense, it has equal, not lower, statutory force and effect as a regular statute passed by the legislature. 112
MPA's prayer for modification of the appellate court's decision under review by exculpating petitioner MPA "from liability beyond seventy-five percent (75 %) of
Reserve Fund" is unnecessary because the liability of MPA under Par. XXVIII of Customs Administrative Order No. 15-65 is in fact limited to seventy-five
percent (75 %) of its prescribed reserve fund, any amount of liability beyond that being for the personal account of the erring pilot and subject to reimbursement
in case of a finding of fault by the member concerned. This is clarified by the Solicitor General:
Moreover, contrary to petitioner's pretensions, the provisions of Customs Administrative Order No. 15-65 do not limit the liability of
petitioner as a pilots' association to an absurdly small amount of seventy-five per centum (75 %) of the member pilots' contribution of
P2,000.00 to the reserve fund. The law speaks of the entire reserve fund required to be maintained by the pilots' association to answer (for)
whatever liability arising from the tortious act of its members. And even if the association is held liable for an amount greater than the reserve
fund, the association may not resist the liability by claiming to be liable only up to seventy-five per centum (75 %) of the reserve fund
because in such instance it has the right to be reimbursed by the offending member pilot for the excess. 113
WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are DENIED and the assailed decision of the Court of Appeals is
AFFIRMED in toto.
Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty. Herbert A. Tria, is REPRIMANDED and WARNED that a
repetition of the same or similar acts of heedless disregard of its undertakings under the Rules shall be dealt with more severely.

39

The original members of the legal team of the Office of the Solicitor General assigned to this case, namely, Assistant Solicitor General Roman G. Del Rosario
and Solicitor Luis F. Simon, are ADMONISHED and WARNED that a repetition of the same or similar acts of unduly delaying proceedings due to delayed filing
of required pleadings shall also be dealt with more stringently.
The Solicitor Genral is DIRECTED to look into the circumstances of this case and to adopt provident measures to avoid a repetition of this incident and which
would ensure prompt compliance with orders of this Court regarding the timely filing of requisite pleadings, in the interest of just, speedy and orderly
administration of justice.
Let copies of this decision be spread upon the personal records of the lawyers named herein in the Office of the Bar Confidant.
SO ORDERED.
Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.
Narvasa, C.J. and Mendoza, J., are on official leave.
G.R. No. L-32611

November 3, 1930

CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,

vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.

STREET, J.:
This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish & Electric Co., Inc., for the purpose of recovering from the Philippine
Motors Corporation the sum of P11,350, with interest and costs. Upon hearing the cause the trial court gave judgment in favor of the plaintiff to recover of the
defendant the sum of P9,850, with interest at 6 per centum per annum from March 24,1927, the date of the filing of the complaint, until satisfaction of the
judgment, with costs. From this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of the incident with which we are here concerned, H.D. Cranston was the representative of
the plaintiff in the City of Manila. At the same time the plaintiff was the registered owner of the motor schooner Gwendoline, which was used in the fishing trade
in the Philippine Islands. In January, 1925, Cranston decided, if practicable, to have the engine on the Gwendoline changed from a gasoline consumer to a crude
oil burner, expecting thereby to effect economy in the cost of running the boat. He therefore made known his desire to McLeod & Co., a firm dealing in tractors,
and was told by Mc Kellar, of said company, that he might make inquiries of the Philippine Motors Corporations, which had its office on Ongpin Street, in the
City of Manila. Cranston accordingly repaired to the office of the Philippine Motors Corporation and had a conference with C.E. Quest, its manager, who agreed
to do the job, with the understanding that payment should be made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in business as an automobile agency, but, under its charter, it had authority to deal in all sorts of
machinery engines and motors, as well as to build, operate, buy and sell the same and the equipment therof. Quest, as general manager, had full charge of the
corporations in all its branches.
As a result of the aforesaid interview, Quest, in company with Cranston, visited the Gwendoline while it lay at anchor in the Pasig River, and the work of
effecting the change in the engine was begun and conducted under the supervision of Quest, chiefly by a mechanic whom Quest took with him to the boat. In this
work Quest had the assistance of the members of the crew of the Gwendoline, who had been directed by Cranston to place themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing necessary to accomplish the end in view was to install a new
carburetor, and a Zenith carburetor was chosen as the one most adapted to the purpose. After this appliance had been installed, the engine was tried with gasoline
as a fuel, supplied from the tank already in use. The result of this experiment was satisfactory. The next problem was to introduce into the carburetor the baser
fuel, consisting of a low grade of oil mixed with distillate. For this purpose a temporary tank to contain the mixture was placed on deck above and at a short
distance from the compartment covering the engine. This tank was connected with the carburetor by a piece of tubing, which was apparently not well fitted at the
point where it was connected with the tank. Owing to this fact the fuel mixture leaked from the tank and dripped sown into the engine compartment. The new fuel
line and that already in use between the gasoline tank and carburetor were so fixed that it was possible to change from the gasoline fuel to the mixed fuel. The
purpose of this arrangement was to enable the operator to start the engine on gasoline and then, after the engine had been operating for a few moments, to switch
to the new fuel supply. lawphil.net

40

In the course of the preliminary work upon the carburetor and its connections, it was observed that the carburetor was flooding, and that the gasoline, or other
fuel, was trickling freely from the lower part to the carburetor to the floor. This fact was called to Quest's attention, but he appeared to think lightly of the matter
and said that, when the engine had gotten to running well, the flooding would disappear.
After preliminary experiments and adjustments had been made the boat was taken out into the bay for a trial run at about 5 p.m. or a little later, on the evening of
January 30,1925. The first part of the course was covered without any untoward development, other than he fact that the engine stopped a few times, owing no
doubt to the use of an improper mixture of fuel. In the course of the trial Quest remained outside of the engine compartment and occupied himself with making
distillate, with a view to ascertaining what proportion of the two elements would give best results in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the engine stopped, and connection again had to be made with the
gasoline line to get a new start. After this had been done the mechanic, or engineer, switched to the tube connecting with the new mixture. A moment later a back
fire occurred in the cylinder chamber. This caused a flame to shoot back into the carburetor, and instantly the carburetor and adjacent parts were covered with a
mass of flames, which the members of the crew were unable to subdue. They were therefore compelled, as the fire spread, to take to a boat, and their escape was
safely effected, but theGwendoline was reduced to a mere hulk. The salvage from, the wreck, when sold, brought only the sum of P150. The value of the boat,
before the accident occured, as the court found, was P10,000.
A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the negligence and lack of skill of Quest. The temporary tank in
which the mixture was prepared was apparently at too great an elevation from the carburetor, with the result that when the fuel line was opened, the hydrostatic
pressure in the carburetor was greater than the delicate parts of the carburetor could sustain. This was no doubt the cause of the flooding of the carburetor; and the
result was that; when the back fire occurred, the external parts of the carburetor, already saturated with gasoline, burst into flames, whence the fire was quickly
communicated to the highly inflammable material near-by. Ordinarily a back fire from an engine would not be followed by any disaster, but in this case the leak
along the pipe line and the flooding of the carburetor had created a dangerous situation, which a prudent mechanic, versed in repairs of this nature, would have
taken precautions to avoid. The back fire may have been due either to the fact that the spark was too advanced or the fuel improperly mixed.
In this connection it must be remembered that when a person holds himself out as being competent to do things requiring professional skill, he will be held liable
for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do. The proof shows that Quest had had
ample experience in fixing the engines of automobiles and tractors, but it does not appear that he was experienced in the doing of similar work on boats. For this
reason, possibly the dripping of the mixture form the tank on deck and the flooding of the carburetor did not convey to his mind an adequate impression of the
danger of fire. But a person skilled in that particular sort of work would, we think have been sufficiently warned from those circumstances to cause him to take
greater and adequate precautions against the danger. In other words Quest did not use the skill that would have been exhibited by one ordinarily expert in
repairing gasoline engines on boats. There was here, in our opinion, on the part of Quest, a blameworthy antecedent inadvertence to possible harm, and this
constitutes negligence. The burning of the Gwendoline may be said to have resulted from accident, but this accident was in no sense an unavoidable accident. It
would not have occured but for Quest's carelessness or lack of skill. The test of liability is not whether the injury was accidental in a sense, but whether Quest
was free from blame.
We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or negligence in effecting the changes which Quest undertook to
accomplish; and even supposing that our theory as to the exact manner in which the accident occurred might appear to be in some respects incorrect, yet the
origin of the fire in not so inscrutable as to enable us to say that it was casus fortuitus.
The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of the Gwendolineduring the experimental run, the defendant
corporation was in the position of a bailee and that, as a consequence, the burden of proof was on the defendant to exculpate itself from responsibility by proving
that the accident was not due to the fault of Quest. We are unable to accede to this point of view. Certainly, Quest was not in charge of the navigation of the boat
on this trial run. His employment contemplated the installation of new parts in the engine only, and it seems rather strained to hold that the defendant corporation
had thereby become bailee of the boat. As a rule workmen who make repairs on a ship in its owner's yard, or a mechanic who repairs a coach without taking it to
his shop, are not bailees, and their rights and liabilities are determined by the general rules of law, under their contract. The true bailee acquires possession and
what is usually spoken of as special property in the chattel bailed. As a consequence of such possession and special property, the bailee is given a lien for his
compensation. These ideas seem to be incompatible with the situation now under consideration. But though defendant cannot be held liable in the supposition
that the burden of proof had not been sustained by it in disproving the negligence of its manager, we are nevertheless of the opinion that the proof shows by a
clear preponderance that the accident to the Gwendoline and the damages resulting therefrom are chargeable to the negligence or lack of skill of Quest.
This action was instituted about two years after the accident in question had occured, and after Quest had ceased to be manager of the defendant corporation and
had gone back to the United States. Upon these facts, the defendant bases the contention that the action should be considered stale. It is sufficient reply to say that
the action was brought within the period limited by the statute of limitations and the situation is not one where the defense of laches can be properly invoked.
It results that the judgment appealed from, awarding damages to the plaintiff in the amount of P9,850, with interest, must be affirmed; and it is so ordered, with
costs against the appellant.
G.R. No. L-12858

January 22, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
SANTIAGO PINEDA, defendant-appellant.

41

Francisco and Lualhati for appellant.

Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This appeal requires a construction and an application, for the first time, of the penal provisions of the Pharmacy Law.
Santiago Pineda, the defendant, is a registered pharmacist of long standing and the owner of a drug store located at Nos. 442, 444, Calle Santo Cristo, city of
Manila. One Feliciano Santos, having some sick horses, presented a copy of a prescription obtained from Dr. Richardson, and which on other occasions Santos
had given to his horses with good results, at Pineda's drug store for filling. The prescription read "clorato de potasa 120 gramos en seis papelitos de 20
gramos, para caballo." Under the supervision of Pineda, the prescription was prepared and returned to Santos in the form of six papers marked, "Botica Pineda
Clorato potasa 120.00 en seis papeles para caballo Sto. Cristo 442, 444, Binondo, Manila." Santos, under the belief that he had purchased the
potassium chlorate which he had asked for, put two of the packages in water the doses to two of his sick horses. Another package was mixed with water for
another horse, but was not used. The two horses, to which had been given the preparation, died shortly afterwards. Santos, thereupon, took the three remaining
packages to the Bureau of Science for examination. Drs. Pea and Darjuan, of the Bureau of Science, on analysis found that the packages contained not
potassium chlorate but barium chlorate. At the instance of Santos, the two chemists also went to the drug store of the defendant and bought potassium chlorate,
which when analyzed was found to be barium chlorate. (Barium chlorate, it should be noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a
veterinarian, performed an autopsy on the horses, and found that death was the result of poisoning.
Four assignments of error are made. The first is that the lower court erred in admitting the testimony of the chemist Pena and Darjuan as to their purchase of
potassium chlorate at the drug store of the accused, which substance proved on analysis to be barium chlorate. What the appellant is here relying on is the
maxim res inter alios acta. As a general rule, the evidence of other offenses committed by a defendant is inadmissible. But appellant has confused this maxim
and this rule with certain exceptions thereto. The effort is not to convict the accused of a second offense. Nor is there an attempt to draw the mind away from the
point at issue and thus to prejudice defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to fix his negligence. If the defendant has
on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be
established. It has been said that there is no better evidence of negligence than the frequency of accidents. (See 10 R. C. L., pp. 938, 940.) The United States
Supreme Court has held that:
On the trial of a criminal case the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of
a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appear
that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused.
Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry or the failure of direct proof, objections to
the testimony on the ground of irrelevancy are not favored.
Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the commission of another offense by the defendant.
(Moore vs. U. S. [1893], 150 U. S., 57.)
The second assignment of error is that the lower court erred in finding that the substance sold by the accused to Feliciano Santos on the 22d of June, 1916, was
barium chlorate and not potassium chlorate. The proof demonstrates the contrary.
The third and fourth assignments of error that the lower court erred in finding that the accused has been proved guilty beyond a reasonable doubt of an infraction
of Act No. 597, section 17, as amended. The third assignment contains the points we should consider, including, we may remark, a somewhat difficult question
concerning which the briefs have given little assistance.
The Pharmacy Law was first enacted as Act No. 597, was later amended by Act Nos. 1921, 2236, and 2382, and is now found as Chapter 30 of the Administrative
Code. The law provides for a board of pharmaceutical examiners, and the examination and registration of pharmacists, and finally contains sundry provisions
relative to the practice of pharmacy. High qualification for applicants for the pharmaceutical; examination are established. The program of subjects for the
examination is wide. Responsibility for the quality of drugs is fixed by section 17 of the Pharmacy Law, as amended (now Administrative Code [1917], section
751), in the following term:
Every pharmacist shall be responsible for the quality of all drugs, chemicals, medicines, and poisons he may sell or keep for sale; and it shall be
unlawful for any person whomsoever to manufacture, prepare, sell, or administer any prescription, drug, chemical, medicine, or poison under any
fraudulent name, direction, or pretense, or to adulterate any drug, chemical, medicine, or poison so used, sold or offered for sale. Any drug, chemical,
medicine, or poison shall be held to be adulterated or deteriorated within the meaning of this section if it differs from the standard of quality or purity
given in the United States Pharmacopoeia.
The same section of the Pharmacy Law also contains the following penal provision: "Any person violating the provisions of this Act shall, upon conviction, be
punished by a fine of not more than five hundred dollar." The Administrative Code, section 2676, changes the penalty somewhat by providing that:

42

Any person engaging in the practice of pharmacy in the Philippine Islands contrary to any provision of the Pharmacy Law or violating any provisions
of said law for which no specific penalty s provided shall, for each offense, be punished by a fine not to exceed two hundred pesos, or by imprisonment
for not more than ninety days, or both, in the discretion of the court.
These are the provisions of law, pursuant to which prosecution has been initiated and which it is now incumbent upon us to construe.
Turning to the law, certain points therein as bearing on our present facts must be admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made
responsible for the quality of all drugs and poisons which he sells. And finally it is provided that it shall be unlawful for him to sell any drug or poison under any
"fraudulent name." It is the one word "fraudulent" which has given the court trouble. What did the Legislature intend to convey by this restrictive adjective?
Were we to adhere to the technical definition of fraud, which the appellant vigorously insists upon, it would be difficult, if not impossible, to convict any druggist
of a violation of the law. The prosecution would have to prove to a reasonable degree of certainty that the druggist made a material representation; that it was
false; that when he made it he knew that it was false or made it recklessly without any knowledge of its truth and as positive assertion; that he made it with the
intention that it should be acted upon by the purchaser; that the purchaser acted in reliance upon it, and that the purchased thereby suffered injury. Such a
construction with a literal following of well-known principles on the subject of fraud would strip the law of at least much of its force. It would leave the innocent
purchaser of drugs, who must blindly trust in the good faith and vigilance of the pharmacist, at the mercy of any unscrupulous vendor. We should not, therefore,
without good reason so devitalize the law.
The profession of pharmacy, it has been said again and again, is one demanding care and skill. The responsibility of the druggist to use care has been variously
qualified as "ordinary care," "care of a special high degree," "the highest degree of care known to practical men." Even under the first conservative expression,
"ordinary care" with reference to the business of a druggist, the Supreme Court of Connecticut has said must be held to signify "the highest practicable degree of
prudence, thoughtfulness, and vigilance, and most exact and reliable safeguards consistent with the reasonable conduct of the business, in order that human life
may not be constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicine." (Tombari vs. Connors [1912], 85 Conn.,
235. See also Willson vs. Faxon, Williams and Faxon [1913], 208 N. Y., 108; Knoefel vs. Atkins [1907], 81 N. E., 600.) The "skill" required of a druggist is
denominated as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 L. R. A., 428.) In other words, the care required must be commensurate with
the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands.
Under one conception, and it should not be forgotten that the case we consider are civil in nature, the question of negligence or ignorance is irrelevant. The
druggist is responsible as an absolute guarantor of what he sells. In a decision which stands alone, the Supreme Court of Kentucky said:
As applicable to the owners of drug stores, or persons engaged in vending drugs and medicines by retail, the legal maxim should be reversed. Instead
of caveat emptor, it should be caveat venditor. That is to say, let him be certain that he does not sell to a purchaser or send to a patient one drug for
another, as arsenic for calomel, cantharides for or mixed with snakeroot and Peruvian bark, or even one innocent drug, calculated to produce a certain
effect, in place of another sent for and designed to produce a different effect. If he does these things, he cannot escape civil responsibility, upon the
alleged pretext that it was an accidental or an innocent mistake; that he had been very careful and particular, and had used extraordinary care and
diligence in preparing or compounding the medicines as required, etc. Such excuses will not avail him. (Fleet vs. Hollenkemp [1852], 56 Am. Dec.,
563.)
Under the other conception, in which the proof of negligence is considered as material, where a customer calls upon a druggist for a harmless remedy, delivery of
a poisonous drug by mistake by the druggist is prima facienegligence, placing the burden on him to show that the mistake was under the circumstances consistent
with the exercise of due care. (See Knoefel vs. Atkins, supra,) The druggist cannot, for example in filling a prescription calling for potassium chlorate give
instead to the customer barium chlorate, a poison, place this poison in a package labeled "potassium chlorate," and expect to escape responsibility on plea of
mistake. His mistake, under the most favorable aspect for himself, was negligence. So in a case where a druggist filled an order for calomel tablets with morphine
and placed the morphine in a box labeled calomel, it was said:
It is not suggested, nor can we apprehend that it is in any wise probable, that the act of furnishing the wrong drug in this case was willful. If it was
furnished by the clerk, it was undoubtedly a mistake and unintentional. However, it was a mistake of the gravest kind, and of the most disastrous effect.
We cannot say that one holding himself out as competent to handle such drugs, and who does so, having rightful access to them, and relied upon by
those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of this business, can be heard to
say that his mistakes by which he furnishes a customer the most deadly of drugs for those comparatively harmless is not, in and of itself, gross
negligence, and that of an aggravated form. (Smith's Admrx. vs. Middleton [1902], 56 L. R. A., 484.)
The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the vendee do not stand at arms length as in ordinary transactions. An
imperative duty is on the druggist to take precautions to prevent death or serious injury to anyone who relies on his absolute honesty and peculiar leaning. The
nature of drugs is such that examination would not avail the purchaser anything. It would be idle mockery for the customer to make an examination of a
compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for.
In civil cases, the druggist is made liable for any injury approximately resulting from his negligence. If B negligently sells poison under the guise of a beneficial
drug to A, he is liable for the injury done to A. In a case, which has repeatedly been termed the leading case on the subject and which has been followed by the
United States Supreme Court, it was said, "Pharmacists or apothecaries who compound or sell medicines, if they carelessly label a poison as a harmless medicine,
and sent it so labeled into the market, are liable to all persons who, without fault on their part, are injured by using it as such medicine, in consequence of the
false label; the rule being that the liability in such a case arises not out of any contract or direct privity between the wrong-doer and the person injured, but out of
the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others." (Nat. Savings Bank vs. Ward [1879], 100 U. S., 195,

43

following Thomas vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the druggist, mistake is negligence and care is no defense. Throughout the criminal
law, run the same rigorous rules. For example, apothecaries or apothecary clerks, who are guilty of negligence in the sale of medicine when death ensues in
consequence, have been held guilty of manslaughter. (See Tessymond's Case [1828], 1 Lewin, C. C., 169.)
Bearing these general principles in mind, and remembering particularly the care and skill which are expected of druggist, that in some jurisdictions they are liable
even for their mistake and in others have the burden placed upon them to establish that they were not negligent, it cannot be that the Philippine Legislature
intended to use the word "fraudulent" in all its strictness. A plea of accident and mistake cannot excuse for they cannot take place unless there be wanton and
criminal carelessness and neglect. How the misfortune occurs is unimportant, if under all the circumstances the fact of occurrence is attributed to the druggist as a
legal fault. Rather considering the responsibility for the quality of drugs which the law imposes on druggists and the position of the word "fraudulent" in
juxtaposition to "name," what is made unlawful is the giving of a false name to the drug asked for. This view is borne out by Spanish translation, which we are
permitted to consult to explain the English text. In the Spanish "supuesto" is used, and this word is certainly not synonymous with "fraudulent." The usual badges
of fraud, falsify, deception, and injury must be present-but not scienter.
In view of the tremendous an imminent danger to the public from the careless sale of poisons and medicines, we do not deem it too rigid a rule to hold that the
law penalizes any druggist who shall sell one drug for another whether it be through negligence or mistake.
The judgment of the lower court, sentencing the defendant to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs, is
affirmed with the cost of this instance against the appellant, without prejudice to any civil action which may be instituted. So ordered.
G.R. No. 165622

October 17, 2008

MERCURY DRUG CORPORATION and AURMELA GANZON, petitioners,

vs.
RAUL DE LEON, respondents.
DECISION
REYES, R.T., J.:
IN REALITY, for the druggist, mistake is negligence and care is no defense. 1 Sa isang parmasyutika, ang pagkakamali ay kapabayaan at ang pagkalinga ay
hindi angkop na dipensa.
This is a petition for review on certiorari2 of two Resolutions3 of the Court of Appeals (CA). The first Resolution granted respondents motion to dismiss while
the second denied petitioners motion for reconsideration.
The Facts
Respondent Raul T. De Leon was the presiding judge of Branch 258, Regional Trial Court (RTC) in Paraaque. 4On October 17, 1999, he noticed that his left eye
was reddish. He also had difficulty reading.5 On the same evening, he met a friend for dinner at the Foohyui Restaurant. The same friend happened to be a doctor,
Dr. Charles Milla, and had just arrived from abroad. 6
Aside from exchanging pleasantries, De Leon consulted Dr. Milla about his irritated left eye. 7 The latter prescribed the drugs "Cortisporin Opthalmic" and
"Ceftin" to relieve his eye problems.8 Before heading to work the following morning, De Leon went to the Betterliving, Paraaque, branch of Mercury Drug
Store Corporation to buy the prescribed medicines.9 He showed his prescription to petitioner Aurmela Ganzon, a pharmacist assistant. 10Subsequently, he paid for
and took the medicine handed over by Ganzon.11
At his chambers, De Leon requested his sheriff to assist him in using the eye drops. 12 As instructed, the sheriff applied 2-3 drops on respondents left
eye.13 Instead of relieving his irritation, respondent felt searing pain. 14 He immediately rinsed the affected eye with water, but the pain did not subside. 15 Only then
did he discover that he was given the wrong medicine, "Cortisporin Otic Solution." 16
De Leon returned to the same Mercury Drug branch, with his left eye still red and teary.17 When he confronted Ganzon why he was given ear drops, instead of the
prescribed eye drops,18 she did not apologize and instead brazenly replied that she was unable to fully read the prescription. 19 In fact, it was her supervisor who
apologized and informed De Leon that they do not have stock of the needed Cortisporin Opthalmic. 20
De Leon wrote Mercury Drug, through its president, Ms. Vivian K. Askuna, about the days incident. 21 It did not merit any response.22 Instead, two sales persons
went to his office and informed him that their supervisor was busy with other matters. 23 Having been denied his simple desire for a written apology and
explanation,24 De Leon filed a complaint for damages against Mercury Drug. 25
Mercury Drug denied that it was negligent and therefore liable for damages. 26 It pointed out that the proximate cause of De Leons unfortunate experience was his
own negligence.27 He should have first read and checked to see if he had the right eye solution before he used any on his eye. 28 He could have also requested his
sheriff to do the same before the latter applied the medicine on such a delicate part of his body. 29

44

Also, Mercury Drug explained that there is no available medicine known as "Cortisporin Opthalmic" in the Philippine market. 30 Furthermore, what was written
on the piece of paper De Leon presented to Ganzon was "Cortisporin Solution." 31 Accordingly, she gave him the only available "Cortisporin Solution" in the
market.
Moreover, even the piece of paper De Leon presented upon buying the medicine can not be considered as proper prescription. 32 It lacked the required information
concerning the attending doctors name and license number.33 According to Ganzon, she entertained De Leons purchase request only because he was a regular
customer of their branch.34
RTC Disposition
On April 30, 2003, the RTC rendered judgment in favor of respondent, the dispositive portion of which reads:
WHEREFORE, the court finds for the plaintiff.
For pecuniary loss suffered, Mercury Drug Store is to pay ONE HUNDRED FIFTY-THREE PESOS AND TWENTY-FIVE CENTAVOS (Php 153.25), the value
of the medicine.
As moral damages defendants is (sic) ordered to pay ONE HUNDRED THOUSAND PESOS (Php 100,000.00).
To serve as a warning to those in the field of dispensing medicinal drugs discretion of the highest degree is expected of them, Mercury Drug Store and defendant
Aurmila (sic) Ganzon are ordered to pay plaintiff the amount of THREE HUNDRED THOUSAND PESOS (Php 300,000.00) as exemplary damages.
Due to defendants callous reaction to the mistake done by their employee which forced plaintiff to litigate, Defendant (sic) Mercury Drug Store is to pay plaintiff
attorneys fees of P50,000.00 plus litigation expenses.
SO ORDERED.35
In ruling in favor of De Leon, the RTC ratiocinated:
The proximate cause of the ill fate of plaintiff was defendant Aurmila (sic) Ganzons negligent exercise of said discretion. She gave a prescription drug to a
customer who did not have the proper form of prescription, she did not take a good look at said prescription, she merely presumed plaintiff was looking for
Cortisporin Otic Solution because it was the only one available in the market and she further presumed that by merely putting the drug by the counter wherein
plaintiff looked at it, paid and took the drug without any objection meant he understood what he was buying. 36
The RTC ruled that although De Leon may have been negligent by failing to read the medicines label or to instruct his sheriff to do so, Mercury Drug was first to
be negligent.37 Ganzon dispensed a drug without the requisite prescription. 38 Moreover, she did so without fully reading what medicine was exactly being
bought.39 In fact, she presumed that since what was available was the drug Cortisporin Otic Solution, it was what De Leon was attempting to buy. 40 Said the
court:
When the injury is caused by the negligence of a servant or employee, there instantly arises a presumption of law that there was negligence on the part of the
employer or employer either in the selection of the servant or employee, or in the supervision over him after the selection or both.
xxxx
The theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. 41
Dissatisfied with the RTC ruling, Mercury Drug and Ganzon elevated the matter to the CA. Accordingly, they filed their respective briefs. Raising technical
grounds, De Leon moved for the appeals dismissal.
CA Disposition
On July 4, 2008, the CA issued a resolution which granted De Leons motion and dismissed the appeal. Said the appellate court:
As pointed out by the plaintiff-appellee, the Statement of Facts, Statement of the Case, Assignment of Errors/issues, Arguments/ Discussions in the Brief make no
references to the pages of the records. We find this procedural lapse justify the dismissal of the appeal, pursuant to Section 1(f), Rule 50 of the 1997 Rules of
Civil Procedure x x x.42
xxxx

45

"The premise that underlies all appeals is that they are merely rights which arise form a statute; therefore, they must be exercised in the manner prescribed by
law. It is to this end that rules governing pleadings and practice before the appellate court were imposed. These rules were designed to assist the appellate court in
the accomplishment of its tasks, and overall, to enhance the orderly administration of justice."
xxxx
x x x If the statement of fact is unaccompanied by a page reference to the record, it may be stricken or disregarded all together. 43
On October 5, 2004, the CA denied Mercury Drugs and Ganzons joint motion for reconsideration. Although mindful that litigation is not a game of
technicalities,44 the CA found no persuasive reasons to relax procedural rules in favor of Mercury Drug and Ganzon. 45 The CA opined:
In the case under consideration, We find no faithful compliance on the part of the movants that will call for the liberal application of the Rules. Section 1(f) of
Rule 50 of the 1997 Rules of Civil Procedure explicitly provides that an appeal may be dismissed by the Court of Appeals, on its own motion or on that of the
appellee, for want of page references to the records as required in Section 13 of Rule 44 of the same rules 46
Issues
Petitioner has resorted to the present recourse and assigns to the CA the following errors:
I
THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING PETITIONERS APPEAL BASED ON THE CASES OF DE LIANA VS. CA (370 SCRA
349) AND HEIRS OF PALOMINIQUE VS. CA (134 SCRA 331).
II
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DISMISSING PETITIONERS APPEAL DESPITE
SUBSTANTIAL COMPLIANCE WITH SECTION 1(F), RULE 60 AND SECTION 13, RULE 44 OF THE RULES OF COURT.
III
THE HONORABLE COURT OF APPEALS ERRED WHEN IT FAVORED MERE TECHNICALITY OVER SUBSTANTIAL JUSTICE WHICH WILL
CERTAINLY CAUSE GRAVE INJUSTICE AND GREAT PREJUDICE TO PETITIONER CONSIDERING THAT THE ASSAILED DECISION ON APPEAL
IS CLUSTERED WITH ERRORS AND IN CONTRAST with the DECISIONS OF THIS HONORABLE SUPREME COURT.47 (Underscoring supplied)
Our Ruling
The appeal succeeds in part.
Dismissal of an appeal under Rule 50 is discretionary.
In several cases,48 this Court stressed that the grounds for dismissal of an appeal under Section 1 of Rule 50 49are discretionary upon the appellate court. The very
wording of the rule uses the word "may" instead of "shall." This indicates that it is only directory and not mandatory. 50 Sound discretion must be exercised in
consonance with the tenets of justice and fair play, keeping in mind the circumstances obtaining in each case. 51
The importance of an appellants brief cannot be gainsaid. Its purpose is two-fold: (1) to present to the court in coherent and concise form the point and questions
in controversy; and (2) to assist the court in arriving at a just and proper conclusion. 52 It is considered a vehicle of counsel to convey to the court the essential
facts of a clients case, a statement of the questions of law involved, the law to be applied, and the application one desires of it by the court. 53
The absence of page reference to the record is a ground for dismissal. It is a requirement intended to ultimately aid the appellate court in arriving at a just and
proper conclusion of the case.54 However, as earlier discussed, such dismissal is not mandatory, but discretionary on the part of the appellate court.
This Court has held that the failure to properly cite reference to the original records is not a fatal procedural lapse.55 When citations found in the
appellants brief enable the court to expeditiously locate the portions of the record referred to, there is substantial compliance with the requirements of
Section 13(c), (d), and (f) of Rule 44.56
In De Leon v. CA,57 this Court ruled that the citations contained in the appellants brief sufficiently enabled the appellate court to expeditiously locate the portions
of the record referred to. They were in substantial compliance with the rules. The Court said:

46

Nothing in the records indicate that it was exercised capriciously, whimsically, or with a view of permitting injury upon a party litigant. For the same reasons, we
hold that the respondent Court of Appeals did not err when it did not dismiss the appeal based on the allegation that appellants brief failed to comply with the
internal rules of said court.58
Similar to the instant case, the appellants brief in Yuchengco v. Court of Appeals59 contained references to Exhibits and Transcript of Stenographic Notes and
attachments. These were found to have substantially complied with the requirements of Section 13(c) and (d) of Rule 44.
x x x The Appellants brief may not have referred to the exact pages of the records, however, the same is not fatal to their cause since the references they made
enabled the appellate court to expeditiously locate the portions referred to. x x x 60
It is true that in De Liano v. Court of Appeals,61 this Court held that a statement of facts unaccompanied by a page reference to the record may be presumed to be
without support in the record and may be stricken or disregarded altogether. However, the instant case is not on all fours with De Liano.
In De Liano, the appellants brief lacked a Subject Index and a Table of Cases and Authorities. 62 Moreover, the Statement of the Case, Statements of Facts, and
Statements of Arguments had no page references to the record. 63 When notified of such defects, defendants-appellants failed to amend their brief to conform to
the rules.64 Instead, they continued to argue that their errors were harmless. 65 All these omissions and non-compliance justified the dismissal of the appeal by the
CA.66
In the case under review, although there were no page references to the records, Mercury Drug and Ganzon referred to the exhibits, TSN, and attachments of the
case. Despite its deficiencies, the brief is sufficient in form and substance as to apprise the appellate court of the essential facts, nature of the case, the issues
raised, and the laws necessary for the disposition of the same.
Reliance on Heirs of Palomique v. Court of Appeals67 is likewise misplaced. In Heirs of Palomique, the appellants brief did not at all contain a separate statement
of facts.68 This critical omission, together with the failure to make page references to the record to support the factual allegations, justified the dismissal of the
appeal.69
Rules of procedure are intended to promote, not to defeat, substantial justice. They should not be applied in a very rigid and technical sense. 70 For reasons of
justice and equity, this Court has allowed exceptions to the stringent rules governing appeals. 71 It has, in the past, refused to sacrifice justice for technicality. 72
However, brushing aside technicalities, petitioners are still liable. Mercury Drug and Ganzon failed to exercise the highest degree of diligence expected
of them.
Denying that they were negligent, Mercury Drug and Ganzon pointed out that De Leons own negligence was the proximate cause of his injury. They argued that
any injury would have been averted had De Leon exercised due diligence before applying the medicine on his eye. Had he cautiously read the medicine bottle
label, he would have known that he had the wrong medicine.
Mercury Drug and Ganzon can not exculpate themselves from any liability. As active players in the field of dispensing medicines to the public, the highest degree
of care and diligence is expected of them. 73 Likewise, numerous decisions, both here and abroad, have laid salutary rules for the protection of human life and
human health.74 In the United States case of Tombari v. Conners,75 it was ruled that the profession of pharmacy demands care and skill, and druggists must
exercise care of a specially high degree, the highest degree of care known to practical men. In other words, druggists must exercise the highest practicable degree
of prudence and vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business, so that human life may not
constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicines. 76
In Fleet v. Hollenkemp,77 the US Supreme Court ruled that a druggist that sells to a purchaser or sends to a patient one drug for another or even one innocent drug,
calculated to produce a certain effect, in place of another sent for and designed to produce a different effect, cannot escape responsibility, upon the alleged pretext
that it was an accidental or innocent mistake. His mistake, under the most favorable aspect for himself, is negligence. And such mistake cannot be countenanced
or tolerated, as it is a mistake of the gravest kind and of the most disastrous effect. 78
Smiths Admrx v. Middelton79 teaches Us that one holding himself out as competent to handle drugs, having rightful access to them, and relied upon by those
dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of the business, cannot be heard to say that his
mistake by which he furnishes a customer the most deadly of drugs for those comparatively harmless, is not in itself gross negligence. 80
In our own jurisdiction, United States v. Pineda81 and Mercury Drug Corporation v. Baking are illustrative.82 InPineda, the potassium chlorate demanded by
complainant had been intended for his race horses. When complainant mixed with water what he thought and believed was potassium chlorate, but which turned
out to be the potently deadly barium chlorate, his race horses died of poisoning only a few hours after.
The wisdom of such a decision is unquestionable. If the victims had been human beings instead of horses, the damage and loss would have been irreparable. 83
In the more recent Mercury Drug, involving no less than the same petitioner corporation, Sebastian Baking went to the Alabang branch of Mercury Drug 84 and
presented his prescription for Diamicron, which the pharmacist misread as Dormicum. 85 Baking was given a potent sleeping tablet, instead of medicines to
stabilize his blood sugar.86 On the third day of taking the wrong medicine, Baking figured in a vehicular accident. 87 He fell asleep while driving. 88

47

This Court held that the proximate cause of the accident was the gross negligence of the pharmacist who gave the wrong medicine to Baking. The Court said:
x x x Considering that a fatal mistake could be a matter of life and death for a buying patient, the said employee should have been very cautious in dispensing
medicines. She should have verified whether the medicine she gave respondent was indeed the one prescribed by his physician. The care required must be
commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands. 89
This Court once more reiterated that the profession of pharmacy demands great care and skill. It reminded druggists to exercise the highest degree of care known
to practical men.
In cases where an injury is caused by the negligence of an employee, there instantly arises a presumption of law that there has been negligence on the
part of the employer, either in the selection or supervision of ones employees. This presumption may be rebutted by a clear showing that the employer
has exercised the care and diligence of a good father of the family.90 Mercury Drug failed to overcome such presumption.91
Petitioners Mercury Drug and Ganzon have similarly failed to live up to high standard of diligence expected of them as pharmacy professionals. They were
grossly negligent in dispensing ear drops instead of the prescribed eye drops to De Leon. Worse, they have once again attempted to shift the blame to their victim
by underscoring his own failure to read the label.
As a buyer, De Leon relied on the expertise and experience of Mercury Drug and its employees in dispensing to him the right medicine. 92 This Court has ruled
that in the purchase and sale of drugs, the buyer and seller do not stand at arms length. 93 There exists an imperative duty on the seller or the druggist to take
precaution to prevent death or injury to any person who relies on ones absolute honesty and peculiar learning. 94 The Court emphasized:
x x x The nature of drugs is such that examination would not avail the purchaser anything. It would be idle mockery for the customer to make an examination of
a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for. 95
Mercury Drug and Ganzons defense that the latter gave the only available Cortisporin solution in the market deserves scant consideration. Ganzon could have
easily verified whether the medicine she gave De Leon was, indeed, the prescribed one or, at the very least, consulted her supervisor. Absent the required
certainty in the dispensation of the medicine, she could have refused De Leons purchase of the drug.
The award of damages is proper and shall only be reduced considering the peculiar facts of the case. Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate result of defendants wrongful act or omission. 96
Moral damages are not intended to impose a penalty to the wrongdoer or to enrich the claimant at the expense of defendant. 97 There is no hard and fast rule in
determining what would be a fair and reasonable amount of moral damages since each case must be governed by its peculiar circumstances. 98 However, the
award of damages must be commensurate to the loss or injury suffered. 99
Taking into consideration the attending facts of the case under review, We find the amount awarded by the trial court to be excessive. Following the precedent
case of Mercury Drug, We reduce the amount from P100,000.00 to P50,000.00 only.100 In addition, We also deem it necessary to reduce the award of exemplary
damages from the exorbitant amount of P300,000.00 to P25,000.00 only.
This Court explained the propriety of awarding exemplary damages in the earlier Mercury Drug case:
x x x Article 2229 allows the grant of exemplary damages by way of example or correction for the public good. As mentioned earlier, the drugstore business is
affected by public interest. Petitioner should have exerted utmost diligence in the selection and supervision of its employees. On the part of the employee
concerned, she should have been extremely cautious in dispensing pharmaceutical products. Due to the sensitive nature of its business, petitioner must at all
times maintain a high level of meticulousness. Therefore, an award of exemplary damages in the amount of P25,000.00 is in order.101 (Emphasis supplied)
It is generally recognized that the drugstore business is imbued with public interest. This can not be more real for Mercury Drug, the countrys biggest drugstore
chain. This Court can not tolerate any form of negligence which can jeopardize the health and safety of its loyal patrons. Moreover, this Court will not
countenance the cavalier manner it treated De Leon. Not only does a pharmacy owe a customer the duty of reasonable care, but it is also duty-bound to accord
one with respect.
WHEREFORE, the petition is PARTIALLY GRANTED. The Decisions of the CA and the RTC in Paraaque City are AFFIRMED WITH
MODIFICATION, in that the award of moral and exemplary damages is reduced toP50,000.00 and P25,000.00, respectively.
SO ORDERED.
G.R. No. 122445 November 18, 1997

48

DR. NINEVETCH CRUZ, petitioner,

vs.
COURT OF APPEALS and LYDIA UMALI, respondents.

FRANCISCO, J.:
Doctors are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishaps or
unusual consequences. Furthermore they are not liable for honest mistakes of judgment . . . 1
The present case against petitioner is in the nature of a medical malpractice suit, which in simplest terms is the type of claim which a victim has available to him
or her to redress a wrong committed by a medical professional which has caused bodily harm. 2 In this jurisdiction, however, such claims are most often brought
as a civil action for damages under Article 2176 of the Civil Code, 3 and in some instances, as a criminal case under Article 365 of the Revised Penal Code 4 with
which the civil action for damages is impliedly instituted. It is via the latter type of action that the heirs of the deceased sought redress for the petitioner's alleged
imprudence and negligence in treating the deceased thereby causing her death. The petitioner and one Dr. Lina Ercillo who was the attending anaesthesiologist
during the operation of the deceased were charged with "reckless imprudence and negligence resulting to (sic) homicide" in an information which reads:
That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court,
the accused above named, being then the attending anaesthesiologist and surgeon, respectively, did then and there, in a negligence (sic),
careless, imprudent, and incompetent manner, and failing to supply or store sufficient provisions and facilities necessary to meet any and all
exigencies apt to arise before, during and/or after a surgical operation causing by such negligence, carelessness, imprudence, and
incompetence, and causing by such failure, including the lack of preparation and foresight needed to avert a tragedy, the untimely death of
said Lydia Umali on the day following said surgical operation. 5
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the above-mentioned charge. On March 4, 1994, the Municipal Trial Court in
Cities (MTCC) of San Pablo City rendered a decision, the dispositive portion of which is hereunder quoted as follows:
WHEREFORE, the court finds the accused Dra. Lina Ercillo not guilty of the offense charged for insufficiency of evidence while her coaccused Dra. Ninevetch Cruz is hereby held responsible for the death of Lydia Umali on March 24, 1991, and therefore guilty under Art. 365
of the Revised Penal Code, and she is hereby sentenced to suffer the penalty of 2 months and 1 day imprisonment of arresto mayor with
costs. 6
The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in toto the decision of the MTCC 7 prompting the petitioner to
file a petition for review with the Court of Appeals but to no avail. Hence this petition for review on certiorari assailing the decision promulgated by
the Court of Appeals on October 24, 1995 affirming petitioner's conviction with modification that she is further directed to pay the heirs of Lydia Umali
P50,000.00 as indemnity for her death. 8
In substance, the petition brought before this Court raises the issue of whether or not petitioner's conviction of the crime of reckless imprudence
resulting in homicide, arising from an alleged medical malpractice, is supported by the evidence on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the Perpetual Help Clinic and General Hospital situated in
Balagtas Street, San Pablo City, Laguna. They arrived at the said hospital at around 4:30 in the afternoon of the same day. 9 Prior to
March 22, 1991, Lydia was examined by the petitioner who found a "myoma" 10 in her uterus, and scheduled her for a hysterectomy operation on March 23,
1991. 11 Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated on the next day at 1:00 o'clock in the
afternoon. 12 According to Rowena, she noticed that the clinic was untidy and the window and the floor were very dusty prompting her to ask the attendant for a
rag to wipe the window and the floor with. 13 Because of the untidy state of the clinic, Rowena tried to persuade her mother not to proceed with the
operation. 14 The following day, before her mother was wheeled into the operating room, Rowena asked the petitioner if the operation could be postponed. The
petitioner called Lydia into her office and the two had a conversation. Lydia then informed Rowena that the petitioner told her that she must be operated on as
scheduled. 15
Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the operating room while Lydia underwent operation. While they
were waiting, Dr. Ercillo went out of the operating room and instructed them to buy tagamet ampules which Rowena's sister immediately bought. About one hour
had passed when Dr. Ercillo came out again this time to ask them to buy blood for Lydia. They bought type "A" blood from the St. Gerald Blood Bank and the
same was brought by the attendant into the operating room. After the lapse of a few hours, the petitioner informed them that the operation was finished. The
operating staff then went inside the petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was brought out of the operating room in a stretcher
and the petitioner asked Rowena and the other relatives to buy additional blood for Lydia. Unfortunately, they were not able to comply with petitioner's order as
there was no more type "A" blood available in the blood bank. Thereafter, a person arrived to donate blood which was later transfused to Lydia. Rowena then
noticed her mother, who was attached to an oxygen tank, gasping for breath. Apparently the oxygen supply had run out and Rowena's husband together with the
driver of the accused had to go to the San Pablo District Hospital to get oxygen. Lydia was given the fresh supply of oxygen as soon as it arrived. 16 But at around

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10:00 o'clock P.M. she went into shock and her blood pressure dropped to 60/50. Lydia's unstable condition necessitated her transfer to the San Pablo District
Hospital so she could be connected to a respirator and further examined. 17 The transfer to the San Pablo District Hospital was without the prior consent of
Rowena nor of the other relatives present who found out about the intended transfer only when an ambulance arrived to take Lydia to the San Pablo District
Hospital. Rowena and her other relatives then boarded a tricycle and followed the ambulance. 18
Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room and the petitioner and Dr. Ercillo re-operated on her because
there was blood oozing from the abdominal incision. 19 The attending physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology
Department of the San Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in shock and possibly dead as her blood pressure was
already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo that there was nothing he could do to help save the patient. 20 While the petitioner was closing
the abdominal wall, the patient died. 21 Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced dead. Her death certificate states
"shock" as the immediate cause of death and "Disseminated Intravascular Coagulation (DIC)" as the antecedent cause. 22
In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to conclude that she was indeed negligent in the performance of the
operation:
. . . , the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any contingency that might happen during the
operation. The manner and the fact that the patient was brought to the San Pablo District Hospital for reoperation indicates that there was
something wrong in the manner in which Dra. Cruz conducted the operation. There was no showing that before the operation, accused Dra.
Cruz had conducted a cardio pulmonary clearance or any typing of the blood of the patient. It was (sic) said in medical parlance that the "the
abdomen of the person is a temple of surprises" because you do not know the whole thing the moment it was open (sic) and surgeon must be
prepared for any eventuality thereof. The patient (sic) chart which is a public document was not presented because it is only there that we
could determine the condition of the patient before the surgery. The court also noticed in Exh. "F-1" that the sister of the deceased wished to
postpone the operation but the patient was prevailed upon by Dra. Cruz to proceed with the surgery. The court finds that Lydia Umali died
because of the negligence and carelessness of the surgeon Dra. Ninevetch Cruz because of loss of blood during the operation of the deceased
for evident unpreparedness and for lack of skill, the reason why the patient was brought for operation at the San Pablo City District Hospital.
As such, the surgeon should answer for such negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is no evidence to
indicate that she should be held jointly liable with Dra. Cruz who actually did the operation. 23
The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of "incompetency, negligence and lack of foresight and skill of
appellant (herein petitioner) in handling the subject patient before and after the operation." 24 And likewise affirming the petitioner's conviction, the Court of
Appeals echoed similar observations, thus:
. . . While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence, it nevertheless shows the absence
of due care and supervision over her subordinate employees. Did this unsanitary condition permeate the operating room? Were the surgical
instruments properly sterilized? Could the conditions in the OR have contributed to the infection of the patient? Only the petitioner could
answer these, but she opted not to testify. This could only give rise to the presumption that she has nothing good to testify on her defense.
Anyway, the alleged "unverified statement of the prosecution witness" remains unchallenged and unrebutted.
Likewise undisputed is the prosecution's version indicating the following facts: that the accused asked the patient's relatives to buy Tagamet
capsules while the operation was already in progress; that after an hour, they were also asked to buy type "A" blood for the patient; that after
the surgery, they were again asked to procure more type "A" blood, but such was not anymore available from the source; that the oxygen
given to the patient was empty; and that the son-in-law of the patient, together with a driver of the petitioner, had to rush to the San Pablo
City District Hospital to get the much-needed oxygen. All these conclusively show that the petitioner had not prepared for any unforeseen
circumstances before going into the first surgery, which was not emergency in nature, but was elective or pre-scheduled; she had no ready
antibiotics, no prepared blood, properly typed and cross-matched, and no sufficient oxygen supply.
Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardio-pulmonary clearance, or at least a clearance by
an internist, which are standard requirements before a patient is subjected to surgery. Did the petitioner determine as part of the pre-operative
evaluation, the bleeding parameters of the patient, such as bleeding time and clotting time? There is no showing that these were done. The
petitioner just appears to have been in a hurry to perform the operation, even as the family wanted a postponement to April 6, 1991.
Obviously, she did not prepare the patient; neither did she get the family's consent to the operation. Moreover, she did not prepare a medical
chart with instructions for the patient's care. If she did all these, proof thereof should have been offered. But there is none. Indeed, these are
overwhelming evidence of recklessness and imprudence. 25
This Court, however, holds differently and finds the foregoing circumstances insufficient to sustain a judgment of conviction against the petitioner for the crime
of reckless imprudence resulting in homicide. The elements of reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the
failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that there is inexcusable
lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other
circumstances regarding persons, time and place.
Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be determined according to the standard of care
observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of
treatment or the present state of medical science. 26 In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pascasio, et al., 27 this Court stated that in accepting

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a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ
such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent
doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not
only the standard of care of the profession but also that the physician's conduct in the treatment and care falls below such standard. 28 Further, inasmuch as the
causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is
usually necessary to support the conclusion as to causation. 29
Immediately apparent from a review of the records of this case is the absence of any expert testimony on the matter of the standard of care employed by other
physicians of good standing in the conduct of similar operations. The prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador,
Jr. of the National Bureau of Investigation (NBI) only testified as to the possible cause of death but did not venture to illuminate the court on the matter of the
standard of care that petitioner should have exercised.
All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions such as blood, oxygen, and certain medicines;
the failure to subject the patient to a cardio-pulmonary test prior to the operation; the omission of any form of blood typing before transfusion; and even the
subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it may be true that the circumstances
pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the part of the surgeon, this conclusion is still best arrived at not
through the educated surmises nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or
surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. 30 The deference
of courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are
incapable of intelligently evaluating. 31 Expert testimony should have been offered to prove that the circumstances cited by the courts below are constitutive of
conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. It must be remembered that
when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases he takes the necessary precaution
and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. 32 This presumption is rebuttable by
expert opinion which is so sadly lacking in the case at bench.
Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of provisions; the failure to conduct pre-operation tests on the
patient; and the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner do indicate, even without expert
testimony, that petitioner was recklessly imprudent in the exercise of her duties as a surgeon, no cogent proof exists that any of these circumstances caused
petitioner's death. Thus, the absence of the fourth element of reckless imprudence: that the injury to the person or property was a consequence of the reckless
imprudence.
In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and for a reasonable conclusion of negligence, there
must be proof of breach of duty on the part of the surgeon as well as a causal connection of such breach and the resulting death of his patient. 33 In Chan Lugay
v. St. Luke's Hospital, Inc., 34 where the attending physician was absolved of liability for the death of the complainant's wife and newborn baby, this Court held
that:
In order that there may be a recovery for an injury, however, it must be shown that the "injury for which recovery is sought must be the
legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes." In other words, the negligence must be the proximate cause of the injury. For, "negligence,
no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of ." And "the proximate
cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred." 35 (Emphasis supplied.)
Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows:
Atty. Cachero:
Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-b". There appears here a signature
above the typewritten name Floresto Arizala, Jr., whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-09, the time and place and everything after the post mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm., infraumbilical area, anterior
abdominal area, midline, will you please explain that in your own language?
A. There was incision wound (sic) the area just below the navel, sir.

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Q. And the last paragraph of the postmortem findings which I read: Uterus, pear-shaped and pale measuring 7.5 x 5.5 x
5.0 cm. with some surface nodulation of the fundic area posteriorly. Cut-section shows diffusely pale myometrium with
areas of streak induration. The ovaries and adnexal structures are missing with the raw surfaces patched with clotted
blood. Surgical sutures were noted on the operative site.
Intestines and mesenteries are pale with blood clots noted between the mesentric folds.
Hemoperitoneum: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.,
will you please explain that on (sic) your own language or in ordinary. . . . . . . . . . . .
A. There was a uterus which was not attached to the adnexal structures namely ovaries which were not present and also
sign of previous surgical operation and there were (sic) clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical sutures?
A. Yes, sir.
Q. How about the intestines and mesenteries are place (sic) with blood clots noted between the mesenteric folds, will you
please explain on (sic) this?
A. In the peritoneal cavity, they are mostly perritonial blood . . . . . . . .
Q. And what could have caused this blood?
A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) outside as a result of the injuries which
destroyed the integrity of the vessel allowing blood to sip (sic) out, sir.
Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can you tell the court the cause of death?
A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic shock.
Q. Can you tell the us what could have caused this hemorrhagic shock?
A. Well hemorrhagic shock is the result of blood loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir. 36 (Emphasis supplied.)
The foregoing was corroborated by Dr. Nieto Salvador:

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Q. And were you able to determine the cause of death by virtue of the examination of the specimen submitted by Dr.
Arizala?
A. Without knowledge of the autopsy findings it would be difficult for me to determine the cause of death, sir.
Q. Have you also examined the post mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy report in connection with your pathology report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible with the person who died, sir.
Q. Will you explain to us the meaning of hemorrhagic compatible?
A. It means that a person died of blood loss. Meaning a person died of non-replacement of blood and so the victim before
she died there was shock of diminish of blood of the circulation. She died most probably before the actual complete blood
loss, sir.
Court: Is it possible doctor that the loss of the blood was due on (sic) operation?
A. Based on my pathologist finding, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel may be cut while on operation and
this cause (sic) bleeding, or may be set in the course of operation, or may be (sic) he died after the operation. Of course
there are other cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood replacement?
A. Yes, sir. 37 (Emphasis supplied.)
The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death. However, as likewise testified to by the expert witnesses in
open court, hemorrhage or hemorrhagic shock during surgery may be caused by several different factors. Thus, Dr. Salvador's elaboration on the matter:
Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could be at the moment of operation
when one losses (sic) control of the presence, is that correct? During the operation there is lost (sic) of control of the cut
vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible also to some clotting defect, is that correct?
A. May be (sic). 38 (Emphasis supplied).

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Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would be the possible causes of such
hemorrage (sic)?
A. Among those would be what we call Intravascular Coagulation and this is the reason for the bleeding, sir, which
cannot be prevented by anyone, it will happen to anyone, anytime and to any persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the cutting or the operations done in the body?
A. Not related to this one, the bleeding here is not related to any cutting or operation that I (sic) have done.
Q. Aside from the DIC what could another causes (sic) that could be the cause for the hemorrhage or bleeding in a patient
by an operations (sic)?
A. In general sir, if there was an operations (sic) and it is possible that the ligature in the suture was (sic) become (sic)
loose, it is (sic) becomes loose if proven..
xxx xxx xxx
Q. If the person who performed an autopsy does not find any untight (sic) clot (sic) blood vessel or any suture that
become (sic) loose the cause of the bleeding could not be attributed to the fault of the subject?
A. Definitely, sir. 39 (Emphasis supplied.)
According to both doctors, the possible causes of hemorrhage during an operation are: (1) the failure of the surgeon to tie or suture a cut blood vessel; (2)
allowing a cut blood vessel to get out of control; (3) the subsequent loosening of the tie or suture applied to a cut blood vessel; and (4) and a clotting defect
known as DIC. It is significant to state at this juncture that the autopsy conducted by Dr. Arizala on the body of Lydia did not reveal any untied or unsutured cut
blood vessel nor was there any indication that the tie or suture of a cut blood vessel had become loose thereby causing the hemorrhage. 40 Hence the following
pertinent portion of Dr. Arizala's testimony:
Q: Doctor, in examining these structures did you know whether these were sutured ligature or plain ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the cut structures were tied by first suturing it and then tying a knot or
the tie was merely placed around the cut structure and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because you did not even bothered (sic) to examine, is that correct?
A: Well, I bothered enough to know that they were sutured, sir.
Q: So, therefore, Doctor, you would not know whether any of the cut structures were not sutured or tied neither were you
able to determine whether any loose suture was found in the peritoneal cavity?
A: I could not recall any loose sutured (sic), sir. 41
On the other hand, the findings of all three doctors do not preclude the probability that DIC caused the hemorrhage and consequently, Lydia's death. DIC which is
a clotting defect creates a serious bleeding tendency and when massive DIC occurs as a complication of surgery leaving raw surface, major hemorrhage
occurs. 42And as testified to by defense witness, Dr. Bu C. Castro, hemorrhage due to DIC "cannot be prevented, it will happen to anyone,
anytime." 43 He testified further:
Q. Now, under that circumstance one of the possibility as you mentioned in (sic) DIC?
A. Yes, sir.

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Q. And you mentioned that this cannot be prevented?

A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will tell you whether this patient suffered among such things as DIC?
A. Well, I did reserve because of the condition of the patient.
Q. Now, Doctor you said that you went through the record of the deceased Lydia Umali looking for the chart, the
operated (sic) records, the post mortem findings on the histophanic (sic) examination based on your examination of
record, doctor, can you more or less says (sic) what part are (sic) concerned could have been the caused (sic) of death of
this Lydia Umali?
A. As far as the medical record is concern (sic) the caused (sic) of death is dessimulated (sic) Intra Vascular Coagulation
or the DIC which resulted to hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is knowing (sic) the doctor would say whether the doctor her (sic) has been
(sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on finding they just read the chart as well as the other record.
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the surgeon, sir. 44
This Court has no recourse but to rely on the expert testimonies rendered by both prosecution and defense witnesses that substantiate rather than contradict
petitioner's allegation that the cause of Lydia's death was DIC which, as attested to by an expert witness, cannot be attributed to the petitioner's fault or
negligence. The probability that Lydia's death was caused by DIC was unrebutted during trial and has engendered in the mind of this Court a reasonable doubt as
to the petitioner's guilt. Thus, her acquittal of the crime of reckless imprudence resulting in homicide. While we condole with the family of Lydia Umali, our
hands are bound by the dictates of justice and fair dealing which hold inviolable the right of an accused to be presumed innocent until proven guilty beyond
reasonable doubt. Nevertheless, this Court finds the petitioner civilly liable for the death of Lydia Umali, for while a conviction of a crime requires proof beyond
reasonable doubt, only a preponderance of evidence is required to establish civil liability. 45
The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence this Court was not able to render a sentence of conviction
but it is not blind to the reckless and imprudent manner in which the petitioner carried out her duties. A precious life has been lost and the circumstances leading
thereto exacerbated the grief of those left behind. The heirs of the deceased continue to feel the loss of their mother up to the present time 46 and this Court is
aware that no amount of compassion and commiseration nor words of bereavement can suffice to assuage the sorrow felt for the loss of a loved one. Certainly,
the award of moral and exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.

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WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby ACQUITTED of the crime of reckless imprudence resulting in homicide but
is ordered to pay the heirs of the deceased Lydia Umali the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED
THOUSAND PESOS (P100,000.00) as moral damages, and FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages.
Let a copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate action.
SO ORDERED.

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